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PLEADING   AND   PRACTICE 


HIGH   COURT    OF    CHANCERY. 


PLEADING    AND    PRACTICE 

OF   THE 

HIGH   COURT  OF  CHANCERY. 

BY   THE  LATE 

ED.AIUND    ROBERT    DANIELL, 

Mr 
BARRISTER-AT-LAW ; 

AVITH     THE     SCBSEQUENT     ADDITIONS     AND     IMPROVEMENTS     OF 

THOMAS   EMERSON   HEADLMI,  M.P., 

ONE  OF   HER   MAJESTY'S   COUNSEL; 
AND    THE    STILL    LATER    ADDITIONS,     ALTERATIONS,    AND    IMPROVEMENTS    OF 

LEONARD   FIELD,   EDWARD    C.   DUNN, 

BARRISTERS-AT-LAW;    AND 

JOHN     RIDDLE, 

OF    THE     JIASTER    OF    THE    ROLLS'     CHAMBERS. 

FOURTH    AMERICAN    EDITION. 

with    notes    and    references    to    american    decisions  j    an    appendix    of 

precedents;    and   other   additions    and    improvements, 

adapting   the  work  to   the   demands  of 

AMERICAiS^    PRACTICE    m    CHAIS^CERY. 

By  J.  C.  PERKINS,  LL.D. 
Vol.  I. 


BOSTON: 

LITTLE,   I5R0WN,  AND    COMPANY. 

1871. 


-r 


3)  ;^276p 


',71  t 


Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 

J.    C.    PERKINS, 

In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


camuridge: 
press  of  john  wilson  and  son. 


TO    THE    HONORABLE 

CHAKLES      SUM^EE, 

OF  THE   SENATE  OF  TUE   UNITED    STATES, 

THIS    AMERICAN    EDITION    OF    DANIELL'S    CHANCERY    PRACTICE 

IS    INSCRIBED, 

IH    TESTIMONY    OF    KEGARD    FOR    IIIS    THOROUGH    JURIDICAL 

LEARNING,    ACCOMPLISHED    SCHOLARSHIP,   AND 

GENIHNE    PHILANTHROPY, 

BY 

J.  C.  PERKINS. 


PREFACE  TO  THE  FOURTH  AMERICAN  EDITION. 


The  high  reputation  and  great  popularity  of  Daniell's  Chan- 
cery Practice  in  England  are  clearly  indicated  by  the  rapid  issue 
of  successive  editions  of  the  work  from  the  English  press.  Two 
editions— the  fourth  and  fifth— have  been  published  in  that  coun- 
try since  the  publication  of  the  third  American  edition  in  1865. 
The  intrinsic  merits  of  the  book  have  rendered  it  the  standard  of 
reference  in  English  Chancery  practice.  The  fourth  and  fifth  Eng- 
lish editions  contain  many  additions  to,  and  improvements  upon, 
the  third  English  edition.  Most  of  these  are  too  minute  to  be  speci- 
fied. The  two  most  prominent  changes  consist,  1st.  In  restoring 
to  the  work  Mr.  Daniell's  elaljorate  chaJDter  on  "  Parties,"  nearly 
the  whole  of  which  was  omitted  in  the  third  English  edition,  under 
an  apparent  misapprehension,  existing  at  the  time  of  its  publication, 
that  the  part  omitted  had  become  unnecessary  or  obsolete  in  con- 
sequence of  the  changes  which  had  then  recently  been  made  affect- 
ing that  subject.  This  chapter  was  restored  entire  in  the  third 
American  edition  by  the  American  editor.  It  has  also  been  found 
still  necessary  to  the  work  in  England,  and  has  consequently  been 
restored,  witli  additions  and  improvements,  in  the  fourth  and  fifth 
English  editions.  2d.  In  the  introduction  of  several  new  sec- 
tions, devoted  to  Cross  Bills,  Bills  of  Interpleader,  and  Bills  of 
Review,  —  upon  which  subjects  sections  had  previously  been 
introduced  into  tlie  third  American  edition  by  tlie  American 
editor,  —  and  in  the  addition  of  other  sections  upon  Bills  of  Dis- 
covery, Bills  to  Perpetuate  Testimony,  Bills  to  Impeach  Decrees 
for  Fraud,  and  Bills  to  carry  Decrees  into  Execution,  which  had 
never  Ijcfore  been  pul)lished  in  any  edition  of  the  work.  All  of 
these  are  embraced  in  this  edition. 


vl  rUEFACE    TO   THE    FOURTH    AMERICAN   EDITION. 

FiviiiuMit  references  for  tonns  arc  nuulc  in  these  volumes  to 
"Vol.  HI."  l>y  this  is  inteiuled  a  vohune  of  English  Forms  and 
rrecodcnts  prepared  by  Leonard  Field  and  Edward  Clennell  Dunn, 
Barristers-at-Law,  and  John  Riddle,  of  the  Master  of  the  Rolls' 
Chamlters,  and  issued  as  a  companion  volume  to  the  English  work : 
such  of  these  forms  as  appeared  to  be  useful  for  American  prac- 
tice have  been  included  in  the  third  volume  of  this  edition.  Other 
valuable  forms  have 'been  added. 

The  index  to  the  third  English  edition  was  extremely  meagre. 
A  much  more  copious  index  was  prepared  for,  and  appended  to,  the 
third  American  edition.  The  fourth  English  edition  was  provided 
with  a  vastly  more  abundant  index  than  the  third.  The  extent  of 
this  has  been  still  further  increased  in  the  fifth  English  edition  ;  so 
that  the  index  alone  now  occupies  over  three  hundred  and  fifty 
pages, —  a  small  volume  of  itself.  The  arrangement  is  such,  how- 
ever, that  this  copiousness  creates  no  confusion,  but  on  the  con- 
trary secures  ready  access  to  the  most  minute  details  of  the  work. 
This  index,  thus  amplified  and  improved,  has  been  adopted  and 
followed  by  the  American  editor,  with  only  such  changes  and  addi- 
tions as  have  become  necessary  in  consequence  of  the  additions 
and  changes  made  to  the  text,  and  for  the  purpose  of  facilitating 
reference  to  the  notes  in  the  American  edition. 

In  order  that  no  available  means  of  reference  to  the  contents  of 
these  volumes  should  be  omitted  in  this  edition,  the  editor  has 
retained  the  marginal  or  side  notes,  which  were  omitted  in  the 
third  American  edition :  these,  it  is  confidently  believed,  though 
constituting  a  very  expensive  feature  in  the  publication,  will  be 
found  serviceable  to  the  profession  in  a  corresponding  degree. 

During  the  time  necessarily  consumed  in  the  progress  of  this 
work  through  the  press,  important  decisions  have  been  made  or 
come  to  the  knowledge  of  the  editor,  which  could  be  availed  of  only 
in  the  shape  of  Addenda ;  and,  in  order  that  the  benefit  of  these 
decisions  may  not  be  lost  to  the  edition,  a  department  of  Addenda 
has  been  prepared  and  inserted  in  the  third  volume.  References 
to  it  are  made  in  the  Table  of  Cases,  and  in  the  General  Index. 

The  Table  of  Cases  will  be  found  in  the  third  volume.  In  the 
same  volume  are  the  General  Index  and  the  Index  to  the  Appendix 
of  Forms.  This  arrangement  has  been  adopted,  both  for  the  pur- 
pose of  equalizing  the  size  of  the  different  volumes,  and  also  for 


PREFACE    TO    THE    FOURTH    ASIERICAN    EDITION.  Vll 

the  purpose  of  embodying  all  the  means  and  facilities  for  reference 
in  the  same  volume. 

Over  sixteen  thousand  cases  —  about  ten  thousand  in  the  Eng- 
lish edition,  and  over  six  thousand  additional  in  the  American 
edition  —  have  been  cited  and  referred  to  in  this  work.  It  is 
scarcely  possible  that  errors  have  not  occurred  in  this  multitude  of 
citations ;  but  the  editor  has  endeavored  as  much  as  possible  to 
avoid  them,  and  it  is  confidently  hoped  that  none  of  any  importance 
will  be  found  to  exist. 

For  other  particulars,  the  reader  is  referred  to  the  Preface  to  the 
third  American  edition. 

J.  C.  PERKINS. 
October  1,  1871. 


PREFACE   TO   THE   THIRD  AMERICAN   EDITION. 


This  third  American  edition  of  Daniell's  Chancery  Practice 
is  based  upon  the  third  English  edition  of  the  work,  which  was 
published  after,  and  has  been  adapted  to,  the  great  and  important 
changes  recently  made  by  Acts  of  Parliament,  and  Rules  and  Gen- 
eral Order  of  Court,  in  the  Chancery  Practice  of  Great  Britain. 
In  the  order  of  subjects  treated  in  this  work,  the  first  important 
change  has  been  made  in  regard  to  "  Parties  to  a  Suit."  Hereto- 
fore it  has  been  recognized  in  England,  and,  to  a  great  extent,  in 
the  United  States  still  is  recognized,  as  a  general  principle, "  that 
a  person  seeking  relief  in  Equity  must  bring  before  the  Court  all 
such  parties  as  were  deemed  necessary  to  enable  the  Court  to  do 
complete  justice."  "  That  the  rights  of  all  persons  interested  in 
the  subject-matter  of  the  suit  should  be  bound,  so  that  the  per- 
formance of  the  decree  might  be  perfectly  safe."  But  it  has  re- 
cently been  enacted  in  England,  among  other  provisions,  that 
"  the  Court  may  adjudicate  upon  questions  arising  between  par- 
ties, notwithstanding  that  they  may  be  some  only  of  the  parties  in- 
terested in  the  projjerty  respecting  which  the  question  may  have 
arisen."  And  again,  "  No  suit  shall  be  open  to  objection  on  the 
ground  that  a  merely  declaratory  decree  is  sought  thereby."  The 
general  result  of  the  new  rules  in  reference  to  parties  is,  that  tech- 
nicalities of  all  kinds  are  now  banished  from  the  subject,  and  it 
is  only  necessary,  in  every  suit  in  Et^uity,  to  make  such  persons 
parties  as  are  clearly  and  obviously,  from  the  nature  of  the  case, 
necessary,  namely,  those  against  whom  direct  relief  is  sought ; 
and  even  when  all  the  persons  against  whom  direct  relief  is  sought 
cannot  be,  or,  in  fact,  are  not  brought  before  the  Court,  the  relief 
will,  in  some  cases,  be  modified  and  granted  to  such  an  extent  and 


X  PREFACE    TO    THK    TIIIIJO    AMERICAN    EDITION. 

in  such  form  as  is  consistent  with  justice  in  the  somewhat  defec- 
tive state  of  the  record.^  lint  as  these  rules  have  not  yet  been 
aiiopteil,  to  any  considerable  extent,  at  least  in  the  Chancery  Prac- 
tice of  this  country,  it  has  been  found  necessary  to  retain  in,  or 
restore  to,  this  American  edition  the  former  elaborate  chapter  of 
Mr.  Daniell  on  the  subject  of  i'arties. 

The  comparative  simplicity  of  all  modern  proceedings  both  in 
Endand  and  in  this  country,  which  have  largely  diminished  the 
length  of  time  during  which  suits  in  Chancery  remain  in  Court, 
and  the  facilities  with  which,  according  to  existing  practice,  amend- 
ments are  made  and  defects  remedied,  have  rendered  almost  obso- 
lete some  of  the  divisions  and  subdivisions,  and  many  of  tlie  other 
distinctions  and  refinements  of  former  treatises  on  the  subject  of 
bills.  Some  important  changes  have  been  made  in  England  in  the 
forms  of  bills,  the  advantages  of  which  are  so  obvious,  that  it  may 
be  well  worthy  of  consideration  whether  they  ought  not,  in  whole  or 
in  some  modified  shape,  to  be  adopted  in  this  country.  The  form 
of  a  bill  prescribed  by  the  14th  of  the  General  Orders  of  August, 
185:2,  which  will  be  found  in  the  "  Appendix  of  Forms,"  1912-1914, 
is  a  model  of  brevity,  clearness,  and  precision.  The  bill  is  re- 
quired to  be  printed,  and  in  that  shape  filed  in  Court,  and  a  printed 
copy  of  the  bill  is  also  to  be  served  upon  the  defendant.  It  will  be 
perceived  that  the  form  of  bill  referred  to  differs  from  a  well-drawn 
bill  under  the  former  practice  in  three  important  particulars  ;  name- 
ly, the  numbering  of  the  paragraphs,  the  omission  of  the  interrog- 
atories, and  of  the  prayer  for  process.  As  to  the  interrogatories,  it 
is  peremptorily  enacted  "  that  the  Bill  of  Complaint  shall  not  con- 
tain any  interrogatories  for  the  examination  of  the  defendant." 
But  the  plaintiff  is  at  liberty  to  file  interrogatories  separately  from 
the  bill  for  the  examination  of  any  defendant  from  whom  he  re- 
quires an  answer,  and  no  defendant  is  required  to  answer  the  bill 
unless  interrogatories  are  so  filed,  and  a  copy  of  them  delivered  to 
him  or  to  liis  solicitor.  The  prescribed  form  of  interrogatories  will 
be  found  in  Volume  I.  p.  376.  The  necessity  for  a  prayer  for 
process  is  obviated  by  the  prescribed  mode  of  service,  namely,  by 
a  printed  copy  of  the  bill,  which  has  the  same  effect  on  the  defend- 
ant as  tlie  service  of  a  writ  of  subpcjsna. 

But  although  the  form  of  a  bill  is  thus  made  more  simple  un- 
der the  present  English  practice,  all  the  material  and  substantial 

1  See  Palmer  v.  Stevens,  100  Mass.  461. 


PREFACE    TO    THE    THIRD    AMERICAN    EDITION.  xi 

parts  are  still  necessary,  and  are  elaborately  treated  as  heretofore 
in  these  volumes. 

The  service  of  a  printed  copy  of  the  bill  is  to  be  made  in  the 
same  manner  and  with  the  same  effect  as  the  service  of  a  sub- 
poena, and  the  rules  applicable  to  the  service  of  the  one  are  alike 
applicable  to  the  service  of  the  other. 

Until  tlie  Act  15  &  16  Yict.  c.  86,  amending  the  practice  of  the 
Court  of  Chancery,  the  general  mode  of  examining  witnesses  in 
Equity  was  by  interrogatories  m  writing,  exhibited  by  the  party 
plaintiff  or  defendant,  or  directed  by  the  Court  to  be  proposed  to 
or  asked  of  the  witnesses  in  a  cause,  touching  the  merits  thereof 
or  some  incident  therein.  This  practice  has,  however,  been  almost 
entirely  abolished  in  England,  and  a  new  system  substituted  in  its 
place  by  recent  statutes  and  orders  of  court. 

Under  the  somewhat  plenary  powers  conferred  upon  the  Judges 
by  the  above  Act  of  Parliament,  it  was  directed  by  the  Orders  of 
June,  1854,  that  the  plaintiffs  and  defendants  respectively  should 
be  at  liberty  to  transfer  their  cases  respectively,  either  wholly  or 
partially  by  affidavit,  or  wholly  or  partially  by  the  oral  examina- 
tion of  witnesses  before  an  examiner.  By  this  Act  particular  pro- 
visions were  made  both  for  the  mode  of  taking  testimony  by  affi- 
davit and  that  of  taking  it  by  oral  examination,  the  substance  of 
which,  so  far  as  they  related  to  the  mode  of  taking  evidence  by 
oral  examination  before  an  examiner,  was  adopted  by  the  Supreme 
Court  of  tlie  United  States  in  March,  1862,  by  an  amendment  of 
the  67th  Equity  rule  of  tliat  Court.  This  amended  rule  is  still  in 
force  in  that  Court,  although  it  has,  by  the  General  Orders  of  Feb- 
ruary, 1861,  been  abrogated  to  a  great  extent  in  England. 

But  under  this  amendment  testimony  may  still  be  taken  in  cer- 
tain cases  in  the  old  form,  upon  written  interrogatories  and  cross- 
interrogatories  ;  and,  as  this  latter  method  is  still  in  use  in  some 
otlicr  courts  in  the  Uiiited  States,  it  has  been  thought  expedient 
to  preserve  the  subi^tance  of  that  part  of  the  work  pertaining  to  it. 

It  is  not  known  to  the  American  editor  that  the  English  mode 
of  taking  testimony  Ijy  affidavit  lias  been  adopted  anywhere  in  this 
country. 

■  In  addition  to  these  modes  of  adducing  testimony,  it  is  provided, 
by  the  Act  of  Parliament  referred  to,  that  "  tlie  Court  may,  u|)oii 
the  hearing  of  any  cause,  if  it  shall  sec  fit  to  do  so,  rc(|uirc  the 
production  and  oral  examinatijDn  before  itself  of  any  witness  or 
party  in  the  cause." 


Xii  PREFACE    TO    THE     rillKD    AMERICAN    EDITION. 

This  power  conferred  ii})OU  the  Court  of  requiring  tlie  i)roduc- 
tion  and  oral  examination  of  witnesses  before  itself  has  opened  the 
way  for  the  adoption,  in  the  new  series  of  General  Orders  of  Feb- 
ruary, 1801,  of  some  important  rules  of  practice  in  regard  to  the 
t-i"ra  voce  examination  of  witnesses  in  some  cases,  and  the  oral 
cross-examination  and  re-examination  of  deponents  and  witnesses 
and  parties  in  others,  before  the  Court  itself  at  the  hearing  of  the 
cause.  Under  these  General  Orders,  the  Court  has  very  much 
limited  and  restrained  the  right  of  parties  to  require,  by  notice  or 
otherwise,  that  the  evidence  in  chief,  to  be  used  at  the  hearing  of 
a  cause,  shall  be  taken  orally  ;  while  it  has  at  the  same  time  very 
carefully  fostered  and  regulated  the  mode  of  taking  testimony  by 
aftidavit ;  to  which  end,  except  as  to  matters  in  reference  to  which 
evidence  in  chief  is  to  be  taken  viva  voce  at  the  hearing,  each 
party  in  a  cause  in  which  issue  is  joined  shall  be  at  liberty  to 
verify  his  case  either  wholly  or  partially  by  afhdavit,  or  wholly  or 
partially  by  the  oral  examination  of  witnesses  ex  parte  before  an 
examiner,  no  party  having  a  right  to  be  present  at  the  taking  of 
such  ex  parte  examination  except  the  party  producing  the  wit- 
ness, his  counsel,  solicitor,  and  agents,  and  every  examination  so 
taken  ex  parte  is  deemed  to  be  an  affidavit. 

Under  Rule  3  of  the  General  Orders  above  cited,  "  in  any  cause, 
in  which  issue  is  joined,  the  plaintiff"  or  any  defendant  may  apply 
to  the  Judge  in  chambers  for  an  order  that  the  evidence  in  chief 
as  to  any  facts  or  issues  (such  facts  and  issues  to  be  distinctly  and 
concisely  specified)  may  be  taken  viva  voce  at  the  hearing,  and 
the  Judge  may  make  an  order  that  the  evidence  in  chief  as  to  such 
facts  and  issues,  or  any  of  them,  shall  be  taken  viva  voce  at  the 
hearing  accordingly  ;  and  where  any  such  order  shall  have  been 
made,  the  examination  in  chief,  as  well  as  the  cross-examination 
and  re-examination,  shall  be  taken  before  the  Court  at  the  hear- 
ing as  to  the  facts  and  issues  specified  in  such  order."  To  this  ex- 
tent, at  least,  the  practice  in  England  at  the  present  time  seems  to 
approach  the  system  wliich  prevails  in  Massachusetts,  of  taking 
the  evidence  in  Equity  proceedings  in  the  same  manner  as  in  suits 
at  Law.  This  mode  of  proceeding  seems  to  be  well  adapted  to  the 
trial  of  that  class  of  facts  and  issues  which  were  formerly  directed 
to  be  tried  by  a  jury  in  a  Court  of  Common  Law,  but  which  under 
the  Chancery  Amendment  Act  the  Court  itself  has  the  power  to 
determine  ;   and  for  the  trial  of  thai  class  of  facts  and  issues  this 


PREFACE    TO    THE    THIRD    AMERICAN    EDITION.  XUl 

mode  of  examining  witnesses  orally  at  the  hearing  may  have  been 
chiefly  intended.  In  other  cases  the  practice  of  taking  testimony 
orally  before  the  Court  at  the  hearing  goes  no  further  than  to  the 
oral  cross-examination  and  re-examination  of  deponents,  witnesses, 
and  parties  who  have  given  their  affidavits  in  some  of  the  forms 
allowed. 

I  have  been  led  to  these  observations  upon  the  different  methods 
of  taking  testimony  in  Equity  causes,  for  the  reason  that  the  sub- 
ject itself  is  not  exceeded  in  importance  and  difficulty  by  any  other 
branch  of  Chancery  Practice.  The  failure  of  the  Court  in  Eng- 
land, with  the  power  conferred  upon  it,  in  these  frequent  changes 
to  adopt  for  all  cases  the  same  method  of  taking  testimony  in 
Equity  which  is  pursued  at  Law,  indicates  a  settled  conviction 
that  the  method  which  is  so  well  adapted  to  the  latter  cannot  in 
general  be  applied  to  the  former,  or,  at  least,  only  so  far  as  certain 
facts  and  issues  arising  in  Equity  hearings  are  of  the  same  general 
character,  and  present  themselves  in  the  sa,me  general  shape  as  in 
trials  at  Law. 

By  recent  statute  in  England  the  office  of  Master  in  Chancery 
has  been  abolished,  and  the  business  formerly  conducted  in  the 
Master's  Office  is  now  transacted  under  the  more  immediate  direc- 
tion and  control  of  the  Judges  of  the  Court.  "  Proceedings  in  the 
Judges'  Chambers  "  have  taken  the  place  of  "  Proceedings  in  the 
Master's  Office."  But  as  no  such  change  has  been  made  in  this 
country,  and  the  "  Master's  Office  "  still  exists  here,  the  chapter  in 
the  former  editions  of  Daniell  relating  to  "  Proceedings  in  the 
Master's  Office"  has  in  substance  been  retained,  and  some  addi- 
tions have  been  made  to  it,  namely,  in  regard  to  the  rules  of 
accounting  between  mortgagor  and  mortgagee,  and  between  part- 
ners. And  as  a  large  amount  of  the  business  in  Courts  of  Equity 
in  the  United  States  is  done  at  chambers,  the  chapter  in  the  new 
English  edition  relating  to  proceedings  in  the  Judges'  Chambers 
has  been  retained  in  this  American  edition,  in  a  separate  form,  so 
far  as  it  is  not  included  in  the  chapter  on  "  Proceedings  in  the 
Master's  Office." 

And  it  may  be  added,  generally,  that  in  all  cases  where  the 
recent  clianges  in  English  practice  have  caused  the  omission  of 
any  part  of  the  former  editions  of  Daniell,  which  has  been  found  to 
be,  and  still  is,  uscfnl  in  American  practice,  the  editor  has  been 
careful  to  restore  it  or  supply  tlic  omission  of  that  part  iu  some 


xiv  I'KKFACK    TO    THIO    THIRD    AMERICAN    EDITION. 

Other  way  ;  aiul  no  part  of  the  last  English  edition  of  Daniell  has 
been  omitted  which  bears  upon  the  present  practice  in  the  Ameri- 
can Courts  of  Chancery,  or  which  may  furnish  models  for  future 
changes  here,  if  found  desirable. 

The  notes  to  this  edition  have  been  combined  and  made  homo- 
geneous with  the  notes  of  the  English  edition. 

An  entirely  new  feature  in  this  work  is  the  Appendix  of  Forms. 
The  introduction  of  this  Appendix  has  considerably  increased  the 
size  of  the  volumes  beyond  what  was  originally  contemplated.  It 
has  been  supplied  by  the  American  editor  because  of  the  desire 
often  expressed  that  such  an  addition  should  be  made,  and  be- 
cause it  is  believed  that  it  will  be  of  great  practical  value  to  the 
work. 

Part  I.  of  the  Appendix  contains  a  large  collection  of  forms  of 
Bills,  wliieli  have  been  taken,  part  from  Tripp's  Book  of  Forms, 
which  has  been  published  in  England  since  the  new  Chancery  sys- 
tem has  been  adopted  there,  some  from  the  Equity  Draftsman, 
others  from  Willis,  and  many  have  been  collected  by  the  compiler 
from  the  records  of  the  Circuit  Court  of  the  United  States  for  the 
District  of  Massachusetts,  and  from  the  records  of  the  Supreme 
Judicial  Court  of  Massachusetts. 

Part  II.  consists  of  forms  of  the  various  modes  of  defence  to 
suits  in  Equity,  and  otlier  miscellaneous  forms,  namely,  of  Demur- 
rers, Pleas,  Answers,  Replications,  Notices  of  Motion,  Petitions 
and  Motions,  Affidavits,  and  Summonses.  These  have  been  selected 
generally  from  Tripp's  and  Willis's  Books  of  Forms,  and  from  the 
records  of  courts. 

Part  III.  contains  a  full  collection  of  forms  of  Decrees,  taken 
partly  from  the  last  English  edition  of  Seton,  in  two  volumes,  pub- 
lished in  England  in  1862,  and  also  from  the  reports  of  Chancery 
cases  in  England  and  America,  and  from  the  records  of  the  courts. 
The  importance  of  a  correct  and  well-drawn  decree,  compared  with 
other  proceedings  in  a  cause,  is  hardly  to  be  over-estimated.  Upon 
this  subject  Mr.  Seton  remarks  as  follows  :  "  The  judgments  of  the 
Courts  of  Law  are  usually  simple  in  their  form  ;  but  the  decrees  of 
tlie  Courts  of  Equity,  from  the  nature  of  the  relief  given  by  them, 
the  number  of  the  parties  often  interested  iji  the  suit,  the  various 
questions  to  be  determined  and  circumstances  to  be  dealt  with,  are 
generally  much  more  complicated. 

"  In  the  separate  .branches,  however,  of  equitable  jurisdiction. 


PREFACE    TO    THE    THIRD    AMERICAN   EDITION.  XV 

the  forms  of  the  decrees  and  orders  by  which  the  Court  gives  effect 
to  its  determinations,  are  generally  well  established,  and  for  the 
most  part  uniform  ;  and  upon  this  ground  they  are  usually  referred 
to  as  regulating  the  practice,  and  elucidating  the  law  and  procedure 
of  the  Court. 

"  The  great  utility  of  consulting  them,  and  the  advantages  of 
adhering  to  the  settled  and  well-understood  forms  and  language  of 
the  Court,  have  been  repeatedly  adverted  to  by  some  of  its  most 
eminent  judges. 

"  The  forms  of  decrees  may  be  also  useful  with  a  view  to  fram- 
ing bills,  the  prayer  of  the  bill  being  that  part  upon  which  the 
frame  of  it  principally  depends,  and  the  decree  being  obviously  the 
best  guide  to  the  prayer." 

In  matters  of  reference,  the  order  or  decree  therefor  contains  the 
only  authority  which  the  Master  may  exercise,  and  the  parties  can- 
not go  beyond  its  express  directions  in  their  inquiries  before  him. 
The  forms  of  decrees  or  orders  for  this  purpose  are  useful,  not  only 
in  showing  what  may  be  referred,  but  also  in  giving  the  form  of 
language  in  which  the  subjects  of  reference  may  most  correctly  be 
expressed. 

As  to  final  decrees,  they  are  the  authoritative  source  from  which 
the  matters  settled  by  the  Court  are  to  be  ascertained,  both  for  the 
enforcement  of  the  determination  of  the  Court  in  the  particular 
case,  and  for  invoking  it  as  a  plea  or  defence  in  any  other  suit  that 
may  be  brought  for  the  same  matter.  It  is  hoped  that  the  consul- 
tation of  the  forms  here  presented  may  conduce  to  accuracy  and 
uniformity  in  the  framing  of  decrees.  It  will  of  course  be  under- 
stood that  considerable  alterations  have  been  necessary  in  the 
forms  of  decrees  collected  from  other  sources  than  professed 
books  of  forms.  They  have  been  found  so  variant  in  shape  and 
expression  that  no  approach  to  uniformity  could  otherwise  be 
attained. 

Tiie  editor  has  added  to  the  Appendix  an  entire  collection  of  the 
Rules  of  Practice  for  the  Courts  of  Equity  of  the  United  States, 
adopted  and  promulgated  by  tlie  Supreme  Court.  The  general  body 
of  those  rules  was  adopted  in  January,  1842  ;  the  remainder  are 
all  those  that  have  been  adopted  Ijy  way  of  amendment  or  other- 
wise since  that  time.  No  otlier  full  collection  of  them  is  known  to 
exist  in  any  otlicr  publication.  Tiicsc  rules  are  in  use,  and  form  a 
part  of  the  system  of  Equity  practice  in  every  judicial  circuit  of 


Xvi  TKEFAOE    TO    TIIK    THIRD   AMERICAN    EDITION. 

the  United  States,  ;uul  (hoy  have  been  constantly  cited  and  referred 
to  in  this  work. 

With  those  oxphmations,  these  volumes  are  respectfully  submit- 
ted to  the  indulgence  of  those  for  whose  use  the  labor  of  preparing 
thoni  has  boon  undertaken. 

J.  C.  PERklNS. 
Decembeu  1,  1865. 


PREFACE   TO   FOURTH  ENGLISH  EDITION. 


In  preparing  the  fourth  edition  of  Daniell's  Chancery  Prac- 
tice, the  endeavor  of  the  editors  has  been  to  alter  as  little  as 
possible  the  original  text  of  a  work  which  has  attained  so  high  a 
reputation,  but,  at  the  same  time,  to  make  the  present  edition 
a  correct  text-book  of  the  existing  practice  of  the  Court ;  and  al- 
though it  has  appeared  to  them  that  the  plan  of  the  work  might  in 
some  respects  be  amended,  they  have  (except  in  some  few  in- 
stances) considered  it  better  not  to  alter  an  arrangement  with 
which  most  practitioners  in  the  Court  are  well  acquainted. 

The  substance  of  the  General  Orders  and  Acts  of  Parliament 
affecting  the  practice  of  the  Court  (with  the  exception  of  the 
Winding-up  Acts,  which  seemed  rather  fitted  for  a  separate 
treatise)  has  been  stated  ;  and  in  the  second  volume  will  be 
found  a  full  description  of  the  practice  on  trials  by  jury. 

A  companion  volume,  containing  precedents  of  pleadings,  and 
forms  of  all  the  proceedings  in  use  in  the  Court,  with  references 
to  the  Practice,  and  which  will,  it  is  hoped,  prove  useful  to  both 
branches  of  the  profession,  is  in  active  preparation.  It  will  be 
published,  as  a  separate  work,  shortly  after  the  completion  of  the 
second  volume. 

Tlie  cases  have  been  added  to  the  time  of  publication.  Great 
care  has  been  taken  to  insure  correctness  in  the  references,  and 
the  editors  hope  that  in  this  respect  few  errors  of  importance  will 
be  found. 

Tlic  thanks  of  the  editors  are  due  to  Mr.  II.  Cadman  Jones  for 
the  use  of  his  valuable  notes,  and  to  many  other  members  of  the 
bar  for  tlicir  kind  assistance,  and  also  to  many  of  the  officers  of 
the  Court  for  information  as  to  the  practice  in  their  various  de- 
partments. 

Tlic  proof-sheets  have  been  read  by  Mr.  Braitliwaite,  of  the 
Record  and  Writ  Clerks'  Office,  whose  assistance  has  been  of 
great  utility. 


PREFACE  TO  FIFTH   ENGLISH   EDITION. 


In  preparing  tliis  edition  of  Daniell's  Chancery  Practice,  the 
editors  have  spared  no  labor  to  render  it  deserving  of  a  continu- 
ance of  the  favor  with  which  the  fourth  edition  was  received. 

The  work  has  been,  for  a  considerable  time,  out  of  print,  and 
this  edition  was  ready  for  the  press,  and  wcnild  have  been  pub- 
lished at  a  much  earlier  date,  had  it  not  been  delayed  in  conse- 
quence of  the  proposed  re-arrangement  of  the  Consolidated  and 
General  Orders  of  the  Court. 

The  Statutes,  General  Orders,  and  Cases  subsequent  to  the  last 
edition,  and  affecting  the  subject  of  the  work,  have  been  noticed ; 
but  tlie  geiKjral  plan  and  arrangement  have  not  been  altered. 

The  editors  return  their  thanks  to  their  friends  of  the  Chancery 
Bar,  who  have  made  some  useful  suggestions,  and  pointed  out 
some  errors  in  the  fourth  edition.  It  is  not  to  be  expected  that 
a  work  containing  so  many  references  should  be  free  from  errors, 
but  the  editors  have  endeavored  to  render  them  as  few  as 
possible. 

The  editors  also  return  their  thanks  to  several  officers  of  the 
Court  for  information  as  to  the  practice  in  their  several  de- 
partments. 

The  proof  sheets  have  been-  read  by  Mr.  Braithwaite,  of  the 
Record  and  Writ  Clerks'  Office,  and  by  Mr.  Upjohn,  of  the  Master 
of  the  Rolls'  Chambers,  whose  assistance  has  been  of  great  value. 

Lincoln's  Inn,  November,  1870. 


CONTENTS. 


VOLUME    I. 


CHAPTER  I. 

THE    COMMENCEMENT   OF  A   SUIT    .    . 


PAQE 

1-4 


CHAPTER  II. 

PERSONS   BY   WHOM   A   SUIT   MAY   BE   INSTITUTED. 

Sect.  I.  The  Queen's  Attorney-General 5-16 

II.  Foreign  Governments  and  .States 17-20 

III.  Corporations  and  Joint-Stock  Companies ,    .  20-26 

IV.  Persons  residing  out  of  the  jurisdiction 27-36 

V.  Paupers 37-44 

CHAPTER  m. 

SUITS  BY  PERSONS  WHO    ARE   UNDER   DISABILITY. 

Sect.  I.  Generally 45 

II.  Aliens 45—53 

III.  Persons  attainted  or  convicted 63-58 

IV.  Bankrupts 58-66 

V.  Infants 66-82 

VI.  Idiots,  lunatics,  and  persons  of  unsound  mind '  82-86 

VII.  Married  women 87-128 


CHAPTER  IV. 
PERSONS   AGAINST    WHOM  A   SUIT   MAY  BE  INSTITUTED. 

Sect.  T.  Generally 12li-l::(l 

II.  The  Queen's  Attorney-General 130-140 

III.  Foreij;n  Governments,  States,  and  Amhassadora 141-142 

IV.  Corporations  and  .Joint-Stock  Companies 1  ).!-l  1.^ 

V.  Persons  out  of  the  jurisdietion  of  the  Court 14'.i~l.')t 

VI.  Paupers 154-1.56 

VII.  Persons  outlawed,  attainted,  or  convicted 156 

VIII.  Bankrupts 157-160 

I.X.  Infants 160-175 

X.  Idiots,  lunatics,  and  persons  of  unsound  mind 175-178 

XI.  Married  women 178-18'J 

VOL.   I.  c 


XX  CONTENTS. 

CHAPTER   V. 
PARTIES    TO    A    SUIT. 

PAUE 

Ski  T.  I.  Xocessary  iiartios,  in  respect  of  the  concurrence  of  tluir  interests 

with  tliat  of  tlio  jilaintitr l'JO-245 

II.  Parties  to  a  suit,  in  ri'spect  of  their  interest  in  resisting  the  de- 

nnnuls  of  the  phiintitf 246-286 

III.  Objections  for  want  of  parties 286-2'.>5 

IV.  .loiniier  of  uninterested  parties 205-304 


CHAPTER  VI. 
THE    BILL. 

Sect.  I.  Tlie  different  sorts  of  bills 305-306 

11.  The  authority  to  file  the  bill 306-311 

III.  Bv  whom  prepared 311-313 

IV.  The  matter  of  the  bill 313-365 

V.  The  form  of  the  bill 355-391 

Generally 355-357 

1.  Address  of  the  bill 357 

2.  Names  and  addresses  of  the  plaintiffs 357-360 

3.  Statins  part 360-372 

4.  Charge  of  confederacy 372 

5.  Charging  part 372-374 

6.  Interrogating  part 374-377 

7.  The  prayer  for  relief 377-389 

8.  Prayer  for  process 389-391 

VI.  In  what  cases  the  bill  must  be  accompanied  by  an  affidavit     .     .  392-396 

VII.  Printing  and  filing  the  bill 396-407 

VIII.  Amending  the  bill 401-422 


CHAPTER  VII. 

PROCESS  BY  SERVICE  OF  A  COPY  OF  THE  BILL  ON  FORMAL  DE- 
FENDANTS, AND  PROCEEDINGS  BY  SERVICE  OF  NOTICE  OF 
THE  DECREE. 

Sect.  I.  Process  by  service  of  a  copy  of  the  bill  on  formal  defendants    .     .     428-432 
II.  Proceedings  by  service  of  notice  of  the  decree 432-438 


CHAPTER   Vni. 

PROCESS  TO  COMPEL,  AND  PROCEEDINGS  IN  DEFAULT  OF, 
APPEARANCE. 

Sect.  I.  Service  of  the  copy  of  the  bill 439-456 

II.  Proceeding.s  when-  no  service  of  a  copy  of  the  bill  can  be  effected    456-460 

III.  Proceedings  by  the  plaintiff,  where  service  of  the  copy  of  the  bill 

has  been  eflc-cted 400-4^2 

IV.  Against  particular  defendants 472-479 


CHAPTER  IX. 

INTF.RIJOGATORIES   FOR   THE   EXAMINATION   OF   THE   DE- 
FENDANTS   IN    ANSWER   TO    THE   BILL 480-487 


CONTENTS.  XXI 


CHAPTER  X. 

PROCESS    TO   COMPEL,   AXD   PROCEEDINGS   IN    DEFAULT   OF, 

ANSWER. 

PAGE 

Sect.  I.  Against  defendants  not  privileged,  nor  subject  to  disability  .     .     .  488-496 

II.  Against  particular  defendants 496-504 

III.  Etiect  of  a  contempt  upon  the  proceedings  in  the  cause  ....  504-507 

IV.  In  what  manner  contempts  in  jjrocess  mav  be  cleared,  waived,  or 

discharged ' 507-513 

V.  Process  by  filing  a  traversing  answer,  or  traversing  note  .     .     .     .    513-516 


CHAPTER   XI. 

TAKING   BILLS   PRO    CONFESSO. 

Sect.  I.  Preliminary  order 517-525 

II.  Hearing,  decree,  and  subsequent  proceedings 525-532 

CHAPTER  Xn. 

THE    DEFENCE    TO   A   SUIT 533-535 

CHAPTER  XHI. 

APPEAR^VNCE 536-541 

CHAPTER  XIV. 

DEMURRERS. 

Sect.  I.  The  general  nature  of  demurrers 542-546 

IL  The  different  jxrounds  of  demurrer 547-584 

III.  Tlie  form  of  demurrers 585-591 

IV.  Filing,  setting  down,  and  hearing  demunx-rs 591-597 

V.  The  effect  of  allowing  demurrers 597-599 

VI.  The  effect  of  overruling  demurrers 000-002 

CHAPTER  XV. 

PLEAS. 

Sect.  I.  The  general  nati:re  of  pleas 003-625 

II.  The  different  grounds  of  pleas 625-081 

in.  Form  of  pleas 081-089 

IV.  Swearing,  filing,  setting  ilown,  and  arguing  pleas <j89-090 

V.  Allowing  pleas 090-099 

VI.  Saving  tiie  benefit  of  a  plea  to  the  hearing ()99-7(K) 

VII.  (Jriiering  a  plea  to  stand  for  answer 7(X)-7()1 

VIII.  Overruling  pleas 701-703 

IX.  Amending  pleas,  and  pleading  (A;  Hora 703-705 

CIIAPTKU   XVI. 

DISCLAIMERS 700-710 


CONTENTS. 


CIIArTKll    XVII. 

ANSWERS. 

Sect.  I.  General  nature  of  answers 

II.  Form  lit"  answers 

III.  Swciirinii',  tiling,  and  printing  answers  .     . 

IV.  Kxeeptions  to  answers • 

V.  Fnrtlier  answers  —  answers  to  amended  bills 

VI.  Amending  answers —supplemental  answers 
VII.  Taking  answers  ott'  the  tile  .     .     .     .     •     • 
VIII.  From  what  time  answer  deemed  sufficient 


PAOE 

711-7-J9 
T2'.)-V',S 
788-7r)8 

758-774 
775-777 
777-78-4 
784-78G 
78G 


CHAPTER   XVIII. 

THE    JOINDER   OF    SEVERAL  DEFENCES 787-789 

CHAPTER  XIX. 

DISMISSING    BILLS,    OTHERWISE    THAN    AT    THE    HEARING,    AND 
STAYING   PROCEEDINGS. 

Sect.  I.  Generally 790-801 

II.  For  want  of  proseeution 801-812 

III.  Where  the  suit  has  abated,  or  become  otherwise  defective    .    •.     .  812-815 

IV.  Cases  of  election •     •  815-818 

CHAPTER  XX. 
MOTION  FOR   A   DECREE 819-827 

CHAPTER   XXI. 

REPLICATION 828-835 


CHAPTER   XXII. 

EVIDENCE. 

Sect.  I.  Admissions 886-841 

II.  The  onus  probandl 849-857 

III.  Confined  to  matters  in  issue 862-865 

IV.  Of  the  effect  of  a  variance 860-869 

V.  Documentar}'  evidence  which  proves  itself 862-872 

VI.  Documentary  evidence  which  does  not  prove  itself 874-880 

VII.  Proving  exhibits  at  the  hearing  under  an  order 881-881 

VIIL  Who  uuiy  be  witnesses 885-883 

IX.' Maimer  of,  and  time  for,  taking  evidence 887-892 

X.  AtHdavits,  and  ex  parte  examinations  before  an  examiner     .     .     .  891-904 

XI.    1 7w2  foce  evidence 903-925 

XII.  Interrogatories 920-921 

XIII.  Examination  of  witnesses  by  the  examiner  on  interrogatories  .     .  926-930 

XIV.  Examination  of  witnesses  cle  bene  esse 932-946 

XV.  Demurrers  by  witnesses 942-942 

XVI.  Publication 945-951 

XVII.  Supi)ression  of  depositif)n8 ' 950-955 

XVIII.  Re-examination  of  witnesses 952-950 

XLY.  Examination  of  witnesses  after  publication 955-961 


THE 


PRACTICE 


THE  HIGH  COURT  OF  CHANCERY 


CHAPTER  I. 


THE    COMMENCEMENT    OF   A    SUIT. 


The  practice  of  the  Court  of  Chancery,  and  of  its  various  offices,  Practice  of 
is  regiUated  by  rules  laid  down  in  Acts  of  Parliament,  in  the  Gen-  ^^office^blv 
eral  Orders  of  the  Court,  passed  or  promulgated  from  time  to  time,  wiiat  regu- 
in  the  Regulations  of  the  Judges  for  the  conduct  of  business  in 
their  chambers,  and  of  the  Registrars  of  the  Court  respecting  the 
transaction  of  business  in  their  office  ;  and  by  custom  or  usage,  to 
he  ascertained  generally  from  former  decisions  of  the  Court ;  ^  the 
decisions  of  the  Court  are  also  important  in  determining  the  con- 
struction to  be  put  upon  the  Acts  of  Parliament,  General  Orders, 
and  Regidations. 

It  will  be  the  object  of  this  Treatise  to  explain  the  practice  of  Object  of  the 
the  Court,  in  reference  to  its  equitable  jurisdiction. 


work. 


1  "  Ancient  and  uniform  practice  con- 
stitutes the  law  of  the  Court,  as  much 
as  a  positive  order,"  per  Lord  Eldon, 
2  Mer.  2. 

The  practice  of  the  English  Court  of 
Chancery  forms  the  basis  of  (lie  l",f|uity 
practice  of  the  (jourts  of  the  I'liited  States. 
Per  Story  J.,  in  Smith  v.  liurnham,  2 
Sumner.  <;12,  025. 

JJy  the  IJules  of  Practice  for  the  Courts 
of  Kfiuity  of  tlic  United  States  it  is  pro- 
vided that  in  all  ca'-es  where  the  rules 
prescribed  by  the  Sujireine  Court,  or  by 
the  Circuit  Court,  do  not  ap|>l_v,  the  prac- 
tice of  the  Circuit  Court  slmll  be  ref^ul.ited 
by  the  present  prai-lirc  of  IIk;  Hif;h  (,'ourt 
of  ( 'hancery  in  luinland,  so  far  as  the  same 
may  reasuuably  be  a|)plied  cont-isicntiy 
with  the  local  circumstances  and  local  con- 
venience of  the  I)i^lri(t  where  the  Court 
is  held,  not  as  positive  rules,  but  as  fur- 
nishing; just  analogies  to  regulate  the 
practice.  Rule  90,  see  Clark  v.  Hevbnrn, 
8  Wallace  U.  S.  318,  323.     In  Siiunders  i'. 

VOL.    I. 


Frost,  5  Pick.  272,  Wilde  J.  said  :  "  We  do 
not  adopt  the  English  rules  of  practice  in- 
discriminately, but  only  as  they  apjiear 
reasonable  and  conformable  to  the  spirit 
of  onr  sj-stem  of  jurisprudence  and  general 
rules  of  practice." 

I'nder  the  "  Rules  for  the  Kegulation  of 
Practice  in  Chancery  in  Ma.ssachusetts," 
promulgated  in  18g6,  the  Court  adopted, 
as  the  outlines  of  their  i)ractice,  the  ])rac- 
tice  of  the  ITi;;li  Courts  of  Chancery  in 
iMigland,  so  far  as  tlie  same  was  not  reuuf:;- 
nant  to  tlic  Coiistitutloii  and  laws  of  tlic 
Commonwealth,  n<ir  to  such  rules  of  prac- 
tice as  the  Courts  liad  made,  or  from  time 
to  time  might  make.  Rule  38.  In  other 
States  the  same  has  been  adopted  as  the 
basis  of  their  Chancery  practice.  See  Ihir- 
rall  I'.  ICames,  5  A\'is."2()0:  West  v.  Pai^e, 
1  Slockt.  (N.  .1.)  2().'J.  lint  the  revised 
"  Rules  for  the  Regulation  of  Practice  in 
Chancery"  for  Mass.  of  1870,  are  silent 
upon  this  subject. 


TIIK    COMMENCEMENT    OF    A    SUIT. 


Cn.  I. 

— y 


Eiifflish  bill. 


Intbrmation. 


A  suit  on  till'  Kiiuity  s'nlc  ol'tlic  C\)urt  of  Clumcory,  on  bchnH'of 
a  subjoct,  is  ordinarily  coiiinu'iiced  by  preferring  a  i)etition,  con- 
tainino;  a  statement  of  the  i)laintift*'s  case,  and  praying  the  relief 
which  lie  considers  himself  entitled  to  receive.^  This  petition  is 
called  in  the  old  books  an  Eiu/Ush  Bill  by  way  of  -distinction 
from  the  proceedings  in  suits  within  the  ordinary  or  connnon-law 
jnrisdiction  of  the  Court,^  which,  till  the  statute  of  4  Geo.  II.  c. 
26,  were  entered  and  enrolled,  more  anciently  in  the  French  or 
Norman  tongue,  and  afterwards  in  Latin  ;  whereas  bills  in  Chan- 
cery Averc,  from  very  early  times,  preferred  in  the  English  lan- 
guage.^ The  bill  is  addressed  to  the  Lord  Chancellor,  Lord 
Keeper,  or  Lords  Commissioners  for  the  custody  of  the  Great 
Seal:*  unless  the  seals  are  in  the  Queen's  hands,  or  the  holder 
thereof  is  himself  a  i)arty,'^  in  which  case  the  bill  is  addressed  to 
the  Queen  herself,  in  her  Court  of  Chancery.'^ 

If  the  suit  is  instituted  on  behalf  of  the  Crown,  or  of  those  who 
partake  of  its  prerogative,  or  whose  rights  are  under  its  particular 
protection,  such  as  the  objects  of  a  public  charity,  the  matter  of 
complaint  is  offered  to  the  Court,  not  by  way  of  i)etition,  but  of 
information,'  by  the  proper  officer,  of  the  rights  which  the  Crown 
claims  on  behalf  of  itself  or  others,  and  of  the  invasion  or  deten- 
tion of  those  rights  for  which  the  suit  is  instituted.*     This  pro- 

1  As  to  the  value  of  the  subject-matter, 
see  Old.  IX.  1. 

2  As  to  the  procedure  on  the  common- 
law  side  of  the  Court,  see  12  &  13  Vic.  c. 
109;  and  Orders  of  29  Dec,  1848,  and 
3  Aug;.,  1><49,  Chitty's  Arch.,  1741:  and 
post,  Chap.  XXXIX.    §  7,  Rectivers. 

3  See  Ld.  Red.  8.  1  Spence  Eq.  Jur. 
368;  Story  Eq.  Pi.  §  7.  There  are  some 
bills  in  early  times  in  the  French  lan- 
guag;e:  See  Cal.  Proc.  Chan.,  printed  by 
Public  Pee.  Com.,  1827,  Cited  Ld.  Ped. 
8.  n.  (o). 

*  Ld.  Red.  7,  8;  As  to  Lords  Commis- 
sioners, see  Hardy's  Life  of  Ld.  Langdale, 
vol.  2.  p   258,  et  seq. 

5  See  Lord  Keeper  v.  Wyld,  1  Vern.  139; 
Coop.  Eq.  PI.  23. 

6  Ld.  Ped.  7.  In  Massachusetts,  cases 
in  Equity  may  be  commenced  by  bill  or 
petition,  with  a  writ  of  siibpuaui,  accord- 
ing to  tlie  usual  course  of  proceedings  in 
Equity,  or  inserted  in  an  orioinal  writ  of 
summons,  or  of  summons  and  attachment, 
or  hy  a  declaration  in  an  action  of  con- 
tract or  tort,  as  the  ease  may  be,  with  or 
without  an  order  for  the  attachment  of  the 
property  or  arrest  of  the  defendant.  If  a 
discovery  is  sought,  it  may  be  by  such 
bill  or  petition,  or  by  being  made  part  of 
such  declaration,  or  bv  interrogatories. 
Genl.  Sts.  c.  113,  §§  3,  4.  "Had  the 
statute  omitted  to  prescribe  any  form  of 
process,  or  to  give  any  autlmrit}'  to  the 
Court  to  make  one,  the  bill  as  used  in 
England  in  Chancery  proceedings,  and 


the  proceedings  under  it  as  there  practised, 
would  necessarily  have  been  adopted  here; 
for  it  would  be  presumeil  that  the  Legisla- 
ture, having  given  juris(ii<'li()n,  intended 
it  should  be  exercisi'd  accurding  to  the 
most  approved  forms  in  that  country 
which  had  been  the  source  from  which 
this  and  other  States  in  the  Union  had 
derived  their  principles  and  practice  in 
the  administration  of  justice;  and  it  was 
without  doubt  expected  that  the  Court 
liere,  on  prescribing  writs  and  processes 
to  carry  into  execution  this  new  jurisdic- 
tion, would  conform  to  those  which  had 
been  established  in  England,  as  near  as 
would  be  consistent  witli  tliat  prompt  ad- 
ministration of  justice  which  it  was  desir- 
able to  attain."  Per  Parker  C  J.  in 
Commonwealth  v.  Sumner,  6  Pick.  365, 
360.  An  action  of  contract,  praying  for 
relief  in  Equity  is  to  be  treated  as  a  suit 
in  Equity.  Topliff  v.  Jackson,  12  Gray, 
505;  Irvin  v.  Gregorv,  13  Gray,  215. 

I5y  a  recent  Act  in  Massachusetts,  the 
Superior  Court  and  the  Supreme  .Judicial 
Court  may,  in  their  discretion,  and  upon 
such  terms  as  they  may  deem  just,  allow 
amendments  changing  a  suit  at  Law  into  a 
roceediiig  in  Equity,  or  a  proceeding  in 
"quity  into  a  suit  at  I^aw,  if  the  san»e  be 
necessary  to  enable  the  [)hiintilf  to  sustain 
the  action  for  the  cause  for  which  it  was 
intended  to  be  brought.     St.  1865,  c.  179, 

§1- 

7  Ld.  Red.  7. 

8  Ld.  Red.  22;  Story  Eq.  PI.  §  8. 


proc 
En  u 


THE    COMMENCEMENT    OF    A    SUIT. 

ceeding  is  then  styled  an  Information.      The  rules  of  practice    ^_^^-  ^■ 
iijcidental  to  these  two  methods  of  instituting  a  suit  in  Equity 
differ  so  little  from  each  other  that,  in  the  ensuing  Treatise,  what 
is  said  with  respect  to  the  one  may  be  considered  as  applicable  to 
both,  unless  where  a  distinction  is  specifically  pointed  out. 

Where,  however,  the  reUef  sought  to  be  obtained  is  the  adminis-  Administra- 
tration  of  the  estate  of  a  deceased  person,  a  summary  and  inexpen-  j^ons"™'  • 
sive  practice  has  been  established  by  the  Act  to  Amend  the  Practice 
of  the  Court  of  Chancery,^  which  provides  that,  in  cases  of  this 
description,  without  either  formal  pleading,  or  any  direct  applica- 
tion to  the  Court  itself,  a  summons  may  at  once  be  obtained  at  the 
chambers  of  the  Master  of  the  Rolls,  or  of  a  Yice-Chancellor,  and 
an  order  be  made  on  the  hearing  thereof  to  administer  the  estate. 
Where,  also,  it  is  sought  to  obtain  the  appointment  of  a  guardian 
for  an  infant,  or  an  allowance  out  of  his  property  for  his  mainten- 
ance, the  application  may  be  made  by  summons.- 

Af>-ain,  under  an  Act  of  Parliament,^  for  which  the  public  are  Special  case. 
indebted  to  the  Lord  Justice  Turner,  a  very  convenient  form  of 
application  to  the  Court  has  been  provided  for  cases  where  the 
parties,  agreeing  upon  the  facts  that  form  the  foundation  of  their 
claims,  are  desirous  of  obtaining  a  judicial  decision  upon  the  con- 
struction of  an  instrument,  or  upon  almost  any  point  of  law  result- 
ing from  the  admitted  facts.  In  cases  of  this  description,  the 
parties  are  enabled,  without  going  through  any  forms  of  pleadings, 
at  once  to  submit  the  case  that  they  have  agreed  upon  for  the 
decision  of  the  Court. 

The  several  forms  of  proceeding  enumerated  above  relate  to  the  Applications 
original  jurisdiction  of  the  Court,  and  are  different  means  by  which  i^rnainrnt.*^^ 
the  suitor  may  call  into  exercise  some  portion  of  that  original 
jurisdiction  in  his  behalf  There  are  a  great  number  of  Acts  of 
Parliament  —  many  of  them  of  recent  enactment  —  under  which 
statutory  powers  are  conferred  upon  the  Court.  Many  of  these 
Acts  point  out  the  particular  mode  by  which  relief  thereunder  is 
to  be  souglit  from  the  Court ;  and  it  may  be  stated,  as  a  general 
rule,  that  a  jterson  seeking  the  aid  of  the  statutory  jurisdiction 
must  commence  by  presenting  a  petition,  whi(;h  differs  in  some 
important  particulars  from  the  bill  above  mentioned,  and  is  not 
regarded  as  the  commencement  of  a  formal  suit.* 

1  16  &  16  Vic.  0.  80,  §§  45,  47.  prayed  for,  excoi)t  where  some   difTercnt 

2  See  p(>sl.»,  Cli.   XXIX.  §  2,  Proceed-       i)rovision  is  made  by  law,  mid  may  issue 
in(j»  in  llie  Jwlf/es'  Chumbers  (  /ii/auts).  all  f^encTal  and  .sppcinl  wri's  and  processes 

'^  13  &  14  Vic.  c.  3'i,  §§  1-18.  n'<|uir('d  in  proc('edinj.;s  in  luinitv  to  Courts 

*  Tlie    (general    Iviuity    jinisdiction    in  of  mrcrior  jurisdiction,  corporations,   and 

Ma«sn(:hii-cils  i'*  contVrrt'd  npon  tlic  Su-  individuals,  when  necessary  to  secure  J  u.s- 

preiiie  .ludicial  Court,  whiiii  ii;ts  orifiinal  lice   and  equity,     (ieni    Sts.  c.  ll.'i,  §  1. 

and  exclusive  juriMliction  ftf  every  orit^i-  Cases  in    JMiuity,  and  motions  and  other 

nal  process,whclher  l)y  hill,  writ,  petition,  Ri)i>lications  tiierein,  whether  iiiterlmuiory 

or  otlierwise,  in  wiiich  relief  in  Kquity  is  or  liiial,  shall  iu  the  first  iubtuncc  he  heard 


THE    COMMENCEMENT    OF    A    SUIT. 


Cu.  1. 


Course 
proposed. 


All  tlu'so  (lilU'ri'iit  inotluxls  of  originating  apiilifat ions  to  tlio 
.Court  of  Chancery  lead  to  somewhat  ditterent  proceedings  in  the 
subsequent  stages  of  tlie  case,  and  which  it  will  he  the  object  of 
this  Treatise  to  exphiin.  As  a  jmh  liniinary  stcj),  however,  it  will 
be  convenient  to  j)oint  out  the  peculiarilies  of  practice  incident  to 
diifcrent  descriptions  of  persons  a]i])earing,  either  as  ])laintirts 
themselves  to  obtain  relief  from  the  Couit,  or  as  defendants  to 
resist  the  applications  of  others. 


and  defcimined  by  one  justice  of  the  Su- 
pvenu'  .ludiciiil  Court.  §  (3.  For  lieiiriiij^s, 
and  making,  entering,  and  modifying  or- 
ders and  decrees  in  Equity  cnii'^es,  by  a 
single  justice,  and  issuing  writs  in  sucli 
causes,  tlie  Court  shall  be  al\va3'S  ojien  in 
each  county,  except  on  holidays  estab- 
lished by  law.  And  the  Court  shall  es- 
tablish rule-days  for  the  transaction  of  the 
business  pertaining  to  the  jurisdiction  in 
Ecjuity.  §  7.  A  single  justice,  or  the  full 
Court,  sitting  in  one  county,  may,  when 
needful,  hear  and  determine  cases  pend- 
ing in  another  count}',  and  any  motion 
therein.  And  all  orders  and  decrees  made 
at  such  hearings  shall  be  transmitted  to 
the  cleik  in  the  proper  county,  to  be  by 
him  entered.  §  18.  The  Justices  of  the 
Court  shall,  from  time  to  time,  by  arrange- 
ment ainonn;  themselves,  designate  some 
one  of  their  number  to  attend  at  some 
convenient  place  in  Boston,  at  all  conven- 
ient times,  for  the  purpose  of  hearing 
matters  m  Equity,  who,  by  his  rescript, 
ma\'  make  decrees  and  orders  in  Equity 
suits  in  anj''  county.  §  24.  The  Court 
may  make  rules  regulating  the  practice, 
and  conducting  the  business  of  the  Court 


in  matters  of  Equity,  so  as  to  simplify  tho 
proceedings,  discourage  delays,  lessen  the 
cx]ieiises  and  burdens  of  litigation,  and 
cxpeilite  the  decision  of  causes.  §  26. 

Under  the  above  authorit}'  for  estab- 
lishing rule-days,  it  is  provided  by  Rule  3 
of  the  Massachusetts  "  Rules  for  the  Regu- 
lation of  Practice  in  Chancery  "  (1870)  that 
"  there  shall  he  rule  days  on  the  first  Mon- 
day of  each  month,  in  all  the  counties  ex- 
cept Duke's  County,  for  the  return  of 
process  and  the  entry  of  all  proceedings  and 
orders  which  may  he  taken  at  the  rules." 

In  New  York,  the  jurisdiction  of  Equitj', 
part  of  which  was  to  exercise  its  powers 
at  all  times,  has  devolved  upon  the  Su- 
preme Court.  A  justice  of  that  Court, 
then,  may  hear  a  petition  in  Chambers  in 
those  matters  where  the  usage  of  the 
Chancellor  was  so  to  do.  Wilcox  v.  '\Yil- 
cox,  14  N.  Y.  575. 

In  regard  to  the  jurisdiction  of  the 
Court  of  Chancery,  in  Vermont,  see 
(Uieever  v.  H.  &  B."  R.R.  Co.,  .39  Vt.  654. 
In  Maine,  see  Androscoggin  &  Kennebec 
R.R.  Co.  V.  Androscoggin  R.R.  Co.,  49 
Maine,  392. 


CHAPTER  II. 


PERSONS   BY   \\TIOM   A    SUIT   MAT    BE    INSTITUTED. 


Section  I.  —  The  Queen^  Attorney-  General. 

It  is  a  general  rule,  subject  to  very  few  exceptions,  that  there  is 
no  sort  or  condition  of  persons  who  may  not  sue  in  the  Court  of 
Chancery,  and  this  rule  extends  fi'om  the  highest  person  in  the 
State  to  the  most  distressed  j^aupcr. 

The  Queen  herself  has  the  same  right  which  a  subject  has  to 
institute  proceedings  in  her  own  Courts  for  the  assertion  of  any 
right  which  she  claims,  either  on  behalf  of  herself  or  others ;  and 
the  same  principles  wliich  entitle  a  subject  to  the  assistance  of  a 
Court  of  Equity  to  enable  him  to  assert  his  legal  rights,  are 
equally  applicable  to  the  Sovereign.  Thus  a  suit  has  been  insti- 
tuted on  behalf  of  the  Queen  to  have  the  benefit  of  a  discovery, 
from  persons  charged  to  be  aliens,  of  the  place  of  their  birth,  in 
order  to  assist  her  in  a  commission  to  inquire  into  their  lands, 
with  the  view  of  seizing  them  into  her  hands  by  inquisition.^ 
For  the  same  reason,  where  an  office  cannot  be  found  for  the 
Crown  without  the  aid  of  a  Court  of  Equity,  the  Court  will,  at 
the  suit  of  the  Crown,  interfere  to  restrain  the  commission  of 
waste  in  the  mean  time.- 

It  has  been  said,  that  the  Queen  is  not  bound  to  assert  her 
rights  in  any  particular  Court,  but  that  she  may  sue  in  any  of  her 
Courts  which  she  pleases,  without  reference  to  the  question 
whether  tlie  sul)iect-matter  of  her  suit  is  such  as  comes  within 
the  peculiar  jurisdiction  of  such  Court.^  Tluis  she  may  have  a 
quare  impedit  in  the  Queen's  Bench,^  or  she  may  elect  to  sue 
either  in  a  Court  of  Common  Law,  or  in  a  Court  of  Equity.® 
Upon  an  accurate  examination,  however,  of  the  cases  that  have 
given  rise  to  these  general  assertions  of  the  rights  of  tlie  Crown, 
it  a[)pears  tliat  equitable  groumls  were  alleged  in  each  c:ise  for 
instituting  the  proceedings  in  Chancery.  It  seems,  nevertheless, 
to  be  true,  that  the  Queen  may   jiroceed,  in  questions  rilating  to 


1  Du  IMcHsis  V.  Attorney-General,  1  IJro. 
P.  C  e<l.  Tonil.  415,  419. 

2  Attorney-(J('neral  v.  Du  Plessis,  2  Ves. 
§  280.  As  to  ollke  found,  gee  now  22  & 
23  Vic.  c.  21,  §  25. 

3  n  Kep.  OS  15;  ib.  75  A;  Plowdcn, 
236,  240,  244. 


■•  11  Kep.  08  15. 

^  Tlie  Kinj;  v.  Countess  Dowager  of 
Arundel,  llolj.  100;  Attorney-Ciencral  v. 
Vernon,!  Vern.  277,  .'J"0;  2  Cli.  I{.  HoS; 
1  I'.ii.  ("a.  Al).  75,  pi.  1;  l.'i.'J,  pi.  10;  and 
see  tile  cases  cited  S  licav.  2b3,  and  the 
Judgment,  p.  2«7. 


All  persons 
may  sue  in 
Equity. 


The  Queeu 
entitled  to  the 
assistance  of 
a  Court  of 
Equitj' : 


may  sue  m 
any  Court. 


PERSONS    BY    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


Cii.  II.  §  1. 


Informations 
rclatinsi  to 
the  lands  and 
revenues  of 
the  Crown 
were  usually 
filed  in  the 
Court  of  Ex- 
chequer till 
5  Vic.  c.  5 ; 


Attorney- 
General  V. 
Corporation 
of  London,  as 
tojurisdiction 
of  Court  of 
Chancerj'  in 
revenue 
matters. 


tlu'  ])n)|>i'rly  lo  wliicli  slu'  is  ontitU'<l  in  vi<j;ht  of  lior  Crown,  either 
ii\  a  Convl  of  L:\\\  or  in  a  Court  of  K(iiiity  ;  and  tliat  where  she 
has  caused  a  Conrt  of  Equity  to  be  informed  that  an  intrusion  has 
heen  ooniniitted  on  her  huid,  altliouu:h  no  matter  of  equitable 
jurisdiction  has  been  stated,  yet  the  information  lias  been  enter- 
tained :  but  in  such  cases,  if  any  question  of  law  arises,  the  Court 
will  j)ut  it  in  the  course  of  trial  by  a  Court  of  Law,  and  retain  the 
hiformalion  till  the  residt  of  such  trial  is  known.^ 

As  a  general  rule,  suits  on  behalf  of  the  Crown  are  instituted 
in  the  Court  which,  by  its  constitution,  is  most  properly  adapted 
to  the  case,2  and  the  Court  of  Exchequer  being  the  general  Court 
for  all  business  relating  to  the  Queen's  revenue  or  pro]>erty,  the 
practice  has  been  to  institute  there  all  proceedings  relating  to  the 
property  of  the  "Crown.  By  the  5  Vic.  c.  5,  §  1,  however,  it  is 
enacted,  "that  on  the  15th  day  of  October,  1841,  all  the  power, 
authority,  and  jurisdiction  of  her  Majesty''s  Court  of  Exchequer  at 
Westminster  as  a  Court  of  Equity,  and  all  the  power,  authority, 
and  jurisdiction  which  shall  have  been  conferred  on  or  committed 
to  the  said  Court  of  Exchequer  by  or  under  the  special  authority 
of  any  Act  or  Acts  of  Parliament  (other  than  such  power,  au- 
thority, and  jurisdiction  as  shall  then  be  possessed  by,  or  be  inci- 
dent to,  the  said  Court  of  Exchequer  as  a  Court  of  Law,  or  as 
shall  then  be  possessed  by  the  said  Court  of  Exchequer  as  a  Court 
of  Revenue,  and  not  heretofore  exercised  or  exercisible  by  the 
same  Court,  sitting  as  a  Court  of  Equity),  shall  be,  by  force  of 
this  Act,  transferred  and  given  to  her  Majesty's  High  Court  of 
Chancery,  to  all  intents  and  purposes,  in  as  full  and  ample  a  man- 
ner as  the  same  might  have  been  exercised  by  the  said  Court 
of  Exchequer,  if  this  Act  had  not  passed." 

The  construction  of  the  Act  afterwards  came  before  Lord  Lang- 
dale  M.  K.  in  the  case  of  The  Attorney- General  v.  The  Corpora- 
tion of  London,^  when  his  Lordship  said  he  thouglit  "  the  almost 
unavoidable  construction  of  the  Act  made  it  so  operate,  as  to  leave 
to  the  Court  of  Exchequer  every  thing  that  was  not  exercised  or 
exercisible  by  that  Court  as  a  Court  of  Equity,  and  to  transfer  to 
the  Court  of  Chancery  all  that  was  exercised  or  exercisible  by  the 
Court  of  Exchequer  as  a  Court  of  Equity."  It  appears,  as  the  result 
of  that  case,  that,  in  the  opinion  of  Lord  Langdale,  in  all  matters 
affecting  the  rights,  property,  and  revenue  of  the  CroAvn,  the  Court 
of  P^xchequer,  sitting  on  the  Equity  side,  had,  before  the  Act,  a 
jurisdiction,  notwithstanding  the  Crown  might,  in"  the  particular 

1  Attornev-General  to  the  Prince  of  tion;  but  in  certain  specified  cases  Equity 
Wales  V.  Sir  J.  St.  Aubyn,  Wiglitw.  107,  powers  are  conferred  upon  the  Superior 
and  the  cases  there  cited;  see  also  Attor-  Court;  and,  to  a  limited  extent,  I'robate 
ney-General  v.  The  Mayor  of  Plymouth,  Courts  m;\y  hear  and  determine  matters 
jtl.  134.  in  relation  to  trusts  created  by  will. 

2  In  Massachusetts,  the  Supreme  Judi-  3  g  Beav.  270,  285. 
cial  Court  has  the  general  Equity  jurisdic- 


THE    QUEENS    ATTORNEY-GENERAL. 


cases,  have  had  a  legal  remedy,  and  that  this  jurisdiction  has  by 
the  Act  been  transferred  to  the  Court  of  Chancery ;  and  that,  by 
virtue  of  that  transfer,  the  Crown  is  now  enabled,  in  matters  of 
revenue  dependent  upon  legal  rights,  to  sue  in  the  Court  of  Chan- 
cery, even  thoiigh  there  would  be  no  jurisdiction  in  similar  cases 
between  subject  and  subject.  The  decision  in  this  case  was 
aflfirmed  by  the  House  of  Lords;  but  their  lordships  carefully 
avoided  determining  this  question,  as  to  which  they  expressed 
great  doubt.^  In  whatever  way  this  question  may  be  ultimately 
decided,  it  has  been  held  by  the  Court  of  Exchequer  that  it  still 
retains  an  equitable  jurisdiction  in  matters  of  revenue.-  Where 
the  Court  of  Chancery  would  have  jurisdiction,  as  between  sub- 
ject and  subject,  it  seems  clear  that  the  Crown  may  file  an  informa- 
tion in  that  Court  for  an  account.^ 

In  all  cases  where  the  rights  of  the  Queen,  or  of  those  who 
partake  of  her  prerogative,  are  the  subject  of  the  suit,  the  name 
of  the  Queen  is  not  made  use  of  as  the  party  complaining,  but  the 
matter  of  complaint  is  offered  to  the  Court  by  way  of  information 
giveu  by  the  proper  officer.  That  officer,  if  the  information  is 
exhibited  in  any  of  the  Superior  Courts  at  Westminster,  is  the 
Attorney-General,  or  if  the  office  of  Attorney-General  should 
•happen  to  be  vacant,  the  Solicitor-General.* 

Besides  the  cases  in  which  the  immediate  rights  of  the  Crown 
are  concerned,  the  Queen's  officers  may,  in  some  cases,  institute 
proceedings  on  behalf  of  those  who  claim  under  the  Crown,  by 
grant  or  otherwise ;  or,  more  correctly  speaking  those  who  claim 
under  the  Crown  may  make  use  of  the  Queen's  name,  or  of  that  of 
her  proper  officer,  for  the  jjurpose  of  asserting  their  right  against 
a  third  party.  Thus  a  diose  in  action  may  be  assigned  to  the 
Queen,  and  may  also  be  gi-anted  or  assigned  by  her  to  another 
person  ;  and,  in  the  latter  case,  the  grantee  may  either  sue  for  it 


Cn.  n.  §  1. 


The  Attor- 
nej'-General, 
or  if  no  Attor- 
ney-General, 
the  Solicitor- 
General  sues 
on  behalf  of 
the  Crown  in 
the  Superior 
Courts. 


Of  informa- 
tions where 
the  Crown  is 
not  immedi- 
ately con- 
cerned : 

on  behalf 
of  Cro-v^Ti's 
grantee  of 
a  chuse  in 
action; 


1  1  n.  L.  Ca.  410. 

2  Attornev-(ieneral  v.  Ilallinp,  15  M. 
&  W.  C87,  700;  Attorney-General  v.  Ilal- 
lett,  id.  97;  H  Beav.  288,  n.  but  see  Attor- 
ney-General V.  Kingston,  C  Jur.  loo,  Kq. 
The  procedure  in  suits  by  information  in 
the  Court  of  Kxchequer  relating  to  the 
revenues  of  the  Crown  is  now  regulated 
bv  "  The  Crown  Suits  Act,  1865  "  (28  &  2'J 
Vic.  c.  104),  tind  Meg.  Gen.  Exch.  14tli 
March,  IhGO;  L.  li.  1  Ex.  389;  12  Jur.  N. 
S.  P.  II.  182. 

8  Attoniev-General  v.  f^dmunds,  I^. 
R.  6  Kq.  381^  392,  V.C  G. ;  and  sec  Attor- 
ney-General )'.  Corporation  of  London,  1 
H.  L.  Cas.  440;  see  aNo  the  case  of  York 
Building  (Vimpiiny. 

■«  Ld.  H<'d.  7,21.22;  Wilkes's  cnBC,  4 
Burr.  2527;  Story  ?:q.  PI.  §  49;  1  Smith 
Ch.  Pr.  99,  ino. 

Kigiits  purely  public  are  to  be  enforced 


in  the  name  of  the  State,  or  the  officer  in- 
trn>ti'd  with  the  conduct  of  public  .suits. 
Smith  c.  Comm.  of  Butler  County,  6  Ohio, 
101. 

While  the  office  of  Attorney-General  was 
abolished  in  Massachusetts,  most  of  the 
duties  of  that  officer,  which  were  not  re- 
quired to  l)e  performed  I)}'  him  personiilly, 
hu\'ing  been  distributed  iimong  and  vested 
in  tiie  |)istrict  Attorneys,  iis  the  local  prose- 
cuting officers,  Mr.  ( 'hiet-.Iustice  Shaw  said 
he  was  "strongly  inclined  to  the  opinion 
that  the  tiling  ot  an  information  in  Equity 
w:is  not  a  duty  which  the  Attorney-(!en- 
eriil  WMs  rcqnjred  to  do  personally;  that 
duty  would  have  vested  in  a  Solicitor- 
General,  if  lliere  had  been  one;  it  was 
nccessiirily  incident  to  the  office  of  At- 
t'lrnev-ticneral,  and  was  vesteil  in  the 
District-.Mtonieys  in  their  respective  dis- 
tricts."    Parker  r.  May,  0  Cush.  340. 


PEUSONS    BY    WIIOIM    A    SUIT    MAY    BE    INSTITUTED. 


Cu.  II.  5  1. 


on  hchalf  of 
the  Queen, 
as  supreme 
head  of  the 
Church; 


as  parens 
patricf,  for 
charities.  &c. 


in  liis  own  nnnic,  or  in  that  of  the  Qnoeii  ;^  btit  if  ho  sues  in  his 
own  n:inu',  ho  must  make  the  Attorney-Gonoral  a  i)arty  to  his  suit. 
Thus,  wlioro  A.,  having  outlawed  B.,  brought  ii  bill  against  C,  a 
trustee  for  !>.,  with  rc^poot  to  an  annuity,  to  subject  this  annuity 
to  the  plaintiff's  debt;  and  the  Court  hold,  that  forasmuoh  as  by 
the  outlawry  all  the  defendant's  interest,  as  well  equitable  as  legal, 
Avas  vested  in  the  Crown,  the  plaintift"  must  not  only  get  a  grant 
thereof  from  the  CroAvn,  but  nuist  make  the  Attorney-General  a 
party  to  the  suit.'- 

luforuuitions  may  also  be  exhibited  by  the  Attorney-General,  or 
other  proper  officer,  in  support  of  the  rights  of  those  whose  pro- 
tection devolves  upon  the  Crown  as  supreme  head  of  the  Church. 
Thus,  the  Queen,  as  supreme  head  of  the  Chin'ch,is  the  ])roper  guar- 
dian of  the  temi)oralities  of  the  bishoprics  ;  and  an  information  may, 
therefore,  be  brought  by  the  Attorney-General  to  stay  waste  com- 
mitted by  a  bishop.^ 

In  like  manner,  the  Attorney-General  may  exhibit  informations 
on  behalf  of  individuals  who  are  considered  to  be  under  the  pro- 
tection of  the  Crown  ^^  parens  patrice :  such  as  the  objects  of 
general  charities,*  idiots,  and  lunatics.^  Moreover,  this  privilege  of 
the  Attorney-General  is  not  confined  to  suits  on  behalf  of  charities 
strictly  so  called,  but  has  been  held,  in  many  instances,  to  extend, 
to  cases  where  funds  have  been  made  applicable  to  legal  and 
general  purposes.®  The  rule  in  such  cases  appears  to  be,  "that 
where  property  affected  by  a  trust  for  public  purposes,  is  in  the 
hands  of  those  who  hold  it  devoted  to  that  trust,  it  is  the  privilege 
of  the  public  that  the  Crown  should  be  entitled  to  intervene  by 
its  officer,  for  the  purpose  of  asserting,  on  behalf  of  the  public 
generally,  that  public  interest  and  that  public  right  which  pro- 
bably no  individual  could  be  found  willing  effectually  to  assert, 
even  if  the  interest  were  such  as  to  allow  it."  ' 

tion  of  Lichfield,  11  Beav.  120;  Attorney- 
General  V.  Corporation  of  Norwich,  16 
Sim.  225,229;  Attorney-Genor.il  u.  Guar- 
dians of  Southaniiiton,  17  Sim.  7,  13;  At- 
torney-General V.  Eastliike,  11  Hare.  205; 

17  Jur.  801;  Attorney-General  v.  Mayor 
of  Wigan,  Kay,  268;  5  De  G.  M.  &  G.  52; 

18  Jur.  299:  Attorney-General  v.  West 
Hartlpool  Improvement  Commissioners, 
W.N.  (1870)  107;  18  AV.  R.  685,  V.  C.  G.; 
L.  U.  10  Eq.  152. 

7  Per  Sir  J.  L.  Knight  Bruce,  V.  C.  in 
Attorney-General  v.  Compton,  1  Y.  &  0.  C. 
417,  427.  In  Massachusetts  under  Genl. 
Sts.  c.  14,  §  20,  the  -Attorney-General  is 
required  to  enforce  the  due  ai>i)lication 
of  funds  given  or. appropriated  to  puldic 
charities  within  the  State,  and  i)revent 
breaches  of  trust  in  the  administration 
thereof.  The  power  of  the  Attorney- 
General  or  public  prosecutor  to  institute 
a  proceeding  for  the  enforcement  of  a 
public  charity,  is  a  common-law  power, 


1  Dyer,  1  PI.  7,8;  Keilw.  169 ;  5  Bac.  Ab. 
tit.  Prerog.  F.  3;  Miles  v.  Williams,  1  P. 
Wms.  249,  252 ;  Earl  of  Stafford  v.  Buck- 
ley, 2  Ves.  S.  170,  181. 

2  Balch  V.  Wastall,  1  P.  Wms.  445; 
Hay  ward  v.  Fry,  id.  446;  see  also  Kex  v. 
Fowler,  Bunb.  38. 

3  Knight  I'.  Mosely,  Amb.  176;  Wither 
V.  D.  &  C.  of  Winchester,  3  Mer.  421,  427; 
Jefferson  v.  Bishop  of  Durliara,  1  Bos.  & 
Pull.  129,  131. 

*  See  Attorney-General  v.  Clergy  So- 
cietj',  8  Kich.  Eq.  (S.  C.)  190;  Wright  v. 
Trustees  of  Metli.  Epis.  Churcli,  1  Hoff. 
Ch.  It.  202;  2  Kent  (11th  cd.)-285-288,  4 
id.  507. 

5  See  Norcom  v.  Rogers,  1  C.  E.  Green 
(N.  J.),  484. 

6  Attorney-General  v.  Brown,  1  Swanst. 
265;  Attorney-General  v.  Corporation  of 
Shrewsbury,  C  Beav.  220,  227;  Evan  v. 
Corporation  of  Avon,  29  Beav.  144 ;  0  Jur. 
N.  S.  1301;  Attorney-General  v.  Corpora- 


THE    QUEENS    ATTORNEY-GENERAL.  V 

Suits  on  behalf  of  idiots  and  lunatics  are  usually  instituted  by     Ch.  ii.  §  i. 
the  committees  of  their  estates ;  but  sometimes,  where  there  has  ^ 

been  no  committee,  or  where  the  interest  of  the  committee  was  on  behalf  of 
likely  to  clash  with  that  of  the  persons  whose  estates  were  under  lunatks; 
his  care,  informations  have  been  exhibited  on  their  behalf  by  the 
Attorney-General,  as  the  officer  of  the  Crown. ^  Wliere  informa- 
tions have  been  filed  on  behalf  of  persons  found  lunatic,  but  who 
have  had  no  committee  appointed,  the  Court  will  proceed  to  give 
directions  for  the  care  of  the  property  of  the  lunatic,  and  for 
proper  proceedings  to  obtain  the  appointment  of  a  cqmmittee.- 
Persons  incapable  of  acting  for  themselves,  though  not  coming 
under  the  desci-iption  of  idiots  or  lunatics,  have  been  peimitted  to 
sue  by  their  next  friend,  without  the  intervention  of  the  Attorney- 
General.^ 

It  seems  that  when  an  information  is  filed  on  behalf  of  a  limatic,  umatic  must 
he  must  be  named  as  a  jaarty  to  the  suit,  and  that  merely  naming  ^^  ^  party,     . 
him  as  a  relator  will  not  be  sufficient ;  *  a  distinction,  however, 
appears  to  be  taken  between  cases  where  the  object  of  the  suit 
is  to  avoid  some  transaction  of  the  lunatic,  on  the  ground  of  his 
incapacity,  and  those  in  which  it  is  merely  to  affirm  a  contract 
entered  into  by  him  for  his  benefit,  or  to  assert  some  claim  on  his  unless  to 
behalf.^     In  the  former  case   it  was  held,  that  the  lunatic  ought  ^'•'"^'-^  ^'*  °^^'" 

'  "         acts; 

not  to  be  named  as  plaintiff,  because  no  man  can  be  heard  to 
stultify  himself;  if  he  is  named,  however,  it  Avill  be  no  ground 
for  demurrer.^  The  reason  for  making  a  lunatic  a  party  in  pro- 
ceedings of  this  nature  appears  to  be,  that  as  no  i^erson  can  be 
bound  by  a  decree  in  a  suit  to  which  he,  or  those  under  whom  he 
derives  title,  are  not  parties,  and  as  a  lunatic  may  recover  his 
understanding,  the  decree  will  not  have  the  effect  of  binding  liim 
unless  he  is  a  party  to  the  suit ;  and  upon  the  same  principle  it  is 
held,  that  where  a  suit  is  instituted  on  behalf  of  the  lunatic  by  his 
committee,  tlie  committee  must  be  named  as  a  co-jilaintifi',  in  order 
that  the  riglit  which  the  committee  acquires  in  the  hmatic's  estate, 
by"  virtue  of  the  grant  from  the  Crown,  may  be  barred.'     The 

incident  to  tlie  office.     Parker  v.  May,  5  2  Attorney-General  v.  Howe,  Lil.  Red. 

Cusli.  .130,  .338,  per  Shaw  C.  .J.   See  ■\Vrif,'ht  30.  n.  (m). 

V.  Tlie  Trustees  of  the  .Meth.  Epis.Cluircli,  3  Liiiey  r.   Wctherlev,  Ld.   Red.  30.  n. 

1  Hoir.  Ch.  i:.  202;  2  Kent  (11th  ed.),28.'i-  (n);  Light  v.  Lipht,  25  Beav.  248;  West 

288  notes.  v.  Uavis,  Rolls,  1803,  W.  No.   83,  and  see 

1  Attorney-General  v.  Parkhurst,  1  Clia.  pnst,  Chap.   III.  §  7,  Idiols  and  Lunatics 

Ca.  112;  Attornej-'General  «.  Woolrich,  id.  (Plaintiffs). 

153;  .\ttorncv-G"en' nil   v.  Tyler,    1  Dick.  ••  Attorney-General   v.    Tyler,    1    Dick. 

878:  2   l'A<-i\',  230;  Norcom    i'.    Hof^ers,  1  378;  Itidler  «.  Rixller,  Kq.  Ca.  Ah.  27!).    See 

C.  E.  Green  (N.  .1.),  484.     If  tiic  phiintilT  Stoiy  K(|.*I'l.  §  04;  Gorham  v.  Gorham,  3 

appear  upon  the  face  of  tlie  hill  to  he  a  IJMrh.  Ch.  II.  24. 

lunatic,  ami  no  ne.xt  friend  or  committee  is  ^  Attorney-tJeneral  v.  Parkhurst,  1  Ciia. 

named  iti  the  hill,  the  ohjection   ma}'  he  Ca.  112;  Attorney-Genenil   v.    Woodrich, 

raided  hy  demurrer  or  hy  motion  to  take  1  Clia.  (^a.  1.53. 

the  hill  from  the  files.     Norcom  v.  IJogers,  *  Kidlcr  r.  Hidler,  1   Eq.  Ca.  Ah.   279 

1  C.  E.  Green  (N.  J.),  484.  pi.  6;  and  see  Tothill,  130. 

7  Norcom  v.  Rogers,  1  C  E.  Green  (N. 


10  PERSONS    BY    WHOM    A    SUIT   MAY   BE    INSTITUTED. 

s:uno  reason  does  !U)(  apply  to  cases  of  idiots,  because  in  con- 
templation  of  law  they  never  can  acquire  tlieir  senses ;  they  are, 
therefore,  not  considered  necessary  i)arties  to  proceedings  on  tlieir 
behalfi 

In  all  cases  of  informations  which  immediately  concern  the 
riuhts  of  tlie  Crown,  its  officers  proceed  ui)on  their  own  authority, 
without  the  Intervention  of  any  other  i)erson;2  i-,^^^  where  the 
informations  do  not  immediately  concern  the  rights  of  the  Crown, 
they  generally  depend  upon  the  relation  of  some  person  whose 
name  is  ijiscrted  in  the  information,  and  who  is  termed  the  lle- 
latorr  This  person  in  reality  sustains  and  directs  the  suit,  and 
he  is  considered  as  answerable  to  the  Court  and  the  partic*s  for  the 
propriety  of  the  proceedings,  and  the  conduct  of  them ;  ^  but  he 
cannot  take  any  step  in  the  cause  in  his  own  name,  and  inde- 
pendent of  the  Attorney-General.^  Where,  therefore,  in  the  case 
of  the  Attorney-  General  v.  Wright,'^  notice  of  motion  was  given 
on  behalf  of  a  relator,  and  an  objection  was  made  that  it  ought  to 
have  been  on  behalf  of  the  Attorney-General,  Lord  Langdale 
M.  K  decided  that  the  notice  was  irregular,  and  said  that  "  re- 
lators should  know  that  they  are  not  parties  to  informations,  and 
have  no  right,  of  their  own  authority,  to  make  any  application  to 
the  Court.  The  Attorney-General  is  the  only  person  whom  the 
Court  recognizes  in  suoh  cases."  And  in  the  Attoriiey-  General  v. 
Barker^''  which  was  an  information  and  bill.  Lord  Cottenham 
refused  to  hear  the  relator  and  plaintiff  in  person  on  behalf  of  the 
In  what  cases  Attorney-General,  and  said  he  could  not  separate  the  information 
b!;^^aimiffs^°  from  the  bill,  so  as  to  hear  him  as  the  plaintiff  in  the  bill.  It 
e  p  amti  s.  ^^^^^.^^^  happens  that  the  relator  has  an  interest  in  the  matter 
in  dispute,  of  the  injury  to  which  interest  he  is  entitled  to  com- 
plain. In  this  case,  his  personal  complaint  being  joined  to,  and 
incorporated  with,  the  information  given   to   the  Court   by  the 

J.),  484.     Under  the  16  &  17  Vic.  c.  70,  3  Ld.  Red.  22;  1  Ves.  J.  247,  n.     See 

the  custod3'  of  the  estate  is  usually  com-  The  Attorney-General «.  The  rroprietors  of 

mitted  to  the  committee  by  an  Order  of  thelMectiiiR-house  in  Federal  Street,  m  the 

the   Lord   Chancellor    or   Lords  Justices,  Town  of  Boston,  3  Gray,  1;  Attorney-Gen- 

which    however    by  §   63,  has  the   same  eral  v.  Merrimack  Miinufactunng  Co.,  14 

force  and  validity  as  a  grant  under  the  Gray,  586;  1  Sniith  Ch.  Pr.  (2.1  Am.  ed.) 

trreat  'cal.     For  Ibrm  of  Order,  see  Elmer's  99;  Story  Lq.  PI.  §  8;  2  Mad.  Prm.  &  Pr. 

J.^ac   l->6                                         •  Ch.  (3d  Lond.  ed  )  203. 

1  Attorney-General  v.  Woolrich,  1  Cha.  ■>  Ld.  Ked.  22 ;  Attorney-General  v.  Viv- 
Ca.    153;  and   see  7ws<,   Chap.   III.    §    7,  ian,  1  Kuss.  226   2-36                                . 
Idiots  ami  Lunatics  {Plaintiffs).  5  porker  v.  May,  5  Gush.  337,  per  Shaw 

2  Ld.    Ked.    22;    Attorney-General    v.      C.  J.;  see  Commissioners  v.  Andrews,  10 
Vernon' 1   Vern.  277,  370;  Attorney-Gen-      Itich.  Kq.  (S.  C.)  4. 

eral  r   Croft*   1  15ro.  P.  C.  ed.  Toinl.  136.  o  3  Beav.  447;   and  see  Attorney-Gen- 

Iii  Ma'-sachusetts  the  Attorney-General  eral  v.  'J'he    Haberdashers'   Company,  16 

mav   under  Genl.  Sts.  c.  14,  §  18.  when  in  Beav.  397;  Attorney-General  v.  VVygges- 

hi.sVudgment  the  interest  of  the  State  re-  ton's  Hosi.ital,  10   P,eav.   313;  Attorney- 

auires  It  file  and  prosecute  informations,  Generalt).  Sherbourne  Grammar  School,  18 

or  other  processes,  against  persons  who  in-  Beav.  256 ;  18  Jur.  636 ;  Parker  v.  May,  5 

trude  on  the  lands,  rights,  or  property  of  Cush.  336,  337. 

the    Commonwealth,  or  commit  or  erect  7  4  M.  &  C.  262. 
any  nuisance  thereon. 


THE    queen's    attorney-general.  11 

officer  of  the  Crown,  they  form  together  an  information  and  bill,     Cn.  ii.  §  i. 
and  are  so  termed.     In  some  respects,  however,  they  are  consid-  ''    ^    ' 

ered  as  distinct  proceedings ;  and  the  Court  will  treat  them  as  Information 
such,  by  dismissing  the  bill  and  retaining  the  information,  even 
though   the  relief  to  be  granted  is  different  from   that   prayed. 
Thus,  where  the  record  was  both  an  information  for  a  charity  and  Bill  may  be 
a  bill,  and  the  whole  of  the  relief  specifically  prayed  was  in  respect  amT/nforma- 
of  an  alleged  interest  of  the  relator  in  the  trust  property,  which   tion  retained. 
he  did  not  succeed  in  establishing,  although  the  bill  was  dismissed 
with  costs,  the  information  was  retained  for  the  purpose  of  regu- 
lating the  charit.y.^     It   is,  moreover,  necessary  that  the  person  Plaintiff 
joined  as  plaintiff  should  have  some  individual  interest   in   the   h^^ividud '^^ 
relief  sought  to  be  obtained  by  the  suit;  and  where  persons  were  interest  in  the 
made  plaintiffs  who  asked  nothing  for  themselves,  and  did   not 
show  that  they  were  individually  entitled  to  any  thing,  a  demurrer 
to  the  whole  record  was  allowed ;  but  as  there  appeared  to  be  a 
case  for  relief,  leave  to  amend,  for  the  purpose  of  converting  the 
record  into  an  information  only,  was  given,  and  the  Court  directed 
that  the  j)laintiffs  should  remain  on  the  record  in  the  character  of 
relators,  in  order  that  they  might  be  answerable  for  costs."^ 

Although  it  is  the  general  practice,  where  the  suit  immediately  wjiere  the 
concerns  the  rights  of  the  Crown,  to  proceed  mthout  a  relator,   suit  relates  to 
yet  instances  have  sometimes  occuri-ed  where  relators  have  been  Crown. 
named.     In  such  cases,  however,  it  has  been  done  through  the  ten- 
derness of  the  officers  towards  the  defendant,  in  order  that  the 
Court  might  award  costs  against  the  relator  if  the  suit  should 
appear  to  have  been  im])roperly  conducted :  it  being  a  prerogative 
of  the  Crown  not  to  pay  costs  to  a  subject.' 

It  has  been  said,  that  as  the  Queen,  by  reason  of  her  preroga-  costs  of 
tive,  does  not  pay  costs  to  a  subject,  so  it  is  beneath  her  dicrnitv  -'^ftorney- 

•        ^1  1  •  .       ,  «  General. 

to  receive  them ;  Init  many  instances  occur,  m  the  course  of  ])rac- 

tice,  in  which  tlie  Attorney-General  receives  costs.  Thus,  Avhen 
collusion  is  suspected  between  the  defendants  and  the  relators,  the 
Attorney-General  attends  by  a  distinct  solicitor,  and  always  re- 
ceives liis  costs.  In  Aftorney-Genei-alY.  Lord  AsJihurnJiam*  i*)\Y 
John  Leach  V.  C.  said,  in  reference  to  the  asserted  princii)le  that 
the  Crown  can  neither  pay  nor  receive  costs,  "I  find  no  such 
principle  in  Courts  of  P]quity.  Tlie  Attorney-General  constantly 
receives  costs,  where  he  is  made  a  defendant  in  respect  of  legacies 
given  to  charities,'^  and  even  where  he  is  made  a  defendant  in  re- 
spect of  the  iinmcdi.itc.  rights  of  the  C'rown  in  cases  of  intestacy; 

1  Attorncy-Generul  t;.   Vivian,   1   Huss.      Smith  <'li.  I'r.  (2d  Am.  ed.)  Oil;  Storv  V.i\. 
226,  233,  aa.'i.  I'l.  §  H. 

2  Attoriiev-Gencral   v.  'I'lie  East    India  ••  1  S.  <Ji:.  S.  .3;t4,  3'j7. 

Companv.  11  Sim.  3^0,  38(i.  ^'  MocKridKc  "  'riiackwell,?  Ve.s.  30,88; 

8  See  3  151.  Com.  400;  2  Ma.l.   I'rin.  &      Attorney-General  v.  J.ewis,  8  Beav.  179. 
Pr.  Cb.  (3d  Lend,   ed.)  203  and  note;  1 


\'2 


TEKSONS   BY    'WIIOM   A   SUIT   MAY    KE    INSTITUTED. 


Cii.  II.  5  1. 


IS  &  10  Vic. 

c.  yo. 


Introduction 
of  a  relator, 
where 
Crown's 
rights  imme- 
diately con- 
cerned, is  an 
indulgence : 


:uu\  w  Irto  c-li:iiity  inroriiiations  have  \)vvn  lilcil  by  the  Atlorney- 
(iiiu'ral,  I'osts  have  boon  Iroquently  awardeil  hhii  in  interlocutory 
matters  intk'})en(lently  of  the  rehitor."  ^  And  in  the  case  of  the 
Attorney-  General  v.  llie  Corporation  of  Loiidbn^^  Lord  Cotten- 
hani  said,  "the  principle  that  the  Attorney-General  never  receives 
nor  pays  costs  may  be  moditied  in  this  way ;  namely,  tliat  the 
Attorney-General  never  receives  costs  in  a  contest  in  which  he 
could  have  been  called  upon  to  pay  them,  had  he  been  a  private 
individual/'  By  the  18  &  19  Vic.  c.  90,  however,  provision  is 
made  for  the  ])ayment  of  costs  by  or  to  the  Crown,  in  proceedings 
in.stituted,  after  the  passing  of  the  Act,  on  its  Jjehalf,  in  matters 
relating  to  the  revenue.*  In  an  infoniiation  by  the  Attorney-Gen- 
eral without  a  relator,  costs  may  be  ordered  to  be  paid  by  one 
defendant  to  another  defendant  \  and  where  in  a  charity  case  'some 
of  the  defendants  supported  the  contention  of  the  Attorney-Gen- 
eral, they  Avere  allowed  costs  as  between  solicitor  and  client,  to  be 
taxed  and  paid  out  of  the  fund.  Such  costs  as  between  party  and 
party  to  be  repaid  by  the  defendant  who  opposed  the  proceedings.* 
The  propriety  of  naming  a  relator  for  the  ])ur})Ose  of  his  ))eing 
answerable  for  costs,  and  the  oppression  arising  from  a  contrary 
practice,  were  j^articularly  noticed  by  Baron  Perrot,  in  a  cause  in 
the  Exchequer,  Attorney- General  v.  Fox^  in  which  case  no  relator 
was  named;  and  though  the  defendants  finally  prevailed,  they 
were  put  to  an  expense  almost  equal  to  the  value  of  the  property 
in  dispute.  The  introduction  of  a  relator,  however,  in  cases  in 
which  the  information  is  merely  concerning  the  rights  of  the 
Crown,  is  a  mere  act  of  favor  on  the  part  of  the  Crown  and  its 
officers ;  and  it  appears  to  have  been  the  opinion  of  Lord  Eldon 
that,  even  in  informations  concerning  charities,  the  introduction 
of  a  relator  was  an  indulgence  on  the  ])art  of  the  Crown,  which, 
though  usual,  might  be  withheld.  Thus,  in  The  flatter  of  the 
Bedford  Cliarity,^  in  speaking  of  infomiations  concerning  charities, 
his  Lordship  said,  "there  is  no  doubt,  that  though  a  relator  is 
commonly  required  for  the  purpose  of  securing  costs,  the  Attorney- 
General  may,  if  he  pleases,  proceed  without  a  relator."  This 
dictum  appears  to  be  at  variance  with  the  opinion  of  Lord  Thurlow, 


1  See,  however,  Burney  v.  Macdonald, 
15  Sim.  6,  IC. 

2  2  M'X.  &  G.  247,  269,  271,  273.  See 
also,  on  this  point,  S.  C.  before  the  M.  R. 
12  Beav.  171,  and  on  demuirc-r  before 
House  of  Lords,  1  II.  L.  Cas.  471,  and  Ld. 
Cottenham'.s  comments  on  the  case  2  M'N. 
&  G.  271;  Attorney-General  v.  Drapers' 
Co.,  4  Beav.  30.0;  \Vare  v.  Cumberlege,  20 
Beav.  510;  Kane  v.  Maule,  2  S.  &  G.  331; 
S.  C,  on  appeal,  nom.  Kane  v.  Reynolds, 
4  De  G.,  M.  &  G.  565,  569;  1  Jur.  N.  S. 
148. 

3  Attorney-General  v.  Hanmer,  4  De  G. 


&  J.  205;  5  Jur.  N.  S.  693;  Attorney- 
General  V.  Sittingbourne  &  Slieerness 
Kail  way  Co.,  35  Beav.  268,272;  L.  K.  1 
Eq.  636,  640;  and  sec  Bauer  v.  Mitlbrd,  9 
W.  K.  135 ;  see  also  24  &  25  Vic.  c.  92, 
§  1,  in  cases  as  to  succession  duty;  and  23 
&  24  Vic.  c.  34,  §§  11,  12,  in  proceedings 
by  petition  of  right. 

^  Attorney-General  v.  Chester,  14  Beav. 
338;  Attorney-General  v.  Mercers'  Co.,  18 
W.  K.  448,  V.  C.  J. 

5  Ld.  Red.  23,  n.  (g). 

6  2  Swanst.  520. 


THE    queen's    attorney-general. 


13 


in  the  Attorney- General  y.  Ogleiideryva  ^YAch.  case  his  Lordship 
is  reported  to  have  expressed  his  belief  that  an  information  with- 
out a  rehitor  would  not  do ;  and  the  opinion  of  Lord  Thurlow 
upon  this  point  appears  to  have  been  adopted  by  Lord  Redesdale,^ 
Upon  the  whole,  therefore,  it  seems,  that  although  in  cases  of 
informations  for  charities,  the  general  and  almost  universal  practice 
is  to  have  a  relator  for  the  purpose  of  answering  the  costs,  yet  the 
rule  is  not  imperative ;  and  the  Attorney-General,  as  the  officer 
of  the  Crown,  may,  in  the  exercise  of  his  discretion,  exhibit  such 
an  information  without  a  relator.  In  confirmation  of  this  it  is  to 
be  observed,  that  in  informations  under  the  former  statutes,^  for 
giving  additional  facilities  in  applications  to  Courts  of  Equity 
regarding  the  management  of  estates  or  funds  belonging  to  chari- 
ties,'it  was  not  the  practice  to  have  a  relator. 

All  persons  who  are  not  under  any  of  the  legal  disabilities  after 
mentioned  may  be  relators  in  informations ;  *  but  a  written  author- 
ity, signed  by  them,  permitting  their  names  to  be  used  must  be 
filed  with  the  information.^  A  corpoi-ate  body  may  be  a  relator  ® 
or  a  relator  and  plaintiif." 

It  has  not  been  deemed  necessary  that  relators  should  be  inter- 
ested in  the  charities  concerning  which  they  institute  proceed- 
ings;* and  the  Court  was  in  the  liabit,  in  the  times  when  a 
much  stricter  system  of  practice  prevailed  than  at  present,  of 
relaxing  several  of  its  rules  on  behalf  of  charities.  Thus,  where 
the  relief  sought  Avas  erroneous  and  refused,  the  Court  still  took 
care  to  make  such  decree  as  would  best  answer  the  purposes  of  the 
charities.^ 

It  appears,  on  reference  to  the  old  cases,  that  where  a  relator- 
himself  claims  an  interest  in  the  subject-matter  of  the  suit,  and 
proceeds  by  bill  as  well  as  by  information,  making  himself  both 


Cn.  II.  §  1. 


and  so,  in 
cases  of  char- 
ities, semble. 


Who  may  be 

relators. 


In  charity 
cases  relators 
need  not  be 
interested. 


Effect  of 
death  of 
relator. 


1  1  Ves.  J.  246. 

2  Ld.  Red.  99;  and  see  Attorney-General 
V.  Smart,  1  Ves.  S.  72;  Attornev-General 
V.  Middleton,  2  Ves.  S.  337;  Attorney- 
General  of  the  Duchy  of  Lancaster  v. 
Heath,  Prec.  in  Ch.  13. 

8  .59  (Jeo.  III.  c.  91;  continued  and 
extetided  by  2  &  3  Will.  IV.  c  57.  See, 
however,  Attorney-General  v.  lioucherett, 
25  Beav.  110. 

*  1  Sinitli  Ch.  Pr.  (2<1  Am.  ed.)  99. 

6  15  &  16  Vic.  c.  8G,  §  11.  For  form  of 
authority,  nee  Vol.  HI.  In  an  injunction 
case,  the  authority  was  allowed  to  Ije  tiled 
the  dav  alter  the  inl'ormatioii.  Attorney- 
General  1-.  >rurray,  13  W.  11.  05,  V.  C.  K. 
Where  the  solicitor  had  f^iven  the  relator 
an  indemnity  against  the  costSj'the  infor- 
mation UMS  ordered  off  the  file,  with  costs 
to  he  paid  by  the  rehitor  and  solic-itor. 
Attorney-(ieneral  v.  Skinners'  Co.,  C.  P. 
Coop.  7. 

9  See  Attorney-General  v.  Wilson,  C. 
&  P.  1;  Attorney-General  v.  Cambridge 


Consumers'  Gas  Co.,  L.  R.  6  Eq.  282,  V.  0. 
W. 

"!  See  Attornej-'Gcneral  v.  Conserva- 
tors of  the  Thames,  1  H.  &  M.  1;  8  Jur. 
N.  S.  1203 :  Attorney-General  v.  Metro- 
politan Hoard  of  Works,  1  II.  &  M.  298. 
Attorney-General  r.  (Jreenhill,  33  Beav. 
193;  9  .Jur.  X.  S.  1307;  Attorney-Cieneral 
V.  Mavor  of  Kinf;«ton-on- I'liaincs,  11  .lur. 
N.  S.  590;  13  W.  U.  880,  V.C  W.;  Attor- 
ney-General V.  Richmond,  L.  K.  2  Eq. 
306;   12  .Fur.  N.  S.  544,  V.  C.  W. 

"  Attornev-General  w.  Vivian,  1  Uuss. 
220,  230.  Se"e,  however,  Attnrnev-Oeneral 
V.  Hucknall,  2  Atk.  328;  Corporation  of 
South  Molton  i".  Attorney-General,  6  H.  L. 
Ca.  1. 

"  Attornev-General  v.  Hucknall,  2  Atk. 
328;  Attorney-General  v.  Wliitelev,  11 
Ves.  241,  247:  Attornev-Cieneial  J".  Oflen- 
der,  1  Ves.  ,1.  240;  Attornev-Gener:il  v. 
Miildleton,  2  Ves.  S.  327;  Attorney-Gen- 
eral /•.  Hrereton,  id.  425;  Attorney-tJeneral 
V.  Mayor  of  Stamford,  2  Swanst.  501;  At- 
torney-General V.  Parker,  1  Ves.  S.  43. 


14 


rF.KSOxs  BY  aviio:m  a  suit  may  be  instituted. 


Cii.  II.  §  1. 


Proccodinp: 
tkcrcupcni. 


Informations 
on  behalf  of 
idiots  and 
lunatics  must 
be  l)V  a  rela- 
tor. ' 


Lunatic  can- 
not be  relator. 


Liability  of 
relators  to 
costs,  on  dis- 
missal ; 


plaiiititV  ami  ivlator,  tlu"  suit  abates  by  his  deatli.  Where,  liow- 
ever,  the  suit  is  lueri'ly  an  inlbnn.ation,  the  proece(lin<;s  can  only 
al);ite  by  the  death  t)r  deti'iniination  of  interest  of  the  dcl'endant.^ 

If  there  are  several  rt'lators,  the  death  of  aiiy  of  them,  while 
there  sin-vives  one,  will  not  in  any  degree  aftect  the  suit;  but  if 
all  the  relators  die,  or  if  there  is  bnt  one,  and  that  relator  dies,  the 
suit  is  not  abated.  It  is,  however,  irregidar  for  the  solicitors  of  a 
relator  to  proceed  in  u  charity  inforniatioji  after  the  death  of  the 
relator;  and  the  Court  will  not  ])ermit  any  further  proceedings  till 
an  order  has  been  obtained  for  liberty  to  insert  the  name  of  a  neAV 
relator,  and  such  name  is  inserted  accordingly;  otherwise  there 
would  be  no  person  to  pay  the  costs  of  the  suit,  in  case  the  infor- 
mation should  be  deemed  improper,  or  for  any  other  reason  should 
be  dismissed.^  Where,  however,  a  relator  dies,  the  application  for 
leave  to  name  a  new  relator  must  be  made  by  the  Attorney- 
General,  or  with  his  consent,  and  not  by  the  defendant ;  otherwise 
the  defendant  might  choose  his  own  ])rosecutor.^ 

With  respect  to  informations  on  behalf  of  idiots  and  lunatics,  it 
seems  that  it  is  not  only  necessary  that  the  lunatic  should  be  a 
party,  but  also  that  there  should  be  a  relator  who  may  be  respon- 
sible to  the  defendant  for  the  costs  of  the  suit.  Tims,  in  the  case 
of  the  Attorney-  General  v.  Tyler,  mentioned  in  the  note  to  Lord 
Redesdale's  Treatise,^  it  appears  that  the  lunatic  had  been  made 
the  relator,  but  that  on  a  motion  being  made  that  a  responsible 
relator  should  be  appointed.  Lord  Northington  directed  that  all 
furthe;-  proceedings  in  the  cause  should  be  suspended,  until  a 
proper  person  should  be  named  as  relator  in  his  stead.  This  ap- 
pears to  be  the  same  cause  which  has  been  before  referred  to  as 
reported  in  Mr.  Dickens's  Reports,^  in  which,  upon  the  hearing,  it 
was  objected  that  the  lunatic  was  not  a  party  to  the  suit,  although 
he  was  named  as  relator  ;  and  the  cause  was  consequently  ordered 
to  stand  over,  with  liberty  to  amend  by  adding  parties,  and,  if  so 
advised,  to  change  the  information  into  a  bill. 

The  object  in  requiring  that  there  should  be  a  relator,  in  infor- 
mations exhibited  on  the  part  of  the  Attorney-General,  is,  as  we 
have  seen,"  that  there  may  be  some  person  answerable  for  the 
costs,  in  case  they  should  have  been  improperly  filed.  Thus,  in 
the  case  o'i  Attorney- General  \.  Smart,'' hetore  referred  to,  where 
the  information  was  held  to  have  been  unnecessary,  and  in  con- 
tradiction to  the  right,  the  costs  were  ordered  to  be  paid  by  the 


1  Waller  f.  Hanger,  2  Bulst.  134;  Ld. 
Red.  100. 

'^  Ld  Red.  100;  Attorney-General  v. 
The  Haberdashers'  Company,  15  Beav. 
3'j7. 

3  Ld.  Red.  100,  n.  (e);  Attorney-Gen- 
eral V.  Harvey,  1  Jur.  N.  S.  10(J2;  Attor- 
ney-General V.  Plumtree,  5  Mad.  4.02;  2 


Mad.  Prii*  &  Pr.  Cli.  (3d  Lond.  ed.)  203, 
204. 

•i  Ld.  Red.  29;  2  Eden,  2.30. 

''  Ante,  p.  9. 

6  Ajite,  p.  13. 

■?  IV^cs.  S.72;  Attornev-General  v.  Par- 
ker, 3  Atk.  570,  576;  1  Ves.  S:  43. 


THE    queen's    attorney-general. 


15 


relator.  But  in  the  case  of  Attorney-  General  \.  Oglender^  before 
referred  to,  where  the  relator  insisted  upon  a  particular  construc- 
tion of  the  will  of  the  person  by  whom  the  charity  was  founded, 
and  in  which  there  was  considerable  ambiguity,  although  he  failed 
in  satisfying  the  Court  that  his  construction  Avas  the  right  one,  and 
the  information  was  consequently  dismissed,  the  Court  did  not 
make  him  liable  to  the  costs  of  the  defendant,  although  it  refused 
to  permit  the  costs  to  be  paid  out  of  the  funds  of  the  charity. 
And  in  general,  where  an  information  prays  a  relief  which  is  not 
granted,  but  the  Court  thinks  proper  to  make  a  decree  according 
to  the  merits,  so  that  the  information  is  shown  to  have  had  a  foun- 
dation, although  the  relief  is  not  such  as  the  relator  prayed,  the 
relator  will  not  be  ordered  to  pay  the  costs.'^ 

Wliere  relators  conduct  themselves  properly,  and  their  conduct 
has  been  beneficial  to  the  charity,  they  will  usually  be  allowed 
their  costs ;  ^  and  it  seems  that,  in  some  cases,  the  costs  of  relators 
will  be  taxed  as  between  solicitor  and  client,  on  the  principle  that 
otherwise  people  would  not  come  forward  to  file  informations ;  * 
and  in  special  cases  they  will  be  allowed  their  charges  and  expenses, 
in  addition  to  the  costs  of  the  suit.^  But  where  they  incurred 
expenses  without  the  sanction  of  the  Master,  in  obtaining  informa- 
tion for  the  purpose  of  preparing^  a  scheme,  they  were  only  allowed 
their  expenses  actually  out  of  pocket ;  ^  and  where  a  jietition  would 
have  done,  instead  of  an  information,  the  relators  were  refused 
their  costs,'' 

In  the  case  oi  Attorney- Generals.  Kerr ^  vcn.  oxi\.QX  \J^%  iji  the 
first  instance  made  to  refer  it  to  the  Master  to  tax  and  settle  the 
costs,  charges,  and  expenses  of  the  relator,  of,  incidental,  and  pre- 
paratory to  the  cause,  properly  incurred ;  to  be  paid  by  the  trustees 
of  the  liospital  of  St.  Thomas  for  the  time  being,  or  the  treasurer 
thereof,  out  of  the  funds  belonging  to  the  hospital.  To  this  order 
two  objections  were  made:  first,  that  the  decree  was  wrong,  so  far 
as  it  gave  the  relator  the  extra  costs,  charges,  and  expenses  inci- 
dental and  preparatory  to  the  cause,  properly  incurred ;  secondly, 
that  these  extra  costs  ought  not  to  be  charged  on  the  whole  proj)- 
erty  of  the  hosi)ital  generally,  but  only  on  the  ])roperty  which  was 
the  subject  of  the  information.  Lord  Langdale  M.  II.  said  "on 
considering  the  cases  which  have  occurred,  it  ajijiears  that  the 
relator  in  a  charity  infonnation,  where  there  is  nothing  to  impeach 


Ch.  II.  §  1. 


1  1  Vc8.  J.  246. 

2  Attorney-General  v.  Bolton,  3  Anst. 
820. 

8  IJenmcs  on  CostB,  14;  Attorney-Gen- 
eral V.  The  Brewers'  Company,  1  1'.  Wms. 
876. 

*  Attornev-Gpneral  «.  Taylor,  cited  in 
Osborne  v.  benne,  7  Ves.  424;  see  also  id. 
425;  Attorney-General  v.  (jiirte,  1  Dick. 
113;  Heames"  on  (Jott.M,  App.  No.  2,  22'J; 
Moggridge   i>.  Thackwell,  7  Ves.  36,  88; 


nor  where 
relief  is 
granted, 
though  not 
the  specific 
relief  prayed. 


When  al- 
lowed their 

costs, 

as  between 
solicitor  and 
client, 

and  charges 
and  ex- 
penses. 


Out  of  what 
fund. 


aflirmed  by  II.  L.,  sec  VA  Vea.  410;  Attor- 
ney-(iener'al  r.  Kerr,  4  Heav.  297,  30;i;  hut 
see  Attornej'-(;ener;il  v.  The  Fislunoii- 
gcrs' ( 'onii>any,  1  Keen,  4!)2,  where  p;irty 
and  party  costs  only  were  allowed. 

'>  Attorney-General  v.  Kerr,  nin  »up. 

0  Attorney-General  v.  'J'he  Iron-mon- 
gers' (Company,  10  IJeav.  194,  190. 

'  Atfomev-Gencral  v.  Heny,  11  Jur. 
114. 

B  4  IJeav.  297,  301,  302. 


16 


PKIJSONS    BY    WIIOAI    A    SUIT    IMAY    BE    INSTITUTED. 


Ci\.  11.  §  1. 


Out  of  what 
fund  extra 
costs  allowed. 


Relator 
should  be  a 
person  of  sub- 
stance. 


What  infor- 
mations can 
be  dismissed 
for  want  of 
prosecution. 


tlio  jx-opiii'tv  i>f  tlu'  suit,  ami  no  spcH-ial  circumstances  to  justify  a 
special  order,  is,  upon  obtaininu-  a  docree  for  the  charity,  cntitUnl 
to  his  costs  as  between  si)ncitor  and  client,  and  to  he  i)aid  the 
difference  between  the  amount  of  such  costs  and  the  amount  of 
the  costs  which  he  may  recover  from  the  defendants,  out  of  the 
charity  estate.  There  may  be  special  cases  in  which  the  relator 
mav  be  entitled  to  charges  and  exj^enses,  in  addition  to  his  costs 
of  the  suit  as  between  solicitor  and  client ;  but  it  appears  to  me 
that  such  cases  must  depend  upon  their  peculiar  circumstances,  to 
be  brought  forward  and  established  by  evidence  on  proper  occa- 
sions.^ Upon  the  second  point,  I  find  tliat  there  are  several  cases 
in  which  the  costs  to  be  paid  by  the  trustees  of  a  charity  have 
been  ordered  to  be  paid  out  of  the  funds  of  the  chanty  generally ; 
but  the  trustees  objecting,  it  appears  to  me  more  regular  and 
pro]H'r,  in  the  first  instance  at  least,  to  charge  the  costs  which  fill 
upon  the  charity  estate  on  the  fund  recovered  by  the  information, 
or  on  the  estate  which  is  the  subject  of  the  suit."  The  decree 
was  accordingly  varied,  and  the  relator,  instead  of  being  allowed 
his  costs,  charges,  and  expenses  of,  incidental,  and  preparatory  to 
the  cause,  in-o])erly  incurred,  was  only  alloAved  his  costs  as  between 
solicitor  and  client ;  and  the  costs  and  sums  Avhicli  were  to  be  paid 
by  the  defendants  the  trustees,  instead  of  being  directed  to  be 
paid  out  of  the  funds  of  the  hospital,  were  made  a  charge  on  the 
property  which  was  the  subject  of  the  suit,  and  ordered  to  be 
raised  by  sale  or  mortgage  thereof.'^ 

As.  the  principal  object  in  having  a  relator  is,  that  he  may  be 
answerable  for  the  costs  of  the  proceedings,  in  case  the  information 
shall  appear  to  have  been  improperly  instituted  or  conducted,  it 
follows,  as  a  matter  of  course,  that  such  relator  must  be  a  person 
of  substance,  and  if  it  is  made  to  appear  to  the  Court  that  the 
relator  is  not  a  responsible  person,  all  further  proceedings  in  the 
information  will  be  stayed,  till  a  proper  person  shall  be  named  as 
relator.^ 

An  information  by  the  Attorney-General  without  a  relator  can- 
not be  dismissed  for  want  of  prosecution ;  it  is  his  privilege  to 
proceed  in  what  way  he  thinks  proper ;  but  an  information  in  his 
name  by  a  relator,  is  subject  to  be  dismissed  for  want  of  prosecution 
with  costs. 

3  Attorney-General  v.  Tyler,  2  Eden, 
230;  see  also  Attorney-General  v.  Knight, 
3  M.  &  C.  154.  It  i,s  presumed,  that  the 
same  rules  for  determining  who  is  a  "  per- 
son of  substance,"  apply  iiere  as  in  the 
case  of  next  friends  of  married  women ;  as 
to  whom,  see  ])os(,  Chap.  III.  §  8.  There 
is  a  reported  case,  in  which  a  relator  was 
required  to  give  security  for  costs,  see 
Attorney-General  v.  Skinners'  Co.,  C.  P. 
Coop.  1,  5;  and  see  Attorney-General  v. 
Knight,  3  M.  &  C  154. 


1  Attorney-General  v.  Kerr,  4  Beav. 
297,  303;  but  see  Attorney-General  v.  The 
Skinners'  Company,  Jac.  C29,  630 :  Attor- 
nej'-General  v.  Corporation  of  Manchester, 
3  L.  .1   Ch.  04. 

i  This  WHS  the  practice  before  the  Char- 
itable Tru^^ts  Act.  lSo3,  10  &  17  Vic.  c. 
137.  Under  that  .Vet,  no  proceeding  can 
be  taken  without  the  consent  of  the  (Char- 
ity Commissioners,  except  by  the  Attorney- 
General  acting  ex  officio,  or  by  adverse 
claimants;  see  §  17,  and  post,  Chap.  XLV. 
§  2,  Charitable  Trusts  Acts. 


GOVERNSIENTS    OF   FOREIGN    STATES. 


17 


Ch.  II.  §  2. 


Section  II.  —  Governments  of  Foreign  States. 


It  seems  to  have  been  considered  by  Lord  Thurlow  as  a  doubt-  Foreign 


fill  point,  wlietlier  the  sovereign  of  a  foreign  State  could  sue  in  the 
municipal  courts  of  this  country,  or  whether  the  claims  of  such  a 
person  were  not  matter  of  application  from  State  to  State. ^  The 
point,  however,  has  now  been  determined  in  the  affirmative.^ 
Thus,  a  bill  was  filed  on  behalf  of  the  King  of  Spain,  and  of  two 
other  persons  resident  in  London,  claiming  some  property  which 
had  been  received  by  one  of  the  defendants,  under  a  treaty  between 
France  and  Spain,  and  which,  it  was  alleged,  was  the  property  of 
the  King  of  Spain.  To  this  bill  a  general  demurrer  was  put  in ; 
and  amongst  other,  gx-ounds  of  demurrer,  it  was  contended,  that 
the  King  of  Spain,  being  a  foreign  absolute  sovereign,  was  not 
capable  of  maintaining  a  suit  in  a  Court  of  Equity  here,  or  at  least, 
that  he  was  not  capable  of  maintaining  a  suit  for  the  enforcement 
of  alleged  rights  belonging  to  him  only  in  his  royal  character. 
This  demurrer  was  allowed  by  Lord  Lyndhurst,  but  upon  a  difier- 
ent  ground,  namely,  that  the  parties  who  had  been  joined  with  the 
King  of  Spain  as  co-plaintiffs  had  no  interest  in  the  subject-matter 
of  the  suit;^  and  after  the  allowance  of  the  demurrer,  the  King  of 
Spain  alone  filed  another  bill  agamst  the  same  defendants,  for  the 
same  purposes  as  before,  and  the  defendants  demurred  again ;  but 

1  Barclay  v.  Russell,  3  Ves.  J.  424,  431 ; 
see  also  the  Nabob  of  the  Carnatic  v.  East 
India  Company,  1  Ves.  J.  371,  where  the 
authorities  upon  this  point  are  collected. 

-  The  Kiu}^  of  Spain  v.  Machado,  4 
Ku.ss.  22.5,  236;  Huliett  v.  King  of  Spain, 
2  Bligh,  N.  S.  31;  S.  C  7  Bligh,  N.  S.  859; 
see  also  Citv  of  Heme  v.  Bank  of  England, 

9  Ves.  347';  Dolder  v.  Bank  of  England, 

10  Ves.  352;  Dolder  v.  Lord  Huntingfield, 

11  Ves.  283;  King  of  the  Two  Sicilies  v. 
Willcox,  1  Sim.  N.  S.  301,  332;  United 
States  of  America  v.  I'rioleau,  2  H.  &  M. 
550;  11  .Inr.  N.  S.  7'J2;  United  States  of 
America  »•.  Wagner,  L.  li.  3  Eq.  724;  S. 
C.  L.  R.  2  Ch.  A  p.  5«2;  I'rioleau  v.  United 
States  and  Andrew  .Johnson,  L.  K.  2  E(|. 
650;  United  States  of  America  v.  Mclfea, 
L.  K.  3  Ch.  Ap.  79. 

The  floctrine  that  the  sovereign  of  one 
State  may  maintain  a  suit  in  the  Courts 
of  Efiuity  of  anotiier  State,  is  now  estab- 
lished in  allirmance  of  the  right,  upon  very 
satisfactory  princi[ilcH.  See  Story  Ef|. 
I'l.  §  55:  Brown  r.  .Minis,  1  M'Cord,  80; 
2  Kent  (llth  ed.),  2^5,  note.  A  foreign 
sovercifjn  State  adopting  the  repuldican 
form  ot  grjvernnient,  and  recognized  by 
the  poverninent  of  her  .Majesty  the  Queen 
of  England,  can  sue  in  the  Courts  of  her 
Majesty  in  its  own  name  so  recognizcil. 
Unitefl  States  of  America  v.  Wagner,  L. 
R.  2  Ch.  Ap.  582.     If  a  State  were  to  re- 

VOL.  I. 


governments 
may  sue. 


fuse  permission  to  a  foreign  sovereign  to 
sue  in  its  Courts,  it  might  become  a  just 
cause  of  war.  Story  Eq.  PI.  §  55 ;  King 
of  Spain  v.  Mendazabel,  5  Sim.  596;  Ed- 
wards, I'art.  in  Eq.  33,  34,  35;  Calvert, 
Parties,  ch.  3,  §  27,  pp.  310,  311. 

By  the  Constitution  of  the  United  States, 
foreign  States  are  expressly  authorized  to 
sue  in  the  Courts  of  the  "United  States. 
See  Storv  Eq.  PI.  §  55,  note;  Const.  U.  S. 
Art.  III.'  §  2.  One  of  the  States  of  the 
Union  may  appear  as  plaintili"  in  the  Su- 
preme Court  of  the  United  States,  against 
either  another  State,  or  the  citizens  there- 
of. Const.  U.  S.  Art.  HI.  §  2;  Governor 
of  Georgian.  Aladrago,  1  Peters,  110;  U. 
States  y.  Peters,  5  Cranch,  115;  (J.  States 
V.  Blight,  3  Hall,  Law  .lourn.  197;  Osborn 
V.  United  States  Bank,  !)  Wheat.  857 ;  U. 
States  r.  Perchcinan,  7  Peters,  51 ;  New 
York  V.  Connecticut,  4  Dallas,  1;  New 
•Jersey  v.  New  York,  5  Peters,  284 ;  Rhode 
Island  V.  Massachusetts,  13  Peters,  23;  S. 
C.  14  Peters,  210;  3  Story  Con.st.  U.  S. 
§§  1675-1683;  Nabob  of  the  Carnatic  v. 
East  India  Co.,  1  Sumner's  Ves.  371,  note 
(rt).  One  State,  as  a  corporation,  may  sue 
in  the  (lourts^of  another  State.  Delafield 
V.  State  of  Illinois,  2  I  fill  (N.  Y.),  159; 
S.  C.  8  Paige,  527;  Mines  v.  State  of 
North  Carolina,  10  Sm.  &  M.  529. 

3  King  of  Spain  v.  Machailo,  4  Russ. 
225,  230. 


18 


PERSONS    }\Y    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


Cu.  II.  § 


Secus,  where 
goveniinont 
not  recog- 
nized. 


The  fact  of  a 
foreij,m  State 
not  bcinj; 
recognized  is 
judicially 
noticed. 


till-  iK'iiiiini'r  WMS  ovonulcd  by  Lord  Lyiidlmrsl,^  and  liis  Lord- 
ship's judii'inoiit  was  I'oiitinnod  by  tlie  House  ol"  Lords  on  a})i)oal.^ 
hi  <;iviny;  judgnu'ut  upon  tliat  occasion,  Lord  Rcdesdale  observed, 
"  Tliis  is  one  of  the  clearest  cases  that  can  be  stated.  I  cohceive 
that  there  can  be  no  doubt  that  a  sovereign  may  sue.  If  he  can- 
not, tliore  is  a  riglit  without  a  remedy;  for  it  is  only  by  suit  in 
Court  that  tlie  respondent  can  obtain  his  remedy:  he  sues,  as 
every  sovereign  must  sue,  generally,  either  on  his  own  behalf,  or 
on  belialf  of  his  subjects."  But  it  seems  that  the  right  of  a  foreign 
sovereign  to  sue  in  the  municipal  Courts  of  this  country  is  confined 
to  those  cases  in  which  it  is  sought  to  enfoi'ce  the  private  rights  of 
the  sovereign  or  of  his  subjects;  and  that  the  infringement  of  his 
prerogative  rights  does  not  constitute  a  ground  of  suit.^ 

To  entitle  a  foreign  government  to  sue  in  the  Courts  of  this 
country,  it  is  necessary  that  it  should  have  been  recognized  by  the 
government  here.  This  point  appears  to  have  been  first  discussed 
in  the  case  of  The  City  of  JBerne,  in  /Switzerland,  v.  The  Bank  of 
England,*  which  arose  from  the  application  of  a  person  describing 
himself  as  a  member  of  the  common  council  chamber  of  the  city  of 
Berne,  on  behalf  of  himself  and  of  all  others  the  members  of  the 
common  council  chamber  and  the  burghers  and  citizens  of  that 
city,  to  restrain  the  Bank  of  England  and  South  Sea  Company 
from  permitting  the  transfer  of  certain  funds  standing  in  the 
names  of  trustees,  under  a  purchase  by  the  old  government  of 
Berne  before  the  revolution ;  the  application  was  opposed,  on  the 
ground  that  the  existing  government  of  Switzerland,  not  being 
acknoAvledged  by  the  government  of  this  country,  could  not  be 
noticed  by  the  Court ;  and  Lord  Eldon  refused  to  make  the  order : 
observing  that  it  was  extremely  difticult  to  say  that  a  judicial 
Court  can  take  notice  of  a  government  never  recognized  by  the 
government  of  the  country  in  which  the  Court  sits;  and  that 
whether  the  foreign  government  was  recognized  or  not,  was  matter 
of  })ublic  notoriety.  The  recognition  of  a  foreign  government  by 
the  government  of  this  country  is  conclusive,  and  the  Court  cannot 
listen  to  any  objection  to  its  title.^ 

The  fact  of  a  foreign  government  not  having  been  recognized 
by  the  government  of  this  country  must  be  judicially  taken  notice 


1  4  Russ.  560;  see  also  the  Columbian 
Government  v.  Rothschild,  1  Sim.  94; 
King  of  Hanover  v.  Wheatley,  4  Beav. 
78. 

2  2  Biigh  N.  S.  60;  and  sec  Duke  of 
Brunswick  v.  King  of  Hanover,  C  Beav. 
1;  2  H.  L.  Ca.  1;  and  pvst,  Chap.  IV., 
§  4,  on  the  liability  of  foreign  States  to  be 
sued. 

3  Per  L.  J.  Turner  in  Emperor  of  Aus- 
tria V.  Uav,  3  De  G.,  F.  &  J.  217,  2.51,  252; 
7  Jur  N".  S.  639,  644;  .see  also  United 
States  of  America  v.  I'rioleau,  2  II.  &  M. 


559;  11  Jur.  N.  S.  792;  U.  States  of 
America  v.  Wagner,  L.  R.  3  Eq.  724,  V. 
C.  W.;  L.  R.  2  Ch.  Ap.  582,  L.  C.  &  L. 
JJ. ;  U.  States  of  America  v.  McRae,  L. 
R.  4  En.  327,  V.  C.  W. ;  L.  R.  3  Ch.  Ap. 
79,  L.  C. 

*  9  Ves.  347;  and  see  Bolder  v.  Bank 
of  Englnnd,  10  Ves.  353;  Bolder  v.  Lord 
Huntiiiglicld,  11  Ves.  283. 

5  Emperor  of  Austria  v.  Day,  2  Giff. 
628;  7  Jur.  N.  S.  483;  3  De  G.,  F.  &  J. 
217;  7  Jur.  N.  S.  639. 


GOVERNMENTS    OF    FOREIGN    STATES.  19 

of  by  the  Court,  even  though  there  is  an  averment  introduced  into  Ch.  ii.  §  2. 
the  hill  that  the  government  in  question  has  been  recognized,^  ""  "^  ^ 
Thus,  when,  in  order  to  prevent  a  demurrer,  it  was  falsely  alleged 
in  the  bill  that  a  revolted  colony  of  Spain  had  been  recognized  by 
Great  Biitain  as  an  independent  State,  and  a  demurrer  was  never- 
theless put  in,  Sir  Lancelot  Shadwell  V.  C.  allowed  the  demurrer ; 
observing,  that  if  the'  plaintiff  makes  the  fact  that  this  is  an  inde- 
pendent government  recognized  by  the  government  of  this  coun- 
tiy,  where  it  is  not  so,  the  foundation  of  his  case,  the  Court  must 
judicially  take  notice  of  what  is  the  truth  of  the  fact,  notwith- 
standing the  averment  on  the  record ;  because  nothing  is  taken  to 
be  true  except  that  which  is  properly  pleaded,  and  that  when  a 
fact  is  pleaded  which  is  historically  fajse,  and  which  the  judges  are 
bound  to  take  notice  of  as  being  false,  it  cannot  be  said  to  have 
been  properly  pleaded  merely  because  it  is  averred,  and  the  Court 
must  take  it  just  as  if  there  had  been  no  such  averment  on  the 
record.^  And,  upon  the  same  principle,  it  has  been  held,  that  the 
Courts  of  this  country  will  not  entertain  a  suit  for  matters  arising 
out  of  contracts  entered  into  by  individuals  with  the  governments 
of  foreign  countries,  which  have  not  been  acknowledged  by  the 
government  of  this  country.^ 

A  foreign  sovereign  or  State  sues  by  the  name  by  which  he  or  it  iiow  a  foreign 
has  been  recognized  by  the  government  of  this  country,  and  is  not   ^''^'^*^  *"^^- 
bound  to  sue  in  the  name  of  any  officer  of  the  government,  or  to 
join  as  co-plaintiff  any  such  officer  upon  whom  process  may  be 
served,  or  who  may  be  called  upon  to  give  discovery  upon  a  cross- 
bill.*    And  where  a  foreign  State  comes  voluntarily  as  a  suitor  into 

1  Taylor  v.  Barcla.v,  2  Sim.  213,  220-  officers  who  are  entitled  to  represent  the 
223.  _  interests  of  the  State,'  must  have  referred 
^  Ibid.  to  some  persons  or  bod}-  in  whom  the  in- 
8  Thomson  v.  Powlcs,  2  Sim.  194,  210.  terests  of  the  State  were  ve>ted,  and  who 
*  In  United  States  of  America  r.  Wag-  were,  therefore,  entitled  to  represent  it  in 
ner,  L.  K.  2  Ch.  Ap.  582,  it  was  held  that  a  suit."  In  regard  to  the  distinction 
a  foreign  sovereign  State  adopting  the  claimed  to  exist  between  a  monarchical 
republican  form  of  government  is  not  and  a  republican  government  in  this  re- 
bound to  sue  in  the  name  of  any  oflicer  of  spect.  Lord  .Justice  I'urner  in  the  above 
the  government,  or  to  join  as  co-plaintiff  case  (L.  R.  2  Ch.  Ap.-5i)2)  .said:  "In  the 
any  such  oflicer  on  whom  process  may  be  cases  referred  to,  the  form  of  government 
served,  and  who  may  be  called  upon  to  was  monarchical;  and  I  take  it  that,  in 
give  discovery  upon  a  cross-liiil;  reversing  such  cases,  the  public  propertv  of  tlie 
the  order  of  Sir  W.  ['age  Wood  (Lord  State,  so  far  as  it  is  not  by  the  "Constitu- 
Hatherley)  in  S.  (J.  L.  It.  :i  Va\.  724.  In  tion  of  the  State  otherwise  destined,  vests 
the  above  case  (I,.  H.  2  Ch.  Ap.  .OtJii,  o90)  in  the  sovereign,  subject  to  a  moral  obli- 
Lord  Chelm>^tbrd  L.  C,  referring  to  the  gation  on  his  p;irt  to  ajiply  it  for  the  ben- 
remarks  of  Sir  .John  Leach,  in  The  Co-  efit  of  his  sul)jects;  and  when  he  sues  in 
lumbian  (iovernment  v.  Rothschild,  1  Sim.  respect  of  the  public  pmiierty,  he  sues, 
94,  said,  "now  I  do  not  understand  this  not  as  the  mere  rei)re>ciitative  of  the 
to  be  a  ilecisioii  that  the  Stat(!  of  (Jolum-  State,  but  as  the  [lerson  in  whom  the 
bia  could  not  be  [liaintiflH  in  a  suit  insti-  i)ro|)ertv  is  ve'^tcd  lor  the  benefit  of 
luted  for  the  recovery  of  the  property  of  the  Sta'te.  In  the  case  of  a  republic,  the 
the  State,  much  less  that  they  could"  not  public  property  of  the  State  remains  in  the 
Bue  unless  they  appointed  some  public  Slate,  anrl  the  State,  therefore,  nnd  not 
officer,  having  himself  no  interest  in  the  any  mere  oflicer  of  the  State,  is  the  proper 
subject  in  litigation,  to  represent  their  party  to  sue  for  it."  Similar  remarks 
rights.  The  Vice-Cliancellor,  by  the  words,  were  made  by  the  Lord  Chancellor  and 
'It  must  sue  in  the  names  of  some  public  Lord  Cairnes  in  the  same  case.    Sec  I'res- 


20 


PERSONS    HY    AVIIOM    A    SUIT    MAY    BK    INSTITUTED. 


C'u.  11.  §  .t. 


Forcifoi  State 
suing  be- 
comes suhject 
to  the  Juris- 
dii'tjoii  in 
Equity,  as  to 
connected 
matters. 

Colonial 
tiovorniucnts, 
cxistinj;  by 
letters-pat- 
ent, may  sue. 


a  Court  of  Law  or  Kiiiiit y  in  Kni^land,  it  becomes  subject,  as  to  all 
niattoi"s  connected  with  that  suit,  to  the  jurisdiction  of  a  Court  of 
Equity;^  and  a  bill  tiled  by  it  may  be  dismissed  with  costs.-  An 
mnbassador,  or  minister  plenipotentiary,  of  a  foreign  State,  does 
not  ]n-(^perly  represent  that  State  in  a  Court  of  justice." 

It  seems  that  a  colonial  government,  existing  by  letters-patent, 
which  is  in  some  degree  similar  to  a  corporation  possessing  rights 
in  England,  may  sue  here,  and  ought  to  be  regulated  by  the  law 
of  England,  under  which  it  has  existence;*  thus,  in  Penn  v. 
Lord  Baltlmore^^  Lord  Hardwicke  made  a  decree  at  the  suit  of 
the  governor  of  a  province  in  America,  claiming  under  letters- 
patent,  by  which  the  district,  property,  and  government  had  been 
granted  to  his  ancestor  and  his  heirs.  The  suit  was  for  the  specific 
performance  of  articles,  executed  in  England,  res])ecting  the  boun- 
daries of  the  two  provinces  of  Maryland  and  Pennsylvania,  in 
North  America;  and  Lord  Hardwicke,  although  he  admitted  that 
the  original  jurisdiction,  in  -cases  relating  to  boundaries  between 
pi'ovinces,  was  in  the  King  in  council,  made  a  decree :  founding 
the  jurisdiction  upon  articles  executed,  in  England  under  seal,  for 
mutual  considerations,  which  he  considered  as  giving  jurisdiction 
to  the  King's  Courts,  both  of  Law  and  Equity,  Avhatever  the  sub- 
ject-matter might  be. 


Power  to  sue 
in  corporate 
name  an 
inseparable 
incident  to  a 
corporation. 

By  charter, 
may  sue  and 
be  sued  by 


Section  III.  —  Corporations  and  Joint- Stock  Companies. 

The  right  to  sue  is  not  confined  to  persons  in  their  natural 
capacities :  the  power  to  sue  and  be  sued  in  their  corporate  name 
is  a  power  inseparably  incident  to  every  corporation,  whether  it  be 
sole  or  aggregate.® 

As  a  corporation  must  take  and  grant  by  their  corporate  name, 
so  by  that  name  they  must,  in  general,  sue  and  be  sued  ;'^  and  they 


ident  of  the  United  States  of  America  v. 
Drummond,  .33  Beav.  449.  Hut  the  Court 
may  stay  proceedings  in  the  original  suit 
until  the  means  of  discovery  are  secured 
in  the  cross-suit.  United  States  of  Amer- 
ica V.  Warner,  L.  R.  2  Ch.  Ap.  582,  per 
Lord  Chancellor  and  Lord  Cairnes  L.  J. 

1  Hotlisciiild  i".  Queen  of  Portugal,  3  Y. 

6  C.  Ex.  594.  Priolcau  v.  United  States, 
L.  H.  2  Eq.  659,  V.  C.  W. ;  S.  C.  nom. 
United  States  of  America  v.  Prioleau,  12 
Jur.  N.  S.  724;  King  of  Spain  v.  HuUett, 

7  Hligh  N.  S.  359;  1  CI.  &  Fin.  333; 
Duke  of  Brunswick  v.  King  of  Hiinover, 

8  Beav.  1 ;  U.  States  of  America  v.  Wag- 
ner L.  R.  2  Ch.  Ap.  582,  L.  C.  &  L.  J.J.; 
L.  R.  3  En.  724,  V.  C.  W. 

2  See  IJ.  States  of  America  v.  McRae, 
L.  R.  8  Eq.  69,  77,  V.  C  J.;  Queen  of 
Spain  y.  Parr,  18  W.  R.  110,  112,  V.  C.  .L 

2  Schneider  ».   Lizardi,   9    Beav.   461, 


466;  Tlie  Columbian  Government  v.  Roth- 
schild, 1  Sim.  94. 

4  Barclay  v.  Russell,  3  Ves.  424,  434. 

5  1  Ves.  S.  444,  446. 

6  1  Bla.  Com.  475;  Story  Eq.  PI.  §  50; 
2  Kent  (11th  ed.)  283;  Hotchkiss  v.  Trus- 
tees, &c.  7  John.  356;  Sharon  Canal  Co  v. 
Fulton  Bank,  7  Wend.  412;  Chambers  «. 
Bap.  Edu.  So.,  1  B.  Mon.  216;  Le  Grand 
V.  Hampden  Siiiney  College,  5  Munf  324; 
Trustees  of  Lexington  v.  M' Council,  3  A. 
K.  Marsh.  224;  Central  Manuf.  Co.  v. 
Hartshorne,  3  Conn.  199;  Bank  of  Orleans 
V.  Skiimer,  9  Paige,  305. 

'  A  corporation  can  be  called  upon  to 
answer  onl}-  by  its  proper  name.  Binney's 
case,  2  Bland,  99.  So  a  corporation  can 
sue  only  by  the  name  and  st}'le  given  to 
it  b^'  law.  Porter  v-  Neckervis,  4  Rand. 
359.  See  Minot  v.  Curtis,  7  Mass.  444.  In 
Winnipiseogee  Lake  Co.  v.  Young,  40  N. 


CORPORATIONS    AND   JOINT-STOCK    COMPANIES. 


21 


may  sue  by  their  true  name  of  foundation,  though  they  be  better 
known  by  another  name.  Thus,  the  masters  and  scholars  of  the 
Hall  of  Valens  Mary,  in  Cambridge,  brought  a  writ  by  that  name, 
which  was  the  name  of  their  foundation,  though  they  were  better 
known  by  the  name  of  Pembroke  Hall,  and  the  writ  was  held  good.^ 

As  a  corporation  by  j)rescription  may  have  more  than  one  name, 
they  may  sue  by  the  one  name  or  the  other,  alleging  that  they  and 
their  predecessors  have  from  time  immemorial  been  known,  and 
been  accustomed  to  plead,  by  the  one  or  by  the  other.^ 

A  suit  by  a  corporation  aggregate,  to  recover  a  thing  due  to 
them  in  tlieir  corporate  right,  must  not  be  brought  in  the  name  of 
their  head  alone,  but  in  their  full  corporate  name,  unless  it  appear 
that  the  Act  of  Parliament  or  charter  by  Avhich  they  are  consti- 
tuted enables  them  to  sue  in  the  name  of  their  head.  Yet,  though 
it  appear  that  the  head  of  a  corporation  is  enabled  to  sue  in  his 
own  name  for  any  thing  to  which  the  corporation  is  entitled,  this 
will  not  preclude  it  from  suing  by  its  name  of  incorporation ;  thus, 
where  an  action  of  debt  Avas  brought  in  the  name  of  the  President 
and  College  of  Physicians,  to  recover  the  penalty  of  5/.  per  month, 
under  the  stat.  14  Hen.  VIH.  c.  15,  for  practising  physic  in  London 
without  a  license:  on  demuiTcr  to  the  declaration,  this  objection, 
among  others,  was  taken,  that  the  action  ought  to  have  been 
brought  in  the  name  of  the  College  only,  or  of  the  President  only, 
the  words  of  the  patent  being  '■'•  qxtod  ipsi per  nomina  Presidentis 
Collegii  seu  communitatis  facultatis  medicince  London^''  should  sue 
and  be  sued.  To  this  it  was  answered,  that  they  were  incorpo- 
rated by  the  name  of  President  and  College,  and  had,  in  conse- 
quence of  that,  a  power  to  sue  and  be  sued  by  that  name ;  and 
that  this  power  was  not  taken  away  by  the  additional  affirmative 
power  which  was  given  them.^ 

It  has  been  determined,  that  where  an  Act  of  Parliament  grants 
any  thing  to  a  corporation,  the  grant  shall  take  eft'ect,  tliough  the 


Ch.  II.  §  3. 


true  name  of 
foundation, 
though  better 
known  by 
another. 

By  prescrip- 
tion, having 
several 
names,  may 
sue  by  either. 

Cannot  sue 
in  name  of 
head  alone, 
unless  speci- 
ally author- 
ized; 


but,  though 
so  author- 
ized, may 
sue  in  name 
of  incorpor- 
ation. 


H.  428,  Bell  C.J.  said:  "The  practice, 
we  think,  is  nearly  universal,  that  a  cor- 
poration is  described  in  its  bill  by  its  cor- 
porate name,  with  the  addition  of  the  fact 
that  it  is  a  corporation  duly  established  by 
law  in  such  a  State,  iiiul  having  its  place 
of  bu'lness  at  such  a  plnce;  and  a  corpo- 
ration defendant  is  described  in  the  same 
way.  In  the  case  of  public  corporations 
created  by  public  laws  the  Court  is  offi- 
cially to  take  notice  of  the  corporate  char- 
acter." See  Withers  v.  Warner,  1  Str. 
809.  "  But  in  the  case  of  (irivate  corpora- 
tions, created  by  charters  or  priviite  .\cts 
the  Court  is  not  merely  not  bound  to  take 
notice  of  the  corporate  nnmes  as  such,  but 
they  caimot  officially  take  such  notice. 
The  |)arty  is  bound  to  allege  it,  as  a  fact 
to  be  (>nivcd,  if  he  would  avail  himielf  of 
it.     If,  then,  a  party  docs  not  allege  the 


corporate  character  of  either  party,  plain- 
tiff or  defendant,  it  must  be  assumed  by 
the  Court  that  the  name  is  descriptive 
either  of  an  individual  or  of  an  associa- 
tion." See  also  Union  Fire  Ins.  Co.  v. 
Osgood,  1  Duer,  707;  State  i\  .Mead,  27 
Vt.  722;  State  v.  Central  Wailroad  Co.,  28 
Vt.  584;  State  v.  Same,  28  Vt.  588;  Cam- 
den, &c.  V.  Rower,  4  Barb.  127;  The  Bank 
r.  Sini'inton,  2  Texas,  531. 

1  44  Ed.  III.  35;  1  Ky<l  on  Corp.  253; 
and  see,  as  to  title  by  which  nmnicipal 
corporations  must  siu-  and  be  sued,  C^or- 
pnration  of  Hocliester  r.  Lee,  15  Sim.  376; 
Attoriie3'-General  /•.  < 'orj)oration  of  Wor- 
cester, 2  I'hil.  3;   1  Coop.  t.  Cott.  18. 

2  See  9  VA.  IV.  21;  13  Hen.  VII.  14; 
IG  Hen.  VIl.  1 ;  and  21  Hen.  VI.  4,  which 
Inst  seems  conlni. 

3  2  Salk.  461. 


Whether  a 
cor])(iration, 
claiming  un- 
der a  grant 


oo 


PERSONS    BY    AVIIOM    A    SUIT    INI  AY    BK    INSTITUTRD. 


Til.  II.  5  .r 


by  difforiMit 
name  from 

i-orjmrato 
n.'iino,  can 
siio  liv  such 
iiamo,  (/Hcrvt  J" 

Corporal  i»ii 
may  imi>oaih 
transaciioiis 
eflVotiil  ill 
its  name. 


Corporation, 
havinfj  a 
head,  oannot 
sue  or  lie  sued 
without  it. 

Head  of  cor- 
poration need 
not  be  called 
by  his  own 
name,  nor 
any  of  the 
members ; 
but  if  named, 
suit  will  not 
abate  by  their 
deaths. 


triK'  oori)i>r:i(o  iinino  be  not  used,  provided  tlio  name  iu-luMlly  used 
be  a  sullicient  <lescriiilion  of  tlie  eor]»oration ;  lliough  it  maybe 
doubtl'ul  wlullirr,  in  siiiiiu'  to  oiiforce  its  elaiin  under  that  Act,  it 
can  use  the  name  therein  mentioned.^ 

In  the  ease  of  The  Attorudj-Gemral  v.  "H7As'0^^Mvhich  was  :v 
joint  bill  and  information,  and  in  which  the  corporation  of  Leeds 
"was  both  iilaintitt'  and  relator,  an  objection  was  made  that  a  cor- 
])oration  bi-ing  a  body  wliose  identity  is  continuous,  could  not  be 
lieard  to  imjieaeh  transactions  carried  into  effect  in  its  own  name 
by  its  former  governing  body.  The  obje.ctiou  was  overruled  by 
Lord  Cottenliani,  who  thought  that  the  true  way  of  viewing  this 
was  to  consider  the  members  of  the  governing  body  of  the  corpo- 
ration as  its  agents,  bound  to  exercise  its  functions  for  the  purposes 
for  Avliich  they  Avere  given,  and  to  protect  its  interests  and  prop- 
erty;  and  that  if  such  agents  exercised  those  functions  for  the 
purpose  of  injuring  its  interests,  and  alienating  its  property,  the 
corporation  ought  not  to  be  esto])])ed  in  this  Court  from  complain- 
ing, because  the  act  done  was  ostensibly  an  act  of  the  corporation. 

We  have  seen  above,  that  a  corporation  cannot,  unless  specially 
authorized  by  its  constitution,  sue  by  its  head  alone ;  so  neither 
can  a  corporation  aggregate  which  has  a  head  sue  or  be  sued  with- 
out it,  because  without  it  the  corporation  is  incomi)lete.'*  It  is  not, 
however,  necessary  to  mention  the  name  of  the  head,**  nor  is  it 
necessary,  in  the  case  of  corporations  aggregate,  to  name  any  of 
the  individual  members  by  their  proper  christian  and  surnames;^ 
but  if,  in  a  suit  in  Equity  by  the  members  of  a  corporation  in  their 
corporate  capacity,  they  are  mentioned  by  their  names,  the  suit 
will  nof  become  defective  by  the  death  of  some  of  the  members, 


1  10  Mod.  207,  208;  1  Kyd  on  Corp. 
256.  A  declaration,  upon  a  promissory 
note,  thiit  it  was  made  to  the  Medway 
Cotton  Manufactory,  si  corporation,  &c., 
by  the  name  of  K.  M.  &  Co.  was  held 
good  on  demurrer.  Meilway  Cotton  Man- 
ufactory V.  Adams,  10  Mass.  3G0.  See 
Chiiritsible  Association  v.  Baldwin,  1  Met. 
359;  Commercial  Bank  v.  French,  21  Pick. 
686.  If,  in  a  contract  with  a  corporation, 
its  name  be  so  given  as  to  distinguish  it 
from  other  corporations,  it  is  suliicient  to 
sup|)ort  an  action  in  the  true  corporate 
name.  Hagerstowii  Tiirn|)ike  v.  Creeger, 
5  Har.  &  J.  122;  S.  1*.  Inh:il)it;ints  of 
Alloway  Creek  v.  Strong,  6  Ilalst.  323; 
Berks  and  Dauphin  Co.  v.  Myers,  6  S.  & 
R.  16:  Woolwich  r.  Forrest,  I'enninp.  11; 
First  Parish  in  Sutton  v.  Cole,  3  Pick. 
232;  Aneell  &  Ames  Corn.  60,  61;  Mil. 
and  Chil.  Turnpike  Co.  v.  Brush,  10  Ohio, 
111. 

Contracts  made  by  mere  servants  or 
agents  of  corporations  may  be  sued  in  the 
name  of  the  corporations.  Binney  v. 
Plumlev.  5  Vt.  500.  See  Proctor  v.  Web- 
ber, 1  Chip.  371;  African  Society  v.  Var- 
ick,  13  John.  38. 


A  town  may  sue  by  the  description  of 
A.  &  B.,  and  the  rest  of  the  inhabitants 
of  such  town,  instead  of  using  the  corpo- 
rate name  merely.  Barkhampstead  v. 
Parsons,  3  Conn.  1. 

2  C.  &  P.  1,  21,  24. 

3  2  Bac.  Ab.  tit.  Corp.  E.  2. 
■f  1  Kyd  on  Corp.  281. 

5  2  Iiist.  666.  "  Tlie  corporation  itself 
is  regarded  as  a  distinct  person;  and  its 
property  is  legally  vested  in  itself,  and 
not  in  its  stockholders.  As  individuals, 
they  cannot,  even  by  joining  together 
unanimously  convey  a  title  to  it,  or  main- 
tain an  action  at  Law  for  its  possession,  or 
for  damages  done  to  it.  Nor  can  they 
make  a  contract  that  shall  bind  it,  or  en- 
force bj'  action  a  contract  that  has  been 
made  with  it."  Chapnun  J.  in  Peabody 
V.  Flint,  6  Allen,  55,  56.  In  Kennebec  & 
Port.  II  H.  Co.  V.  Port  &  Kennebec  R.R. 
Co.,  54  Maine,  173,  it  was  held,  that  a 
railroad  corporati m  and  a  portion  of  its 
stockhohiers  cannot  ji'in  as  co-plaintiffs  in 
a  bill  to  redeem  the  road  from  a  mortgage, 
there  being  n<j  allegation  that  the  corpo- 
ration has  been  guiliy  of  any  violation  of 
its  trust. 


COEPORATIONS    AND    JOINT-STOCK    COMPANIES. 


23 


Corporation 
sole  must 
show  in  what 
right  he  sues : 


although  it  would  have  abated  if  the  suit  had  been  by  them  in  Ch.  ii.  §  3. 
their  individual  characters.  Thus,  where  the  warden  and  fellows 
of  Manchester  College  filed  a  bill  for  tithes  in  their  corporate  ca- 
pacity, but  in  their  proper  names,  wherein  a  decree  was  pro- 
nounced, from  which  both  the  plaintifts  and  defendants  appealed, 
and  pending  the  appeal  two  of  the  fellows  died,  and  two  new  fel- 
lows were  elected  in  their  place,  an  objection  was  taken,  On  the 
ground  that  the  new  fellows  were  not  parties;  but  Lord  Eldon 
held  that  there  was  no  defect  of  parties,  and  directed  the  appeal 
to  proceed.^ 

A  sole  corporation,  suing  for  a  corporate  right,  having  two  capa- 
cities, a  natural  and  a  corporate,  must  always  show  in  what  right 
he  sues.2  Thus,  a  bishop  or  prebendary,  suing  for  land  which  he 
claims  in  right  of  his  bishopric  or  prebend,  must  describe  himself 
as  bishop  or  prebendary;  and  if  a  parson  sue  for  any  thing  in  right 
of  his  parsonage,  he  ought  to  describe  himself  as  parson.  In  this 
respect  a  sole  corporation  differs  from  a  corporation  aggregate,  be- 
cause the  latter  having  only  a  corporate  capacity,  a  suit  in  its  cor- 
porate name  can  be  only  in  that  capacity.^  It  also  differs  from 
corporations  aggregate,  in  that  by  the  death  of  a  corporation  sole  a 
suit  by  him,  although  instituted  in  his  corporate  capacity,  becomes 
abated,  which  is  not  the  case,  as  Ave  have  seen,  with  respect  to  suits 
by  corporations  aggregate. 

It  is  to  be  observed,  that  in  cases  of  abatement  by  the  death  of 
a  corporation  sole,  there  is  a  material  distinction  with  regard  to 
the  right  to  revive.  If  the  plaintiff  was  entitled  to  the  subject- 
matter  of  the  suit  for  his  own  benefit,  his  personal  representatives 
are  the  [)arties  to  revive ;  but  if  he  was  only  entitled  fi)r  the  benefit 
of  others,  his  successor  is  the  person  who  ought  to  revive.  Thus, 
if  the  master  of  an  hospital,  or  any  similar  corporation,  institute 
proceedings  to  recover  the  payment  of  an  annuity  and  die,  his 
successors  shall  have  the  arrears,  and  not  his  executors,  because  he 
is  entitled  only  as  a  trustee  for  the  benefit  of  his  house :  but  it  is 
otherwise  in  the  case  of  a  parson ;  there  the  executors  are  entitled, 
and  not  the  successor,  befeause  he  was  entitled  to  the  annuity  for 
his  own  benefit.''  On  the  same  principle,  if  a  rent  due  to  a  dean 
and  chapter  be  in  arrear,  and  the  dean  die,  there  is  no  abatement, 
because  the  rent  belongs  to  the  succeeding  dean  and  chapter ;  but 
if  the  rent  be  due  to  the  dean  in  his  sole  corporate  capacity,  it 
shall  go  to  his  executors,  and  they  must  revive.^ 

Although  corporations  aggregate  are  entitled  to  sue  in  their 
corporate  capacity,  the  Court  will  not  permit  parties  to  assume  a  assuming 

1  Blackburn  v.  Jepson,  8  Swanst.   132,  •''  //;/'/. 
138.  ■*  1  Kyd  on  Corp.  77. 

2  2  Bac.  Ab.  tit.  Corp.  K.  2;  Weston  v.  <>  1  Kyd  on  Corp.  78. 
Hunt,  2  Mass.  500. 


his  suit 
abates'by  his 
death. 


Of  revivor : 


wliere  suit 
for  his  own 
benefit : 

wliere  for  the 
benefit  of 
others. 

Master  of  an 
hospital. 


Parson. 


Dean. 


Siiiti 


1  bv  pel 

falsely 


24 


PERSONS    BY    AVIIOM    A    SUIT    MAY    BE    INSTITUTED. 


Cii.  II.  §  ;?. 
> y . 

corponitc 
chanictors, 
not  pennit- 
ted. 


Foreign 
coq)orations. 


corporate  character  to  wliich  they  are  not  entitled ;  and  where  it 
ajipcars  sut^iciently  on  the  bill  that  the  plaintiffs  have  assumed 
such  a  character  without  being  entitled  to  it,  a  demurrer  will 
hold.^  Tims,  where  a  bill  was  iiled  by  soTiie  of  (he  members  of  a 
lodge  of  freemasons  against  others,  for  the  delivery  up  of  certain 
specific  chattels,  in  Avhich  bill  there  was  great  affectation  of  a  cor- 
})orato  character  in  stating  their  laws  and  constitutions,  and  the 
original  cliarter  by  which  they  were  constituted,  a  demurrer  Avas 
allowed:  because  the  Court  will  not  permit  persons  who  can  only 
sue  as  partners,  to  sue  in  a  corporate  character ;  and,  upon  princi- 
ples of  policy,'the  Courts  of  this  country  do  not  sit  to  determine 
upon  charters  granted  by  persons  who  have  not  the  prerogative  to 
grant  them.- 

A  suit  may  be  supported  in  England  by  a  foreign  corporation, 
in  their  corporate  name  and  capacity,^  and  in  pleading,  it  is  not 
necessary  that  they  should  set  forth  the  proper  names  of  the  per- 
sons who  form  such  corporation,  or  show  how  it  was  incorporated,* 
though,  if  it  is  denied,  they  must  prove  that  by  the  law  of  the 
foreign  country  they  were  effectually  incorporated.^ 


1  Story  Eq.  PI.  §  497 ;  see  Livingston  v. 
Lynch,  4  John.  Ch.  573,  596. 

'2  Lloyd  V.  Loaring,  6  Ves.  773;  Wo- 
mersley  v.  Merritt,  L.  R.  4  Eq.  695,  696, 
V.  C.  M. 

3  A  foreign  corporation  may  sue  in  its 
corporate  name  in  Chancery,  as  well  as  at 
Law.  Silver  Lake  Bank  r.'North,  4  John. 
Ch.  372;  Story  Eq.  I'l.  §  55;  2  Kent  (11th 
ed.)  284,285  in  note;  Society  for  Propa- 
gating the  Gospel  v.  Wheeler,  2  Gall.  105; 
Societv  for  Propagatfng  the  Gospel  v. 
New  Haven,  8  Wheat.  464;  South  Caro- 
lina Bank  v.  Case,  8  B.  &  C.  427;  Bank 
of  Scotland  v.  Kerr,  8  Sim.  246;  Angell 
and  Ames  Corp.  (9th  ed.)  §§  372-375; 
Collins  Conipanv  v.  Brown,  3  K.  &  J.  423  ; 
Prioleau  v.  United  States,  L.  R.  2  Eq.  668; 
The  Bank  v.  Simonton,  2  Texas,  531.  It 
is  now  provided  by  statnte  in  New  York, 
that  a  foreign  corporation  may,  upon  giv- 
ing security  for  the  pa3'ment  of  the  costs 
of  suit,  prosecute  in  the  Courts  of  the 
State,  in  the  same  manner  and  under  the 
same  checks,  as  domestic  corporations. 
Rev.  Stat.  N.  Y.  vol.  2,  p.  457.  Security 
for  costs  is  requireii  in  such  cases  in  Mas- 
sachusetts. Genl.  Sts.  c.  123,  §  20.  See 
Mechanics'  Bank  of  N.  York  v.  Goodwin, 
2  Green,  439.  A  corporation  chartered  in 
one  State  may  sue  in  the  Courts  of  an- 
other State.  "  Williamson  v.  Smoot,  7 
Martin  (Lou.)  31;  Lucas  v.  Bank  of 
Georgia,  2  Stewart,  147;  New  York  Fire 
Ins.  Co.  V.  Ely,  5  Conn.  560;  Cape  Fear 
Bank  v.  Stinemetz,  1  Hill,  44;  13ank  of 
Michigan  v.  Williams,  5  Wend.  478;  7 
AVend.  539;  Poitsmouth  Livery  Co.  v. 
W^atson,  10  Ma«s.  91;  Taylor  v.  Bank  of 
Alexandria,  5  Leigh,  47l";  Bank  of  Ed- 
wardsville  V.   Simpson,    1   Missou.    184; 


Lothrop  V.  (Commercial  Bank  of  Scioto, 
8  Dana,  114;  New  Jersey  Protection  and 
Lombard  Bank  v.  Thorp,  6  Cowen,  46; 
Pendleton  v.  Bank  of  Kentucky,  1  Mon- 
roe, 171;  Taylor  v.  Bank  of  Illinois,  7 
Monroe,  584;  Bank  of  Marietta  v.  Pindall, 
2  Rand.  465;  Silver  Lake  Bank  v.  North, 
4  John.  Cii.  370;  Reed  v.  Conncocheque 
Bank,  5  Rand.  326;  Bank  of  Augusta  v. 
Earle,  13  Peters,  519;  Stewart  v.  U.  S. 
Ins.  Co.,  9  Watts,  126 ;  Bank  of  Washte- 
naw V.  Montgomery,  2  Scam.  422;  Guaga 
Iron  Co.  v.  Dawso'n,  4  Blackf.  202;  Me- 
chanics' Bank  of  N.  York  v.  Goodwin, 
2  Green,  239 ;  Lewis  %i.  Bank  of  Kentucky, 
12  Ohio,  132;  Angell  and  Ames  Corp. 
(9th  ed.)  §  372.  A  State  is  a  corporation 
and  mav  sue  as  such  in  another  State. 
Delatield  v.  The  State  of  Illinois.  2  Hill 
(N.  Y.),  159;  S.  C.  8  Paige,  527;  Mines  v. 
The  State  of  North  Carolina,  10  Sm.  & 
M.  529. 

4  Angell  &  Ames  Corp.  (9th  ed.)  §  632. 

5  Dutch  West  India  Company  v.  Van 
Moyses,  2  Ld.  Ray.  1535.  As  to  the  ne- 
cessity of  proving  the  corporate  existence 
of  a  foreign  corporation,  see  School  Dis- 
trict V.  Blaifdell,  6  N.  II.  198;  Lord  v. 
Bigelow,  8  Vt.  445;  Societv,  &c.  «.  Young, 
2  N.  H.  310 ;  The  Guaga  fron  Co.  v.  Daw- 
son, 4  Blackf.  203;  Portsmouth  Livery 
Co.  V.  Watson,  10  Mass.  92;  Angell  & 
Ames  Corp.  (9th  ed.)  .§§  632,  633;  The 
Bank  v.  Simonton,  2  Texas,  531. 

In  case  of  foreign  corporations,  the 
plaintirts,  un<ler  the  general  issue,  are 
bound  to  show  their  corporate  capacity, 
but  the  Court  will  take  notice,  ex  officio, 
of  the  capacity  of  corporations  created  in 
Ohio  to  sue  in  that  State.  Lewis  v.  Bank 
of  Kentucky,  12  Ohio,  132;  see  Agnew 


CORPORATIONS    AND    JOINT-STOCK    COMPANIES. 


25 


In  the  case  last  mentioned  the  plaintiffs  were  given  leave  to 
amend  their  bill,  by  striking  out  their  present  style  as  plaintiffs, 
and  suing  as  individuals  on  behalf  of  themselves  and  the  other 
persons  interested.^  Ever  since  that  period  it  has  been  held,  that 
where  all  parties  stand  in  the  same  situation,  and  have  one  com- 
mon right  and  one  cominon  interest,  two  or  three  or  more  may 
sue  in  their  own  names  for  the  benefit  of  all ;  and  upon  this  prin- 
ciple, large  partnershij)S  or  associations  in  the  nature  of  joint-stock 
companies,  although  not  incorporated,  have  been  permitted  to 
maintain  suits  instituted  in  the  name  of  a  few  or  more  individuals 
interested,  on  behalf  of  themselves  and  the  other  partners  in  the 
concern.- 

By  the  statute  7  Will.  IV.  &  1  Vic.  c.  73,  the  Sovereign  is  em- 
powered to  grant  letters-patent,  establishing  companies,  and  pro- 
viding that  the  companies  so  established  shall  be  able  to  sue  and 
be  sued  by  their  public  officer;  and  many  joint-stock  companies  or 
associations  for  insurance,  trading,  and  'other  purposes,  have  from 
time  to  time  been  established  by  special  Acts  of  Parliament, 
which,  although  they  have  not  formed  them  into  corporations, 
have  still  confen-ed  upon  them  many  privileges,  in  consequence 
of  which  such  companies  have  acquired  something  of  a  corporate 
character;  amongst -other  privileges  so  conferred,  may  be  reckoned 
that  of  suing  and  being  sued  in  the  name  of  their  public  officer.^ 
The  history  of  these  companies  or  associations,  and  of  the  pro- 
visions which  have  from  time  to  time  been  introduced  into  Acts 
of  Parliament  creating  or  regulating  them,  has  been  detailed  at 
considerable  length  by  Lord  Eldon,  in  Va7i  Sandau  \.  Moore;'' 
and  his  Lordship's  observations  may  be  useful  to  those  upon  whom 
the  duty  may  devolve  of  framing  suits  on  behalf  of,  or  against, 
persons  connected  with  the  different  classes  of  joint-stock  compa- 
nies there  enumerated.  It  will  suffice,  however,  for  our  present 
purpose,  to  obsenx*,  that  where  any  members  of  a  company  wish  to 
sue  the  directors  or  others  who  are  members  as  well  as  themselves, 
they  may  maintain  such  a  suit  in  their  own  individual  capacities; 
either  suing  by  themselves,  and  making  the  rest  of  the  com])any 


Cn.  II.  §  3. 

.Toint-stock 
companies. 


Companies 
established 
by  letters- 
patent,  and 
under  special 
Acts  of  Par- 
liament, sue 
by  their  pub- 
lic officers. 


Individual 
members 
may  sue  tlic 
directors. 


V.  Bank  of  GettysburK.  2  Har.  &  G.  478; 
Port'-niouth  Livery  Co.  v.  Watson,  10 
Mass.  92;  \'.:\\i\v.  I5ank  of  New  Haven  r. 
(!|iapin,  3  I'ick.  l^-O;  Carini(  had  r.  Trus- 
tees of  Sciiiiol  Laii'ls,  3  Howard  (Miss.), 
84;  Williams  r.  l5;Mik  of  M.  7  Wend.  .■..39; 
IJank  of  WMtcr.viiie  i\  W.  W.  IJk.  13 
How.  I'r.  270;  Zion  (yhurcli  ?'.  St.  Peter's 
Church,  h  W.  &  S.  2ir,;  Arifj:ell  &  Ames 
Corp.  (9th  ed.)  §  '132;  Wiiiiiipi.seogee 
Lake  Co.  V.  Youn^f,  40  .N.  II.  420,  428. 

1  C    Yes.    779;    and    sec.    Womerslev   v. 
Merrill,  L.  li.  4  Kf|.  695,  (J9(i,  V.  ().  .M. 

2  See    Chanccy    r.    Ma  v.    Prec.    in   Ch. 
592;  (;ood  v.  Blewitt,  13  Ve».  397;  Cock- 


burn  V.  Thompson,  16  Ves.  321,  325; 
Pearce  v.  Piper,  17  Ves.  1;  IJlain  v.  Af^jar, 
1  Sim.  37,  43;  Crav  v.  Chaiilain,  2  S.  & 
S.  267,  272;  2  Itu.ss.  126;  Van  Snndau  r. 
Moore,  1,  Russ.  441;  I.iind  v.  Itlanchani, 
4  Hare,  290,  292;  Womerslev  )'.  .Merrill, 
L.  H.  4  Kci.  695,  Y.  C.  M.;  and  see  ywsV, 
Chap.  Y.  §  1,  J'niiies. 

8  As  to  aliatenieiit  by  death  of  a  public 
officer,  see  7  Ceo.  IV.  c.  46,  §  9,  and  Hur- 
niester  v.  Baron  von  Sten/.,  2.'1  Hcav.  32. 
For  form  of  order  to  substitute  a  new  offi- 
cer, see  Meek  v.  Hiirnlev,  M-  li  i  1'-  .Ian. 
1863,  Kef,'.  Lib.  li.  6;  and  Seton,  1173. 

*  1  Ku.ss.  441,  458. 


26 


TERSONS    HY    M  IIO^I    A    SUIT    MAY    BE    INSTITUTED. 


Ch.  II.  5  .1. 
> , ' 

Public  oflicer 
iniiy  siio 
iliri'i'tors,  in 
iYsp«'i-t  ofpast 
trjiiisiiitions. 


Companies 
R'ljistoreil 
under  7  «S:  8 
Vio.  o.  1 10,  or 
under  .loint- 
Stoi-k  Com- 
panies' Atts. 
18.".!!.  18:)7. 
and  1853,  or 
Companies' 
Act.  18G2,  sue 
and  are  sued 
in  their  cor- 
porate name. 


(leriM\tl:uits,  or  suiiiu  <>ii  l>i'li:ilf  of  llicnisi'lvcs  and  the  other  mem- 
bers o\'  the  assoeiation.^  AUhoiigh  the  rii;hts  and  duties  of  the 
|uihlie  officer  are  ehiefly  to  sue  and  be  sued  on  belialf  of  the  com- 
]»any,  in  matters  arising  between  tlie  eomi)any  on  tlie  one  hand, 
and  stniuLrers  or  persons  who  are  not  partners  on  the  other,  yet  it 
has  been  liehl,  that  the  public  officer  may  also  institute  proceedings 
against  certain  of  the  directors,  in  respect  to  i)ast  transactions  to 
compel  them  tt)  refund  sums  alleged  to  be  due  from  them  to  the 
partnership.  This  was  decided  by  Sir  James  Parker  V.  C,  with  ref- 
erence to  the  Joint-Stock  Banking  Act,  7  Geo.  IV.  c.  46,  §  9,'^  but 
the  reasons  on  which  his  judgment  rested  would  seem  to  render 
his  decision  applicable  to  all  joint-stock  companies  duly  registered. 
The  statute  7  &  8  Vic.  c.  110,  was,  from  the  year  1.S44  until  the 
passing  of  "The  Joint-Stock  Companies'  Act,  1856,"^  the  statute 
Avhich  regulated  the  constitution  and  management  of  almost  all 
joint-stock  companies;''  and  questions  may  still  occur -with  refer- 
ence to  comi)anies  constituted  under  it ;  but  it  was  repealed,  as  to 
all  future  companies,  by  §  107  of  the  last-mentioned  Act ;  and  that 
section  was  repealed  and  re-enacted  by  the  20  &  21  Vic.  c.  14, 
§  23.  The  Act  of  1856,  as  modified  by  the  Joint-Stock  Companies' 
Acts  of  1857  and  1858,  regulated  the  constitution  and  manage- 
ment of  joint-stock  companies  until  the  passing  of  "The  Com- 
panies' Act,  1862;"^  which  repealed  these  Acts,  but  consolidated 
and  re-enacted  them.  For  the  present  purpose,  however,  it  is 
sivfficient  to  observe,  that  all  companies  constituted  under  these 
Acts  became  and  still  become,  upon  certificate  of  incorporation,  a 
body  corporate,  by  the  name  prescribed  in  tlie  memorandum  of 
association.^ 


1  Hitchens  v.  Congreve,  4  Russ.  562; 
see  Ansell  &  Ames  Corp.  (9th  ed.)  §  391; 
Colman  v.  Eastern  Counties  Railway  Co., 
10  Beav.  1;  Bagshaw  v.  Eastern  Counties 
R-.iilwav  Co.,  7  Hare,  114;- Heath  v.  Ellis, 
12  Met.  601;  Allen  v.  Curtis,  26  Conn. 
4.56;  Putnam  v.  Sweet,  1  Chand.  (Wis.) 
286;  Sackett's  Harbor  Bnnk  v.  Blake,  3 
Rich.  Eq.  225;  Cunliire  r.  Manchester  and 
Bolton  Canal  Co.,  1  M.  &  K.  131,  note; 
Dodge  V.  Wolsey,  IS  How.  U.  S.  331; 
Manderson  v.  Commercial  Bank,  28  Penn. 
379;  Bait.  &  Ohio  li.R.  Co.  v.  Citv  of 
Wheelincr,  13  Gratt   40. 

A  minority  of  the  stockholders  of  a 
corporation  may  maintain  a  hill  in  Equity 
in  behalf  of  themselves  and  the  other 
stockholders,  for  conspiracy  and  fraud, 
whereliy  their  intere-ts  have  been  sacri- 
ficed, again'^t  the  corporation  and  its  offi- 
cers and  others  who  participate  therein. 
Peabodv  v.  Flieit,  0  Allen,  52;  Robinson 
.».  Smith,  3  Paige,  222;  see  Hersey  v. 
"\'eazie,  24  Maine,  9;  Smith  v.  Poor,  40 
Maine,  415. 

An  individual  stockholder  may  main- 
tain a  suit  in  Equity  against  the  directors 


of  a  corporation  for  misconduct  in  office. 
Allen  V.  Curtis,  26  Conn.  456;  Schley  v. 
Dixon,  24  Geo.  273;  Kean  v.  Johnson,  1 
Stockt.  (N.  J.)  401;  Binney's  case,  3 
Bland,  142;  Revere  v.  Boston  Copper  Co., 
15  Pick.  351;  see  Durfee  v.  Old  Colony, 
&c.,  li.R.  Co.,  5  Allen,  230. 

■^  Harrison  v.  Brown,  5  De  G.  &  S. 
728;  and  see  Sedden  «.  Connell,  10  Sim. 
58,  76. 

«  19  &  20  Vic.  c.  47. 

4  This  Act  did  not  apply  to  banking  or 
insurance  companies,  see  §  2. 

5  25  &  26  Vic.  c.  89. 

6  Bv  the  20  &  21  Vic.  c  14,  §  24,  re- 
pealed by  25  &  26  Vic.  c.  89,  but  re-enacted 
by  ib.  §  69  where  there  is  reason  to  be- 
lieve that  the  assets  of  a  limited  company, 
suing  in  Equity,  may  be  insufficient  for 
payment  of  costs,  the  company  may  be 
required  to  give  security  for  costs,  see 
Australian  Steam  Company  v.  Fleming,  4 
K.  &  J.  407;  Caillaud's  Company  v.  Cail- 
laud,  26  Beav.  427;  5  Jur.  N.  S.  259; 
Soutlianipton,  &c.,  Company  v.  Rawlins, 
2  N.  R.  544,  M.  R. ;  9  Jur.  N.  S.  887; 
Southampton,  &c.,  Company  v.  Pinnock, 


PERSONS    RESIDING    OUT    OF    THE    JURISDICTION. 


iJV 


Sectiox  IV.  —  Persons  residing  out  of  the  Jurisdiction. 

•The  rule  that  all  persons  not  lying  under  the  disabilities  after 
pointed  out  are  entitled  to  maintain  a  suit  as  plaintiifs  in  the  Court 
of  Chancery,  is  not  aifected  by  the  circumstance  of  their  being- 
resident  out  of  the  jurisdiction  of  the  Court,  unless  they  be  alien 
enemies,  or  are  resident  in  the  territory  of  an  enemy  without  a 
license  or  authority  from  the  government  here.^ 

In  ordei',  however,  to  prevent  the  defendant  or  respondent  in 
the  case  of  a  petition,  from  being  defeated  of  his  right  to  costs,  it 
is  a  rule,  that  if  the  plaintiff  -  or  his  next  friend,'^  or  the  petitioner,* 
if  he  is  not  a  party  to  the  cause,-^  is  resident  abroad,  the  Court  Avill, 
on  the  ajiphcation  of  the  defendant,  or  respondent,  order  him  to 
give  security  for  the  costs  of  the  suit  or  peCltion,  and  in  the  mean 
time  direct  all  proceedings  to  be  stayed.*^ 

So,  also,  where  a  plaintiff  appears  to  have  no  permanent  resi- 
dence, he  Avill  be  made  to  give  security  for  costs.'' 


Cii.  II.  §  4. 


May  sue, 
unless  alien 
enemies,  or 
residents  in 
enemy's 
countiy  with- 
out license ; 


but  may  be 
ordered  to 
give  security 
for  costs. 


So  where  no 

permanent 

residence. 


11  W.  R.  978,  M.  R.;  Washoe  Mining 
Company  v.  Ferguson,  L.  R.  2  Eq.  371 ; 
V.  C.  W.  The  security  must  be  given 
where,  the  company  being  in  a  course  of 
winding  up,  the  suit  is  b}'  the  official 
liquidator;  Freehold  Land  &  Iir>ck-mak- 
ing  Coiiip  iny  r.  Spar^o,  W.  N.  (1868)  94, 
M.  R. ;  but  it  will  not  be  required  where 
the  company  is  plaintiff  in  a  cross-suit. 
Accidental  &  JIarine  Ins.  Co.  v.  Mercati, 
L.  R.  3  K(|.  200,  V.  C  W.  Tlie  security 
is  not  coiihiied  to  100^.,  but  must  be  for  an 
amount  equal  to  the  probable  amount  of 
costs  payable.  Imperial  Bank  of  Imliii  v. 
BHuk  of  Hindustan,  L.  R.  1  Ch.  Ap.  437; 

12  Jur.  N.  S.  403,  L.  .IJ.,  overruling  Aus- 
tralian .Steam  Company  v.  Fleming,  uhi 
sup.;  and  saapost,  33.  On  an  application 
for  an  injunciion  by  a  limited  company, 
the  Court  will  require  an  undertaking  as 
to  damages  by  some  responsible  person; 
Anglo-Danubian  Compmij'  v.  Rogerson, 
10  Jur.  N.  S.  87,  M.  R.  Pncific  Steam 
Ship  Co.  V.  Gibbs,  14  \V.  R.  218,  V.  C.  W. 
As  to  suits  by  ofHcial  managers  under  the 
Winding-ui)  Act",  1848  ard  1849,  see  11  & 
12  Vic.  c.  4.5,  §§  oO,  60 ;  see  also  Frnest  v. 
Weiss,  2  Dr.  &  Sm.  .061;  9  .lur.  N.  S.  145. 
As  to  suits  by  li(|uidator.s  under  the  .loiiit- 
Stock  Companies'  Acts,  185G-8,  see  19  & 
20  Vic.  c.  47,  §§  90,  102  (7);  and  .see  21 
&  22  Vic.  c.  00,'§  6;  and  under  the  Com- 
panies" .\ct,  1K62.  see  '2'>  &  26  Vic.  c.  8!), 
§§95,  133  (7);  and  sf-c  §§  87,  l.'.l,  195, 
202;  Turquand  v.  Kirby,  L  R.  4  Kq.  123, 
M.  R.;  ruKniaiid  n.  .Marshall,  L.  R.  0  Eq. 
112.  M.  U.;  L.  R.  4  Ch.  Ap.  376,  382, 
L.  C. 

1  Story  Eq.  I'l.  §§  r>l-.''.4. 

2  Tlioutrh  -uiug  a-  executor  or  admin- 
istrator. Knight  0.  De  l'>lii(|uiere,  Sau.  & 
S.  64H. 

«  Kerr  v.  (Jrlle-pie,  7  Hcav.  269. 

*  Drever  v.  Maudeslcy,  5  Russ.  11;  Ax 


pai-te  Seidler,  12  Sim.  106;  Re  Norman, 
II  Beav.  401;  Atkins  v.  Cooke,  3  Drew, 
694;  3  Jur.  N.  S.  283;  Partington  v.  Rey- 
nolds, 6  VV.  R.  307. 

^  Cochrane  v.  Fearon,  18  Jur.  568. 

6  Fox  V.  Blew,  5  Mad.  147;  Lillie  v. 
Lillie,  2  M.  &  K.  404;  Lautour  v.  Hol- 
combe,  1  I'hil.  262,  264:  Newman  v.  Liin- 
drine,  1  McCarter  (X.  J.),  291;  Barker  i'. 
Lidwell,  1  Jones  &  Lat.  703.  And  it  has 
been  held  that  in  default  of  tlie  plaintiff 
giving  security  for  costs  when  ordered, 
his  bill  should  be  dismissed.  Carn:\c  v. 
Crant,  1  Sim.  348;  Massey  v.  Gillelan,  1 
Paige,  644;  Breeding  v.  Kinley,  1  Dana, 
477;  Bridges  v.  Canlield,  2  F.dw.  Ch.  217.  ■ 
But  if  the  non-resident  plaintitf  sues  as 
executor  or  administrator,  it  has  been 
held,  that  the  defendant  cannot  compel 
securitj'  for  costs.  Goodrich  v.  Pendleton, 
3  .lolin.  Ch.  520;  (Jatclicart  t".  llewson,  1 
Hiivcs,  173.  Especially  after  plea,  3  John. 
Ch.  520.  As  to  giving  securitj'  where  all 
the  plaint  ills  are  out  l)ut  the  next  friend 
is  within  the  jurisdiction,  see  Lander  v. 
PiU-r,  16  L.  J.  Ch.  269,  L.  C.  In  Massa- 
chusetts, all  Inlls  in  Equity,  in  which  the 
plaintitf  is  not  an  inliiil)itaiit  of  the  State, 
must,  before  the  entry  tlxM-eof,  l)e  indorsed 
by  some  suliicient  jjersoii  who  is  an  inhab- 
itant of  the.  State.  Genl.  Sts.  c.  123,  § 
20.  Hut  in  case  the  plaintitf  has  failed  to 
have  bis  bill  indorsed  before  entry,  by  ac- 
cident, mistake,  or  inadvertence,  tlie  (!iiurt 
may,  in  any  stage  of  the  iwiuse,  allow  him, 
upon  such  terms  as  seem  just  and  reason - 
Hi)le,  to  fiirni-h  an  indorser  with  the  same 
etfect  as  if  the  bill  had  been  indorsed  be- 
fore entry  in  Court.  St.  of  Mass.  1865,  c.  , 
45,  §  1. 

T  Bailey  77.  Gundry,  1  Keen,  53;  Player 
J).  Antlerson,  15  Siin.  104;  10  .lur.  16!); 
and  see  Calvert  v.  Hay,  2  Y.  &  ('.  Ex. 
217;  Sibbering  v.  Earlof  Balcarras,  1  Do 


•28 


TEKSONS    nv    -WHOM    A    SUIT    MAY    15E    TNSTITUTKD. 


II.  §  4. 


A  resident  in 
Irvland  not 
exempt : 


nor  in  Scot- 
land. 

Security  for 
costs  not  IV- 
quiroil  whore 
co-plaintitfs 
in  Knijland, 
nor  wliere 
plnintitl'  is  an 
otHcer,  or  a 
resident 
abroad,  on 
public  ser- 
vice. 

Peers  of  the 
realm  are  not 
exempt. 


General  rule. 


Cross-bill. 


It  liMs  Ix'i'ii  lu'lil  in  Irclaixl,'  lli;it  notwitlistMudiiio- ll\e  41  Geo. 
Ill,  c.  90,  §  5,  by  wliiih  an  attai-lniuMit  is  oivcii  in  Kn,<;land  to 
cnforoo  an  order  or  decree  made  in  Ireland  lor  llic  ])aynient  of 
tnonev,  a  jdainliff  residing  in  England  must,  on  filing  a,  bill  in 
Ireland,  give  seeurily  tor  costs;-  and  altbougli  tlie  same  Act 
applies  to  persons  who  are  resident  in  Ireland  eomnieneing  suits 
in  Kno-land,  it  has  been  decided  in  the  English  Courts,  that  where 
a  jdaintiff  resident  in  Ireland  files  a  bill  here,  he  must  also  give 
security."  It  has  likewise  been  lield,  that  a  person  resident  in 
Scotland  must,  in  like  manner,  give  security  for  costs.* 

^Yhere  there  are  co-])laintiiFs  resident  in  England,  the  Court  w\\\ 
not  make  an  order  that  other  phiintiffs  who  are  abroad  shall  give 
security  for  costs ;  ^  and  where  the  ])laintiff  is  abroad  as  a  land  or 
sea  officer  in  the  service  of  her  Majesty,  he  will  not  be  ordered  to 
o-ive  security ;  °  and  so,  where  he  is  resident  abroad  upon  public 
service,  as  an  ambassador  or  consul,  he  cannot  be  called  upon  to 
give  security."  The  Court  of  Queen's  Bench,  however,  has  re- 
quired a  Judge  in  the  East  India  Company's  service  to  give 
security ;  ^  and  peers  of  the  realm,  although  they  are  privileged 
from  personal  arrest,  must,  if  they  reside  abroad,  give  security  for 
costs ;  for,  although  such  costs  cannot  be  recovered  by  personal 
process,  they  may  by  other  process,  if  the  jilaintiff  becomes  a  resi- 
dent in  this  country.^  And  it  may  be  stated  generally  that,  Avhere- 
ever  a  plaintiff  is  out  of  the  jurisdiction,  the  defendant  is  entitled 
to  security  for  costs,  unless  it  is  distinctly  shown  that  the  plaintiff 
is  exempted  from  his  liability.^" 

As  a  general  rule,  the  plaintiff  in  a  cross-suit  cannot  be  called 
upon  to  give  security  for  costs  to  the  ])laintiff  in  the  original  suit, 
on  the  principle  that  a  cross-bill  is,  in  reality,  a  portion  of  the  de- 


G.  &  S.  683;  12  .Tur.  108;  Hurst  v.  Pad- 
wick,  12  Jur.  21;  Lumley  v.  Hughes,  2 
W.  R.  112;  Maiibv  r.  Bewicke,  8  De  G., 
M.  &  G.  4(38;  2  Jur.  N.  S.  671;  Oldale  v. 
VVhitcher,  5  Jur.  N.  S.  84,  V.  C.  K.; 
Knight  V.  Corv,  9  Jur.  N.  S.  401,  V.  C. 
W.:  Dick  v.  Munder,  11  Jur.  N.  S.  819; 
13  W.  R.  1013,  M.  K.  The  rule  exten.'s 
to  the  next  friend  of  a  plaintitt',  see  Kerr 
V.  Gillespie,  7  Beav.  269;  Watts  v.  Kelly, 
6  W.  R.  206. 

1  Moloney  v.  Smith,  1  M'Cl.  &  Y.  213. 

2  Mullett  II.  Christmas,  2  Ball  &  B.  422; 
see  also  Stackpoole  v.  Callaghan,  1  Ball  & 
B.  566. 

3  Hill  V.  Reardon,  6  Mad.  46;  Moloney 
V.  Smith,  1  M'Cl.  &  Y.  213;  and  see,  as  to 
plaintiff  resident  in  Ireland  suing  here  in 
other  cases,  Craig  v.  Bolton,  2  Bro.  C.  C. 
609. 

4  Kerr  v.  Duchess  of  Munstcr,  Bunb. 
'  35:  Expnrli-  Liitta,  3  De  G.  &  S.  186. 

^  Winthrop  i'.  Royal  Exch.  Ass.  Co.,  1 
Dick.  282;  Walker  v.  Kasterby,  6  Ves. 
612;  Green  v.  Charnock,  1  Sumner's  Ves. 
396,  and  note  (a) ;  Orr  v.  Bowies,  1  Hodges, 


23 ;  Doc  V.  Roe,  1  Hodges,  315 ;  Gilbert  v. 
Gilbert,  2  P:iige,  603;  Buri;ess  v.  Gregory, 
1  Edw.  Ch.  439.  This  rule  does  not  apply 
where  a  husband,  who  has  no  substantial 
interest,  is  co-phiintirt'  with  his  wife. 
Smiih  V.  Etches,  1  H.  &  M.  711;  10  Jur, 
N.  S.  124.  No  indorser  is  required  in 
Massachusetts,  wh^re  •.\\\y  one  of  two  or 
more  joint  plaintitTs  is  mu  inhabitant  of 
the  Stnte.     Genl.  Sts.  c.  123,  §  20. 

6  Evelyn  v.  Chipjienclale,  9  Sim.  497; 
Clark  V  Fergussoii,  1  Giff.  184;  5  Jur.  N. 
S.  1155;  Fisher  v.  Bunbury,  Sau.  &  S. 
625;  Wright  v.  Everard,  Sau.  &  S.  651. 

7  Colebrook  v.  Jones,  1  Dick.  154; 
Beames  on  Costs,  123.  As  to  ambassa- 
dors resident  here,  and  their  servants,  see 
post,  p.  32. 

8  Plowden  V.  Campbell,  18  Jur.  910,  Q. 
B.;  see  PowpU  v.  HernanI,  1  Ilogan,  144. 

9  Lord  Aidliorough  v.  Burton,  2  M.  & 
K.  401,  403. 

10  Lillie  V.  Lillie,  2  M.  &  K.  404.  As  to 
security  bv  a  limited  company,  see  ante, 
p.  26  n.  (6') 


PERSONS    RESIDING    OUT    OF    THE    JURISDICTION. 


29 


fence  to  the  original  bill ;  ^  but  his  co-defendants  to  the  cross-bill     Ch.  n.  §4.^ 
may  move  for  such  security  against  their  plaintiff;  ^  and  it  has  been  "^ 

held,  that  a  bill'  to  restrain  an  action  at  common  law  is  so  far  a  de- 
fensive proceeding  as  to  exempt  the  plaintiff  in  Equity  from  the 
liability  to  give  secuiity  for  costs ;  ^  but,  on  the  other  hand,  a  de-  Bill  of  inter- 
fendant  in  an  interpleader  suit  being  out  of  the  jurisdiction,  was  P  ®^  ®'^' 
looked  upon  as  plaintiff,  and  ordered  to  give  security  for  costs ;  * 
and  so  also,  a  defendant  who  had  obtained  the  conduct  of  the  cause  Defendant 
has  been  required  to  give  security.^     And  where  the  right  to  re-  taileTcon- 
quire  security  for  costs  from  a  plaintiff  out  of  the  jurisdiction  had  duct  of  cause. 
been  waived,  such  waiver  did  not  preclude  the  defendant  from  re-  In  case  of 
quiring  security  from  the  representative  of  the  original  plaintiff,   security 
by  whom  on  his  death  the  suit  was  revived,  and  who  was  also  out  ^vaived. 
of  the  jurisdiction,*^  or  from  the  plaintiff  on  his  amending  the  bill 
and  stating  thereby  that  he  was  out  of  the  jurisdiction.'' 

A  plaintiff  cannot  be  compelled  to  give  security  for  costs,  unless  Absence  of 
he  himself  states  upon  his  bill  that  he  is  resident  out  of  the  juris-  be^proVed!^^ 
diction,  or  unless  the  fact  is  established  by  affidavit ;  and  the  mere  ^1].'^^™"®^^'^'' 
circumstance  of  his  having  gone  abroad  will  not  be  a  sufficient  poseofresid- 
grouud  on  which  to  compel  him  to  give  security,  unless  it  is  stated,  '"S  abroad, 
either  by  the  jjlaintiff  liimself,  or  upon  affidavit,  that  he  is  gone 
abroad  for  the  purpose  of  residing  there.^ 

Whenever  security  is  asked  fof,  the  question  ai'ises  whether  the  Meamnf^  of 
party  is  resident  abroad  or  not  within  the  meaning  of  the  rule ;  abroad, 
and  tlie  answer  to  that  question  depends,  in  each  case,  upon  the 
interpretation  to  be  put  upon  the  phrase  "  resident,"  or  "  perma- 
nently resident "  abroad.  Thus,  if  a  plaintiff  goes  to  reside  abroad, 
under  circumstances  rendering  it  likely  that  he  will  remain  abroad 
for  such  a  length  of  time  tliat  there  is  no  reasonable  probability 
of  his  ]>oiiig  forthcoming,  when  the  defendant  may  be  entitled  to 
call  u[)on  liim  to  pay  costs  in  the  suit,  that  is  sufficient ;'  and  where 

1  Vincent    r.    Hunter,    5    Hare,    320;  9  Blakeney  v.  Dufiiur,  16  Beav.  202;  2 

M'Gregor  v.   Sliuw,  2   De  G.  &  8.  360;  De  G.  M.  &  G.  771;  17  .lur.  itS;  and  see 

Sloggett  r.  Viant,  13  Sim.   1S7;  Wild  v.  Kennawny  r.  Trip)),  11  IJoav.  .5SH;   Dnim- 

Murriiv,  18  .Jur.  b<J2;  Tvnte  v.  Hoflge,  2  mond  v.  Tillingliurst,  15  Jur.  384,  Q.  B. ; 

J.  &  \l.  602;  8  .lur.  N.  S.  1226;  Washoe  Stewart  r.  Stewart,  20   Benv.  .322;  Wvllie 

Mining  Co.  v.  Ferguson,  L.  K.  2  Erj.  371,  v.  Ellice,  11  Beav.  09;  12  .Jur.  711;  White 

V.  C.  W.  V-  Greathuad,  15  Ves.  2;  1  Smith  Ch.  I'r. 

^  Sloggett  V.  Viant,  13  Sim.  187.  (2d  Am.  ed.)  555;   Ayckbourn's  Ch.  I'r. 

3  Walte.'Uf.  Bill.im,  3  DeG.  &S.  616;  (Lond.   ed.    1844)  217,  218;    1   Iloff.  Ch. 

14  Jur.  165;  Williiiison  v.  Lewis,  3  Giff.  I'r.  200;  Ford  v.  Boucher,  1  Hodges,  o8. 

3'J4;  8. Jur.  N.  S.  'j08.  It  is  well  settled  that,  to  constitute  one  a 

<  Smith  I).  Ilanitnond,  6  Sim.  10,  15.  resident,  his  rcMdunce  must  be  of  a  fixed 

6  Mviin  n.  llarl,  '■>  -lur.  860,  V.  C.  K.  B.  and  permanent,  and  not  of  a  mere  tem- 

6  .j!rcks<.n  V.  Oavenport,  20  Beav.  212;  porary,  character.  (Jraliam,  I'lihc.  505;  1 
7  Jur.  N.  S.  1224.  Smith  Ch.  I'r.  (2d  Am.  ed.)  555,  note  {(i). 

7  Wyilie  V.  Elhce,  11  Beav.  99;  12  An  ab-^ence  of  eiglitccn  months  will  not 
.lur.  711;  and  see  Stewart  v.  Stewart,  30  be  regarded  as  merely  temporary.  Foss 
Beav.  322.  v.   Wiigner,  2   Dowj.    1'.   C.   400.      Kven 

8  (Jreen  v.  Chnrnock,  3  Bro.  C.  C.  371;  though  it  is  sworn  that  tlic  piirty  is  soon 
2  Cox,  284;  1  Ves.  .1.  306;  llolty  v.  Hitcli-  expected.  WriKht  v.  Black,  2  U  end.  268; 
cock,    6   Ve-«.    609;    Kd wards    v.  Burke,  Gilbert  v.  Gilbert,  2  I'aige,  603. 

»  L.  T.  N.  S.  406,  V.  C.  K. 


30  TERSONS  m-  WHOM  a  suit  may  be  instituted. 

Cm.  11.  §  ».  :i  |.l:iiutitl"  .loniiriK'-l  in  Si-ot  himl,  took  funiisluMl  lo(lo;ino-s  in  Lon- 
iloii,  :iiul  thou  liU'.l  his  bill,  it  was  hcM  that  ho  must  uivc  socurity 
for  costs ;'  and  so,  whoiv  tho  jtlaintirt"  wcMit  out  of  tlu'  jurisdiction 
on  matters  comn'ctiMl  with  the  suit,  he  was  ordered  to  give  se- 
curity ;  hut  on  his  return  tlie  order  was  discharg-ed.'^ 
Witiiiu  what  In  order  to  entitle  a  defendant  to  require  security  for  costs  from 
lion  w'Su-  :»  plaintitt;  he  must  make  his  ai)i>lication  at  the  earliest  ])OSsible 
rit y  sliould  lie  time  after  the  fact  lias  .come  to  his  knowledge,  and  before  he  takes 
"""''■  any  further  step  in  the  cause  ;  therefore,  where  the  fact  of  the  plain- 

tiff being  resident  abroad  appears  upon  the  bill,  he  must  ajiply  be- 
fore he  jMits  in  his  answer,  or  applies  for  time  to  do  so :  either  of 
which  acts  Avill  be  considered  as  a  waiver  of  his  right  to  the  se- 
curity.^ Filing  a  demurrer  has,  however,  been  held  not  to  be  a 
waiver;*  and  where  the  plaintiff  amended  his  bill,  and  stated 
thereby  that  he  Avas  out  of  the  jurisdiction,  the  defendant  was  held 
not  to  be  precluded  from  requiring  security  for  costs,  although  he 
had  some  notice  of  the  plaintiff  being  resident  abroad  pi-eviously 
to  the  date  of  the  amendment.* 
Material  step  If  the  plaintiff  is  not  described  in  the  bill  as  resident  abroad, 
in  cause,  after  r^j^^  the  defendant  does  not  become  appi-ised  of  that  fact  before  he 

notice,  will  .      ,  .  ,  ■,       .-,  i-      ^-  r-j.  .if 

deprive  de-  puts  in  his  answer,  he  may  make  the  api)lication  alter  answei  ,  it, 
ri"huo  f>  )lv  l^o^^'cver,  he  takes  any  material  step  in  the  cause  after  he  has  no- 
for  security. "  tice,  he  cannot  then  apply.  Where  the  plaintiff  was  described  in 
the  original  bill  as  late  of  the  West  Indies,  but  then  of  the  city  of 
London,  and  the  defendant,  having  answered,  filed  a  cross-bill 
against  the  plaintiff,  but,  exceptions  having  been  taken  to  the 
answer,  put  in  a  further  answer,  and  then  applied  to  the  Court 
that  the  plaintiff  in  the  original  bill  might  give  security  for  costs : 
alleging  in  his  affidavit,  that  upon  applying  to  the  plaintiff's  solici- 
tor in  the  original  suit  to  aj)pear  for  him  to  the  cross-bill,  he  dis- 
covered, for  the  first  time,  that  the  ])laintiff  did  not  reside  in 

1  Ainsley  v.  Sims,  17  Beav.  57;  17  Jur.  must  make  the  objection  at  the  first  term, 
657;  and  see  Swanzy  v.  Swanzy,  4  K.  &  or  he  will  be  held  to  iuive  waived  it. 
J.  237;  4  Jur.  N.  S.  1013.  Carpenter  v.  Aldrich,  3  Met.  68;  see  Whit- 

2  O'Coniier  v.  Sierra-Nevada  Co.,  24  ing  v.  Hollister,  2  Mass.  102;  Gilbert  v. 
Beav.  43.5.  Niintueket  Bank,   5  Ma.ss.   98;    Clapp  v. 

■i  Meliorucchv  v.  Meliorucchj',  2  Ves.  Balch,   3   Greenl.   2)6.    The   practice   in 

S.   24;    1   Dick".   147;   Craiji  v.  Bolton,   2  New  York,  under  the  Act  of  that  State 

Bro.  C.  C.  609;  Anon.,  10  Ves.  287;  and  authorizing  the  defendant  to  require  secu- 

see  Swanzy  i'.  Swanzy,  4  K.  &  J.  237;  4  rily  for  co.'-ts,  allows  the  application  to  be 

.lur.  N.  S.  1013;   Murrow  v.  Wilson,  12  made  at  any  stage  of  the  cause,  if  the 

Beav.  497;    Cooper  v.   I'urton,  8    W.   K.  plaintifl'  was  a  non-resident  at  the  com- 

702;   and  see   Long  i'.   ToUenliam,   1   Ir.  menceinent  of  the  suit,  and  continues  so. 

Ch.   Hep.  «127;  Atkins  v.  Cook,  3  Drew.  Burgess  v.  Gregory,  1  Kdw.  Ch.  449. 

694;  3  Jur.  N.  S.  283;  Newman  v.  Lan-  •*   Watteeu  v.  Biilam,  3  De  (ir.  &  S.  516; 

drine.  1  McCarter  (N.  J.),  291;   Long  i'.  14  Jur.    16r>;    Goodrich    v.   Pendleton,   3 

Tardy,  1  John.  Ch.  202;  Goodrich  v  Pen-  Johns.  Ch.  520;  Priors  v.  White,  2  Moll, 

dleton,  3  John.  Ch.  520.     In   Mas.sachu-  301;  Kardy  i'.  Ileadford,  4  Moll.  464. 

setts,  'thougti   a   writ,   sued   out    bv   the  5  Wyllie  v.  Kilice,  11  Beav.  99,  12  Jur. 

plaintiff,  who  is  not  an  inhabitant  of  the  911;  and  sec  Stewart  v.  Stewart,  30  Beav. 

State,  is  not  indorsed   as  is  required  by  .320. 
Genl.  Sts.  c.  123,  §  20,  yet  the  defendant 


PERSONS    RESIDING    OUT    OF    THE    JURISDICTION. 


31 


London,  as  alleged  in  the  bill,  but  in  Ireland ;  it  was  held  that  as 
the  defendant  had,  in  his  cross-bill,  stated  the  plaintiff  to  be  resi- 
dent in  Ireland,  and  after  that  had  answered  the  exceptions  to  his 
answer  to  the  original  bill,  he  had  thereby  taken  a  step  in  the  cause 
after  it  was  evident  that  he  had  notice  of  the  plaintift^'s  being  out 
of  the  jurisdiction,  and  had  thereby  precluded  himself  from  asking 
for  security  for  costs,  and  the  motion  was  therefore  refused.^  Ex 
parte  Sekller  -  was  a  petition  under  an  Act  of  Parliament,  author- 
izing the  Court  to  make  an  order  in  a  summary  manner  upon  peti- 
tion. The  petitioner  being  out  of  the  jurisdiction  of  the  Court, 
and  the  respondent  having  answ^ered  the  affidavits  in  support  of 
the  petition,  the  question  was  whether  he  had  thereby  lost  his  right 
•to  require  the  petitioner  to  give  security  for  costs :  Sir  Lancelot 
Shadwell  Y.  C.  ruled  that  he  had  not,  but  that  he  might  make  the 
application  on  the  petition  coming  on  to  be  heard.^ 

Where  the  defendant  had  sworn  to  his  answer  before  he  had 
notice  of  the  fact  of  the  plaintiff  being  resident  abroad,  but,  in 
consequence  of  some  delay  in  the  Six  Clerks'  Office,  the  answer 
was  not  filed  till  after  the  defendant  had  been  informed  of  the 
plaintiff's  residence,  a  motion  that  the  plaintiff  might  give  security 
for  costs  was  considered  too  late :  although  the  defendant  himself 
was  not  privy  to,  or  aware  of,  the  delay  which  had  taken  place  in 
filing  his  answer.* 

If  a  plaintiff,  after  filing  a  bill,  leave  the  kingdom  for  the  purpose 
of  settling,  and  do  actually  take  up  his  residence  in  foreign  parts, 
it  is,  in  any  stage  of  the  cause,  ground  for  an  order  that  he  shall 
give  security  for  costs.^  Such  application  ought  to  be  made  as 
early  as  possible  after  the  defendant  has  become  apprised  of  the 
fact;  and  it  is  not  enough  to  support  such  an  application  to  swear 
that  the  plaintiff  has  merely  gone  abroad,  but  the  affidavit  should 
go  on  to  say  that  he  is  gone  to  settle  abroad.*  In  Weeks  v.  Cole^ 
an  application  was  made  by  the  defendant,  after  answer,  that  the 
proceedings  might  be  stayed  until  the  plaintiff  gave  security  for 


Ch.  II.  §  4. 


Case  of  a  pe- 
titioner under 
an  Act  of 
Parliament. 


Application 
for  security 
cannot  be 
made  after 
answer 
sworn, 
though  not 
filed  before 
notice. 


When  plain- 
tiff goes 
abroad,  after 
bill  filed: 


Must  give 
security,  if  he 
goes  to  settle 
or  reside 
abroad. 


1  Mason  i'.  Gardner,  2  Bro.  C.  C.  ed. 
Belt,  609,  no<e«;  and  see  Wyllie  v.  Ellice, 
11  IJenv.  9'J;  Smith  v.  Castles,  1  Gray,  108. 

2  12  Sim.  lOG. 

8  See,  however,  Atkins  v.  Cook,  3  Drew. 
694;  3Jur.  X.  S.  2)-,3. 

*  Dyotc  r.  Dyott,  1  Mad.  187;  and,  as 
to  laciics,  see  Wj-liie  v.  Kllice,  11  IJeav. 
99;  12  .Jur.  711;  Swanzv  v.  Swanzv,  4  K. 
&  .J.  237;  4  .Jur.  N.  S.1013;  Mur'row  r. 
Wilson,  12  IJeav.  497. 

'  Anon.,  2  I)ick.  775;  Hoby  t;.  Hitch- 
cock, r.  V(,'s.  099;  Weeks  v.  Cole,  14  Ves. 
618;  Kerr  I',  (iillcpic,  11  Hcav.  99;  Ken- 
naway  v.  iripf»,  11  Heav.  588;  Stewart  v. 
Stewart,  20  Heav.  323;  Kdwardsj'.  Burke, 
9  L.  T.  N.  S.  40G.  V.  C.  K.  See  also  IJusk 
V.  Beetham,   2  Beav.   637;    Blakeney  v. 


Dufaur,  2  I)e  G.,  M.  &  G.  771 ;  17  .Jur.  98; 
Newman  v.  Landrine,  1  McCarter  (N.  J.), 
291.  In  Massachusetts,  if  a  plaintiff  in  a 
process  at  Law  or  in  I'-quity,  after  its  com- 
mencement, removes  from  tiie  State,  the 
Court  where  the  suit  is  penibng  shall,  nn 
the  motion  of  any  other  party,  rerpiire  the 
plaintitf  to  procure  a  sufiicieiit  indorser. 
(;enl.  St.s.  c.  129,  §  29;  Smith  v.  Castles, 
1  (iray,  108. 

o  The  affidavit  should  also  show  clearly, 
that  tile  dcfen<lant  did  not  know  of  tlie 
pliiintiff 's  removiil  lieforo  taking  the  last 
stef)  in  the  cause,  or  the  application  will 
be  denied.  Newman  v.  Landrine,  1  Mc- 
Carter (N.  J.),  291. 

7  14  Ves.  618. 


32 


PERSONS    BY    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


Vn.  II.  §  4. 


riaintilTrmist 
be  absolutely 
gone. 

Where  con- 
fined under 
the  Alien 
Act; 


or  under  sen- 
tence of  trans- 
portation tor 


telony ; 


or  for  a  mis 
demeanor. 


Ambas.sa- 
dor's  servant. 


Amount. 


costs,  oil  ;in  ntlMiivil  tli;it  the  plaintifV,  who,  wlicii  the  hill  was  filed 
was  ri'siikMit  in  London,  had,  since  tlie  answer  was  put  in,  entirely 
abandoned  the  eountrv,  and  g-one  to  reside  in  the  Isle  of'JMan; 
and  Lord  Eldon  made  the  order,  observing,  however,  that  the 
plaintirt'  ought  to  have  an  o})]iortunity  of  answering  the  affidiwit; 
the  propriety  of  whicli  suggestion  is  evident  from  the  case  of 
W/ii(e  v.  Gnathead,^  where  an  order  for  the  plaintiif  to  give  se- 
curity for  eo.>5ts,  after  answer,  was  refused,  in -consequence  of  an 
atfidavit  which  had  been  filed  by  the  plaintiff's  solicitor,  stating 
that  the  plaintiff  had  gone  to  the  West  Indies  merely  for  the  i)ur- 
posc  of  arranging  his  affairs,  and  that  he  had  informed  the  depo-, 
nent  that  he  intended  soon  to  return  to  this  country,  where  he  had 
left  his  family. 

To  entitle  a  defendant  to  an  order  that  the  plaintiff  may  give 
security  for  costs,  it  is  necessary  that  the  j^laintiff  should  absolutely 
be  gone  abroad :  the  mere  intention  to  go  will  not  be  sufficient ;  ^ 
in  a  case,  however,  where  the  jtlaintiff,  who  was  an  alien  enemy, 
was  under  confinement  preparatory  to  his  removal  out  of  the 
country,  upon  a  warrant  by  the  Secretary  of  State  under  the  Alien 
Act,  the  proceedings  Avere  stayed  until  he  gave  security  for  costs, 
although  he  was  not  actually  gone  out  of  the  country.^  In  pro- 
ceedings at  Common  Law,  where  after  the  commencement  of  an 
action,  and  after  issue  joined,  the  2JlaintifF  has  been  convicted  of 
felony  and  ordered  to  be  transjDorted,  the  Courts  have  ordered  se- 
curity to  be  given  for  costs,  as  well  retrospective  as  prospective  ;  * 
and  it  is  presumed  that  Courts  of  Equity  will  follow  the  rule  at  Law. 
Where,  however,  the  plaintiff  had  not  been  convicted  of  felony, 
but  only  of  a  misdemeanor  under  the  52  Geo.  III.  c.  130,  §  2,  for 
poaching,  for  which  he  w\as  sentenced  to  seven  years'  transporta- 
tion, and  it  was  admitted  that  he  had  not  sailed  for  the  place  of 
transportation,  but  was  in  a  penitentiary  place  of  confinement,  Sir 
John  Leach  V.  C.  ref«sed  a  motion  for  stay  of  proceedings  till  the 
plaintiff  had  given  security  for  costs.^ 

From  analogy  to  the  course  adopted  where  the  plaintiff  is  resi- 
dent out  of  the  jurisdiction,  the  Court  will,  upon  ap))lication,  re- 
strain an  ambassador's  servant,  whose  person  is  privileged  from 
arrest  by  the  7  Anne,  c.  12,  from  proceeding  with  his  suit  until  he 
has  given  security  for  costs.^ 

By  tlie  old  practice,  40/.  was  the  amount  of  security  required 
to  answer  costs  by  any  jdaintiff  who  was  out  of  the  jurisdiction 


1  15  Ves.  2;  and  see  Edwards  v. 
Burke,  9  L.  T.  K.  S.  406,  V.  C.  K.;  Kerr 
t;.  Gillespie,  7  Beav.  209. 

2  Adams  v.  Colihiirst,  2  Anst.  552; 
Willis  V.  Garbutt,  1  Y.  &  J.  511;  1  Uarb. 
Ch.  Pr.  103;  Hoby  v.  Hitchcock,  5  Sum- 
ner's Ves.  699. 

3  Seilaz  v.  Hanson,  5  Ves.  261. 


4  Harvey  v.  Jacob,  1  B.  &  Aid.  159; 
Barrett  /;.  Power,  9  Kxch.  338;  18  Jur. 
150;  and  see  Dunn  v.  M'Evoy,  1  Hogan, 
355. 

s  Bfiddeley  v.  Harding,  6  Mad.  214. 

fi  Anon.,  Mos.  175;  Goodwin  v.  Archer, 
2  P.  Wms.  452;  Adderly  v.  Smith,  1 
Dick.  o55. 


PERSONS    RESEDmG    OUT    OF    THE    JURISDICTION. 


33 


of  the  Court,  but  this  sura  has  been  increased  to  100^.^  Where  a 
person  out  of  the  jurisdiction  of  the  Couit  presents  a  petition  to 
have  his  solicitor's  bills  taxed,  it  seems  that  he  must  give  security 
for  the  costs  of  the  petition,  and  also  for  the  balance  that  may  be 
found  due  from  him  on  the  taxation.^ 

Where  it  appears  on  the  bill  ^  that  the  plaintiif  is  resident  out 
of  the  jurisdiction,  an  order  that  he  give  security  for  costs  is  ob- 
tained on  motion  of  course,  or  more  usually  on  petition  of  coui'se,* 
presented  to  the  Master  of  the  Rolls,  on  production  of  the  stamped 
copy  of  the  bill  served  on  the  defendant,  or  other  authenticated 
copy  thereof 

In  other  cases,  a  special  application  by  motion  or  summons^ 
must  be  made.  The  notice  of  motion,  or  the  summons,^  must  be 
served  on  the  plaintiff's  solicitor,  and  the  application  must  be  sup- 
ported by  evidence  of  the  facts  entitling  the  applicant  to  the 
order. 

The  order  directs  the  plaintiff  to  procure  some  sufficient  person 
on  his  behalf  to  give  security,  according  to  the  course  of  the  Court, 
by  bond  to  the  Record  and  Writ  Clerk  in  whose  division  the 
cause  or  matter  is,''  in  the  penalty  of  100^.,  conditioned  to  answer 
costs,  in  case  any  shall  be  awarded  to  be  paid  by  the  plaintiff; 
and  it  restrains  proceedings  in  the  mean  time.* 

When  an  order  of  course  has  been  obtained,  it  must  be  served 
on  the  plaintiff  or  his  solicitor ;  service  of  a  special  order,  made  on 
notice  to  him,  is  unnecessary. 

The  security  is  given  in  one  of  the  following  modes :  •  (I.)  The 
plaintiffs  solicitor  prepares  a  bond  in  the  terms  of  the  order ;  ^ 


Ch.  II.  §  4. 


Order  for 
security,  how 
obtained : 
as  of  course : 


on  special 
application. 


Form  of 
order. 


1  Ord.  XL.  6.  The  order  applies  to  the 
case  of  a  plaintiff,  within  the  jurisdiction, 
ordered  to  give  security.  Bailey  v.  Gun- 
dry,  1  Keen,  53.  Tiie  Court  refused  to 
increase,  upon  an  interlocutory  applica- 
tion, tiie  amount  of  security;  Barry  v. 
Jenkins,  19  L.  T.,  N.  S.  270, 'V.  C.  M.  It 
seems,  however,  tliat  in  tiie  ciisc  of  a  peti- 
tion, the  amount  is  still  otilv  40/.,  Atkins 
V.  Cook,  3  .lur.  X.  S.  283,  V.  C.  K.;  Par- 
tington V.  Reynolds  6  W.  It.  307,  V.  <J.  K. 
In  New  York,  the  penalty  of  the  bond  was 
required  to  be  at  least  S'ioo ;  but  the  Court 
in  a  proper  case  miglit  enlarfje  it,  and 
might  either  (ix  the  amount  itself  or  refer 
it  to  a  Ma.ster.  2  Hev.  Sts.  N.  Y.  620,  §  4; 
Fulton  f.  Rosevelt,  1  I'alge,  179;  Massey 
V.  Gillelan,  1  I'aige,  044;  Gilbert  v.  Gil- 
bert, 2  Faijje,  003. 

2  Anon.  12  Sim.  262;  see  also  Re  Pass- 
more,  1  lieav.  94;  Jte  Dolman,  11  .Jur. 
1095.  M.  K. 

'  What  is  stated  in  the  text  as  to  a  bill 
suit  ■will  apply,  viutntls  rnulnnrlig,  to  a 
summons  suit,  petition,  or  other  proceed- 
ing in  which  security  is  directed  to  bo 
given. 

*  Wyllie  r.  Ellico,  11  Beav.  99;  12  Jur. 
711. 


6  Tynte  v.  Hodge,  2  J.  &  H.  692. 

6  For  forms  of  notice  and  summons,  see 
Vol.  III. 

7  See  Ord.  I.  38. 

.  8  For  forms  of  orders,  see  Seton,  1269, 
1270. 
9  The  bond*is  in  the  following  form :  — 
"Know  all  men  by  these  presents,  that 
we,  A.  II.,  of  the  city  of  Lomlon,  mer- 
chant, and  C.  D.,  of  the  .same  place, 
merchant,  are  held  and  (irmly  bound 
to  ,  Esq.,  in  the  penal  sum 

of  ,  for  wliicli  payment  to 

be.well  and  faithfully  made,  we  bind  our- 
selves and  each  of  us,  our,  and  each  of 
our  heirs,  executors,  and  admini'^trators, 
firmly  by  these  presents.  Sealed  with 
our  seals,  &c. 

"Whereas  L.  R.,  plaintiff,  has  lately 
exhibited  his  bill  of  complaint  in  lieV 
Majesty's  High  < 'ourt  of  (Jhancery  against 
U.  S.,  defendant,  touching  the  mutters 
therein  contained:  Now  the  condition  of 
this  obligation  is  such,  that  if  the  iihovc 
bounden  A.  H.  and  C.  D.,  or  cither  of 
them,  their  heirs,  executors,  or  administra- 
tors, do  and  shall  well  and  truly  p:iy,  or 
cause  to  be  paid,  all  such  costs  as  the  Law 
Court  shall  think  fit  to  award  to  tlic  de- 


Service. 


Securitj',  in 
what  manner 
given: 


34 


PERSONS    BY    AVllOM    A    SUIT    MAY    BE    INSTITUTED. 


b^  gubmi-!- 
8I0U  of  .<iiro- 


by  pavnient 
into  Court,  in 
lieu  of  bond. 


Effect  of  obi  i 
gor's  death, 
or  bank- 
ruptcy. 


Where  all  the 
defendants  do 
not  apply. 


ongrossos  it  on  ]):i]ic'r  l)o:uing  a  2.s.  M.  inland  revenue  stamp;* 
procures  it  to  be  executed  by  the  obligor  or  obligors;  lodges  it 
with  the  Record  and  Writ  Clerk  ;2  and  on  the  same  day  serves 
notice  tlicreof  ^  on  tlie. solicitor  of  the  defendant  who  obtained  the 
order ;  it  is  also  advisable  to  serve  the  notice  on  the  solicitor  of 
any  co-defendants  who  have  not  applied  for  security;^  and  the 
seciu'ity  is  deemed  to  have  been  given  on  the  day  the  bond  is 
lodged.*^  (II.)  The  plaintiff,  instead  of  giving  tdie  bond  in  the  first 
instance,  may  serve  the  defendant's  solicitor  with  a  notice  ®  of  the 
name,  address,  and  description  of  the  proposed  obligor  or  obligors  ; 
and  if  no  objection  be  made  by  him  within  two  days  thereafter, 
the  bond  may  be  prepared,  executed,  lodged,  and  notified  as  above 
explained.''  (III.)  The  plaintiff  may  apply  by  special  motion  ^  or 
summons,^  that,  in  lieu  of  giving  a  bond,  he  may  pay  a  sura  of 
money  into  Court,  to  a  separate  account,  to  answer  the  costs ;  the 
amount  should  be  sufficient  to  cover  the  su7n  mentioned  in  the 
order  directing  the  security  to  be  given,  and  the  costs  of  l)ringing 
it  into  Court  and  getting  it  out.^°  .  The  usual  amount  is  120/. ; "  no 
evidence  in  support  of  the  application  is  necessary,  beyond  the 
production  of  the  former  order;  the  costs  of  the  application  ai-e 
made  costs  in  the  cause.  The  order  is  drawn  ilp  and  })assed  by 
the  I'egistrar,  and  entered,  and  the  money  is  paid  into  Court  in  the 
manner  hereafter  explained. 

One  obligor  is  sufficient,  but  it  is  prudent  to  have  two  or  more ; 
as  on  the  death  or  bankrui)tcy  ^-^  of  the  sole,  or  sole  surviving, 
obligor,  the  defendant  is  entitled  to  apply  by  special  motion,^*  or 
summons,"  that  a  new  security  may  be  given,  and  for  a  stay  of 
proceedings  in  the  mean  time. 

Where  one  or  more  of  several  defendants  have  obtained,  an 
order  for  security,  it  is  advisable  to  extend  the  bond  to  the  costs 
of  all  the  defendants,  as  otherwise  the  defendants  who  have  not 
obtained  the  order  may  afterwards  apply  for  a  further  bond  as  to 
their  costs;  and  it  is  jjresumed  that,  where  a  bond  embracing  the 


fendant  on  the  hearing  of  the  said  cause 
or  otherwise,  then  this  obligation  to  be 
void,  or  else  to  remain  in  full  force  and 
virtue.     Sealed  and  delivered,  &c." 

1  If  the  bond  is  for  a  larger  sum  than 
100/.,  an  increased  stamp  of  1«.  2d.  for 
each  additional  50/.  is  payable;  see  Tilsley, 
Dig.  218. 

2  The  bond  should  be  indorsed  with  the 
short  title  of  the  cause  or  matter,  the  words 
"Bond  for  Security  for  Costs,"  and  the 
name,  &c.,  of  the  solicitor  leaving  it. 

3  For  form  of  notice,  see  Vol.  III. 
*  Braithwaite's  Pr.  534. 

s  Ibid. 

6  For  form  of  notice,  see  Vol.  III. 

T  Braithwaite's  Pr.  53.'J. 

«  CliflTe  V.  Wilkinson,  4  Sim.  122;  and 
see  Fellows  v.  Deere,  3  Beav.  353;  lie 
Norman,  11  Beav.  401. 


9  Jarvis  v.  Shand,  V.  C.  W.  at  Cham- 
bers, 30  Jan.,  1864;  Keg.  Lib.  A.  164; 
Merlin  v.  Blagrave,  Seton,  1270.  For 
forms  of  notice  of  motion  and  summons, 
see  Vol.  III. 

10  Cliffe  V.  Wilkinson,  4  Sim.  123. 

11  See  Ciifi'e  -v.  Wilkinson,  ubi  svp. ; 
Australian  Co.  v.  Fleming,  4  K.  &  J.  407. 
In  the  case  of  a  petition,  it  is  presumed 
60/.  would  be  sufficient. 

12  Transatlantic  Co.  v.  Pietroni,  cited 
Seton,  1269;  Cliffe  v.  Wilkinson,  4  Sim. 
122. 

13  Latour  v.  Holcombe,  1  Phil.  262 ;  and 
Bee  Veitch  v.  Irving,  11  Sim.  122. 

14  Tynte  v.  Hodge,  2  J.  &  H.  692.  For 
forms  of  notice  of  motion  and  summons, 
see  Vol.  III. 


PERSONS   EESIDING    OUT    OF    THE    JUEISDICTION. 


35 


costs  of  all  the  defendants  is  lodged  with  the  Record  and  "Writ 
Clerk,  and  notified  to  them,  he  will  hold  the  bond  on  behalf  of  all 
the  defendants;  ^  and  that  a  separate  bond  or  bonds  cannot  after- 
wards be  required.2  WhatCA-er  number  of  bonds,  however,  may  be 
given,  they  all  form  a  security  for  one  sum  only.^ 

It  has  been  decided  that  a  solicitor  ought  not  to  be  surety  for 
his  client.*  The  bond  of  an  incorporated  society  has  been  held 
sufficient.^ 

The  defendant,  on  receiving  notice  that  a  bond  has  been  lodged 
in  the  first  instance,  may,  if  dissatisfied  with  the  bond,  apply  by 
special  motion,"  or  summons,''  that  in  lieu  of,  or  in  addition  to,  such 
bond,  the  plaintift*  may  be  ordered,  within  a  limited  time  to  give 
security  for  costs,  according  to  the  course  of  the  Court,  or  in 
default  thereof,  that  the  bill  may  be  dismissed  with  costs,  and  that 
in  the  mean  time  all  proceedings  may  be  stayed.^  The  application 
should  be  supported  by  aflidavit  showing  that  the  obligor  is  not  a 
solvent  person ;  and  may  be  opposed  by  his  own  affidavit,^  justify- 
ing in  double  the  amount  named  in  the  bond,^°  and  by  other  evi- 
dence that  he  is  a  person  of  substance.  The  costs  of  inquirino- 
into  the  circumstances  of  the  proposed  sui-ety  have  been  allowed." 

Where  the  plaintiff  in  the  first  instance  submits,  for  approval, 
the  name  of  the  proposed  obligor,  the  defendant,  if  he  objects  to 
the  person  proposed,  must  notify  his  objection  to  the  plaintiff*'s 
solicitor  within  a  reasonable  time :  ^'^  otherwise,  the  plaintiff  may 
comjdete  and  lodge  tlie  bond.  The  plaintift;  on  receiving  notice 
of  the  defendant's  objection,  must  either  propose  another  person, 
or  the  person  already  offered  must  justify  by  aflidavit  ^^  in  double 
the  sum  for  which  he  is  to  be  bound ; "  and  in  the  latter  case,  it  is 
presumed  the  plaintift"  should  file  the  aftidavit,  and  lodge  the  bond, 
and  give  notice  thereof  to  the  defendant. 

If  the  plaintiff  fail  to  comply  with  tlie  order  to  give  security, 
the  defendant  may  apply  by  special  motion,  or  summons,!^  that  the 
plaintiff"  give  security  within  a  limited  time,  or,  in  default,  that  his 


Ch.  II.  §  4. 


Plaintiff's 
solicitor  can- 
not be  surety. 

Security,  in 
what  manner 
objected  to: 

where  bond 
entered  into: 


costs  of 
inquiry; 


where  name 
submitted. 


Course, 
where  plain- 
till'  tails  to 
comply  with 
the  order. 


1  See  Lowndes  v.  Robertson,  4  Mad.  4G5 ; 
and  see  Url.  I.  3«. 

2  See,  however,  1  Smith's  Pr.  866; 
JJraithwaite's  i'r.  .0.32. 

"  Lowndes  v.  I'olxTtson,  4  Mad.  46.5. 

*  Paiiton  V.  Labertouche,  1  I'hil.  26.5;  7 
Jur.   'i>>'J. 

6  Ple^tow  r.  .Johnson,  1  Sni.  &  G.,  Ann. 
20;  2  \V.  1{.  .3. 

«  Panton  t>.  Lubertouche,  1  IMiil.  265;  7 
Jur.  Mi). 

"!  For  formi  of  notice  of  motion  and  sum- 
mons, see  Viil.  III. 

8  (;i(Miii;;s  V.  (Jiddinfcs,  10  Heav.  29, 
and  the  cases  collected,  i/>.  31;  and  see 
Denny  r.  Mars,  Seton,  127!l,  where  the 
order  is  Kiven;  P.jjne  ».  Little,  14  Heav. 
647;  O'Connor  v.  Sierra-Nevada  Co.,  23 
Beav.  608. 


'J  See  form  in  Vol.  III. 
I''  See  1  Turn.  &  Yen.  764;  1  Grant,  444. 
11  Bainbrigge  v.  Mass,  3  ,Iur.  N.  S.  107, 

1-  See,  however,  Clide  t-.  Wilkinson,  4 
Sim.  122,  where  .the  defendant  moved  on 
notice  that  the  plaintid"  might  be  ordered 
to  give  security  in  lieu  of,  or  in  addition 
to,  the  persons  proposed.  It  is  conceived, 
however,  that  the  u<ual  practice  is,  as 
stated  in  the  te.\.t,  to  notify  the  objection 
to  the  plaintiff  before  applying  to  the 
Court.  For  form  of  notice  of  objection, 
see  Vol.  of  l'"<)rnis. 

"*  For  form,  see  Vol.  III. 

»  See  1  Turn.  &  Ven.  761;  1  Grant, 
444. 

"<  Forformsof  notice  of  motion  and  sum- 
mons, sec  Vol.  HI. 


3t) 


PERSONS    BY   WHOM    A    SUIT   MAY    BE    INSTITUTED. 


Cii.  II.  §  t. 


Time  for 
dcfeiuiinj;  is 
suspemU'd, 
till  siH-urity 
given. 

Putting  bond 
in  suit :  order 
for,  how  ob- 
tained ; 


how  sued  on. 


Payment  oC 
costs  out  of 
security  fund, 
how  ob- 
tained. 


Discharge  of 
order,  on  re- 
turn to  the 
jurisdiction. 


Mil  iiKiy  1)0  (lisinisst.'(l  with  costs;  and  that  jiroecediiigs  may,  iu 
tho  moan  time,  bo  stayod.^ 

The  chiy  on  which  an  order  tliat  the  plaintitl"  do  give  security 
for  costs  is  served,  and  the  time  thenceforward  until,  and  including 
the  day  on  which  such  security  is  given,  is  not  to  be  reckoned  in 
the  computation  of  time  allowed  a  defendant  to  ]dead,  answer,  or 
demur,  or  otherwise  make  his  defence  to  the  suit.-  If  it  becomes 
necessary  for  the  defendant  to  put  the  bond  in  suit,  he  must  ob- 
tain an  order,*  on  special  motion  or  summons,  that  he  may  be  at 
liberty  to  do  so,  and  may  have  the  bond  delivered  out  to  him  for 
that  purpose,  and  may  use  the  name  of  the  liecord  and  Writ 
Clerk,  the  obligee,  on  giving  him  an  indemnity :  such  indemnity 
to  be  settled  by  the  Judge,  if  the  jjarties  ditter.  The  notice  of 
motion  or  summons  *  must  be  served  on  the  plaintift''s  solicitor ; 
and  the  ajiplication  must  be  supported  by  production  of  evidence 
of  the  .costs  having  been  directed  to  be  j)aid,  and  of  the  amount 
and  non-payment  thereof.  The  order  on  such  application  is  drawn 
up  by  the  Registrar ;  a  plain  eopy  of  it  is  lodged  with  the  Record 
and  Writ  Clerk,  together  with  a  receipt  for  the  bond,  and  an 
undertaking  to  indemnify  him  againSt  the  costs  of  any  proceedings 
to  be  taken  thereon  in  his  name;  and,  if  satisfied  therewith,  he  will 
deliver  out  the  "bond.  The  receipt  and  undertaking  are  required 
to  be  signed  by  the  defendant  applying,  and  also  by  his  solicitor, 
and  are  usually  w'ritten  at  the  foot  of  the  copy  of  the  order.^ 

The  bond  is  put  in  suit  in  the  Petty  Bag  Office,  the  procedure 
in  which  is  regulated  by  the  12  &  13  Vic.  c.  109. 

Where  money  has  been  paid  into  Court  as  security  for  costs,  in 
lieu  of  a  bond,  an  application  may  be  made  at  chambers,  by  sum- 
mons,® for  payment  thereout  of  any  costs  ordered  to  be  paid  by 
the  plaintiff  to  the  defendant.  The  summons  must  be  served  on 
the  plaintiff,  and  on  any  co-defendants  interested  in  the  fund,  and 
must  be  supported  by  evidence  of  such  payment  having  been 
directed,  and  of  the  amount  payable,  and  by  ])roduction  of  the 
Accountant-General's  certificate  of  the. fund  being  in  Court. 

If,  subsequently  to  the  order  directing  security  for  costs  to  be 
given,  the  jjlaintiff  becomes  resident  within  the  jurisdiction,  he 
may  apply,  on  special  motion  or  summons,'  that  the  order  may  be 
discharged ;  but  he  must  pay  the  costs  of  the  apj)lication.^ 

1  Cooper  V.  Purton,  1  N.  R.  468,  V.  C. 
W. ;  nnd  see  Giddings  v.  Giddings,  10 
Beav.  20,  and  cases  collected  10  Beav.  31 ; 
Knight  V.  be  Blaquiere,  Sau.  &  8.048; 
Payne  f.  Little,  14  Beav.  047;  O'Connor 
V.  .Sierra-Nevada  Co.,  23  Beav.  008;  Ken- 
nedy V.  Edwards,  11  Jur.  N.  S.  153,  V.  C. 
W. ;  see  also  Camac  i'.  Grant,  1  Sim.  348; 
2  Sim.  570.  For  circumstances  under 
which  the  time  to  give  security  was  ex- 
tended, see  Grant  v.  Ingram,  20  L.  T.,  N. 
S.  70,  V.  C.  M.  For  Ibrm  of  order,  see 
Seton,  1279,  No.  7. 


2  Ord.  XXXVII.  14;  see  Henderson  v. 
Atkins,  7  W.  K.  318,  V.  C.  K. 

3  liobinson  v.  Brutton,  6  Beav.  147; 
Bainbrigge  v.  l\Ioss,  3  Jur.  N.  S.  107,  V. 
C.  W. ;  Reg.  Lib.  1857,  A.  283. 

4  For  forms  of  notice  and  summons,  see 
Vol.  III. 

5  Hraithwaite's  Pr.  535,  536.  For  forms 
of  receipt  and  undertaking,  see  Vol.  III. 

6  F'or  form  of  summons,  see  Vol.  III. 

7  For  forms  of  notice  of  motion  and  sum- 
mons, see  Vol.  III. 

8  O'Connor    v.    Sierra-Nevada   Co.,  24 


PAUPERS.  87 

Ch.  II.  §  5. 

Section  V.  —  Paupers. 
It  has  been  before  stated^  to  be  a  general  rule,  subject  to  very  Persons  in 


indigent  cir- 
cumstances 


few  exceptions,  tliat  there  is  no  sort  or  condition  of  persons  who 
may  not  sue  in  the  Court  of  Chancery.     Amongst  the  exceptions  may  sue; 
to  this  rule,  those  who  are  in  indigent  circumstances  are  not  in- 
cluded, and  any  party,  however  poor  he  may  be,  being  in  other 
respects  competent,  has  the  same  right  as  another  to  commence 
proceedings  in  the  Court  of  Chancery  for  the  assertion  of  his 
claims ;  and  that,  without  being  required  to  give  any  security  for  and  are  not 
the  payment  of  costs  to  the  opposite  party,  in  case  he  fails  in  his  give'security 
suit.-    This  liberality  seems  to  be  extended  to  the  case  of  the  next  for  costs. 
friends  of  infants.^    Indeed,  any  other  rule  would  amount  to  a  May  be  next 
denial   of  justice   to   the   children  of  poor   persons,  who   might  ^Qts';^"  ^^' 
become  entitled  to  property,  and  yet  be  precluded  from  assert- 
ing their  right  because  their  father,  who  is  the  proper  person  to  be 
their  next  friend,  by  reason  of  his  circumstances  could  not  be  so, 
without  giving  security  for  costs,  which  he  might  not  be  able  to 
procure.*     With  regard  to  the  next  friend  of  a  feme  covert^  there  but  not  of 
is,  in  this  respect,  a  great  difference  in  the  rule ;  for  it  has  been  -'^'"^^  *^°^^'^  • 
held,  that  the  next  friend  of  a  married  woman  must  be  a  person  of 
substance.;  ^  because  a  married  woman  and  an  infant  are  differently 
circumstanced,  as  the  infant  cannot  select  his  own  next  friend,  but 
must  rely  upon  the  good  offices  of  those  who  are  nearest  to  him  in 
connection,  or  otherwise  his  rights  might  go  unasserted,  but  the 
married  woman  has  the  power  of  selecting;  she  is,  therefore,  re- 
quired to  select  for  her  next  friend  a  person  who,  if  her  claim 
should  turn  out  to  be  unfounded,  can  pay  to  the  defendant  the 
costs  of  the  proceedings. 

In  consequence  of  the  provisions  of  Stat.  11,  Hen.  VII.  c.  12,® 

Beav.    435;    Mathews   v.    Chicliester,    30  Ilogiin,  41.     The  contrary  was  held  in  the 

Beav.  135.     For  more  on  tlie  sul)ject  of  se-  case  of  Fulton   v.  Rosevelt,  1  Paige,  178. 

curitv  f»)r  costs,  see  jmit.  Chap.  III.  §  2,  A  prochein  ami  as  such  is  not  lisible  for 

Alien;  Chap.  VI.  §  5,  The  Bill;  Ogilvier.  costs.     Crandatl  v.  Slaid,  11  Met.  288. 

Hearn,  11  Ves.  GOO;  Worrail  r.  White,  3  ■*  See  ^non.,  1  Ves.  Jr.  p.  410;  Stjuirrel  r. 

Jo.  &  Lat.  513;  Hind  v.  Whitmore,  2  K.  Squirrel,  2  Dick.  765;  2  P.  Wms.  2i>7,  n.; 

&  J.  458,  402.  Davenport  »'.  Davenport,  1   S.   &  S.   101; 

1  Ante,  p.  5.  Murrell  v.  Clnphani,  K  Sim.  74;  Fellows  v. 

2  Such  is  the  law  of  Massachusetts.  Fen-  Barrett,  1  Keen,  lUt;  Lindsev  v.  'I'vrreil, 
eley  v.  Mahoney,  21  Pick.  212.  This  2  De  (i.  &  .1.  7;  24  l!e;iv.  124  •  2  .hir."  N.  S. 
right  mu-t  not  he  abused;  see  Burke  v.  1014;  >md post,  Infant  I'hiinliffs,. 
Lidwell,  1  .lo.  &  Lat.  703,  where  a  pauper  •''  Anon.,  1  Atk.  570;  PcnnniL'ton  ?•.  Al- 
plaintift' WHS  reijuired  to  give  security:  the  viii,  1  S.  &  S.  264;  Driiuin  v.  Manning,  3 
person  really  intere-teil  liaving  nominally  Dr.  &  War.  154;  .lonesr.  Fawcett,  2  Phil, 
assigned  to  th<' pauper,  in  order  to  avoid  278;  Stevens  v.  \Villiam«,  1  Sim.  N.  S. 
liahilitv  to  costs;  see,  however,  Worrail  v.  645;  Wilton  v.  Hill,  2  DeG.  M.  &  G.  807- 
White,"3  .Fo.  &  F-fft.  513,  515.  See  as  to  800;  Hind  v.  Whitmore,  2  K.  &  J.  458; 
re(|uiring  Kecurity  for  costs  from  insolvent  Iti',  Wills,  0  .liir.  N.  S  1225;  12  VV.  K.  07, 
plaintilf  in  a  class  suit,  Tredwell  w.  Byrch,  V.  (!.  S.;  F.lliott  r.  Ince,  7  D<!  *■',.,  M.  Ik 
1  Y.  &  C.  Fxch.  476.  (J.  475;  3  Jur.  N.  S.507;  Smith  c.  Ktclies, 

8  The  next  friend   of  a  minor  plaintiff       1  H.  &  M.  711;    10  .hir.   N.   S.   124;    and 
cannot  he  compelled  to  give  security  for       sec /ais^,  Femes  Covert  I'lnintiffs. 
costs.     St.  John  V.  Earl  of  Besborough,  1  o  Beames  on  Costs,  72. 


38 


PERSONS    BY    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


(11.  II.  § 


rnntk'o  at 
Law. 

adopted  ill 
Kqiiily. 


Persons 
siiiiiij  in  i-op- 
rcsentative 
i-haractor. 


Next  friend 
cannot,  in 
penoral,  sue 
as  pauper ; 


but  a  married 
woman  may 
sue  in  forma 
pauperis, 
wittiout  a 
next  friend. 


tlio  pvaotice  of  the  Courts  of  Law  has  becMi  to  n«linit  all  ])iM-sons  to 
.><iK'  ill  fornid  pauperis  who  couUl  swear  that  they  were  not  worth 
;")/.,  except  their  weariiig-api):irel,  and  the  sul)jeet-niatter  of  the 
suit ;  and  the  ])raetiee  of  the  Courts  of  Law  in  this  res])ect  lias  been 
adopteil  by  Courts  o\'  K(iuity,  althougli  jjersons  suiiit>;  in  these  Courts 
do  not  eoinr  w  ithiii  tlic  jirovisions  of  the  Act  of  rarliauient  above 
referred  to,'  and,  proceeding  further,  they  have  extended  the  relief 
to  the  case  of  defendants.- 

The  privilege  will  not  be  extended  to  a  plaintift'  or  a  defendant 
suing  or  being  sued  in  a  representative  character,  as  executor  or 
administrator;"  but  the  case  of  a  person  sustaining  the  mixed 
character  of  executor  and  beneficiary,  is  an  exception  to  the  gen- 
eral rule;  although  in  order  to  prevent  any  undue  practice  in 
suing  in  forma  2Mi(peris,  and  under  color  of  that  privilege  obtain- 
ing dices  costs,  a  special  order  is  necessary.^  And  an  exception  to 
the  strict  application  of  the  rule  has  been  made,  by  allowing  an 
executor  to  proceed  in  foi'md  jxmperis,  for  the  single  purpose  of 
clearing  a  contempt  incurred  in  the  cause.'' 

It  is  said,  that  a  person  tilling  the  character  of  next  friend  can- 
not sue  in  forma  pauperis,'^  although,  as  we  have  seen  before,  the 
poverty  of  a  next  friend  of  an  infant  is  no  ground  for  dismissing 
him ;  and,  until  recently,  some  uncertainty  prevailed  as  to  the  prac- 
tice, when  a  married  woman  could  not  obtain  a  substantial  next 
friend  to  sue  on  her  behalf;  "^  but  it  has  now  been  determined,  that 
she  may,  on  an  ex  parte  motion,^  supported  by  affidavit  that  she  is 
unable  to  procure  any  substantial  person  to  act  as  her  next  friend",^ 
obtain  an  order  authoi-izing  her  to  institute  and  prosecute  a  suit ;  ^^ 

1  See  Story  Eq.  PI.  §  50 ;  1  Ilarr.  Ch. 
Pr.  by  Newl.  389,390;  1  Smith  Ch.  Pr. 
(2d  Am.  ed.)  550  el  seq. ;  1  Hoff.  Cli.  Pr. 
67  et  seq. ;  Isiiard  v.  Cazeaux,  1  Paige,  39. 

2  See  post,  Chap.  IV.,  §  7,  Paujiei-  De- 
fendants. 

3  Paradice  v.  Shepherd,  1  Dick.  136; 
Beames  on  Costs,  79,  App.  No.  21;  Old- 
field  V  Cobbett,  1  Piiil.  613;  10  Jur.  2; 
Fowler  v.  Davies,  10  Siin.  182;  12  Jur. 
321;  St.  Victor  v.  Devereux,  0  lieav.  584; 
8  Jur.  26. 

*  Thompson  v.  Thompson,  H.  T.  1824, 
cited  1  Turn.  &  Ven.  513;  and  see  Rogers 
V.  Hooper,  1  \V.  K.  474,  V.  C.  K.;  Kverson 
V.  MMtthews,  3  W.  R.  159,  V.  C.  W. ;  Park- 
inson V.  Chambers,  ib.  34,  V.  C.  W.  As 
to  the  afiidavit  in  such  a  case,  see  Martin 
V.  Whitmore,  W.  N.  (1869)  42;  17  W.  R. 
809,  L.  C. 

6  Oldfield  V.  Cobbett,  1  Coll.  169. 

6  Anon.,  1  Ves.  J..  410;  see  Robertson  v. 
Robert.son,  3  Paige,  387.  In  New  York,  it 
has  been  held,  that  an  infant,  who  has  no 
means  of  indemnify  ing  a  respou'^iljle  person 
for  C08t.«,  will  be  permitted  to  .«ue  by  his 
next  friend  in  forma  pnuptns.  The  Court 
will,  however,  in  the  (ir^t  instance,  see  that 
there  is  probable  cau^e  for  the  proceeding, 
and  will  appoint  a  proper  person  as  pro- 


chein  ami.     Fulton  v.  Rosevelt,  1  Paige, 
178. 

7  See  Dowden  v.  Hook,  8  Beav.  299. 

8  For  form  of  motion  paper,  .see  Vol.  III. 

9  For  form  of  atli'lavit,  see  Vol.  III. 

10  lie  Foster,  18  Beav.  525;  Wellesleyu. 
Wellesley,  16  Sim.  1 ;  1  De  (J.,  M.  &  G.  501 ; 
Wellesley  v.  Mornington,  18  Jur.  552,  V. 
C.  K. ;  Jie  Lancaster,  18  Jur.  229,  L.  C.  &  L. 
JJ.;  Crouch  v.  Waller,  4  De  G.  &  J.  43; 
5  Jur.  N.  S.  326;  Re  Barnes,  10  W.  R. 
464,  V.  C.  S. ;  Smith  v.  Etches,  1  H.  &  M. 
711;  10  Jur.  N.  S.  124;  3  N.  R.  457;  and 
see,  L'x  parte,  Hakewiil,  3  De  G.,  M.  & 
G.  116.  The  decision  in  Page  v.  Page,  16 
Beav.  588,  where  such  an  order  was  dis- 
charged is  overruled  by  these  cases;  but 
see  Caldicott  v.  Baker,  13  W.  R.  449,  V.  C. 
K.  The  order  is  not  as  of  course,  Coul- 
sting  V.  Coulsting,  8  Beav.  463;  9  Jur. 
587;  see  Ward  v.  Ward,  2  Dev.  Ch.  553; 
Hunt  tJ.  Booth,  1  Freein.  (Ih.  215.  Upon 
a  proper  application,  a  wife  may  be  per- 
mitted to  (ile  a  bill  against  her  liusbaiid, 
f(jr  a  separiition,  in  fornu'i  pauperis.  But 
this  will  not  be  done  until  the  Court  has 
ascertained  by  the  report  of  a  Master,  that 
she  has  probable  cause  for  filing  such  a  bill. 
Robertson  v.  Robertson,  3  L'aige,  387. 


PAUPERS. 


39 


to  carry  on  proceedings  after  decree;^  or  to  appeal ^  without  a 
next  fiiend,  in  forma  pauperis. 

It  seems  also  that,  in  a  proper  case,  an  infant  will  be  permitted 
to  sue  by  a  next  friend  in  forma  pauperis^  on  an  ex  parte  motion, 
supported  by  affidavit  that  the  infant  cannot  get  any  substantial 
person  to  act  as  next  friend.^ 

A  husband  and  wife  may  obtain  an  order  of  course  to  sue  in 
forma  pauperis,  in  respect  of  the  wife's  reversionary  interest  ;*  and 
where  a  woman  was  ordered  to  be  examined  i^ro  interesse  suo, 
respecting  a  claim  set  up  by  her  to  some  lands  taken  under  a  se- 
questration, but  was  unable  from  poverty  to  make  out  or  support 
her  right,  liberty  was  given  to  her  to  do  so  in  f()r ma  pauperis.^ 

Proceedings  under  the  Trustee  Relief  Act®  and  the  Infant 
Custody  Act"  may  be  prosecuted  in  forma  pauperis  ;  and  so  also 
may  claims  in  a  suit  by  persons  who  are  not  parties ;  *  but  in  these 
cases,  the  order  is  made  on  application  by  ex  parte  motion,^  sup- 
ported by  affidavit,  and  is  not  of  course. 

A  plaintiff  may  be  admitted  to  sue  as  a  pauper,  upon  the  usual 
affidavit,  at  any  time  after  the  bill  has  been  filed,  or  summons 
issued  ;  '^'^  but  he  will  be  liable  to  all  the  costs  incurred  before  his 
admission,"  and  may  be  attached  for  the  non-payment  of  costs 
previously  ordered  to  be  paid,  without  being  first  dispaupered.^'^ 

It  seems  doubtful,  whether,  after  a  dismissal  of  a  former  suit,  a 
plaintiff  will  be  permitted  to  sue  again  for  the  same  matter  in 
formed  pauperis,  without  paying  the  costs  of  the  first  suit ;  ^^  but 
the  circumstance  that  the  suit  is  a  second  suit  for  the  same  matter 
as  a  former  suit,  in  which  the  plaintiff  had  likewise  sued  as  a 
pauper,  is  no  ground  of  objection  to  the  second  suit,  unless  it  can 
be  justly  characterized  as  very  vexatious." 


Ch.  II.  §5. 


lutant  may 
sue,  by  his 
next  friend, 
in  forma 
pauperis, 
semble. 

^i^ankrupt 
may  petition 
in  forma 
paupens ; 
and  so  a 
husband  and 
wife ; 
or  party 
examined  jaro 
interesse  suo ; 

or  party  pro- 
ceeding un- 
der Trustee 
Relief  Act. 
Other 
instances. 

Plaintiff  may 
be  admitted 
to  sue  in 
forma  pau 
peris  at  any 
time,  but  lia- 
bility for 
antecedent 
costs  con- 
tinues. 

Doubtful  if 
plaintiff  may 
sue  171  forma 
pauperis, 
after  dismis- 
sal of  fonner 
suit  for  same 
matter; 


1  D'Oechsner  c.  Scott,  24  Beav.  239. 

2  Crouch  V.  Waller,  4  De  G.  &  .J.  43;  5 
Jur.  N.  S.  326;  and  see  Martin  v.  Wliit- 
more,  W.  N.  (1869)  42;  17  W.  li.  809,  L. 
C. 

8  Lindsey  v.  Tyrell,  2  De  G.  &  J.  7 ;  24 
Beav.  124;  3  Jur.  N.  S.  1014. 

4  I'itt  V.  Pitt,  1  Sm.  &  G.  App.  14;  17 
Jur.  571. 

6  James  v.  Dore,  2  Dick.  788. 

6  Re  Money,  13  Beav.  109;  the  Act  is 
10  &  11  Vic.  c.  96. 

7  Re  Hake  will,  3  De  G.,  M.  &  G.,  116; 
the  Act  is  2  &  3  Vic.  c.  54;  and  see  post, 
Vol.  II.,  Infant  CmUxhj  Act. 

"  See  Re  Shard,  I'artinyton  v.  Reynolds, 
cited  Setoii,  1272,  where  the  order  is  given; 
and  see  in  other  cases  Ax  parte  Hakewill, 
3  Ue  G.,  M.  &  G.  116;  Kx  parte  Fry,  1  Dr. 
&  S.  318. 

»  Not  by  petition,  see  Sefon,  1272;  for 
form  of  motion  p^ipcr,  see  Vol.  III. 

J"  See  Parkin.son  v.  Chaniljers,  3  VV.  H. 
34,  V.  C.  NV.;  Braithwaite's  Pr.  662;  but 


a  married  woman  maj'  ai)ply  before  bill,  if 
the  draft  bill  has  been  settled  and  signed 
by  counsel.  VVellesley  v.  Moinington,  18 
Jiir.  552;  Re  Barnes,  10  W.  K.  464,  V. 
C.  S. 

11  Mos.  68;  and  see  Ballard  v.  Catling,  2 
Keen,  006;  Church  v.  Marsh.  2  Hare,  652; 
8  Jur.  54;  Smith  v.  Piiwson,  2  De  G.  &  S. 
490;  Prince  Albert  v.  Strange,  2  De  G.  & 
S.  C52,  718;  13  Jur.  507. 

'2  Davenport  r.  Davenport,  1  Phil.  124; 
Brown  r.  Story,  1  Paige,  588.  See,  how- 
ever, Bennett  v.  Chudleigh,  2  Y.  &  C.  C. 
C.  164;  Snowball  v.  Dixon,  2  De  G.  & 
S.  9. 

••1  Corbett  v.  Corbett,  10  Ves.  407,  410, 
412;  Brook  v.  Alcock,  20  March,  1834,  V. 
C.  E.,  cited  1  Smith's  Ch.  Pr.  555;  l)ut 
see  Filton  v.  Karl  of  .Macclesfield,  1  Vt-rn. 
204;  and  .see  Chitty's  Arch.  1292;  Huwes 
V.  Johnson,  1  Y.  &  J.  10. 

H  Wild  V.  Ilobson,  2  V.  &  B.  105,  112; 
see  Brook  v.  Alcock,  and  KIsain  v.  All- 
cock,  cited  1  Smith's  Ch.  Pr.  555. 


40 


PEKSONS    15Y    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


On.  II.  5 


but  second 
suit  for  samo 
uiattiT  mil  oi" 
itselt'sulVu  i- 
oiit  jjrouiul  ot" 
objoi-Uon. 


or  suiiij:: 
in  forma  pau- 
peris: 

Petition  for 
admission; 


Certificate  of 
counsel; 

Affidavit  of 
poverty ; 


must  be 
sworn  by  the 
party  him- 
self. 

Admission. 


A  })nui)or  may  npi)o:il,^  ami  where  a  party  has,  in  any  stage  of 
the  suit,  ohtainetl  the  eommon  onh-r  forliis  admission  as  a  pauper, 
no  speeial  order  is  reipiirt'd  to  enable  liim  to  appeal  without  pny- 
nuMtt  of  the  dei)osit ;  -  but  wliere  he  lias  not  been  already  admitted 
as  a  jtauiier,  an  order  which  can  only  be  made  by  the  Court  of 
Appeal,  authorizing  the  appeal  in  forma  jMitperis  and  without 
jiayment  of  the  dejiosit,  is  necessary;^  and  it  seems  that  a  certifi- 
i-ate  of  counsel  that  there  are  special  and  strong  grounds  for  the 
ap}>eal  may  be  required.* 

In  order  to  be  admitted  to  sue  in  forma  pcmperis,  the  plaintiff 
must  present  a  petition  to  the  Master  of  the  Rolls,  containing  a 
short  statement  of  his  case,  and  of  the  proceedings,  if  any,  which 
have  been  had  in  the  cause,  and  praying  to  be  admitted  to  sue  in 
foi-77id  2)auperis,  and  that  a  counsel  and  a  solicitor  may  be  assigned 
him.^ 

This  petition  must  be  underwritten  by  a  certificate  signed  by 
counsel,®  that  he  conceives  the  case  to  be  proper  for  relief  in  this 
Court;''  and  must  be  supported  by  an  affidavit,  sworn  by  the 
plaintiff,  that  he  is  not  worth  the  sum  of  5^.,  his'  wearing-apparel 
and  the  subject-matter  of  the  suit  only  excepted.*  The 'meaning 
of  the  affidavit  is,  that  the  plaintiff  has  not  61,  in  the  world  avail- 
able for  the  prosecution  of  the  suit ;  and  if  he  can  make  an  affida- 
vit with  truth  in  that  sense,  the  omission  to  set  forth  the  details 
of  his  means,  and  the  circumstances  which  render  them  unavailable, 
is  not  such  an  omission  of  material  facts  as  will  induce  the  Court, 
on  that  ground  alone,  to  discharge  the  order.® 

This  affidavit  must  be  sworn  by  the  party  himself;  and  in  a  case 
in  which  it  afterwards  ap])eared  that  the  affidavit  had  been  sworn 
by  a  third  person,  the  party  was  dispaupered.^" 

The  petition  and  certificate,  and  an  office  copy  of  the  plaintiff's 


1  Bland  v.  Bland,  2  J.  &  W.  402;  contra, 
Taylor  v.  Bouchier,  2  Dick.  504;  Bolton  «. 
Gardner,  3  Paige,  273 ;  and  see  2>ost,  Chap. 
XXXII.,  §  2,  liehearings  and  Appeals  in 
the  Court  of  Chancery. 

2  Drennan  v.  Andrew,  L.  R.  1  Oh.  Ap. 
300,  L.  C ;  and  see  cases  cited,  ib.  301,  n. 
(7). 

8  Seton,  1271 ;  see  also  Clarke  v.  Wy- 
burn,  12  Jur.  167,  L.  C. ;  Heaps  v.  Com- 
missioners of  Churches,  ib.,  n.;  L.  R.  1 
Ch.  Ap.  301,  n.  (7);  Bradberry  v.  Brooke, 
25  L.  .1.  Ch.  576;  4  W.  R.  699,  L.  JJ. ; 
Crouch  V.  Waller,  4  De  G.  &  J.  43;  5  Jur. 
N.  S.  326;  Grimwood  v.  Siiave,  5  "\V.  R. 
482,  L.  C  For  form  of  order,  see  Seton, 
1271,  No.  7.  The  order  is  obtainable  on 
ex  parte  motion. 

4  Grimwood  v.  Shave,  5  W.  R.  482,  L. 
C;  and  see  L.  R.  1  Ch.  Ap.  301,  n.  (7). 

5  But  a  plaintiff  feme  cwert  cannot 
obtain  the  order  as  of  course,  and  it  must 
therefore  be  applied  for  on  an   ex  parte 


motion  in  the  Court  to  which  the  cause  is 
attached.  Coulsting  v.  Coulsting,  8  Beav. 
463;  Re  Lancaster,  18  Jur.  229,  L.  C.  &  L. 
JJ. ;  Re  Foster,  18  Beav.  525.  For  form 
of  motion  paper,  see  Vol.  III. 

6  As  to  the  duty  of  counsel  for  a  pauper, 
see  lies  v.  Flower,  6  L.  T.  N.  S.  843,  L.  C. 

7  Ord.  VII.  8.  For  forms  of  petition, 
certificate,  and  affidavit,  see  Vol.  III. 

8  The  affidavit  must  not  except  the 
just  debts  of  the  jjlaintifT,  as  appears  at 
onetime  to  have  been  allowed:  per  Sir 
J.  L.  Knight  Bruce,  V.  C,  in  Perry  v. 
Walker,  1  ('oil.  233;  Beanies  on  Costs,  80; 
and  see  form  of  affidavit,  Vol.  III. 

'•>  Dresser  v.  Morton,  2  I'hil.  286;  and 
see,  as  to  the  poverty  which  entitles  a 
person  to  sue  in  forma  pauperis,  Allen  v. 
Mcpherson,  5  Beav.  460,  485;  Boddington 
V.  Woodley,  5  Beav.  555;  Goldsmith  v. 
Goldsmith,'5  Hare,  125;  Perry  ».  Walker, 
1  Coll.  233,  236. 
10  Wilkinson  v.  Belsher,  2  Bro.  C.  C.  272. 


'PAUPEES. 


41 


affida%at,  and  usually  also  a  copy  of  the  bill,  are  lodged  M^th  the 
Under-Secretary  of  the  Rolls,  who,  if  he  sees  no  cause  against  it, 
draws  up  and  enters  an  order,  by  which  the  petitioner  is  admitted 
to  sue  in  forma  pauperis^  and  a  counsel  and  solicitor  are  assigned 
to  act  on  his  behalf.^ 

The  order  should  be  served  upon  the  opposite  party  as  soon  as 
possible ;  for  a  plaintiff  admitted  to  sue  in  forma  p>au2)&ris  has 
been  ordered  to  -^vij  dives  costs  to  the  defendant,  in  respect  of  a  step 
in  the  cause  taken  before  ser^dce  of  the  order ;  ^  it  seems,  however, 
that  there  is  a  discretion  in  the  Court  in  such  cases,  and  that  the 
order  to  sue  in  forma  2Km2yeris  is  not  necessarily  inoperative  in  all 
cases  until  service.^  Th^  order  should  also  be  lodged  with  the 
Record  and  Writ  Clerk,  for  entry  in  his  books  ;  *  and  must  be  pro- 
duced to  the  officers  of  the  Court,  whenever  required   by  them. 

If  an  order  has  been  obtained  as  of  course  upon  a  suppression 
of  material  facts,  it  will  be  discharged  on  an  application  by  motion 
on  notice.^ 

After  admittance,  no  fee,  profit,  or  reward  is  to  be  taken  of  the 
pauper  by  any  counsel  or  solicitor,  for  the  despatch  of  his  business, 
whilst  it  depends  in  Court,  and  he  continues  in  forma  pauperis  ; 
nor  is  any  agreement  to  be  made  for  any  recompense  or  reward 
afterwards ;  and  any  person  offending  is  to  be  deemed  guilty  of  a 
contempt  of  Court ;  and  the  party  admitted  giving  any  such  fee, 
or  making  any  such  agreement,  is  to  be  thenceforth  dispaupered, 
and  not  be  admitted  again  in  that  s\iit  to  sue  in  forma  pauperis.^ 

The  counsel  or  solicitor  assigned  by  the  Court  to  assist  a  person 
admitted  in  forma  pauperis^  either  to  sue  or  defend,  may  not  refuse 
so  to  do,  unless  he  satisfies  the  Judge  who  granted  the  admittance 
with  some  good  reason  for  his  unwillingness^ 

When  a  pauper  has  had  counsel  assigned  to  him,  he  cannot  be 
heard  in  person.* 

No  process  of  contempt  will  be  issued,  at  the  instance  of  any 
person  suing  or  defending  in  forma  pauperis^  until  it  be  signed  by 
his  solicitor  in  the  suit.  And  all  notices  of  motion  served,  or  pe- 
titions presented  onbehalf  of  any  person  admitted  to  sue  or  defend 
in  forma  pinqH-ris  (excej>t  for  the  discliarge  of  his  solicitor)  must 
h»e  signed  Ijy  his  solicitor ;  and  such  solicitor  should  take  care  that 
no  such  process  be  taken  out,  aii<l  lliat  no  such  notice  or  j)etition 
be  served,  needlessly,  or  lor  vexation,  but  upon  just  and  good 
grounds." 


Cii.  II.  §  5. 
-— — Y — -^ 


Service  of 
order. 


Conse- 
quences of 
admission. 


Counsel 
or  solicitor, 
when  assign- 
ed, may  not 
refuse. 

Pauper  can- 
not be  heard 
in  person. 


Notices,  &c., 
must  he 
signed  by  his 
solicitor. 


1  For  form  of  order,  see  Seton,  1271, 
where  an  order  liiul  heen  obtained  on  an 
ex  pnrle  a[)i)lication,  tliat  llie  itlaintill'  bo 
permitted  to  prosecute  in  foruu't  pnti/Dris, 
the  same  was  viicated  with  costs.  Isnard 
V.  Cii7,eaux,  1  I'nige,  ;i'j. 

2  BiillHrd  V.  Catling,  2  Keen,  606;  see 
also  Smith  V.  Pawson,  2  Dc   G.  &  S.  490. 

«  Church  i'.Mar»h,2Hare,  eo2;  8Jur.  54. 


*  llraitliwaite's  I'r.  563. 

6  See  Nowcll  v.  Whitaker,  0  Heav.  407. 

''  Ord.  VII.  y. 

■7  Ord.  VII.  10. 

8  Parkinson  v.  Ilanbury,  4  Oe  G.,  M.  & 
G.  608. 

0  Ord.  Vir.  11;  Perrv  v.  Walker,  2  Y, 
&  C.  C.  C.  655;  4  neav."452;  arid  see  Ord. 
III.  10,  and  Brown  v.  Dawson,  2  llogan, 


42 


TERSONS    nv    AVIIO^l    A    SUIT    MAY    BE    INSTITUTED. 


r.i.  II.  §  5. 


Cost  of  suit. 
wluTo  iniii|i('r 
unsuciossl'ul; 


where  suc- 
cossful. 


Of  scandal. 


Of  dispauper- 
ing: 


on  the  ground 
of  property ; 


A  j):iu|>c>r  iii.iy  move  to  dismiss  his  bill  without  costs/  but  the 
motion  must  iu)t  he  made  ex  parte ;-  and  a  pauper  cannot  amend 
liis  bill  by  striking  out  (k'tl'nd:ints,  except  on  j)ayment  of  their 
costs.^  If  a  cause  goes  against  a  pauper  at  the  hearing,  he  is  not 
ordered  to  pay  costs  to  the  defendant ;  it  is  said,  however,  that  he 
may  be  j)unished  personally,  although  .the  practice  of  inflieting 
such  })unishment  appears  to  be  now  obsolete.^ 

It  seems  to  have  been  formerly  considered,  that  where  a  ])laintiff 
sues  in  formd  jna/pen's,  and  has  a  decree  in  his  favor  with  costs, 
he  will  only  be  entitled  to  such  costs  as  he  has  been  actually  out 
of  pocket;*^  but  it  is  now  settled,  that  the  costs  of  a  successful 
pau]ier  are  in  the  discretion  of  the  Cortrt ; "  and  where  costs  are 
ordered  to  be  paid  to  a  party  suing  or  defending  in  forma  pauperis, 
such  costs  are  to  be  taxed  as  dieses  costs,  unless  the  Court  otherwise 
directs.'  Where  an  appeal  against  a  decree  in  favor  of  a  person 
suing  in  forma  jyaiipci-is  Avas  dismissed  Avithout  costs,  the  deposit 
Avas  ordered  to  be  paid  out  to  the  pau])er.^ 

It  was  determined  as  long  ago  as  the  time  of  Tothill,  that  a 
pauper  must  pay  the  costs  of  scandal  in  his  answer.' 

As  a  party  may  be  admitted  to  sue  in  forma  pauperis  at  any 
time  during  the  suit,  so  if,  at  any  time,  it  is  made  to  appear  to  the 
Court  that  he  is  of  such  ability  that  he  ought  not  to  be  allowed  to  sue 
or  to  continue  to  sue  in  forma  pavperis^  the  Court  Avill  dispauper 
him  ;^''  therefore,  Avhere  it  Avas  shoAvn  to  the  Court  that  a  pau])er  Avas 
in  possession  of  the  property  in  question,  the  Court  ordered  him  to  be 
dispaupered,  though  the  defendant  had  a  verdict  at  Law,  and  might 


76,  as  to  the  liabilities  of  a  pauper's  solici- 
tor. 

1  Although  in  Pearson  v.  Belsher,  3 
Bro.  C.  C-  87,  it  is  stated  that  the  dismis- 
sal is  only  to  be  made  on  pa_vment  of  costs, 
the  order  was  drawn  up  witliout  costs;  see 
Keg.  Lib.  17S9,  IJ.  524,  entered  Pearson  v. 
Wolfe;  3  Bro.  C.  C.  87,  ed.  Belt,  n.  1; 
Beames  on  Costs,  88. 

2  Parkinson  v.  Hanburj',  4  De  G.,  M.  & 
G.  508;  and  see  AVilkinson  v.  Belsher,  2 
Bro.  C.  C.  272. 

3  Wilkinson  v.  Belsher,  2  Bro.  C.  C. 
272. 

4  Har.  391. 

6  Aiigell  V.  Smith,  Prec.  tha.  220;  see 
Williams  r.  Wilkiiis  3  .John.  Ch.  65. 

''  Scatclimer  v.  Koulkard,  1  Eq.  Ca.  Ab. 
125,  pi.  3;  Htiutton  v.  Ilager,  cited  in  An- 
gell  r.  Smith,  I'rec.  Cha.  220;  Wallop  v. 
Warburton,2  Cox,  400;  Rattravf-  George, 
16  Yes.  233;  Church  v.  Marsh,  2  Hare, 
655;  8  .lur.  54;  Koljerts  v.  L!oyd,  2  Beav. 
376;  St:ifibrd  v-  Higginbotham,  2  Keen, 
147;  Williams  v.  AN'ilkins,  3  John.  Ch.  65. 
A  plaintiff  suing  in  forma  pauperis,  and  re- 
covering a  legacy  against  e-xecutors,  when 
there  was  no  unreasonable  delay  on  their 
part,  ought  not  to  recover  divei  costs,  but 


only  the  actual  expenses  of  the  suit,  to  be 
paid  bv  the  executors  out  of  the  assets. 
Willianis  v.  AVilkins,  3  John.  Cli.  65. 

■?  Ord  XL.  5;  see  Beames  on  Costs,  77; 
and  for  cases  since  the  order,  Wellesley  v. 
Welleslev,  1  De  G.,  M.  &  G.  501 ;  Morning- 
ton  V.  Keen,  3  W.  R.  429,  24  L.  J.  Ch. 
400,  V.  C.W.;  Phillips  v  Phillips,  4  De 
G.,  F.  &  J.  208,  220;  8  Jur.  N.  S.  145,  L. 
C.  If  a  party,  suing  in  forma  jjauperis, 
amends  his  bill  after  answer  under  the 
common  order,  it  must  be  upon  the  pnj'- 
ment  of  costs,  as  in  ordinary  suits;  and  if 
he  has  a  meritorious  claim  to  amend  with- 
out costs,  he  must  apply  to  the  Court  by 
special  motion  upon  afiidavit  and  notice  to 
the  adverse  party.  Richardson  v.  Rich- 
ardson, 5  Paige,  58. 

8  Pliillips  V.  Phillips,  4  De  G.,  F.  &  J. 
208,  220;  8  Jur.  N.  S.  145,  L.  C. 

9  Per  Lord  Khlon,  in  Rattray  v.  George, 
16  Ves.  234;  Tothill,  237. 

10  Romilly  v.  Grint,  2  Beav.  186;  Mather 
V.  Shelmefdine,  7  Beav.  267;  Butler  v. 
Gardener,  12  Beav.  525;  Perrv  v.  Walker, 
1  Coll.  229,  236;  8  Jur.  680;  Goldsmith  v. 
Goldsmith,  5  Hare,  125;  Daintree  v. 
Haynes,  12  Jur.  594,  V.  C.  E. 


PAUPERS. 


43 


take  a  writ  of  possession  at  any  time  ;  ^  and  so  also  where  a  plain-     Cn.  II.  §  5. 
tijffhad  offered  by  her  bill  to  redeem  a  mortgage  if  any  thing  should  ^ 

be  found  due  on  it,  she  was  ordered  to  be  dispaupered ;  ^  it  has 
been  decided  that  an  officer  upon  half  pay  (which  is  not  alienable) 
could  not  proceed  in  forma  jiauperis^  notwithstanding  he  had 
tak6n  the  benefit  of  the  Insolvent  Act.^  The  application  to  dis- 
pauper is  made  by  special  motion,  on  notice ;  *  and  should  be  made 
without  delay.5 

At  Common  Law,  if  a  pauper  act  vexatiously  or  improperly  in  for  vexatious 
the  conduct  of  the  action,  the  Court  will  order  him  to  be  dis-  conduct. 
paupered  :  ^  and  in  like  manner,  in  Courts  of  Equity,  if  a  party  who 
is  admitted  to  sue  in  fornid  pauperis  be  guilty  of  vexatious  con- 
duct in  the  suit,'  or  of  vexatious  delays,  or  make  improper  motions, 
he  will  be  dispaupered,  thoijgh  the  Court  always  proceeds  very 
tenderly  in  such  points ;  *  and  it  has  been  said  that  a  pauper  is 
liable  to  be  committed  if  he  files  an  improi)er  bill,  or  otherwise  he 
might  be  guilty  of  great  oppression.^  The  tact  that  the  pauper 
has  been  supplied  with  money  by  a  charitable  subscription  for  the 
purpose  of  assisting  him  in  the  conduct  of  the  suit,  although  it 
may  afford  ground  for  impeachment  as  maintenance,  is  no  ground 
upon  which  he  can  be  deprived  of  his  i-ight  to  sue  as  a  pauper  in 
Equity.^*^ 

Where  an  issue  is  directed  in  a  pauper's  suit,  he  must  be  ad-  Where  issue 
mitted  as  a  pauper  in  the  Court  in  which  the  issue  is  to  be  tried,  '^  "^'^*^  ^  ' 
or  otherwise  he  cannot  proceed  in  it,  in  forma  pauperis}^  In  a 
case,  however,  wliere  the  jdaintiff,  a  jiauper,  claimed  as  heir-at-law, 
and  the  defendant  claimed  under  a  will  and  deed,  which  were  dis- 
puted, the  bill  was  retained,  with  liberty  to  the  plaintiff  to  bring 
an  action  ;  and  the  tenants  were  ordered  to  pay  the  plaintiff  150^. 
to  enable  him  to  go  to  trial. ^'" 

An  order  admitting  a  party  to  sue  or  defend  in  forma  pauperis^   Office  fees. 
while  in  force,  exemjjts  the  pauper  from  the  payment  of  any  fees 


1  Wyatt'rt  P.  I{.  321.  See  Spencer  v. 
IJrvant,  11  Yes.  49;  see  nl'^o  Taprell  v.  Tay- 
lor, 9  lieav.  493;  liutler  v.  (Jardeiier,  12 
IJeav.  52.5. 

2  Fowler  i>.  Davies,  16  Sim.  182;  12  .lur. 
321. 

8  Hod'liiif^fon  V.  Woadley,  5  IJeav.  555. 

*  Fi>r  form  of  notice,  see  Vol.  III. 

^  See  St.  Victor  v.  Devereux,  9  Jur. 
519,  L.  C.;  I'arkinson  v.  Ilanbury,  4  De 
G.,  M.  &  <i.  508. 

«  2  Chilly's  Arch.  1280. 

'  \Vii(,'ncr  V.  .Mcar.s,  3  Sim.  127;  and 
Bee  Terry  v.  Wiilker,  1  Coll.  229;  8  .lur. 
080. 

8  Whilelocke  v.  Baker,  13  Vcs.  511; 
\Vaf;iier  v.  Menrw,  3  Sim.  127;  iJainlree  w. 
Ilaviie«,  12  .Fur.  594,  V.  C  K. ;  and  nee 
Terry  ».  Walker,  1  Coll.  229;  8  Jur.  C80; 


Burrv,  Port  Co.  v.  Bowser,  5  W.  R.  325, 
V.  C.  K. ;  Steele  v.  Mott,  20  Wend.  679. 
A  piirt}-  suinf;  as  a  poor  person  is  charge- 
able with  the  costs  of  settin}^  a'^ide  his  pro- 
ceedings for  irregularity,  or  of  a  contempt 
(Mur[)h3'  V.  OMis,  2  Moll.  475),  or  of  ex- 
I)unging  im|)ertinent  or.uciindal'ius  matter, 
in  the  siinie  manner  as  other  suitors.  Rich- 
ardson t'.  Richardson,  5  Taige,  58.  A  pau- 
per's solicitor  may  be  made  to  pay  the 
costs  of  any  irregular  proceeding.  Brown 
V.  Dawson,  2  Iloiian,  76. 

»  Tearson  v.  Belchier,  4  Ves.  627,  630. 

1"  Corbett  v.  CorbeU,  10  Ves.  407,  412. 

n  Gibson  v.  McCarty,  Ca.  t.  Hardwicke, 
311. 

>2  Perishal  v.  Squire,!  Dick.  31;  IJeames 
on  C'lsts,  76;  A  pp.  22;  but  sec  Nye  v. 
Maule,  4  M.  &  C.  342,  345. 


44 


PERSONS    BY    AVIIOM    A    SUIT    MAY    BE    INSTITUTED. 


On.  II.  § 


Charges  for 
copie.s  deliv- 
ered to  juni- 
pers. 


Charges  for 
copies  deliv- 
ered by  pau- 
pers. 


in  tl\o  utrifc's  of  till'  Court,  o.xcopt  for  ofllci.'  copies  iiKule  tlierein  : 
for  siu'h  copies,  a  charge  of  one  penny-halfpenny  i)er  folio  will  be 
nuule.^  Copies  of  documents  ■wliich  the  ]iau])er  may  liiniself  make 
Avill  he  niavked  as  office  coi)ies,  without  charge.'^  The  cliarges  for 
copies  of  jileadings,  and  otlier  proceedings  and  documents  de- 
livered, under  the  3d,  4th,  and  5th  rules  of  the  3Gth  General  Order 
of  the  Court,^  to  a  jierson  admitted  to  sue  or  defetid  in  forma 
paxpcn'ii,  or  to  lus  solicitor,  by  or  on  behalf  of  any  other  party,  are 
to  be  at  the  rate  of  one  penny-halfpenny  per  folio  ;  but  if  such  per- 
son shall  become  entitled  to  receive  dives  costs,  the  charges  for 
such  coi>ies  are  to  be  at  the  rate  of  fourpence  per  folio ;  and  noth- 
ing is  to  be  allowed,  on  taxation,  in  respect  of  such  charges,  until 
such  person,  or  his  solicitor,  shall  have  paid  or  tendered  to  the  so- 
licitor or  party  by  whom  such  copies  were  delivered,  the  additional 
twopence-halfpenny  per  folio.  But  this  proviso  is  not  to  ap)>ly  to 
any  copy  which  shall  have  been  furnished  by  the  party  himself, 
who  is  directed  to  pay  the  costs,  and  not  by  his  solicitor.* 

The  charges  for  copies  delivered  by  a  person  admitted  to  sue  or 
defend  in  forma  pauperis^  other  than  those  delivered  by  his  so- 
licitor, are  to  be  at  the  rate  of  one  j)enny-half]ienny  per  folio.^ 


1  Braithwaite'sPr.  563;  and  see  Wvatt's 
P.  R.  320;  Beames'sOrders,  216,n.  (143). 

2  Braithwaite's  Pr.  563. 

3  These  rules  relate  to  copies  of  docu- 
ments not  made  or  delivered  bv  the  officers 


of  the  Court,  but  by  the  solicitors  of  other 
parties  in  the  cause. 

4  Regul.  to  Ord.  Part  IV.  2. 

s  Kegul.  to  Ord.  Part  IV.  2,  3..  For 
more  on  the  subject  of  Paupers,  see  post, 
Chap.  IV.  §  7. 


CHAPTER   III. 


SUITS    BY   PERSONS   WHO    ARE    UNDER    DISABILITY. 


Section^  I. —  Generally. 

The  general  rule  that  all  persons,  of  whatever  rank  or  condition, 
and  whether  they  have  a  natural  or  only  political  character,  are 
capable  of  instituting  suits  in  Equity,  is  liable,  as  has  been  stated,^ 
to  a  few  ^xcejitions.  What  these  excerptions  are  will  be  the  subject 
of -the  present  Chapter. 

The  disabilities  by  which  a  jDerson  maybe  prevented  fi-om  suing, 
may  be  divided  into  two  sorts :  namely,  such  as  are  absolute,  and, 
during  tlie  time  they  last,  eifectually  deprive  the  party  of  the  right 
to  assert  his  claim ;  and  such  as  are  qualified,  and  merely  deprive 
him  of  the  power  of  suing  without  the  assistance  of  some  other 
party  to  maintain  the  suit  on  his  behalf.  Of  the  first  sort,  are  the 
disabilities  which  arise  from  Alienage,  Outlawry,'  Attamder,  Con- 
viction of  felony,  and  Bankruptcy  ;  of  the  second  sort,  are  those 
which  arise  from  Infancy,  Coverture,  Icliotcy,  and  Lunacy. 


Exceptions  to 
the  general 
rule. 


Disqualifica- 
tions from 
suing  are 
either  abso- 
lute, or  quali- 
fied. 


Sectio^j  II, — Aliens. 


With  respect  to  aliens  in  general,  it  is  to  be  observed  that,  al-  Aliens: 
though  by  the  old  law  no  alien,  whether  friend  or  enemy,  could  sue 
in  the  Queen's  Courts,  yet  the  necessity  of  trade  has  gradually  In  what  cases 
done  away  with  the  too  rigorous  restraints  and  discouragements  '-^^^'y "'^^y  sue. 
which  formerly  existed ;  and  it  is  now  clear  that,  for  a  mere  per-  Alien  friend 
sonal  demand,  an  alien  born,  provided  he  be  not  an  alien  enemy, 
may  sue  in  the  Courts  of  this  country.^     This  rule  is  clearly  rec- 
ognized in  liamJcissenseat  v.  Barker,*  where  a  bill  was  filed  against 


may  sue  for 
a  personal 
demaud. 


1  Ante,  p.  5. 

2  The  disabilities  of  outlawry  and  ex- 
communication are  eitlier  wholly  unknown 
in  America,  or,  if  known  at  all,  are  of  very 
limited  U>cal  existence.  Story  Kf|.  I'l.  § 
61.  Sec  Roosevelt  v.  Cromincliii,  \H  .Folin. 
253;  Dilinaii  r.  Schultz,  .'.  S.  &;  U.  3G. 
It  has  lately  bcpii  held  in  Kiif^land,  that  a 
nun  is  iieitliur  civilly  deail,  nor  under  any 
disability  uriHln^  from  duress  or  undue  in 
fluence.  lit  Metcalfe,  2  Do  G.,  J.  6^  S. 
122;  10  .Jur.  X.  S.  287,  L.  .1.1.;  ih.  224,  M. 
R. ;  and  sec  as  to  civil  death,  and  the  sta- 
tus of  a  nun,  the  cases  there  cited,  and 
Evans  r.  Ciissidv.  11  Irisli  Kq.  243;  Blake 
V.  Blake,  4  Irisli  K(|.  349. 

8  Story   K(i.  Fl.  §§  61,  62.      An  alien 


friend  is  entitled  to  the  benefit,  and  subject 
to  the  action,  of  the  insolvent  laws  of  the 
State  where  he  resides.  Judd  v.  Law- 
rence, 1  Cusli.  3.  In  the  Courts  of  the 
United  Stales  he  is  entitled  to  claim  the 
same  pnitcction  of  his  rifjlits  as  a  citizen 
is.  'I'avlor  )'.  Cnrpenter,  3  Story,  458;  S. 
<;.  2  Wood.  &  M.  1;  Cortes  v.  Holbrook, 
2  Sandf.  Cli.  .ISO;  Hyam  i>.  Stevens, 4  Kdw. 
Ch.  111).  An  alien  does  not  lose  his  right 
to  sue  in  the  Courts  of  the  United  States, 
bv  7'esidin//  in  one  of  the  States  of  the 
iJnion.  Breedlove  v.  Nicolet,  7  I'eters, , 
413. 
•'  1  Atk.  51 ;  sec  also  I'isani  v.  Lawson, 

c  Biiig.  N.  c.  yo. 


46 


SUITS    BY    PERSONS    AVIIO    ARE    UNDER    DISABILITF. 


Copyritrlit  of 
alien,  Avhon 
protected. 


On.  II[.§'2.     oxocutors  for  :in  lU'couiit,  by  :i  i)l.iiii(itVMli()  Imd  bt'cn  om])loyo(l  by 
^  tlio  tost;tt.or  in  Iiitlia  :is  his  l);niy:iii  or  broker,  mikI  ;i  ])U';i  w;is  ])ut 

in  on  the  oround  that  tlu-  plaint iiV  was  an  alien  born  and  an  infidel, 
not  of  the  Christian  faith,  and  upon  a  cross-bill  incapable  of  being 
examined  upon  oath,  and  therefore  disqualified  from  suing  here; 
but  the  Court  overruled  the  plea  without  argument ;  observing, 
that  the  plaintiff's  was  a  mere  ])crsonal  demand,  and  that  it  was 
extremely  clear  that  he  might  bring  a  bill  in  this  Court.  It  was  a 
matter  of  doubt  to  what  extent  the  Court  Avould  protect  the  copy- 
right of  a  foreigner ;  ^  it  has,  however,  now  been  decided,  that 
wliere  a  foreign  author  OAves  a  temporary  allegiance  to  the  Crown 
of  England,  by  residence  in  this  country,'^  or  any  part  of  the 
British  dominions,^  at  the  time  of  his  first  publication  of  the  Avork, 
not  having  previously  published  it  elscAvhere,  he  is  an  author  within 
the  protection  of  the  Copyright  Acts.  By  several  recent  Acts',  a 
system  of  international  coi)yright  has  now  been  established.^ 

The  right  of  an  alien  to  sue  in  the  Courts  of  this  country  was, 
at  Common  Law,  confined  to  cases  arising  upon  personal  demands  ; 
for  an  alien  might  trade  and  traffic,  and  buy  and  sell,  and  therefore 
he  was  considered  to  be  of  ability  to  have  personal  actions ;  but 
he  could  not  maintain  either  real  or  mixed  actions :  ^  because  an 
alien,  though  in  amity,  Avas  incapable  of  holding  real  property.'' 


Right  of  an 
alien,  at  Com- 
mon Law,  to 
sue. 


1  Delondre  v.  Shaw,  2  Sim.  237;  Bentley 
V.  Foster,  10  Sim.  329;  Buxton  v.  James, 
5  De  G.  &  S.  80;  2  Kent  (lUh  ed.),  373, 
n.  (b). 

-  Jefferys  V.  Boosey,  4  H.  L.  Cas.  815; 

I  Jur.  N.  S.  615,  overruling  S.  C.  4  Exch. 
145;  in  Exch.  Ch.,  G  Exch.  580. 

3  Low  V.  Koutledge,  L.  R.  1  Ch.  Ap.  42; 

II  Jur.  N.  S.  939,  L.  .1.1. ;  affirmed,  S.  C. 
nom.  L.  R.  3  U.  L  100;  Low  v.  Ward, 
L.  R.  6  Eq.  415,  V.  C.  G. 

4  7  &  8  Vic.  c.  12,  iind  15  &  16  Vic.  c. 
12;  Cassell  ?•.  Stiff,  2  K.  &  .J.  279;  Buxton 
V.  James,  5  De  G.  &  S.  80;  16  Jur.  15; 
Ollendorff  I'.  Black,  4  De  G.  &  S.  209;  14 
Jur.  1080;  Wood  v.  Boosey,  L.  R.  2  Q.  B. 
340;  affirmed  L.  R.  3  Q."  B.  223,  Exch. 
Ch.;  AVood  r.  Chart,  Wood  v.  Wood,  W. 
N.  (1870)  118;  18  W.  R.  822,  V.  C.  J.;  L. 
R.  10  Eq.  193;  and  see  as  to  an  alien's 
copyright  in  designs,  24  &  25  Vic.  c.  73. 

6  (Jo.  Litt.  129  b. 

6  Co.  Litt.  2  b.  The  title  of  an  alien 
friend  to  tmd  purchased  b}',  or  devised  to 
him,  is  good  against  everyl)(jdy  but  the 
State,  and  can  only  be  divested  by  office 
found,  or  by  some  act  done  bv  the  .State  to 
acquire  possession.  2  Kent  (1 1th  ed.),  04 
and  55  and  note;  M'Creerv  v.  Alleiuier,  4 
Bar.  &  .AI'IL  409;  (iroves  v.  (iordon,  1 
Conn.  Ill;  Marshidl  v.  Conrad,  5  Call, 
364;  University  v.  Miller,  3  Dev.  191;  Doe 
V.  Horniblea,  2  Hayw.  37;  liuchanan  v. 
Deshon,  1  Iliir.  &  G.  280,  Scanlan  v. 
Wright,  13  Pick.  523;  Jenkins  v.  Noel,  3 
Stew.  eO;  Doe  r.  Robertson,  11  Wheat. 
322;  Dudley  v.  Grayson,  6  Munroe,  260; 


Jackson  v.  Adams,  7  Wend.  367 ;  Brad- 
street  V.  Supervisors,  &c.  13   Wend.  546; 

1  Jarnian,  Wills  (2d  Am.  od.),  102  [59] 
note  (1);  Wilbur  v.  Tobev,  16  I'ick.  179; 
Foss  V.  Crisp,  20  Pick.  124;  Waugh  v. 
Riley,  8  Met.  295;  People  v.  Conklin,  2 
Hill,  67;  Sugden  V.  &  P.  (7th  Am.  ed.) 
884  and  notes.  The  disability  of  aliens  to 
hold  real  estate  has  been  partially  removed 
in  some  States,  and  wholly  in  others.    See 

2  Kent  (11th  ed.)  53,  54  note;  Genl.  Sts. 
of  .Alassachusetts,  ch.  90,  §  38;  Rouche  v. 
Williamson,  3  lied.  (N.  C.)  146;  Duke  of 
Richmond  v.  Miln,  17  I.,ouis.  312.  In 
States  where  an  alien  cannot  hold  real  es- 
tate, of  course  he  c.innot  maintain  eject- 
ment; but  if  he  is  in  possession  of  real 
property,  he  may  maintain  trespass,  quni-e 
clausumfreyit.  Bayes  v.  Hof^g,  1  llayw. 
485.  But  an  alien's  right  to  sustain  an 
action  for  the  recovery  of  land  in  case  of 
an  intrusion  by  an  individual  was  main- 
tained in  M'Cieery  v.  Alleiider,  4  Har.  & 
M'H.  409;  Bradstreet  v.  Supervisors,  &c., 
13  Wend.  546;  Waugh  v.  Riley,  8  Met. 
295;  see  also  Scanlan  v.  Wright,  13  Pick. 
523;  Jackson  v  Britton,  4  Wend.  507; 
Jackson  F.xe  Dvm.  Ciilverliouse  v.  Beach, 
1  John.  Cas.  399;  (Jansevoort  ».  Lunn,  3 
id.  109;  Orser  v.  Hoag,  3  Hill,  79.  An 
alien,  who  holds  land  under  a  special  law 
of  a  State,  inaj'  maintain  a  suit  in  the  Cir- 
cuit Court  of  the  United  States  relating  to 
such  land.  Bonaparte  v.  Camden,  &c. 
liailroad  Co.,  1  Bald.  316;  see  Common- 
wealth V.  Andre,  3  Pick.  224. 


ALIENS.  47 

By  the  statiite,  intituled  "  An  Act  to  amend  the  Laws  relating    Ch.  III.  §  2. 
to  Aliens,"  section  3,  it  was  enacted,  "  that  every  person  now  born  ^ 

or  hereafter  to  be  born  out  of  her  Majesty's  dominions,  of  a  mother  -^^I'^ilA'^*' I, 

oc  O  VlC»  c.  oo. 

being  a  natural-born  subject  of  the  United  Kingdom,  shall  be  capa- 
ble of  taking  to  him,  his  heii-s,  executors,  or  administrators,  any 
estate,  real  or  personal,  by  'dcAdse  or  purchase,  or  inheritance  of 
succession."  By  section  4  it  was  enacted,  "that  from  and  after 
the  passing  of  this  Act,  every  alien,  being  the  subject  of  a  friendly 
State,  shall  and  may  take  and  hold  by  purchase,  gift,  bequest,  rep- 
resentation or  otherwise,  every  species  of  personal  property,  except 
chattels  real,  as  fully  and  effectually  to  all  intents  and  purposes, 
and  with  the  same  rights,  remedies,  exemptions,  j^rivileges,  and 
■  capacities,  as  if  he  wei'e  a  natural-born  subject  of  the  United 
Kingdom."  And  sectiqn  5  enacted  "  that  every  alien  now  residing 
in,  or  who  shall  hereafter  come  to  reside  in  any  part  of  the  United 
Kingdom,  and  being  the  subject  of  a  friendly  State,  may  by  grant, 
lease,  demise,  assignment,  bequest,  representation  or  otherwise, 
take  and  hold  any  lands,  houses,  or  other  tenements,  for  the  pur- 
pose of  residence  or  of  occupation  by  him  or  her,  or  his  or  her  ser- 
vants, or  for  the  purpose  of  any  business,  trade,  or  manufocture, 
for  any  term  of  years  not  exceeding  twenty-one  years,  as  fully  and 
effectually  to  all  intents  and  purposes,  and  with  the  same  rights, 
remedies,  exemptions,  and  privileges,  except  the  right  to  vote  at 
elections  for  members  of  Parliament,  as  if  he  were  a  natural-born 
subject  of  the  United  Kingdom." 

But.noAV,  by  the  recent  "Naturalization  Act,  1870,"  ^  section  2, 
"Real  and  personal  property  of  every  description  may  be  taken, 
acquired,  held,  and  disposed  of  by  an  alien  in  the  same  manner  in 
all  respects  as  by  a  natural-born  British  subject ;  and  a  title  to  real 
and  personal  property  of  every  description  may  be  derived 
through,  from,  or  in  succession  to  an  alien,  in  the  same  manner  in 
all  respects  as  through,  from,  or  in  succession,  to  a  natural-born 
British  subject ;  Provided,  (1.)  Tliat  this  section  shall  not  confer 
any  riglit  on  an  alien  to  liold  real  })roperty  situate  out  of  the 
United  Kingdom,  and  sliall  not  qualify  an  alien  for  any  office  or 
for  any  municipal,  jtarliamentary,  or  other  franchise;  (2.)  That 
this  section  shall  not  entitle  an  alien  to  any  right  or  privilege  as  a 
British  subject,  except  such  rights  and  jtrivileges  in  resj)ect  of  jirop- 
erty  as  are  hereby  expressly  given  to  him  ;  (8.)  That  this  section 
shall  not  affect  any  estate  or  interest  in  real  or  ])orsonal  proi)erty 
to  which  any  person  has  or  may  become  entitled,  either  mediately 

1  33  &  34  Vic.  c.  14;  by  §  10  power  is  83)  are  repnnlod.     Sec  as  to  the  ri;;lifs  of 

given  to  the  Lfgislaturcs  of  IJriti>-I)  po.s-  (lc9ccn<huits  of  British  subjects  wiio  liad 

sessions  to  give  thi'  [)riviIet;oH  of  naturali-  sctth'd    al)roii(l    hvXorn   tiie   Act;     Kitch   v. 

zaiioii  within  liicir  own   iiniitsf  by  §    \2,  W'elicr,  5    \h\xi'.,   U\;    See  also  Coiiiif   Do 

reguhitions  are  made  as  to  evidence  under  Wall's  case,  <!  Moore  1'.  C.  210;    12  .lur. 

the  Act;    and   by  §   18,  the  former  Alien  14.');    Harrow  v.    Wadkin,  24   licav.   327; 

Acts  (7  &  8  Vic.  c.  66,  and  10  &  11  Vic.  c.  Kittson  v.  Stordy,  3  Sm.  &  G.  230. 


48 


SUITS    BY    riOHSONS    AVIIO    AUE    UNDER    DISABILITT. 


Cii.  HI.  §  J. 


In  snits  be- 
twi'OH  alions, 
upon  con- 
tracts in  II 
foreign  coun- 
try; 


the  decision 
is  trovcrned 
bv  I  lie  law 
of  that 
country. 


Ne  exeal 
Regno : 


Civ  iimiu'tliati'ly,  in  possession  or  oxj)e'c'(:iiicy,  in  ])ursu:inoe  of  any 
disposition  made  bofbrc  tlic  passing  of  this  Act,^  or  in  ))ursuance 
o'i  any  devolution  by  law  on  the  death  of  any  person  dying  before 
the  passing  of  this  Act." 

Although  an  alien  may  maintain  a  suit  in  this  country,  yet,  if 
one  alien  sues  another  upon  a  contract  entered  into  in  a  foreign 
country,  it  would  be  contrary  to  all  the  principles  whicli  guide  the 
Courts  of  one  country  in  deciding  upon  contracts  made  in  anotlier, 
to  give  a  greater  effect  to  tlie  contract  than  it  would  have  by  the 
laws  of  the  country  where  it  took  place  ;  therefore,  where  a  Fi-ench 
emigrant,  resident  in  this  country,  obtained  by  duress  securities 
from  another  French  emigrant,  for  the  payment  of  a  demand,  al- 
leged to  be  due  from  him  under  an  obligation  entered  into  in 
France  as  security  for  another,  and  for  which,  according  to  the 
laws  of  France,  his  person  could  not  be  affected :  Lord  Rosslyn 
refused  to  dissolve  an  injunction  which  had  been  obtained  to  re- 
strain an  action  at  Law  upon  those  securities,  and  intimated  a  very 
strong  ojiiniori,  that  when  the  case  came  on  for  hearing  he  should 
in  all  i)robability  set  the  securities  aside.^  Upon  the  same  princi- 
]tle,  it  was  held  that  the  Court  will  not  grant  a  writ  iVe  exeat 
Hegno,  where  it  appears  that  the  transactions  between  the  parties 
were  entered  into  upon  the  faith  of  having  justice  in  the  place 
where  they  respectively  resided;"  though,  in  the  case  before  him, 
he  considered  that  the  parties  did  not  deal  upon  any  such  under- 


1  This  was  the  12th  of  May,  1870. 

2  Tallej'rand  v.  Boulaiiger,  3  Ves.  447, 
450.  Suits  are  maintainable  and  are  con- 
stantly maintained  between  foreigners 
wiiere  either  of  them  is  witliin  the  terri- 
tory of  tiie  State  in  whifli  the  suit  is 
brought,  bi'th  in  P^nsland  and  America. 
Story  Conf.  Laws,  §  542. 

In  Brinley  v.  Avery,  Kirby,  25,  it  was 
held  that  a  plea  in  abatement,  that  both 
parties  are  aliens,  and  that  the  contract 
declared  on  was  made  in  a  foreign  coun- 
try, and  was  to  have  been  performed  there, 
is  good;  and  in  Uumoussay  v.  Delevit,  3 
Har.  &  .J.  151,  an  action  of  replevin  was 
held  abatable,  on  a  plea  that  both  parties 
were  aliens,  and  the  Court  therefore  had 
not  jurisdiction.  But  in  Barrell  y.  Benja- 
min, 15  Mass.  354,  the  (Jourt  were  inclined 
to  the  opinion  that  one  foreigner  may  sue 
another,  who  is  transiently  within  the 
jurisdiction  of  the  Courts  of  a  State,  upon 
a  contract  made  between  them  in  a  foreign 
countrj'.  In  construing  such  contracts, 
the  Ihw  of  the  place  where  they  are  made 
will  be  admini.'-tered.  lb.  p.  357;  Story 
Conf.  Laws,  §  270  et  seq. ;  De  La  Vega  v. 
Vianna.  1  B.  &  Ad.  2S4.  But  the  rem- 
edy will  be  ap[)lied  according  to  the  law 
of  the  [)Iace  where  it  is  pursued.  A  con- 
troversy between  two  foreigners,  who  are 
private  citizens,  is  not  cognizable  in  the 
Courts  of  the  United  States  under  the 
Constitution.  See  Barrell  i".  Benjamin,  15 
Mass.  357. 


In  De  La  Vega  v.  Vianna,  1  B.  &  Ad. 
284,  it  was  held  that  one  foreigner  may 
arrest  another  in  England  for  a  deLt  which 
accrued  in  Portugal  while  both  resided 
there,  though  the  Portuguese  law  does 
not  allow  ot  arrest  for  debt.  In  the  above 
case,  Lord  Tenterden  C.  J.,  remarked, 
that  a  person  suing  in  Engbmd  must  take 
the  law  as  he  finds  it;  he  cannot,  by  vir- 
tue of  an}- regulation  in  his  own  country, 
enjoy  greater  advantages  than  other 
suitors  in  England,  and  he  ought  not 
therefore  to  be  deprived  of  an}'  superior 
advantage  which  the  law  of  this  country 
may  confer.  He  is  to  have  the  same 
rights  which  all  British  subjects  are  enti- 
tled to.  The  remedy  upon  contracts  is 
governed  by  the  law  of  the  place  where 
the  parties  pursue  it.  See  also  Whitte- 
more  v.  Adams,  2  Cowen,  626;  Willing  v. 
Consequa,  1  Peters  C.  C.  317;  Contois  v. 
Carpentier,  1  Wash.  C  C.  376;  Wyman 
V.  Southward,  10  Wheat.  1;  Don  v.  Lipp- 
mnn,  5  CI.  &  Fin.  1;  Iliiikley  v.  Moreau, 
3  Alason,  88;  Titus  v.  Ilobart,  5  Mason, 
378;  Atwater  v.  Towiisend,  4  Conn.  47; 
Story  Conf  Laws,  §§  568-571.  The  same 
doctrine  was  maintained  in  Smith  v.  Spi- 
nolla,  2  .John.  198.  See  also  Peck  v. 
Hozier,  14  Jolm.  346;  Sicnrd  v.  Whale,  11 
John.  194;  Talleyrand  v.  Boulanger,  3 
Sumner's  Ves.  447,  note  («). 

8  Kobertson  v.  Wiikie,  Amb.  177;  and 
see  De  Carriere  v.  De  Calonne,  4  Ves. 
590. 


ALIENS. 


49 


Standing,  and  therefore  refused  to  discharge  the  writ  without 
security ;  if,  however,  one  of  the  parties  is  an  EngUshman,  and 
they  were  both  resident  in  different  countries  at  the  time  the  con- 
tract was  entered  into,  the  Court  vnW  not  discharge  a  JVe  exeat  ob- 
tained by  the  party  resident  in  this  country,  against  the  other  who 
had  casually  come  hither  on  the  ground  that,  by  the  law  of  the 
country  of  which  the  other  was  a  native,  he  would  be  exempt  from 
arrest  for  a  debt  of  the  same  nature.^  It  is,  however,  to  be  ob- 
served, that  Avith  respect  to  writs  of  JVe  exeat  Hegtio,  Lord 
Northington  is  distinctly  stated  to  have  thought,  that  this  process 
ought  not  to  be  granted  between  foreigners ;  -  and  in  De  Carriere 
V.  De  Calonne,^  Lord  Rosslyn  said,  it  is  very  delicate  to  interfere 
as  against  foreigners,  whose  occasions  or  misfortunes  have  brought 
them  here,  by  an  application  of  this  writ  to  them ;  and  that  it 
would  be  a  necessary  term,  that  it  should  be  simply  a  case  of 
equity,  affording  no  ground  to  sue  at  law. 

With  respect  to  alien  enemies,  the  law  is  clearly  settled  by 
numerous  cases,  that  an  aUen  enemy  not  resident  here,  or  resident 
here  without  the  permission  of  the  government,  cannot  institute 
any  suit  Avhatever  in  this  country,  whether  at  law  or  in  equity, 
either  for  real  or  personal  property,  until  both  nations  be  at  peace  ;  ^ 
and  it  is  said,  that  the  question  whether  he  is  in  amity  or  not, 
should  be  tried  by  the  record,  viz.,  by  the  production  of  the  pro- 
clamation of  wnr.5  It  is  to  be  observed,  that  in  declaring  war, 
the  Queen,  in  her  proclamation,  usually  qualifies  it,  by  permitting 
the  subjects  of  the  enemy  resident  here  to  continue  so,  as  long  as 
they  peaceably  demean  themselves  ;  so  that  such  })ersoiis  are  to  be 
deenied  in  effect  alien  friends ;  **  therefore,  where  an  alien  enemy 
has  lived  here  peaceably  a  long  time,  or  has  come  here  for  refuge 
and  protection,  the  Court  Avill  discountenance  pleas  of  alienage 
against  himj  It  seems,  also,  that  a  prisoner  of  war  may  sue  upon 
a  contract  entered  into  by  him  during  the  time  of  his  captivity.** 


Cii.  III.  §  2. 


•not  usually 
granted 
between 
foreigners. 


except  when 
the  equity  is 
very  clear. 


Alien  ene- 
mies cannot 
sue,  unless 
resident  here 
bj'  (iueen's 
license, 


or  under  the 
proclamation 
of  war. 


Prisoners  of 
war. 


1  Flack  V.  Holm,  1  J.  &  W  405,  413, 
418. 

2  4  Vcs.  58.5. 
8  4  Ves.  590. 

*  Co.  Litt.  129  b.;  6  T.  li.  2.3;  1  Bos. 
&!'.  103;  3  Hos.  &  I'.  113;  Alcinous  v. 
Xigren,  4  EI.  &  HI.  217;  S.  C.  nom.  Alce- 
nius  V.  Nygreii,  1  .lur.  X.  S.  16;  Storv 
Kf|.  I'l.  §§51-54;  Miiinford  v.  MumforJ, 
ICiall.  3i;G;  Hra.lwcll  v.  Weeks,  1  .lobn. 
Ch.  208;  Crawford  v.  Win.  I'enn,  1  I'litens 
C.  C.  100;  AVilcox  I'.  Henry,  1  Dall.  09; 
Bell  t).  Cliapman,  10  John.  l"83;  Hepburn's 
ca.se,  3  Blind,  95;  CriHwoId  r.  Waddiiig- 
ton,  10  .John.  438;  Clemonston  v.  Blessig, 
11  Excli.  135,  141,  note;  Dean  r.  Nelson, 
Sup  Ct.  U.  S.  10  Am.  Law  Ke^.  N.  S.  221, 
and  the  learned  note  and  autliorities  cited 
at  the  end  of  that  cnsc. 

'>  Co.  Litt.  by  Hiirg.  v^  But.  129  b.  n.  2. 

6  Co.  Litt.  by  Harg.  &  But.  129  b.  n.  3. 

VOL.    I. 


7  Wyatt's  P.  li.  327;  Storv  Eq.  PI. 
§  52;  Brad  well  v  Weeks,  1  Julin.  Ch.208; 
Kusseli  V.  Skipwitli,  0  Biiin.  241. 

8  Sp.irenbiirgh  v.  Baniiatvne,  1  Bos.  & 
P.  103;  M;iria  r.  Hall,  2  iios.  &  P.  230; 
1  'I'Murit.  33;  Crawford  r.  The  William 
Penn,  3  Wash.  C.  C.  484. 

.  In  many  cases,  an  alien  enemy  is  enti- 
tled even  to  sue  for  his  own  rights;  as, 
when  he  is  permitted  to  remain  in  tlie 
coimtr}-,  or  is  brought  here  as  a  prisoner 
of  w.'ir.  \\v.  is  recognized  in  our  Ounls  in 
his  character  as  exec  iitor;  and  in  all  (  asi's 
his  properly  is  |)rotectcd  and  held  in  trust 
for  him  until  the  return  of  peace.  Ikiid- 
well  i;.  Weeks.  1  .John.  Ch.  2().S;  B,;ll  v. 
Chapman,  10  .lolwi.  IK3;  Clarke  r.  Morev, 
10  .loiin.  09;  Hutchinson  v.  Brock,  11 
INLass.  119;  i'arkinson  v.  Weiifwortfi,  H 
Mass.  2C;  Russell  v.  Skipwjth,  0  Binn.  241. 


50 


SUITS    BY    TERSONS    WlIO    ARE    UNDER    DISABILITY. 


Til.  HI.  $ 


or  a  consul. 


or  a  RritisU 
subject,  if 
trading  with- 
out a  license ; 


thoujjh  resid- 
ing there  in  a 
diplomatic 
capacity. 


British  sub- 
jects 


trading  with 
liceiiM's.  must 
confine  their 
trade  to  that 
licensed. 


In  what  cases 
suits  can  be 
maintained 
by  others, 
relating  to 
the  property 
of  enemies. 


TIk'  iiuTi'  i'iiH'imist;iiu-c'  of"  rcsidiiiL;;  in  ;i  (oivit;'!!  couiilry,  llicgov- 
eiiuiu'iil  ofwhicli  is  at  war  with  this  country,  and  ol"  carrying  on 
trade  there,  is  suHicient  to  constitute  any  person  an  ahen  enemy, 
even  tliough  lie  would  not  otherwise  be  considered  in  that  charac- 
ter.' Thus,  a  subject  of  a  neutral  State,  resident  in  u  hostile  State 
in  the  character  of  consul  of  the  neutral  State,  will,  if  he  cany  on 
trade  in  the  hostile  country,  be  considered  as  an  alien  enemy,  and 
disciualilied  from  suing  in  the  Courts  of  this  country ;  although, 
had  he  merely  resided  there  in  his  diplomatic  character,  he  would 
not  have  been  disqualified.^  And  even  if  a  British  subject,  resid- 
ing in  a  foreign  State  which  is  at  war  with  this  country,  carry  on 
trade  there  without  a  license  from  the  government  of  this  country, 
his  trading  will  be  considered  such  an  adherence  to  the.  Queen's 
enemies  as  will  incapacitate  him  from  maintaining  a  suit  here  ;  ^ 
and  although  he  be  an  ambassador,  or  .other  representative  of  the 
Crown  residing  in  a  hostile  State,  yet  if  he  carry  on  trade  in  such 
State  without  a  license,  he  will  deprive  himself  of  the  right  to  sue 
in  the  municipal  courts  of  this  country,  because  he  is  lending  him- 
self to  the  purposes  of  the  enemy  by  furnishing  him  with  resources.* 

If,  hoAvever,  a  subject  of  this  country,  residing  in  a  hostile 
country,  have  a  license  from  this  government  to  trade,  he  will  not 
incur  any  disability  as  long  as  he  confines  himself  to  the  trade 
authorized  by  such  license ;  ^  but  if  a  person  having  a  license  to 
reside  in  a  hostile  country,  and  to  export  corn  or  other  specified 
articles  to  this  country,  were  to  use  such  license  beyond  its  ex- 
pression, for  the  purpose  of  dealing  in  articles  to  which  it  has  no 
relation,  he  cannot  maintain  that  such  dealing  is  not  an  enemy's 
dealing.^ 

The  disability  to  maintain  a  suit  on  account  of  alienage,  extends 
to  all  cases  in  which  an  alien  enemy  is  interested,  although  his 
name  does  not  appear  in  the  transaction,'^  thus,  it  has  been  held, 
that  an  action  at  law  cannot  be  maintained  upon  a  policy  of  in- 
surance upon  the  property  of  an  alien  enemy,  even  though  the 
action  is  brought  in  the  name  of  an  English  agent,^  and  though  it 
is  alleged  that  the  alien  is   indebted  to  the  agent  in  more  money 


1  1  Kent  (llth  ed.),  76  tt  seq. ;  Case  of 
the  Sloop  Cliester,  2  Dallas,  41;  Murray  v. 
Schooner  Betsey,  2  Cnmch,  04;  Maley 
V.  Shattuck,  3  "Crauch,  488;  Livingston 
V.  Maryland  Ins.  Co.,  7  Cranch,  506;  The 
Venus,  8  Cranch,  253;  The  Francis,  8 
Craiicli,  363;  Cliitty  Cont.  {10th  Am.  ed.) 
198,  199;  Society  v.  Wheeler,  2  Gall. 
105. 

2  Albrecht  v.  Sussman,  2  V.  &  B.  323, 
327. 

3  M'Connell  v.  Hector.  3  Bos.  &  P.  113; 
O'Mealey  v.  Wilson,  1  Camp.  482,  but  he 
may  lawfully  provide  for  the  necessities  of 
Eiiglishmendetained  abroad,  and  may,  on 
the  return  of  peace,  enforce  contracts  made 


for  such  purposes.  Antoine  v.  Morshead 
6  Taunt.  237;  Duhammel  v.  Pickering,  2 
Stark.  92. 

4  Kx  pnrte  Baglehole,  18  Ves.  525,  528. 

^  £xj)ai'ie,Bag;\eho\e,lS  Ves.  529;  see 
Crawford  v.  The  William  Penn,  3  Wash. 
C.  C.  484. 

6  Ex  parte,  Baglehole,  18  Ves.  529. 

'  Crawford  v.  The  William  Penn,  1  Pe- 
ters C.  C.  106.  It  is  no  objection,  after 
the  war,  that  the  .suit  was  originally 
brought  by  the  plaintiff  as  trustee  for  an 
alien  enemy.  Hameislej'  v.  Lambert,  2 
John.  (;h.  508. 

8  Bristow  V.  Towers,  6  T.  E.  36. 


ALIENS. 


51 


than  the  vahie  cohered  by  the  policy.^  Where, however,'  a  certain 
trading  of  an  alien  enemy  {viz.^  for  specie  and  goods  to  be  l)ronght 
from  the  enemy's  country  in  his  ships  into  our  colonial  ports)  was 
licensed  by  the  King's  authority,  it  Avas  held,  that  an  insurance  on 
the  enemy's  ship,  as  well  as  on  the  cargo,  was  in  furtherance  of  the 
same  policy,  which  allowed  the  granting  of  the  licenses  to  authorize 
the  trade ;  and  that  effect  ought,  therefore,  to  be  given  to  the  or- 
dinary means  of  indemnity,  by  which  that  trade  (from  the  contin- 
uance of  which  the  public  must  be  supposed  to  derive  benefit)  may 
be  best  promoted  and  secured ;  the  Court  of  King's  Bench,  there- 
fore, determined,  that  an  action  brought  by  an  English  agent  to 
recover  the  amount  of  the  insurance  on  the  ship,  might  be  main- 
tained, notwithstanding  the  ship  belonged  to  an  enemy .^  It  was 
held,  however,  that  although  in  such  a  case  the  agent  might  sue, 
because  the  King's  license  iiad  purged  the  trust  in  respect  to  him 
of  all  its  injurious  consequences  to  the  public  interest,  yet  that  it 
had  not  the  same  eifect  of  removing  the  personal  disability  of  the 
principal,  so  as  to  enable  him  to  sue  in  his  own  name.^ 

The  disability  to  sue  under  which  an  alien  enemy  lies  is  jDersonal, 
and  takes  away  from  the  Queen's  eneniies  the  benefit  of  her  Courts, 
whether  for  the  purpose  of  immediate  relief  or  of  giving  assistance 
in  obtaining  that  relief  elsewhere ;  therefore,  an  alien  enemy  can- 
not institute  a  suit  for  the  purpose  of  obtaining  a  discovery,  even 
though  he  seek  no  further  relief.* 

The  right  of  an  alien  to  maintain  a  suit  relating  to  a  contract  is 
only  suspended  by  war  if  the  contract  was  entered  into  previously 
to  the  commencement  of  the  war,  and  it  may  be  enforced  upon 
the  restoration  of  peace. ^  Upon  this  principle,  in  bankruptcy,  the 
proof  of  a  debt  due  to  an  alien  enemy,  upon  a  contract  made 
before  the  war  broke  out,  was  admitted,  reserving  tlie  dividend." 
But  no  suit  can  be  sustained  to  enforce  an  obligation  arising  upon 
a  contract  entered  into  with  an  alien  enemy  during  war,  such  con- 
tract being  absolutely  void.''     And  where  a  policy,  of  insurance, 


Ch.  III.  §  2 


Alien  ene- 
mies cannot 
tile  bills  of 
discovery, 
queer  e? 


Right  of  alien 
enemy  to  sue 
is  merely  sus- 
pended dur- 
ini?  war, 


as  to  con- 
tracts entered 
into  before; 


1  Hrandon  v.  Nesbitt,  G  T.  U.  23. 

2  Kensiiifrion  v.  ItiKlis,  8  East,  273,  288. 

3  Kensington  v.  In>;li»,  8  East,  273. 

*  Dauhiffiiy  r.  Davalh.n,  2  Aiist.  462; 
but  see  Albrecht  v.  Sussman,  2  V.  &  1$. 
324,  326,  327;  Story  Eq.  I'l.  §  63,  n.  (4). 
An  nlicti  friend,  it  is  well  known,  may 
inaintain  u  i)iil  for  discovery  in  aid  of  a 
suit  in  a  fDrci^^ii  cfmutrv.  2  Slorv  l'",(|. 
Jur.  §14'jr,;  Miicliojl  I'."  Smith,  1  I'aigc, 
287;  Story  Eq.  I'l.  §  &3  in  note. 

6  Alcinous  1'.  Ni^ren,  4  El  &  ]5I.  217; 
S.  C  mim.  Alccnins  r.  Nvfjren,  1  Jur. 
N.  S.  10;  (Jliittv  Cc.iitr.  ("lOth  Am.  ed.) 
198;  Flindt  r.  \Vtiterc,  IT,  East,2<;0;  Iliim- 
ilton  V.  Eaton,  2  .Marsii.  (;.('.  1 ;  Huchan- 
an  V.  (Uirrv,  I'.'  .hilin.  137;  (Jlemotitaon  v. 
Blessig,  li  E,\ch.  13.',.  141,  note;  Story 
En.  I'l.  §  54;  Ilamcrsley  v.  Eiimbert,  2 
Jobn.    Ch.   608;    Bradwell    v.    Weeks,    1 


John.  Ch.  206.  And  in  Massachusetts 
the  statutes  of  limitation  of  personal  ac- 
tions are  cxpres^^ly  suspendeil  in  favor  of 
an  alien  durmf;  the  war.  (Jenl.  Sts.  ch. 
155,  §  8.  See  llopkirk  v.  Bell,  3  Cranch, 
454.  A  plea,  that  the  plaintiff  was  an 
alien  enemy,  is  sutlicieiitly  answered  by  a 
treaty  of  jieace,  made  after  tlie  plea  was 
filed."  Johnson  r.  Iliirrison,  li  Lift.  220. 
The  Court  will  take  notice  of  the  fact, 
tlioiifjli  tlie  ])laii.tiir  do  not  reply  it.  Ihid. 
Trfraties  with  f(>r(.'ij,'n  nations  are  pait  of 
the  law  of  the  land,  of  which  the  Courts 
arc  bound  to  takenoticq.  liabv  r.  |)iibois, 
1  Klackf.  255. 

"  Kx jxtvle  Houssniaker,  13  Ves.  71. 

"  Kx  jKirle  IJoussmaker,  13  Ves.  71;  and 
see  Exposito  r.  Hovvden,  in  I'^x.  t'li.  7  El. 
&  151.  77!);  5  W.  ii.  732,  as  to  the  dissolu- 
tion of  contracts  by  u  declaration  of  war. 


52 


SUITS    RY    rKKSOXS    WHO    ARE    UNDER    DISABILITY. 


Cii.  III.  §2. 


When  objec- 
tion may  be 
taken. 


Effect  of  a 
war  upon  a 
suit  already 
commenced. 


Plea  of  alien 
enemy. 


on  lH'l»:ilf  of  Fiviu'h  suhjocts  was  ohIcmcmI  into  just  Ix'foro  the 
commoiu'oiuont  of  tho  war,  upon  whioli  a  loss  Avas  sustained  in 
consoquenoe  of  capture  by  a  British  ship,  after  hostilities  had  com- 
nieneed,  tlu'  proof  of  a  deht  arising  from  such  i)olicy,  which  had 
been  admitted  by  the  commissioner  in  bankruptcy,  was  ordered  to 
be  expunoed.^  The  principle  upon  which  the  last  mentioned  case 
Avas  decided  is  fully  stated  by  Lord  Kllenborou<i-h  in  Br<tndon  v. 
(Vr//»</,- where  it  is  laid  down  by  his  lordship  as  a  rule,  that  every 
insurance  on  alien  property  by  a  British  subject  must  be  under- 
stood with  this  implied  exception,  "  that  it  shall  not  extend  to  cover 
any  loss  haiipening  during  the  existence  of  hostilities  between  the 
respective  countries  of  the  assured  and  assurer." 

A  defence  on  the  ground  that  the  plaintiff  is  an  alien  enemy, 
should  be  made  by  plea  before  answer.  Thus,  where  a  bill  was 
filed  by  a  plaintiff  residing  in  a  foreign  country  at  war  Avith  this, 
for  a  commission  to  examine  witnesses  there,  and  the  defendant 
put  in  an  ansAver,  an  application  for  an  order  for  the  commission 
was  granted:  though  it  Avas  objected  that  the  Court  ought  not  to 
grant  a  commission  to  an  enemy's. country,  the  Court  being,  as  it 
seems,  of  opinion  that  the  objection  had  come  too  late.^ 

It  does  not  ai)pear,  from  any  case  in  tlie  books,  Avhat  would  be 
the  effect  of  a  Avar  breaking  out  between  the  country  of  the  plain- 
tiff and  this  country,  after  the  commencement  of  the  suit ;  but, 
from  analogy  to  Avhat  is  stated  by  Lord  Chief  Baron  Gilbert  to  be 
the  practice  of  the  Court  Avith  regard  to  outlawry,  namely,  that  if 
it  is  not  pleaded  it  may  be  shoAvn  to  the  Court  on  the  hearing,  as 
a  peremptory  matter  against  the  plaintiff's  demands,  because  it 
shows  the  right  to  the  thing  to  be  in  the  Queen,*  it  is  probable 
that  the  Court  Avould,  under  such  circumstances,  stay  the  pro- 
ceedings.® 

It  appears  to  be  the  essence  of  a  plea  that  the  plaintiff  is  an  alien 
enemy,  to  state  that  the  plaintiff  was  born  out  of  the  liegance  of 
the  Queen,  and  Avithin  the  liegance  of  a  State  at  war  with  us ;  but 
where  the  plea  contains  Avords  which  amount  in  substance  to  an 
allegation  of  these  facts,  it  Avill  be  sufficient,  although  they  are  not 
averred  with  the  same  strictness  that  is  required  by  the  rules  of 
laAV.     Thus,  where  a  plea  averred  that  the  plaintiffs  were  French- 


1  Ex  parte  Lee,  13  Ves.  64. 

2  4  East,  410. 

3  Caliili  V.  Shepherd,  12  Ves.  335. 
*  Gilb.  For.  Kom.  53. 

6  Story  Eq.  PI.  §  54.  If  the  plaintiff 
becomes  an  alien  enemy  after  the  com- 
mencement of  the  juit,  the  defendant  may 
plead  it.  Bell  v.  Chapman,  10  John.  183. 
But  as  the  disability  is  merely  temporary, 
if  the  .'uit  is  not  abated  during  the  war, 
it  is  no  objection  after  the  war,  that  the 
plaintiff  was  an  alien  enemy  when  the 
suit  was  brought.     Hamersley  v.  Lambert, 


2  John.  Ch.  508.  The  effect  of  the  plea 
of  alien  enemy  is  not  to  defeat  the  process 
entirely,  but  to  suspend  it.  Hutchinson  v. 
Brock,  11  Mass.  119;  I'arkinson  v.  Went- 
worth,  11  Mass.  26;  Levine  v.  Taylor,  12 
Mass.  8;  Hamersley  v.  Lambert,  2  John. 
Ch.  508. 

Where  the  plaintiff  becomes  an  alien 
enemy  after  judgment,  the  Court  will 
not,  on  motion',  stay  or  set  aside  the  exe- 
cution. Buckley  v.  Lyttle,  10  John.  117. 
See  Owens  v.  Hanney,  9  Cranch,  180. 


PERSOXS    ATTAINTED    OR    CONVICTED. 


53 


men,  aliens,  and  enemies  of  the  King,  the  Com-t  held,  that  the  plea 
was  sufficient :  the  word  alien  being  a  legal  term,  impoi'ting  born 
out  of  the  liegance  of  the  King,  and  within  the  liegance  of  some 
other  State ;  and  the  words.  Frenchmen  and  enemies  of  the  King, 
showing  that  they  Avere  the  subjects  of  a  State  at  war  with  this 
country.^ 

It  is  to  "be  observed,  that  the  Courts  here  take  notice,  without 
proof,  of  a  war  in  which  this  country  is  engaged ;  but  a  war  be- 
tween foreign  countries  must  be  proved.- 

In  all  cases  of  a  person  permitted  to  sue  in  equity,  if  he  state 
himself  in  his  bill  to  be  resident  abroad,  or  if  it  comes  to  the  knowl- 
edge of  the  defendant  that  he  is  actually  so,  the  defendant  may 
obtain  an  order  of  the  Court  that  the  plaintiif  shall,  before  he  2>i'o- 
ceeds  further,  give  security  to  answer  to  the  defendant  the  costs  of 
the  suit.^  The  practice  with  respect  to  this  rule  has  been  before 
stated ;  *  and  is  applicable  to  aliens  and  foreigners,  as  well  as  to 
natural  bora  subjects.^  It  seems  that  an  alien  resident  in  this 
country  will  not  be  required  to  give  security  for  costs,  although 
his  residence  here  is  merely  temporary,  and  for  the  purpose,  of 
carrying  on  the  suit." 

^  Section  III.  —  Persons  attainted  or  convicted. 

Foraierly,  after  judgment  of  outlawry,  or  of  death,  in  a 
prosecution  for  treason  or  felony,  the  criniinal  was  said  to  be 
attainted,  attinctus,  or  blackened,''  and  became  incapable  of 
maintaining  a  suit  in  any  Court  of  justice,  either  civil  or 
criminal,  unless  for  the  purpose  of  procuring  a  reversal  of  his 
attainder ;  ^  he  also  incurred  a  forfeiture  of  all  his  j^roperty,  real 
and  personal,®  and  was  disqualified  from  holding  any  which  he 
might  in  future  acquire,  either  by  descent,  })urchase,  or  contract;^" 
but  now,  by  the  33  and  34  Vic.  c.  23,  from  and  after  the  4th  of 
July,  1870,"  no  confession,  verdict,  inquest,  conviction  or  judg- 

1  Daubigny  v.  Davallon,  2  Anst.  462, 
468. 

'■^  Dolderi".  Lord  HuntinRfield,  11  Ves. 
2'j2;  and  see  Alcinous  v.  Nigren,  4  El.  & 
HI.  217;  S.  C  nam.  Alcenius  v.  Nygren,  1 
Jur.  X.  S.  16. 

3  Meiiorucchy  v.  Mcliorucchj',  2  Ve.s. 
S.  24;  (ircen  v.  Cliarnock,  1  Ve.s.  J.  396; 
Iloby  t.'.  Hitchcock,  5  Ves.  6!t9;  Seilaz  v. 
Hanson,  iVv.  261;  Drever  v.  Maudeslev,  6 
Rush.  U. 

*  See  ante,  pp.  27-37. 

6  P'or  more  a.s  to  trading  with  alien  ene- 
mies, see  The  Hoop,  Tudor's  L.  C.  Merc. 
Law,  7«7-813. 

6  (Jiiml)ottie  V.  Inngato,  1  W.  R.  533  V. 
C.  W. ;  and  see  Ainsley  v.  Sims,  17  Beav. 
67;  17  Jur.  6.'J7 ;  Swanzy  v.  Swanzy,  4  K. 
&  .1.  237;  4  .lur.  N.  S.  1013. 

'  4  MIm.  Com.  3S1. 

8  /-.x/K/c/e  IJuilock,  14  Ves.  4.12,  464.  A 
person  attainted   under  the  Act  of  Now 


Ch.  III.  §  3. 


York,  1799,  is  considered  as  civiliter  mor- 
tuus.  Jackson  v.  Catlin,  2  John.  24S.  One 
attainted  under  the  Act  cannot  sustain  an 
action  for  rent  due  to  him  previous  to  tiio 
passins;  of  the  Act,  or  make  it  a  set-ofT  in 
an  action  bv  his  lessee.  Sleght  v.  Kade, 
2  John.  236. 

A  plea  of  attainder  is  of  rare  occurrence, 
and  a  plea  of  this  sort  in  eciuity  would 
probaljly  be  construed  with  tlie  same 
strictness  as  the  like  plea  is  at  law.  Story 
Etj.  ri.  §  723. 

»  But  not  such  land,  stock,  or  choses  in 
actum  MS  he  hf)lds  as  a  trustee  or  mort- 
gagee; see  13  &  14  Vic.  c.  60,  §  46;  and 
see,  before  the  Act,  Ax  parte  Tyson,  1  .lur. 
472;  nor  lands  of  which  he  is  only  ('i|uit- 
able  owner.  Attorney-General  r.  Sands, 
Tudor.  K.  l'ro[).  664-679. 
1"  Bullock  V.  D.xl.is.  2  B.  &  Aid.  277. 
11  The  day  on  which  the  33  &  34  Vic.  c. 
23  received  the  royal  aitsent. 


War  with  this 
country  judi- 
cialh'  no- 
ticed ;  secus,  a 
war  betweea 
foreign  coun- 
tries.' 

Security  for 
A)sts. 


Attainder 
and  forfeiture 
under  former 
law. 


Conse- 
quences of 
attainder. 


54 


Sl'ITS    BY    PERSONS    WHO    ARE    UNDER    DISABILITY. 


Cu.  Ill  §  ;i. 

V. Y -> 

Attaiiiilor 
ami  t'ortoiture 
now  atml- 
isho.l :  .i.t  v^- 
a4  Vii-.  L-.  -Jo, 
§1- 

Convict  dis- 
abled to  sue 
for  or  to  alien- 
ate projiertv; 
33  iV  34  ViV. 
C.23,  §§8.  30. 

What  tilings 
were  lort'eiled 
on  attainder: 

for  treason ; 


and  tor 
felony. 


From  what 
time  forfeit- 
ure took 
place : 

of  real  estate ; 

of  chattels. 


iiuMits,  of  or  t'of,  :iny  tiviison  ox  iMony,  or  felo  de  se,  causes  any 
;itt;iinilor  or  corruption  ot"  blood,  or  :iny  t'orrciturc  or  escheat;  the 
hiw  oi"  forfoituro,  consequent  upon  outhvwry  is,  however,  not 
nttcctetl ; '  and  no  action  at  hiw  or  suit  in  equity  lor  the  recovery  of 
any  i)roperty,  debt,  or  damage  whatsoever  cati  be  brouglit  by  any 
convict"'^  against  any  person  during  the  time  wliile  lie  shall  be  sub- 
ject to  the  operation  of  the  Act  ;'^  and  every  convict  is'iiu'a))able, 
during  such  time  as  aforesaid,  of  alienating  or  charging  any  pro- 
perty, or  of  making  any  contract ;  but  these  disabilities  are  sus- 
pended during  the  time  which  he  may  be  lawfully  at  large  under 
any  license.* 

With  respect  to  the  forfeiture  of  real  estates  by  attainder,  there 
was  a  distinction  between  attainders  for  treason  and  for  felony.  By 
attainder  for  treason,  a  man  forfeited  all  estates  of  inheritance, 
whether  fee-simple  or  fee-tail,  and  all  his  rights  of  entry  on  lands 
or  tenements  which  he  had  at  the  time  of  the  oftence  committed,  or 
at  any  time  :ii'terwards,  to  be  for  ever  vested  in  the  Crown,  and 
also  the  profits  of  all  laiuls  and  tenements  Avhich  he  had  in  hisoAvn 
right,  for  life  or  years,  so  long  as  such  interest  should  subsist ;  ^  but 
with  respect  to  the  attainder  for  felony,  the  54  Geo.  III.  c.  145, 
enacted,  that  excejit  in  cases  of  high  treason,  petit  treason,  and 
murder  or  abetting  the  same,  no  attainder  should  extend  to  the 
disinheriting  any  heir,  nor  to  the  prejudice  of  the  right  or  title  of 
any  jaerson,  except  the  offender  during  his  life  only ;  and  upon  the 
death  of  the  offender,  every  person  to  whom  the  right  or  interest 
of  any  lands  or  tenements  should  or  might,  after  the  d(Mith  of  such 
offender,  have  appertained,  if  no  such  attainder  had  been,  might 
enter  thereupon.^ 

The  forfeiture  of  real  estate,  consequent  upon  attainder  of  trea- 
son or  felony,  related  backwards  to  the  time  of  the  treason  or 
felony  committed,  so  as  to  avoid  all  intermediate  sales  or  incum- 
brances, bvxt  not  those  before  the  fact.''  The  case  was,  however, 
different  with  regard  to  the  forfeiture  of  goods  and  chattels ;  for 


1  33  &  34  Vic.  c.  23,  §  1. 

2  The  word  "  convict  "  means  any  per- 
son against  whom,  after  the  passing;  of  the 
Act  {i.  e.  4  .July,  1870),  judgment  of  death, 
or  of  penal  servitude,  has  been  pronounced 
or  recorded  by  any  Court  of  competent  ju- 
risdiction in  England,  Wales,  or  Ireland, 
upon  anj'  charge  of  treason  or  felony.  33 
&  34  Vic.  c.  2.3,  §  6. 

8  The  convict  ceases  to  be  subject  to  tHe 
operation  of  the  Act  when  he  dies  or  be- 
comes biinkiupt,  or  has  suffered  any  pun- 
ishment to  which  sentence  of  de;ith  pro- 
nounced or  recorded  against  him  has  been 
lawfull}'  commuted,  or  has  imdergone  the 
full  term  of  penal  .servitude  for  which 
judgment  has  been  pronounced  or  recorded 
against  him,  or  such  other  puni«hment  as 
may  have  been  duly  substituted  for  such 


full  term,  or  has  received  a  pardon  for  the 
treason  or  felony  of  which  he  has  been 
convicted.     33  &  34  Vic.  c.  23,  §  7. 

4  33  &  3iVic.  0.23,  §§  8,30. 

5  4  Bla.  Com.  381.  Descent  may  be 
traced  through  a  person  attainted  since 
1833;  see  3  &  4  Will.  IV.  c   106,  §  10. 

6  54  Geo.  III.  c.  145.  All  cojjyliold  es- 
tates were  forfeited  to  the  lord,  and  not  to 
the  Queen,  unless  there  was  an  Act  of  Par- 
liament or  an  express  custom  to  the  con- 
trary; 1  Walk,  on  Copy.  326;  1  Cruise's 
Dig.  307;  and  the  forfeiture  in  such  case 
did  not  accrue  upon  mere  conviction,  but 
only  on  complete  attainder:  3  B.  &  Aid. 
510";  2  Vent.  38;  unless  by  special  custom 
to  the  contrary. 

'  4  Bla.  Com.  381-386;  Tudor,  R.  Prop. 
690. 


PERSONS    ATTAINTED    OR    CONVICTED. 


55 


that  had  no  relation  back-vrards ;  so  that  those  only  which  a  man 
had  at  the  time  of  conviction  were  forfeited.^  But  by  attainder, 
not  only  all  the  personal  property  and  rights  of  action  which  a  man 
actually  had  were  forfeited,  but  all  personal  property  and  rights 
of  action  which  accrued  to  the  offender  after  attainder  were  for- 
feited and  vested  in  the  Crown,  without  office  found ;  "^  so  that  it 
has  been  held,  that  attainder  might  be  well  pleaded  in  bar  to  an 
action  on  a  bill  of  exchange  indorsed  to  the  plaintiff  after  his 
attainder.^  There  was  another  distinction  between  the  forfeiture 
of  real  and  of  personal  estate:  lands  were  forfeited  upon  attainder, 
and  not  before ;  goods  and  chattels  were  forfeited  upon  conviction, 
because  in  many  of  the  cases  where  goods  were  forfeited  there 
never  was  any  attainder,  which  happened  only  where  judgment  of 
death  or  outlawry  was  given ;  and  being  necessarily  upon  convic- 
tion in  those,  it  was  so  ordered  in  all  other  cases.^  In  outlawries 
for  treason  or  felony,  lands  were  forfeited  only  by  judgment,  but 
goods  and  chattels  were  forfeited  by  a  man's  being  put  in  the 
exigent,  without  staying  till  he  was  quinto  exactus  or  finally  out- 
lawed; for  the  secreting  himself  so  long  from  justice  was  construed 
a  flight  in  law.^ 

These  points,  although  they  do  not  immediately  relate  to  the 
personal  disqualification  from  suing  under  which  a  party  lie  who 
had  been  attainted  either  of  treason  or  felony,  are  nevertheless 
necessary  to  be  adverted  to ;  because,  if  a  party  claiming  a  title  to 
projicity  under  an  attainted  person  Avere  to  institute  proceedings 
in  a  Court  of  justice  relating  to  that  property,  his  claim  might  be 
met  by  pleading  the  attainder  of  the  person  from  whom  his  claim 
was  derived :  ®  and  in  such  case,  the  time  when  the  forfeiture 
accrued  might  be  a  very  important  point  for  consideration. 

With  respect  to  such  felonies  as  were  not  punishable  with  death, 
the  felon  on  conviction,  forfeited  his  civil  rights  ;  but  the  punish- 
ment endured  jiad  the  like  effect  and  consequences  as  a  pardon 
under  the  great  seal ;'  and  restored  the  offender  to  his  civil  rights, 
on  the  determination  of  the  period  of  punishment.^ 

Forfeiture  of  land  only  arose  on  attainder;'-*  and  therefore, 
in  the  case  of  a  felony  not  capital,  the  offender,  though  convicted, 
might  convey  or  create. a  valid  trust  of  his  real  estate,^"  and  might 
dispo.se  thereof  by  will."     But  all  personal  property  possessed  by 


Ch.  III.  §  .3. 


Effect  of 
attainder. 


Distinction 
between  at- 
tainder and 
conviction,  as 
regarded  the 
time  of  for- 
feiture. 


Of  forfeiture 
in  outlawries 
for  criminal 
offences. 


Effect  of  at- 
tainder on 
right  to  sue 
of  claimant 
under  the 
attainted. 


1  4  Bla.  Com.  .387;  Perkins  v.  Bradley,  1 
Hare,  219,  228;  but  a  coloral>le  alienation 
to  avoid  a  forfeiture  wouhl  be  void  as 
•against  the  Crown,!  Hare,  227;  and  see 
IJuilock  >'.  Dodds  2  li.  &  Aid.  258;  (Jhowne 
V.  liayli",  31  IJeav.  ^'A:  Sautiders  v.  \Var- 
ton,  'J  .Jur.  N.  S.  570,  V.  C.  S. 

'i  Ofiire  found  was  abolished  by  22  &  23 
Vic.  c.  21,  §  2.1. 

3   l'.ul|..ck  y.  Dodds,  2  15.  &  Aid.  2.58. 

*  4  Bill.  Com.  387;  Perkins  i-.  Bradley, 
1  Hare,  219. 


fi  4  Bla.  Com.  387;  see  also  33  &  34  Vic. 
c..23,§l. 

0  Ld.  Ked.  232. 

7  9  (jeo.  1V^  c.  32,  §  3. 

*  See  Williams,  Per.s.  Prop.  44;  andy«w<, 
p.  58. 

9  See  Re  Harrop,  3  Drew.  72G. 

1"  Lewin  on  Tru'*ts,  20. 

1'  1  Jarm.  Wills,  33;  2  I'rideaux,  Conv. 
268. 


Conse- 
quences of 
conviction  for 
a  felony  not 
capital : 


on  land; 


on  personal 
property. 


r>C^ 


SUITS    BY    PERSONS    WHO    ARE    UNDER    DISABILITY. 


(11.  ui.^r 


Appointment 
of  iidniinis- 
tratiir  of 
propi^rty  of 
convict ;  33  & 
34  Vic.  c.  23, 
§29. 


Power.?  of 
administra- 
tor; 33  &  34 
Vic.  c.  23,  §§ 
10,  18,  30. 


Appointment 
of  interim 
curators  and 
their  powers ; 
.33  &  34  Vic. 
c.  23,  §§  21- 
26. 


liim  :i(  till'  (imo  of  his  conviction,^  or  wliich  afterwards  accrued  to 
him,  bctore  tlie  term  of  punishment  e.\j)ired,  was  forfeited  to  the 
Crown,-  inchiding  personal  j)roi)ertY  hehl  in  trust  for  liim,^  and 
a  vested  interest,  in  remainih-r,  in  the  ])roceeds  of  hind  actually 
converted ;  ■•  but  not  a  contingent  legacy,  where  the  event  on 
which  the  contingency  depended  did  not  happen  till  after  the 
puitishnient  had  been  endm-ed ;  ^  nor  a  vested  interest,  in  re- 
mainder, in  land  directed  to  be,  but  not  actually  converted;*'  and 
Avhere  land  to  which  an  infant  was  entitled  was  taken  under  a 
local  Act,  and  the  purchase-money  paid  into  Court  by  reason  of 
his  infancy,  and  he  was  afterwards  convicted  for  felony,  and  sen- 
tenced to  seven  years  transportation,  it  was  held,  on  the  expira- 
tion thereof,  that  he  was  entitled  to  the  money  as  realty.'' 

An  administrator  of  the  property  of  any  convict  may  be  ap- 
pointed by  the  Crown ;  and,  upon  his  death,  or  revocation  of  his 
appointment,  a  new  administrator  may  be  appointed,  who  will  be 
the  successor  in  law  of  the  former  administrator ;  and  all  property 
vested  in,  and  powers  given  to,  the  former  administrator  devolve 
uj^on  and  vest  in  the  new  administrator,  Avho  is  bound  by  all  the 
acts  of  the  former  administrator.^ 

Upon  the  appointment  of  the  administrator,  all  the  real  and 
personal  property,  including  choses  in  action,  to  which  the  convict 
is,  at  the  thne  of  his  conviction,  or  becomes,  while  subject  to  the 
act,  entitled,  (except  property  acquired  by  him  while  at  large 
under  any  license^),  vests  in  the  administrator ;^°  who  has  absolute 
poAver  to  deal  therewith."  The  convict,  or  any  person  claiming  an 
interest  in  the  property,  cannot  call  in  question  any  acts  bond  fide 
done  by  the  administrator ;  ^-  and,  subject  to  the  powers  and  provis- 
ions of  the  Act,  the  property  is  to  be  preserved  and  held  in  trust 
by  the  administrator ;  and,  on  the  convict  ceasing  to  be  subject  to 
the  Act,  is  to  revert  to  him,  his  heirs,  executors,  or  administrators.^^ 
If  no  administrator  is  ap])ointed,  an  ad  interim  curator,  who  has, 
in  general,  the  same  power  as  the  administrator,  may  be  appointed, 


1  No  forfeiture,  however,  followed  con- 
viction under  the  10  &  11  Vic.  c.  82,  §  12; 
13  &  14  Vic.  c.  37;  or  18  &  19  Vic.  c.  126. 

2  4  151a.  Com.  387 ;  Roberts  v.  Walker, 
1  R.  &  M.  752. 

3  Lewin  on  Trusts,  581. 

■*  Re  Thompson,  22  Beav.  506. 

^  Stokes  V.  Ilolden,  1  Keen,  145,  153. 

6  lit  Thompson,  22  Beav.  506. 

7  lie.  Harrop,  3  Drew,  726.  By  6  &  7 
Vic.  c.  7,  §  3,  convicts  holding  tickets  of 
leave  are  enabled  to  hold  personal  prop- 
erty, and  to  maintain  actions  in  respect 
thereof,  while  their  tickets  remain  un- 
revoked. 

8  33  &  34  Vic.  c.  23,  §  9. 
'•*  33  &  34  Vic.  c.  23,  §  30. 

10  33  &  34  Vic.  c.  23,  §  10. 


11  33  &  34  Vic.  c.  23,  §  12.  The  ad- 
ministrator may  pay  out  of  the  propertj'^ 
the  costs  of  the  prosecution,  and  of  execut- 
ing the  Act  (§  13)  ;  and  the  debts  and 
liabilities  of  the  convict,  and  may  deliver 
any  property  coming  to  his  hands  to  any 
person  entitled  to  it  (§  14)  ;  and_  mny  out 
of  the  property,  make  compensation  to  any 
person  defrauded  by  the  criminal  or  fraud- 
ulent acts  of  the  convict  (§  15). 

12  33  &  34  Vic.  c.  23,  §  17. 

13  33  &  34  Vic.  c.  23,  §  18.  Unless* 
otherwise  ordered,  the  costs  as  between 
solicitor  and  client,  and  the  charges  and  ex- 
penses of  the  administrator  incurred  in 
reference  to  the  property,  are  a  first  charge 
thereon;  33  &  34  Vic.  c.  23,  §  20. 


SUITS    BY   PERSONS    WHO    ARE    UNDER   DISABILITY.  57 

and  fi-om  time  to  time  removed;^  and  all  judgments  or  orders  for  Ch.  hi.  §  3. 
payment  of  money  may  be  executed  against  the  property  in  the  '' 

hands  of  the  interim  curator,  or  of  any  person  Avho  may  have,  Executionof 

without  legal  authority,  taken  possession  of  the  property  of  the  orders  against 

convict;^  and  all  judgments  or  orders  may  be  executed  by  writ  P^^jpl^' gl ^^ 

of  scire  facias  against  property  vested  in  the  administrator.^  34  Vic.  c.  23, 

Proceedings  may  be  taken  by  summons  to  make  any  adminis- 
trator or  interim  curator  account,  before  the  property  reverts  to  administeator 
the  convict;^  and,  subiect  to  the  provisions  of  the  Act,  the  admin-  and  interim 

.  .  -Til  •  curator ;  33  & 

istrator  or  mterim  curator  is  uable,  when  the  convict  ceases  to  u  Vic.  c.  23, 
be  subject  to  the  Act,  to  account  for  all  property  received  by  him.^  §§  ^^'  ^^• 

Conviction  is  taken  advantage  of  by  plea,  and  it  seems  that  such   Conviction: 
a  plea  would  be  judged  with  the  same  strictness  as  if  it  were  a  advan'ta^e  of. 
plea  at  Law.*^ 

In  order  to  bar  a  plaintiif 's  suit  on  the  oTound  of  an  offence  Plea,  that  the 
committed,  it  is  not  always  necessary  to  show  an  attainder  or  con-  '^^^^-^^^  p^ajn. 
viction;  for  if  a  plea  goes  to  show  that,  in  consequence  of  an  offence  tiff  derives 
committed,  no  title  ever  vested  in  the  plaintiff,  conviction  of  the   criminal. 
offence  is  not  essential  to  the  plea.' 

Where  a  judgment  pronounced  upon  a  conviction  for  treason  or  Efiect  of  re- 
felony,  is  falsified  or  reversed,  all  former  proceedings  are  absolutely  attahider. 
set  aside ;  and  the  party  stands  as  if  he  had  never  been  accused  ;** 
and  he  may,  therefore,  sue  in  a  Court  of  Equity,  in  the  same  man- 
ner that  he  might  have  done  if  no  conviction  had  taken  place. 

The  disqualification  arising  from  a  conviction  may  also  be  obvi-  Effect  of  a 
ated  by  the  Queen's  pardon ;  or  by  enduring  the  punishment  im-  P'^™^"- 
posed."  A  pardon  formerly  could  only  have  been  granted  under. 
the  Great  Seal ;  but  now,  a  warrant  under  the  Royal  sign  manual, 
countersigned  by  one  of  the  Princi])al  Secretaries  of  State,  grant- 
ing a  free  jtardon  and  the  ])risoner's  discharge  under  it,  or  a  condi- 
tional pardon,  and  the  i)erfbrniance  of  such  condition,  is  as  effectual 
as  a  ])ardon  under  the  Great  Seal.^'' 

Tliere  is  a  great  difference  between  the  effect  of  a  ])ard()n  and    nifforence 
of  a  i-eversal.     In  the  case  of  a  reversal,  tlie  party  is,  as  we  have   jon  and  re- 
seen,  in  all  respects,  replaced  in  the  same  condition  that  he  was  in   versal. 
before  the  commencement  of  the  proceedings;  but  a  ])ardon  has 
not  that  effect."     Tims,  a  person  wlio  has  been  convicted  and  par- 
doned cannot  sue  u|m(ii  any  right  acciiied  to  him  before  his  pardon, 
altlioiigli  he  may  loi-  a  right  accrued  at'tci'wards.^- 

»  .33  &  .'it  Vic.  c.  23,  §§  21-'20.  8  4  l?|a.  Cm.  PAl'.i. 

•      2  Ah  to  enrorcin;;  (lecnicH  miil  orders,  see  "  33  iS:  34  Vic.  c.  23,  §  7.     Formerly   in 

poit  Cliiipter  XXVI.  the  case  of  a  c!i|)ital  I'elony,  enduring  the 

8  33  &  34  Vic.  c.  23,  §  27.  puiiiniiment  did  not  iiiivc  the  effect  of  a 

<  .33  &  34  Vic.  c.  23,  §  2H.  pardon;  see  9  (ieo.  IV.  c.  .32,  §  3. 

6  33  &  34  Vic.  0.  23,  §  2!).  1"  0  (Jeo.  IV.  c.  25,  §  1 ;  7  &  «  (ico.   IV. 
e  I.d.  Hed.  229;  and  see  I'.iirk  v.  I'.rown,  c.  2><,  §  13. 

2  Alk.  3!»7.  II  4  I '.la.  Com.  402. 

7  Fnll   I'.    .,    Mav,    1782,    I.d.    Kcd.  '-  1  Com.  I )iff.  Abatement,  E.  3. 

233.  ....  h 


58 


SUITS    RV    TKKSONS    WHO    ARK    UNDER    DISABILITY. 


Cu.  III.  §4. 


AVluMv  :i  imrdoii  is  coiiililioiinl,  the  t'tli'ct  of  tlii'  coiivietion  is 
not  rouioved  until  the  comlition  h.is  been  jicrCornied ;  nnd  a  felon 
who  has  been  senteneed  to  transportation  Ms  not  restored  to  his 
eivil  rights  until  the  term  of  his  transportation  has  expired,'^  and 
therefore'  it  was  lield,  that  personal  property  which  did  not  belong 
to  a  felon  at  the  time  of  his  conviction,  but  which  accrued  to  him 
afterwards  during  the  time  of  his  transportation,  was  forfeited  to 
the  Crown." 


Uankruiits 
are  under  no 
personal 
disability. 


May  have 
diseovery  in 
e(|iiity  wiiere 
sued  at  law; 


Sectiox  IV.  —  I]a)iAi'upts. 

Tlie  disability  to  maintain  a  suit  on  account  of  alienage,  out- 
lawry, and  attainder,  or  conviction,  arises  partly  from  the  plaintiif 
being  personally  disqualified,  and  partly  from  his  not  being  capable 
of  holding  the  property  which  is  the  object  of  the  suit.  The  dis- 
ability accruing  from  bankru])tcy  arises  from  the  latter  cause  only, 
or  rather  from  the  fact  that,  by  the  bankruptcy,  all  the  baidvrupt's 
property,  Avhether  in  possession  or  action,  is  vested  in  the  trustee 
of  his  property,*  and  a  bankrupt,  even  though  uncertificated  or  un- 
discharged, is  not  i^ersonally  disqualified  from  suing ;  and  may,  in 
many  cases,  sustain  suits  either  at  Law  or  in  Equity .•' 

Thus,  under  the  former  Bankrupt  Law,  a  bankrui)t  who  had  not 
obtained  his  certificate  was  allowed  to  file  a  bill  to  restrain  a  nui- 
sance, or  the  infliction  of  any  injury  of  a  private  or  particular  nature, 
without  making  his  assignees  parties ;  ®  and  where  sued  at  law  upon 


1  Under  8  Geo.  III.  c.  15. 

2  Bullock  V.  Dodds,  2  B.  &  Aid.  258; 
and  see  4  Bla.  Com.  400;  Gully's  case, 
Leach's  Crown  Law,  99.-  As  to  tlie  remis- 
sion of  tran^]iiirt;ition,  see  5  Geo.  IV.  c. 
84,  §  26;  Goui;li  r.  Davies,  2  K.  &  J.  023. 

3  Roberts  v.  Walker,  1  R.  &  U.  752, 
766.  Transportation  is  abolished  by  20  & 
2t  Vic.  c.  -3,  and  penal  servitude  substituted 
by  16  &  17  Vic.  c.  99;  and  see  27  &  28  Vic. 
c.  47. 

4  By  the  Bankrupt  Act,  1869  (32  &  33 
Vic.  c.  71),  §  17,  the  propertj'  of  the 
bankrupt  is,  immediately  upon  the  adjudi- 
cation, t"  vest  in  the  Registrar,  and  is,  on 
the  appointment  of  a  trustee,  fortiiwilii  to 
pass  to  and  vest  in  tlie  trustee.  As  Jo  the 
appointment  of  trustee,  see  §  14.  As  to 
release  of  trustee,  s*'e§§  51-53  ;  as  to  death 
and  removal  of  trustee  and  suits  by  and 
af^ainst  him,  see  §  83.  As  to  liquidation  by 
arrangement,  see  §  125.  As  to  composition 
with  creditors,  see  §§  126,  127.  See  also 
the  Lifiuidation  Act,  1868  (31  &  32  Vic.  c. 
68).  As  to  entfring,  under  former  Bank- 
rupt Law,  a  suj.'ge^tion  on  the  death  or 
removal  of  an  as-i^nee  plaintifl',  see  Lloyd 
V.  Waring,  1  Coll.  5.36;  Man  v.  Ricketts"  7 
Beav.  484;  9  .Jur.  1103;  1  Phil.  617;  iind 
see  16  Beav.  440. 

5  See  Herbert  v.  Sayers,  5  Q.  B.  978; 
Calvert  on  Parties,  199  et  seq.  ;  Story  Eq. 
PL  §§495,  726;  Elderkin  i'.  Elderkin,  1 


Root,  139;  Hilliard  B.  &  I.  384.  For  in- 
stances in  which  bankrupts  have  been 
allowed  to  sue  at  law,  see  Perkin  v. 
Proctor,  2  Wils.  382;  Summersett  v.  Jar- 
vis,  6  Moore,  56 ;  3  B.  &  B.  2 ;  Coles  v. 
Barrow,  4  Taunt.  754;  Chippendale  v. 
Tomlinson,  4  Doug.  318;  1  Cooke's  B.  L. 
428;  Silk  V.  Osborne,  2  Esp.  140;  see  Sel- 
wyn's  N.  P.  Sup.  323;  Evans  v.  lirown,  1 
Esq.  170;  Fowler  v.  Down,  1  Bos.  &  P. 
44;  Laroche  v.  Wakeman,  Peake,  190; 
Webb  V.  Ward,  7  T.  H.  296;  Webb  v. 
Fox,  7  T.  R.  391;  Clarke  v.  Calvert, 
3  Moore,  96;  Cumming  v.  Roebuck,  1 
Holt  N.  P.  172;  Lincoln  v.  Bassett,  9 
Gray,  355 ;  derricks  Estate,  5  Watts  &  S.  1. 
A  bankrupt  can  in  his  own  name  main- 
tain a  suit  brought  before  he  was  declared 
a  bankrupt,  for  a  wrong  done,  unless  his 
assignee  should  interpose  an  objection. 
Sawtelle  v.  Rollins,  23  Maine,  196;  Tun- 
no  V.  Edwards,  3  Brev.  510;  Kirvvan  v. 
Latour,  5  H.  &  John.  289;  Hayllar  v. 
Sherwood,  2  Nev.  &  M.  401.  A  claim  for 
an  injury  done  to  a  party  by  the  negligence- 
of  another  did  not  pass"  by  an  assignment 
of  his  estate  under  the  insolvency  laws  of 
Massachusetts  belore  the  recovery  of  judg- 
ment. Stone  V.  Boston  and  Maine  Rail- 
road, 7  Gray,  539. 

6  Semple  v.  London  &  Birmingham  Rail- 
way Company,  9  Sim.  209. 


BANKRUPTS. 


59 


a  bonil  or  note,  he  has  been  allowed  to  file  a  bill  of  discovery,  in 
order  to  obtain  proof  that  such  bond  or  note  was  fraudulently  pro- 
cured, the  specific  relief  prayed  is,  however,  material  in  determin- 
ing whether  the  assignee  is  a  necessary  party  to  the  bill ;  for  where 
it  prayed-  that  the  instrument  upon  which  an  insolvent  debtor  was 
sued  at  law  might  be  delivered  up,  the  assignee  was  considered 
a  necessary  party ;  ^  where,  also,  persons  claiming  to  be  creditors  of 
bankrupts,  instead  of  seeking  relief  in  the  bankruptcy,  brought  an 
action  against  the  bankrupts,  and  the  bankrupts  filed  a  bill  seeking 
a  discovery  in  aid  of  their  defence  to  the  action,  and  praying  that 
the  accounts  between  them  and  the  plaintiffs  at  Law  might  be 
taken,  and  that  the  plaiutiffs  at  Law  might  pay  the  balance,  a 
plea  of  bankruptcy  was  overruled ;  the  Court  being  of  opinion  that 
the  bankrupts  were  entitled  to  the  discovery  and  account,  although 
they  were  not  entitled  to  that  part  of  the  prayer  which  sought  the 
payment  to  them  of  the  balance.- 

In  general,  however,  a  bankrupt,  although  he  is  by  law  entitled 
to  the  surplus  of  his  estate  which  remains  after  payment  of  his 
debts,  cannot  bring  a  bill  in  equity  for  any  property  which  is 
vested  in  the  trustee  under  the  adjudication,  even  though  there 
may  be  collusion  between  them  and  the  persons  possessed  of  the 
property ;  '^  thus,  where  a  bill  was  filed  by  a  bankrupt  to  recover 
property  due  to  his  estate,.stating  that  the  commission  against  him 
was  invalid,  and  that  there  was  a  combination  between  his  assignees 
and  the  debtor,  to  which  a  demurrer  was  put  in.  Sir  John  Leach 
V.  C.  allowed  the  demurrer:  saying,  that  if  it  had  been  true  that 
the  commission  was  invalid,  the  plaintift'  ought  to  have  tried  its 
validity  by  an  action,  and  could  not  by  bill  impeach  the  commis- 
sion ;  and  that  if  there  were  a  combination  between  the  debtor  and 
his  assignees,  his  proj)er  course  was  to  aj^ply,  by  petition,  to  have 
the  assignees  removed  and  new  assignees  apjiointed.* 

In  the  case  of  Heath  v.  C'hadwic/c,^  the  question  arose,  wketlier 
creditors  of  an  insolvent,  under  the  Insolvent  Debtor's  Act,"  could 
maintain  a  suit  respecting  property,  or  rights  alleged  to  have 
belonged  to  tlie  insolvent,  and  to  be  vested  in  his  assignee,  upon 
an  allegation  of  collusion  Ijctwcen   the   assignee    and    (he    i»arty 


Ch.  III.  §  4. 


but  not  relief. 


Cannot  sue 
in  equity  for 
any  property 
■which  is 
vested  in 
their  as- 
signees, 
though  collu- 
sion between 
defendant 
and  the  trus- 
tee be  al- 
leged; or 
adjiidication 
invalid ; 


nor  can  the 
creditors ; 


1  Balls  r.  Strutt,  1  Hare,  140;  Meddow- 
croft  V.  ('ain|ibcll,  13  Ik-av.  1^4. 

2  Lowii'let  V.  Taylor,  1  Mad.  423.  This 
decision  was  afterwards  affinrKMl  on  appeal. 
1  Mad.  42.1;  2  Hose,  4.J2;  and  see  Govet  r. 
Arttiitage,  2  Anst.  412;  Kave  v.  Fosbrooke, 
8  Sim.  28. 

3  I'roperty  belonging  to  the  bankrupt  as 
factor,  e-xecutor,  or  trustee,  does  not  pass 
to  the  a-si^tnee.s.  Archbold's  H'kpcy,  328- 
333;  /-.xpiirlt  Fills,  1  Atk.  101;  ISennet 
V.  Davis.  2  I'.  Wms.  31<i;  Kx])iiiU  IJutlcr 
Amb.  74;  l\x prirte  ('liion,  a  1'.  Wins. 
187,  n  («);  (loill'rev  v.  Furzo,  ib.  185;  I'en- 
nelU.  Deffell,4  De  G.,  M.  &  G.  372,  37l»; 


and  .sec  Lcwin  on  Trusts,  180-185;  12  &  13 
Vic.  c.  100,  §   130. 

•'  naiuniiin<l  v.  Attwood,  3  ^lad.  158;  see 
also  Yi'wens  f.  Robinson,  11  Sim.  105, 120. 

•'"'  2  i'hil.  649;  and  see  Miijor  v.  Auck- 
lanil,  3  Hare,  77;  Goldsmith  v.  Hussell,  5 
De  (',.,  M.  &  (;.  547;  l'uilwi\y  v.  .Jones,  1 
K.  &  J.  O'.il,  and  cases  at  Common  Law 
there  cited ;  and  the  observations  of  Lord 
Gottenhani  in  Hochfort  v.  Hattersbv,  2  II. 
L.  Ca.  403,400;  Davis  r.  Snell,  28  Heav. 
321;  6  Jur.  N.  S.  1134;  2  Do  G.,  F.  &  J. 
403. 

0  1  &  2  Vic.  c.  110;  5  &  G  Vic.  c.  116  j 
7  &  8  Vic.  c.  90. 


60  SUITS    nv    TERSONS    WHO    ARK    ITNDKR    DISABILITY. 

CnlII.  §4.     iiLin'mst    wlioiii   ri'licf  is  pniyi'd.      Lord    Cdtleiili.iiii    ri'vicwotl    the 

^    "^    \  aiioiis  o.isos  ui>(Ui  the  suhji'Ct,  ami  IVoin  liis  jiidiiiiK'nt  it  ;»|t])(':vrs, 

(hat  the  c'ro(litt)rs  of  an  iusolvcMit  cannot,  nndor  snch  circunistanccs 

sue,  and  tliat  the  sanio  ]innc'iple  is  apphcablc  also  to  cases  in  bank- 

rnjitcy;  and  further,  that  there  is  no  distinction   in  this  respect 

"    between  bankrupts  or  insolvents  themselves  and  tlieir  creditors,  or 

]H'rsons  chiiminii"  under  them.^ 

liiinknipt  In  iSj)r(f(/(/  V.  JJi/i/a's,-  it  was  hehl  by  Lord  Alvanley  M.  R.  tliat 

equity  ror'ti'ie   '^  bankrui>t  cannot  file  a  bill  for  the  redemption  of  a  mortgage,  in 

surpliis  of  his  respect  of  his  right  to  the  surplus  of  his  estate ;  and  in  13eiifield  v. 

estate.  Solomons,^  a  demurrer  was  alloAved  to  a  bill  by  a  bankrupt  against 

a  mortgagee  of  estates  in  England  and  Berbice,  for  an  accomit  and 

payment  of  the  balance  to  the  assignees,  who  Avere  made  defendants 

and  charged  wdth  collusion. 

No  relief  in  It  may  be  here  stated,  that,  in  general,  the  Court  of  Chancery  will 

equity,  wiiere       ^  interfere  to  give  relief  in  cases  where  the  party  arnilying  might 

ol)tauuil)le  »  i      T        7-> 

under  the         obtain  his  rights  by  proceeding  in   bankru})tcy.*     In  Preston  v. 
bankruptcy;      ^YUson,''  Sir  James  Wigram  V.'c.  said,  "I  have  had  occasion  to 
consider  the  eifect  of  the  Bankrupt  Laws  in  excluding  the  jurisdic- 
tion of  this  Court,  in  cases  to  which  its  jurisdiction  would  otherwise 
extend ;  and  I  was  strongly  impressed  Avith  the  necessity  of  main- 
taining, to  the  fullest  extent  which  may  be  consistent  with  justice, 
the  exclusive  jurisdiction  of  the  Bankrupt  Courts,  in  cases  com- 
mitted to  their  administration.     The  jurisdiction  of  the  Commis- 
sioners of  Baidvrupts  is  a  limited  jurisdiction.     They  have  not,  as 
this  Court  has,  an  origiuid  and  general  jurisdiction,  witliin  Avhich 
cases  of  a  given  class  will  fall  of  themselves,  unless  by  some  special 
act  of  the  legislature  they  are  withdrawn  from  it.     The  poiVers  of 
the  Commissioners  being  new,  and  derived  from  special  statutes, 
are  limited  by  these  statutes;"  and  his  Honor  added,  that  he  did 
not  find  any  express  powers  given  the  Commissioners  to  compel 
the  assignee  to  assign  a  surplus  to  the  bankrupt,  or  to  dismiss  a 
petition,  or  take  it  off  the  file,  in  a  case  like  that  before  him. 
But  suit  to       Accordingly,  the  plaintiff  was,  under  the  special  circumstances  of 
bankraptf        the  case,  having  satisfied  all  his  creditors,  allowed  to  maintain  a 
after  creditors   guit  against  the  defendant,  as  mortgagee,  for  the  redemption  of  an 
allowed.'  estate  Avhich  had  been  mortgaged  before  he  presented  his  petition 

to  the  Court  of  Bankruptcy,  imder  the  5&6  Vic.  c.  116,"  notwith- 
standing the  objection  of  the  defendant  that  the  estate  of  the  plain- 
tiff (if  any)  was  vested  in  the  official  assignee.'^ 

1  See  Stoever  i;.  Stoever,  9  Serg.  &  R.  L.  JJ.;  Stone  v.  Thomas,  L.  R.  5  Ch.  Ap. 
434;  (Jriswold  v.  McMillan,  11  111.  590.  219,   L.  C;  Phillips  v.  Furber,  18  \V.  R. 

2  5  Ves.  583,  589.  479,  M.  R. ;  see  also  Forsliaw  v.  Mottram, 

3  9  Ves.  77,  82;  and  Smith  v.  Mfffaft,  L.  "W.  N.  (1867)  191,  V.  C.  S. 
R.  1  Kq.  397;  12  .Jur.  N.  S.  22,  V.  C.   \V.  5  5  Hare,  185,  192. 

4  See  Riches  «.  Owen,  W.  N.  (18G8),  6  Repealed  by  the  Bankruptcy  Act, 
158  Y.  C.  G.;  L.  R.  3  Ch.  Ap.  820,  L.J.J.;  1861  (24  &  25  Vic.  c.  134)  §  230,  and 
Ik-ll  V.  Bird,   L.   R.  6  En.  035,   V.   C.   G  ;  Schedule  (}. 

Martin  f.  Powning,  L.  R.  4  Ch.  Ap.  356,  7  Preston  v.  Wilson,  5  Hare,  185;  and 


BANKRUPTS.  61 

As  a  bankrupt  cannot  file  a  bill  against  strangers  respecting    Ch.  iii.  §4. 
property  vested  in  Lis  assignees  under  the  bankruptcy,  so  it  has    '       ^'        '■ 
been  held,  that  he  cannot  maintain  a  suit  against  his  assignees  for  Bankrupt 
an  account  of  their  receipts  and  jjayments  under,  the  bankruptcy,  trustee  for  an 
and  for  payment  of  the  surjilus.     This  doctrine  was  clearly  laid  account; 
down  by  Lord  Eldon,  and  has  since  been  acted  upon.^ 

It  is  to  be  observed,  that  whatever  2:)roperty  a  bankrupt  has,  or  nor  for  prop- 
to  use  a  technical  expression,  may  depart  with,  becomes,  upon  erty  abroad. 
bankruptcy,  the  property  of  the  assignees,  who  are  to  have  it  for 
the  benefit  of  the  creditors ;  and  the  circumstance  of  such  property 
•being  in  a  foreign  country,  where  the  bankrupt  laws  of  this  country 
do  not.  prevail,  makes  no  difference ;  so  that  a  bankrupt  cannot 
maintain  a  suit  in  this  country,  even  though  the  property  in  respect 
of  which  the  suit  is  instituted  is  in  another  country.^ 

The  rules  with  regard  to  bankrupts  applied,  by  analogy,  to  per-  insolvents 
sons  who  had  taken  the  benefit  of  the  Insolvent  De])tors' Acts,  «'0"W  "ot  sue 

.  '    assignees  for 

who  were  equally  considered    as  benig  devested  of  all  right  to  surplus  of 
maintain  a  suit  in  respect  of  any  surplus  to  which  they  might  ^^^^""^^^^a^^S' 
eventually  be  entitled;^  but   these   provisions   are   no  longer  in 
force ;  *  and  all  persons,  whether  traders  or  non-traders,  are  now 
subject  to  the  bankrupt  laws.^ 

But,  although  neither  bankrupts  nor  insolvent  debtors  can  sue   Secm  per- 
in  respect  of  their  interest  in  the  surplus  of  the  property,  yet,  as  they  sons  claiming 
have  such  an  interest  in  the  surjjlus  as  is  capable  of  assignment,  an  assign- 
it  seems  that  the  persons  claiming  under  such   assio-nments,  if  I"*^",*^  ''-^. 

^       -  ^  ,  ,  ^  ~  '  nankrupt  or 

made  for  valuable  consideration,  may   maintain   bills  respecting  insolvent. 
them.     This  appears  to  have  been  the  opinion  of  Lord  Al  van  ley 
M.  R.'in  Sprarjfj  v.  Binkes,^  though  his  lordship  seems  to  have 
doubted  Avhether  the  Court  had  not  gone  too  far  in  permittino- 
such  assignments,  and  to  have  held  that  a  i)arty  could  not  parcel 

see  ■\Vearinf:  «.  Ellis,  6  De  G.,  M.  &.  G.  Sturgis,  3  De  G.  &  J.  50C;  5   Jur.  K.  S.      ■ 

596;  2  Jur.  N.  S.  204,  1140.     It  has  been  475;  Troup  v.  Kicardo,  10  Jur.  N.  S.  859; 

helU    that   an  insolvent   debtor   who   has  12  \V.  R.  1135,  M.  R. ;  13  VV.  H.  147,  L.  C.- 

mafie  a  general  assignment,  may  on  proof  10  Jur.  N.  S.  1101,  L.  C. ;  Smith  v.  Moffiitt| 

of  liis  i)aying  all  debts  due  at  the  time  of  L.  K.  1  V.q.  397;  12  Jur.  N.  S.  22,  V.  (3.' 

his  discharge,  bring  ejectment  in  his  own  \V.;    Roberts   v.  Moreton,    W.  N.    (1869) 

mime,  for  lands  assigned  by  him,  without  2K;  17  \V.  K.  397,  V.  C.  J.     As  to  insol- 

any  formal  re-assignnlent.     Tower  c.  Hoi-  vents  under  5  &  6  Vic.  c.  110,  see  Wearing 

man,  2  Watts,  218.     As  to  disclaimer  by  v.  Kllis,  0  De  (J.,  M.   &  (J.  500;  2  Jur.  N. 

the   assignees   in    a    foreclosure    suit,   see  S.  204,   1140.      A  suit  for  administriition 

Ford  V.  White,  16  Reav.  120.  of  a  deceased  insols-eiit's  estate  may  be  in- 

1  Saxton  c.  I>avi>i,  18  Ves.  72,79;  Tarle-  stituted  by  a  scheduled  creditor."  (Jals- 
ton  r.  Ih.rnhy,  1  Y.  &  (,'.  Ex.  172,  188;  worlhv  r.  Dunaiit,  2  I  )e  (J.,  F.  &  J.  400; 
Smith  f.  Moti-itt,  L.  K.  1  Eq.  ;J97;  12  Jur.  7  Jur."N.  S.  113;  29  Iteav.  277;  0  Jur.  N. 
N.  S.  22,  \.  C.  W.;  sec  Lincoln  v.  Bassett,  S.  743;  see  Smith  v.  Mi  llatt,  L.Ji.  1  Eq. 
9  Gray,  356.  307;  12  Jur.  N.  S.  22   V.  C.  VV. 

2  Sill  r.  Worswick,l  II.  HI.  605;  Hunter  4  The  IJankruptcv  Repeal  and  Insolvent 
V.  Potts,  4  T.  R.  1V2;  I'hillips  ,-.  Hunter,  Courts  Act,  1K69  (32  &  33  Vic.  c.  83)  §  20, 
2  H.  Hi.  402;  ISenfield  r.  Solomons,  9  Ves.  and  schedule. 

77,  and  see  !{,■  I'dithman,  L.  R.  2  Kq.  23,  '>  The   liankriiptcy  Act,  1869,  32  &  83 

M.  K.;  35  Reav.  2I!t.  Vic.  c.  71,  §  0. 

8  Gill  r.    Fleming,!  Itidg.   P.  C.   431;  «  5  Ves.  5K3,  589;  Cook  v.  Sturgis.SDe 

Spragg   f.  Hinkes,  6  Ves.  5H3;    Dyson  v.  G.  &  J.  500;  5  Jur.  N.  S.  476. 
Hornby,  7  De  G.,  M.  &  G.  1 ;  Cook  v. 


{^'2 


SUITS    BY    TEHSONS    WHO    ARE    UNDER   DISABILITY. 


(11.  111.  §  I. 


I  >i!;i'harf;o(l 
bankrupt 
may  .-iuo  lor 
!sul>.>n'(]in.'iitly 
ai'tiuircil 
property ; 

ditVoriMKO,  iu 
this  ri'spi'i't. 
tiotwicii  a 
bankrupt  ami 
ail  in^^olveut. 


When  liaiik- 
rnjitey  or 
m^olvenev 
fhoiiltl  be 
taken  atlvan- 
tage  of  by 
demurrer; 


when  by  plea. 


Form  of  plea, 


out    :i    i-iu'lil    ill    :n'c'(miits    to    bo    tnkon    to    dilU'rcnt    jitTSons,    so 
tliMt  I'vcry  Olio  of  thoso  jiorsoiis  iiiiiilit  lilo  a  ))ill^>/-f)  i/tteri'ssc  .s'?/o. 

Tlio  disability  of  a  bankrupt  to  maintain  a  suit,  doos  not  apply  to 
a  b:mkrupt  who  has  obtained  his  order  of  disoliarti;o,  whore  lie  is 
suiiii;-  in  res])ect  of  property  acquired  after  his  order  of  discharge 
has  taken  effoct. 

In  most  ros]>eots  the  situation  of  an  insolvent  debtor,  as  far  as 
roo-ards  the  right  to  sue  for  property  accpiirod  previous  to  his  dis- 
ohariio,  was  similar  to  that  of  a  bankrupt  whose  order  of  discharge 
has  taken  etfect;  but  there  was  a  material  difference  in  their  situa- 
tions with  regard  to  after-acquired  property.  A  bankrupt  may,  as 
wo  have  seen,  after  his  order  of  discharge  has  taken  ei^oct,  become 
entitled  to  ])roperty  in  the  same  manner  that  he  might  before  his 
baukrujitcy ;  ^  but  in  the  case  of  an  insolvent  debtor,  his  future 
property  was  made  liable  to  the  payment  of  his  debts  contracted 
before  his  discharge. 

The  proper  course  by  which  to  take  advantage  of  the  bankruptcy 
or  insolvency  of  the  plaintiff  in  a  suit,  Avhere  such  bankruptcy  or 
insolvency  has  occurred  previously  to  the  filing  of  the  bill,  is  by 
demurrer,  if  the  fact  ap])ears  upon  the  bill ;  -  and  if  the  fact  does 
not  so  appear,  it  should  be  pleaded.  In  Bowser  v.  Ilnghes,^ 
which  was  the  case  of  a  plea  to  a  bill  by  an  insolvent  debtor  against 
his  assignees,  and  a  debtor  to  the  estate,  the  facts  stated  in  the 
plea  appeared  upon  the  face  of  the  bill,  and  yet  the  plea  was  held 
good ;  and  it  has  been  held,  that  as  at  Law  any  matter  which 
arises  between  the  declaration  and  the  plea  may  bo  pleaded,  so 
bankruptcy  or  other  matters  arising  between  the  bill  J\nd  plea  may 
be  pleaded  in  Equity.* 

In  pleading  bankruptcy  it  was  the  rule  that  all  the  facts  should 
be  stated  successively  and  distinctly;  and  it  was  not  sufficient  to 
say  that  a  commission  or  fiat  of  bankruptcy  was  duly  issued  against 
tlie  plaintiff,  under  which  he  was  duly  found  and  declared  a  bank- 
rupt, and  that  all  his  estates  and  effects  had  been  duly  transferred 
to  or  become  vested  in  the  assignees;^  a  plea  of  bankruptcy  must 
have  stated  distinctly  the  trading,  the  contracting  debts,  the  i>eti- 
tioning  creditor's  debt,  tlie  act  of  bankruptcy,  the  commission  or 
fiat,  and  that  the  plaintiff  had  been  found  bankrupt;  but  it  may  be. 
doubted  how  far  this  rule  would  now  be  strictly  enforced." 


1  Under  the  Bankruptcy  Act,  1861,  since 
repealed  bv  the  32  &  33  Vic.  c.  83,  §  20, 
and  Schedule,  the  Court  might,  however, 
grant  thd  order  of  discliarge,  subject  to 
anv  condition  touching  after-acquired  prop- 
erty of  the  bankrupt;  see  24  &  25  Vic.  c. 
134,  §  l&i>,  rule  3;  and' see  Ex  parte 
Griffitiis,  10  Jur.  N.  S.  785,  787,  L.  C. 
Property  coming  to  tlie  bankrupt,  between 
the  time  of  pronouncing  the  order  of  dis- 
charge and  the  time  allowed  for  appealing 
therefrom,  belongs  to  the  bankrupt,  wiien 


the  order  is  not  recalled  or  suspended  on 
appeal,  Jie  Laforest,  I)  Jur.  N.  S.  851;  11 
W.  K.  738,  L.  C. 

2  Beniield  v.  Solomons,  9  Ves.  77,82; 
Story  Eq.  PI.  §  495. 

8  1  Anst.  101. 

4  Turner  v.  Robinson,  1  S.  &  S.  3;  Ser- 
grove  V.  Mnyhew,  2  M'N.  &  G.  97;  Lane 
V.  Smith,  14'Beav.  49. 

5.  Carleton  v.  Leighton,  3  Mer.  667,  671; 
Lane  v.  Smith,  14  Beay.  49. 

6  See  Pepper  v.  Heuzell,2  H.  &  M.  486; 


BANKRUPTS. 


63 


"With  respect  to  the  bankruptcy  of  the  plaintiff  after  the  com- 
mencement of  a  suit,  or  after  plea  and  answer  put  in,  it  seems  that 
the  bankruptcy  of  a  sole  plaintiff  does  not  strictly  cause  an  abate- 
ment, but  renders  the  suit  defective ;  ^  or,  according  to  the  language 
of  Lord  Eldon,  in  Randall  v.  Mumford,-  "  this  Court,  without 
saying  whether  bankruptcy  is  or  is  not  strictly  an  abatement,  has 
said  that,  according  to  tlie  course  of  the  Court,  the  sixit  is  become 
as  defective  as  if  it  was  abated."  ^ 

The  result  in  practice  of  the  above  principle  is,  that  if  the 
assignees  of  a  bankrupt,  sole  plaintiff,  desire  to  pi'osecute  the  suit, 
they  must  obtain,  on  motion  or  petition  of  course,  an  order  enabling 
them  so  to  do.*  And  upon  the  non-prosecution  of  a  suit  in  which 
the  plaintiff  has  become  bankrupt,  the  defendant,  if  he  wishes  to  get 
rid  of  the  suit  entirely,  must  adopt  a  course  of  proceeding  analogous 
to  that  pursued  Avhere  the  plaintiff  obtains  an  injunction  and  dies; 
in  which  case,  the  defendant  may  move  that  the  injunction  be  dis- 
solved, unless  the  representatiA^es  of  the  deceased  plaintiff  revive 
.within  a  certain  time;^  he  must  move  that' the  trustee  may, 
within  a  specified  time  (usually  three  weeks)  after  notice  of  the 
order,  take  proper  supplemental  proceedings  for  the  purpose  of 
prosecuting  tlie  suit  against  him;  or  in  default  thereof,  that  the 
plaintiff's  bill  may  stand  dismissed  f  where  the  bankruptcy  has 
taken  place  after  decree  the  motion  should  be  that  the  trustee  may, 
within  a  limited  time,  elect  whether  he  will  prosecute  the  suit, 
or  that  in  default  all  further  proceedings  sliould  be  stayed.'' 

This  is,  however,  not  a  motion  of  course,  and  tlie  trustee  must 
be  served  with  the  notice  of  it.^     It  should  also  be  supported  by 


Ch.  in.  §  4. 


Bankruptcy 
of  plaiutift", 
after  suit 
commenced, 
renders  suit 
defective. 


Practice, 
where  sole 
plamtiff  be- 
comes bank- 
rupt : 

trustee  may 
obtain  order 
to  prosecute 
suit ; 

otherwise, 
defendant 
may  move 
that  he  take 
supplemental 
proceedings 
within  a 
given  time, 
or  bill  stand 
dismissed; 

or  proceed- 
ings stayed; 


and  the  Bankruptcy  Act,  1869  (32  &  33 
Vic.  c.  71 ),  §  10 ;  post,  p.  09 ;  but  see  Lane 
V.  Smith,  14  Ueav.  49;  see  Lacj'v  liockett, 
11  Ala.  100;  Seaman  v.  Stoughton,  3 
Barb.  Ch.  344;  Stone  v.  Parks,  1  Chand. 
60. 

1  Lee  V.  Lee,  1  Hare,  021;  see  Hobbs  v. 
Dane  Manuf.  Co.,  5  Allen,  581. 

2  18  Yes.  427. 

8  But  see  Sawtelle  v.  Rollins,  23  Maine, 
C;   Hiiliard  15.  &  L  -.V.)!  else']. 

*  .Jackson  v.  Kiga  Railway,  28  Beav.  75; 
for  forms  of  motion  paper  and  petition,  see 

Vol.  in. 

5  \Vheel';r  v.  .Malins.  4  iSIad.  171 ;  Lord 
fluntiiigtciwer  v.  Siierboni,  5  Beav.  380; 
Hobiiisoii  V.  iN'ortoii,  10  Beav.  484;  Fisher 
V.  Fisher,  6  Hare,  028;  2  I'hil.  2.'50;  Meik- 
Inm  /•.  Flmore,  4  De  «/.  &  .J.  2(18;  5  Jur. 
N.  S.  904;  .lackson  i'.  liiRa  Railway,  28 
Beav.  75;  Boucicault  f.  Delafield,  10  Jur. 
N.  S.  937;  12  \V.  R  1025,  V.  C.  W.;  10 
Jnr.  N.  S.  1003;  13  \V.  R.  04,  L.  .M.; 
Simpson  v.  Batlirust,  L.  R.  6  Ch.  A  p.  \W>, 
L.  (J. 

6  Sec  Story  Kq.  PI.  §  349  and  note; 
Sedgwick  r.  Cleveland,  7  Paige,  267,  290; 
fiarr  v.  (lower,  9  Wend.  049;  2  Barl).  (jli. 
Pr.  05,  00.  This  is  the  c(nirse  Itefore  lie- 
cree;   after    decree,    tlio    motion    should 


ask  to  stay  all  further  proceedings:  Clarke 
«.  Tipping,  16  Beav.  12;  and  see  Whitmore 
V.  Oxborrow,  1  Coll.  91;  and  an  aj)plica- 
tion  by  the  dcfenrlant  for  an  order  to  re- 
vive under  15  &  10  Vic.  c.  86,  §  52,  after 
decree,  was  refused,  Jlaw  v.  Pearson,  12 
AV.  R.  701,  j\l.  R. ;  where  the  bankruptcy 
has  occurred  in  a  foreign  countrv,  see  Bour- 
baud  V.  Bourbaud,  12  W.  R.  1024,  V.  C.W. ; 
Clement  r.  Langtliorn,  \V.  N.  (1808),  181, 
180,  V.  C.  G.  I'or  forms  of  notice  of  )no- 
tion,  see  Vol.  IIP;  and  for  an  order  in  like 
case,  see  Seton,  1278.  The  same  practice 
should  be  followed  whore  tiie  phiintilf  has 
executed  a  trust  deed  under  the  Bank- 
ruptcy Act,  1801,  (24&25  Vice.  134); 
Price')).  Rickards,  L.  R.  9  Ivj.  ;i.5,  \.  ('.  ,J. 

■f  Whitmore  v.  O.xborrow,  1  Coll.  91; 
Clarke  r.  Ti|)|)ing,  16  Beav.  12. 

•*  The  plaintiir  need  not  be  served; 
Brown  i'.  Rogers,  22  .lulv,  1809,  Reg.  Lib. 
2108,  V.  v..  .!.,  where  'tiie  order  was  di- 
n!cted  to  lie  drawn  up  without  notice  to 
thr  plaiutift';  and  see  form  of  order,  Seton, 
127H,  No.  0.  See  roulrd,  Vcstris  v. 
Hooper,  8  Sim.  570;  sec  also  Riindall  v. 
Mumlord,  18  Ve.s.  424,  428;  Wheeler  v. 
Malin.H,  4  Mad.  171.  As  to  the  proper 
time  for  making  the  ap|)licatiQU,  sec  Sharp 
V.  lluliett,  2  S.  (&  S.  496. 


64 


SUITS    BY    PERSONS    WHO    ARE    UNDER    DISABILITY. 


Cn.  III.  5  I. 


but  cniniot 
make  the 
ortliiiarv  mo- 
tion to  dis- 
miss. 


>Vhore  bank- 
rupt is  not 
soli'  ulaintitl', 
dctemlant 
may  move  to 
dismiss. 


Practice, 
after  injunc- 
tion fcranted. 


Trustees'  lia- 
bility to  costs. 


an  atVuliivit  of  tlio  Cacts;^  and  it  is  to  be  obsorvod,  tliat  tlie  dismis- 
sal will  be  without  eosts,  as  a  bankrupt  cannot  be  made  to  ])ny 
eosts.-  Wliere,  however,  the  bankrujitey  takes  jdaee  between  tlie 
lieariiig  and  judgment,  the  Court  uill  not,  before  giving  judgment, 
com]Hd  tlie  assignees  to  revive.^ 

Aiter  the  bankruptcy  of  the  plaintiif,  the  deleiKbint  cannot  make 
the  onlinary  motion  to  dismiss;  and  in  Se/hts  v.  IMicsoii,'^  Lord 
Thurlow  held  that  such  an  order,  pending  the  bankruptcy  of  the 
plaintiiF,  was  a  nullity,  and  therefore  refused  to  discliarge  one  ob- 
tained under  such  circumstances. 

The  rule  of  practice,  by  which  a  defendant  is  required  to  give 
notice  to  the  trustee  in  the  case  of  the  l)ankruptcy  of  a  ])laintiif, 
is  confined  to  the  case  of  a  sole  plaintiff,  wlio,  becoming  bankrupt, 
is  supposed  to  be  negligent  of  what  is  sought  by  the  bill,  and  the 
Court,  to  prevent  surprise  and  save  expense,  requires  notice  to  be 
given  to  the  trustee;  but  there  is  no  instance  where  the  Court 
has  taken  upon  itself  to  interpose  the  ride  where  thei-e  are  two 
plaintiifs,  one  of  whom  is  solvent  and  the  other  insolvent;  for  it- 
is  as  competent  to  the  solvent  plaintiff  as  it  is  to  the  trustee,  to 
rectify  the  suit.^ 

In  the  case  of  an  injunction  granted  at  the  suit  of  a  plaintiff 
wdio  afterwards  becomes  bankrupt,  the  practice  which  has  been 
adopted  is  to  require  the  bankrupt  to  bring  the  trustee  before  the 
Court ;  and  the  Court  will  make  an  order  to  dissolve  the  injunc- 
tion and  dismiss  the  bill,  unless  the  trustee  shall  be  brought  before 
it  within  a  reasonable  time;  which  order,  it  seems,  may  be  served 
upon  the  bankrupt  alone,  as  it  is  supposed  that  the  bankrupt  will 
find  the  means  of  giving  the  trustee  notice.''  Such  an  order  will 
also  be  without  costs. 

Where  the  trustee  elects  to  continue  the  suit  and  obtains  a  sup- 
plemental order  authorizing  him  to  prosecute  it,  he  becomes  liable 
to  the  costs  of  the  suit  from  the  commencement ; ''  and,  where  the 
plaintiff  had,  previously  to  his  bankruptcy  and  the  supplemental 
order,  been  ordered  to  pay  the  costs  of  a  proceeding,  the  proceed- 
ings in  the  suit  were  stayed  until  the  payment  of  such  costs.* 


1  Porter  v.  Cox,  5  INIad.  80. 

2  Wheeler  v.  Malins,  4  Mad.  171;  Lee  v. 
Lee,  1  Hare,  621 ;  Meiklam  v.  Elmore,  4  De 
G.  &  .L  208 ;  5  Jur.  X.  S.  904 ;  Boucicault  v. 
Delafield,  10  Jur.  N.  -S.  937;  12  VV.  R. 
1025,  V.  C.  W. ;  lO.lur.  N.  S.1063;  13  W. 
R.  64,  L.  J  J. 

3  lioucicault  V.  Delafield,  12  W.  R.  8,  V. 
C.  W. 

4  2  Anst.  458,  n. ;  S.  C.  nom.  Sellers  v. 
Dawson,  2  Dick.  738;  Robinson  u.  Norton, 
10  Beav.  484.  The  motion  cannot  be 
made  after  the  execution  Ijy  the  plaintiff 
of  a  trti.st  deed  under  the  Bankruptcy-  Act, 
1861  (24  &  25  Vic.  c.  134);  Price  I'.'Rick- 
ards,  L.  R.  9  Eq.  35,  V.  C.  J. 


5  Caddick  v.  Masson,  1  Sim.  501;  La- 
tham V.  Kenrick,  1  Sim.  502;  Kelmin- 
stcr  V.  Pratt,  1  Hare,  632;  but  see  Ward  v. 
Ward,  8  Beav.  379;  11  Beav.  159;  12  Jur. 
592. 

6  Randall  v.  Mumford,  16  Ves.  424,  428; 
Wheeler  v.  Malins,  4  Mad.  171.  It  would 
seem  that  under  the  present  practice  the 
trustee  should  be  served  with  notice  of  the 
motion. 

7  Poole  V.  Franks,  1  Moll.  78. 

8  Cook  V.  Hathaway,  L.  R.  8  Eq.  612, 
V.  C.  M. ;  and  see  Chap.  XIX,  §  1.  Bis- 
missing  Bills  and  Slayiny  Proceedings. 


BANKRUPTS. 


65* 


A  suit  does  not  abate  by  the  death  or  change  of  the  trustee 
plaintiff,  but  the  Court  may,  upon  the  suggestion  of  such  death  or 
change,  allow  the  suit  to  be  prosecuted  in  the  name  of  the  surviv- 
ing or  new  trustee.^  An  order  is  necessary  for  this  purpose,  which 
may  be  obtained  on  motion  or  petition  of  course.- 

It  was  formerly  necessary,  in  all  actions  where  the  assignees, 
either  as  plaintiffs  or  defendants,  claimed  property  under  the  bank- 
rupt, to  prove  strictly  the  three  requisites  to  support  the  commis- 
sion, viz.^  the  trading,  the  act  of  bankruptcy,  and  the  petitioning 
creditor's  debt,  as  well  as  that  the  commission  was  regularly  issued, 
and  the  assignment  duly  executed  to  the  assignees.  Upon  failure 
-of  proving  any  one  of  these  matters  (the  proof  of  which  added 
considerably  to  the  costs  of  an  action,  and  was  often  difficult  to 
be  established  by  strict  rules  of  evidence),  the  assignees  were 
nonsuited,  and  thus  frequently  prevented  from  recovering  a  just 
debt  due  to  the  bankrupt's  estate.  To  provide  in  some  measure 
for  this  evil,  certain  provisions  were  contained  in  the  former  Bank- 
ruptcy Acts,  with  respect  to  what  should  be  considered  sufficient 
evidence  of  these  facts ;  but  many  difficulties,  and  much  discussion, 
ensued  under  these  provisions;  and  it  is  now  enacted,^  to  the 
effect,  that  if  the  bankrupt  do  not  dispute  the  fiat  or  petition 
within  certain  limited  periods,  the  Gazette  shall  be  conclusive  evi- 
dence of  the  bankruptcy,  as  against  the  bankrupt,  and  against  all 
persons  whom  the  bankrupt  might  have  sued  if  not  adjudged 
bankrupt;-  and  even  the  circumstance  that  the  bankrupt  is  an 
infant,  will  not  prevent  the  Gazette  being  conclusive ;  *  and  it  is 
also  enacted  to  the  effect,  that  in  any  action  or  suit,  other  than  an 
action  or  suit  brought  by  the  assignees  for  any  debt  or  demand  for 
which  the  bankrui)t  might  have  sustained  an  action  had  he  not 
been  adjudged  bankrupt,  and  whether  at  the  suit  of  or  against  the 
assignees,  no  proof  shall  be  required  of  the  petitioning  creditor's 
debt,  or  of  the  trading,  or  act  of  bankruptcy,  respectively,  unless 
notice  be  given  that  these  matters  will  be  disputed.^ 

It  was  held  under  the  old  law,  that  where  the  defendants  to  a 
suit,  brought  by  the  assignees  of  a  bankrupt,  were  infants,  they 
would  lie  entitled  to  dispute  the  validity  of  tlie  baiikru]»tcy,  witli- 
out  giving  the  notice  required  by  the  Act.     This  was  ilecided  by 


1  12  &  13  Vic.  c.  106,  §  157.  This  sec- 
tion applies  only  to  the  case  of  trustees 
suing  as  plaintifrs,  sec  Gordon  v.  .lesson, 
10  IJeav.  410;  the  |)riictii:e  with  respect  to 
truBtees  as  defenrlaiits  will  he  stated  in  the 
next  chapter^  ami  see  .Man  v.  Rickets,  1 
Phil.  017;  Mcnflham  v.  IJobinson,  1  iM.  & 
K.  217;  Lloyd  r.  Waring,  1  (Joll.  .5.S0. 

2  For  forms  of  motion  paper  and  peti- 
tion, see  Vol.  III. 

«  12  &  13  Vic.  c.  100,  §  2.38;  Taylor  on 
Evid.  §§  1477,  1&.-)G. 
*  In  re  West,  3  De  G.,  M.  &  G.  198. 
VOL.    I. 


6  12  &  13  Vic.  c.  106,  §§  234,  23.5;  Tay- 
lor on  Krid.  §§  Um  A.i'iG.W;  I'cnnell  v. 
Home,  3  Drew.  .337;  and  see  Lee  i'.  Den- 
nistoun,  2'J  IJeav.  40.'j,  where  Sir  .Idhn 
Komilly  M.  li.  held  the  provisions  to  ho 
inapplieahlc  to  the  i)reseiit  practice  in 
ChaiKMiry;  hut,  in  exercise  of  the  general 
jurisdiction  which  the  Court  possesses  over 
pleadings,  gave  the  defendants  ten  days 
from  the  date  of  the  api)licatJo!i,  within 
which  to  give  notice  of  the  intention  to 
dispute. 


Ch.  ITT.  §  4. 


No  abate- 
ment on 
change  of 
trustee  plain- 
tilt". 

Former 
practice,  as  to 
proof  in  sup- 
port of  com- 
mission. 


Present 
practice,  as  to 
proof  of  the 
adjudication. 


Scmhle, 
infant  defend- 
ant cannot 
dispute  valid- 
ity of  hank- 
rui)lcvj  with- 
out notice. 


66  SUITS   BY   PERSONS    WHO   ARE    UNDER   DISABILITY. 

Oil.  iii.§r..  Sir  John  Loach  V.  C.  in  the  case  of  JMl  v.  Timiey^  in  which  a 
bill  was  tiled  by  the  assignees  of  a  bankrui)t  to  set  aside  a  settle- 
ment which  liad  been  made  by  the  bankrupt  uiiou  his  wife  and 
children.  The  words  of  the  present  statute  seem  to  be  sutticient 
to  meet  such  a  case,  and  render  it  clear  that,  even  as  against 
iut'aut  defendants,  the  Gazette  shall  be  conclusive  evidence  of  the 
baukruptcy." 

AMiore  a  })Iaintitf,  suing  under  the  former  practice  as  assignee 
in  bankruptcy,  had  not  been  actu:dly  ai)p()inted  assignee  at  the 
time  of  filing  the  bill,  but  before  the  liearing  he  Avas  so  appointed 
as  from  a  date  antecedent  to  the  filing  of  the  bill,  it  Avas  held  that 
he  was  entitled  to  maintain  the  suit.* 


Section  V.  —  Infants. 

Disqualifica-  ^^  come  now  to  the  consideration  of  those  disqualifications 
tioiis  that  which  inca})acitate  a  person  from  maintaining  a  suit  alone,  but  do  not 
fironfsuing  prevent  his  suing,  provided  his  suit  be  supported  by  another  per- 
*^°"®-  son.     Such  disqualifications  arise  from  Infancy,  Idiocy,  Lunacy  or 

imbecility  of  mind,  and  Marriage.  With  respect  to  infants,  idiots, 
lunatics,  and  persons  of  weak  minds,  the  law  considers  that,  by 
reas.on  of  the  immaturity  or  imbecility  of  their  intellects,  they  are 
incapable  of  asserting  or  protecting  their  OAvn  rights,  or  of  form- 
ing a  judgmetit  as  to  the  necessity  of  applying  for  protection  or 
redress  to  the  tribunals  of  the  country ;  it  therefore  requires,  that 
whenever  it  is  necessary  that  application  should  be  made  on  their 
behalf  to  a  Court  of  justice,  such  application  should  be  supported 
by  some  person,  who  may  be  responsible  to  the  Court  that  the 
suit  has  not  been  wantonly  or  improperly  instituted.  With 
resjject  to  married  women,  their  incapacity  does  not  arise  from 
want  of  reason,  but  from  the  circumstance  that,  by  the  law  of  this 
country,  the  property  of  all  women  in  a  state  of  coverture  vests 
in  the  husband ;  the  consequence  of  which  is,  that,  as  a  general 
rule,  no  suit  can  be  maintained  by  the  wife  without  her  husband 
being  made  a  party. 

In  consequence  of  their  incapacity,  persons  under  disability  are 

'  unable  to  compromise  their  rights  or  claims,  but  where  these  rights 

and  claims  are  merely  equitable  the  Court  of  Chancery  may,  in 

general,  order  the  trust  property  to  be  dealt  with  in  Avhatever 

mode  it  may  consider  to  be  for  the  benefit  of  cestuis  que  trust  wlio 

1  4  Mad.  372.  ing  been  duly  adjudged  a  bankrupt  and 

2  And  it  is  now  provided  that  the  pro-  of   the   date   of   the   ndjudication.     The 
duction  of  a  copy  of  the  London  (iazeUe  Bankruptcy  Act,  1869  (32  &  33  Vic.  c.  71), 
containing  a  copy   of   the   order  of  the  §  10.                    ^     ,    ^      •  ,        t-    j   t 
Courtof  Bankruptcy  adjudping  the  debtor  3  Barnard  v.  Ford,  Camck  v.  iora,  L. 
to  be  a  bankrupt.  Is  conclusive  evidence  R.  4  Ch.  Ap.  247,  L.  JJ. 

in  all  legal  proceedings  of  the  debtor  hav- 


INFANTS. 


67 


are  under  disability ;  and  therefore  has  power  to  compromise  such 
rights  or  claims.^ 

In  the  present  section,  the  attention  of  the  reader  will  be 
directed  to  the  peculiarities  in  the  practice  of  the  Court,  arising 
from  the  circumstance  of  the  party,  or  one  of  the  parties  suing, 
being  an  inflint. 

The  laws  and  customs  of  every  country  have  fixed  upon  partic- 
ular periods,  at  which  persons  are  presumed  to  be  capable  of  acting 
with  reason  and  discretion.  According  to  the  law  of  this  country, 
a  person  is  styled  an  infant  until  he  attains  the  age  of  twenty-one 
years,  which  is  termed  his  full  age.- 

An  infant  attains  his  full  age  on  the  completion  of  the  day  which 
precedes  the  twenty-first  anniversary  of  his  birth  ;  but,  as  the  law 
will  make  no  fraction  of  a  day,  he  may  do  any  act  which  he  is 
entitled  to  do  at  full  age,  during  any  part  of  such  day.  Thus,  it 
has  been  adjudged,  that  if  one  is  born  on  the  1st  of  February,  at 
eleven  at  night,  and  on  the  last  day  of  January,  in  the  twenty- 
first  year  of  his  age,  at  one  in  the  morning,  he  makes  his  will  of 
lands  and  dies,  it  is  a  good  will,  for  he  was  then  of  full  age.^ 

Although,  for  many  purposes,  an  infant  is  under  certain  legal 
incapacities  and  disabilities,  there  is  no  doubt  that  a  suit  may  be 
sustained  in  any  Court,  either  of  law  or  of  equity,  for  the  asser- 
tion of  his  rights,  or  for  the  security  of  his  property ;  and  for  this 
purpose,  a  child  has  been  considered  to  have  commenced  his  exist- 
ence as  soon  as  it  is  conceived  in  the  womb.^  Under  such  circum- 
stances, it  is  termed  in  law  an  infant  en  ventre  sa  mere^  and  a  suit 
may  be  sustained  on  its  behalf;  and  the  Court  will,  upon  applica- 
tion in  such  suit,  grant  an  injunction  tp  restrain  waste  fi-om  being 
committed  on  his  property.^  In  Rohinson  v.  Litton,'''  Lord  Hard- 
wicke  seems  to  have  considered,  that  the  point  that  a  Court  of 
Equity  would  grant  an  injunction  to  stay  waste  at  the  suit  of  an 
infant  en  ventre  sa  mere,  though  it  had  often  been  said  arguendo^ 
had  never  been  decided ;  but  it  seems  that,  though  Loi-d  Ilard- 
wicke  was  not  aware  of  the  circumstance,  sucli  an  injunction  was 
actually  granted  by  Lord  Keeper  Bridgman.' 

But  although  an  infant  may  maintain  a  suit  for  the  assertion  of 
his  rights,  he  can  do  nothing  which  can  bind  himself  to  the  per- 


•nhat  it  is. 


Infancy  ter- 
minates the 
da}'  before 
the  21st  anni- 
versary of  the 
birth. 


Infants  may 
sustain  suits; 


en  ventre  sa 
mere,  may 
sue  to  restrain 
waste ; 


1  Brooke  V.  Lord  Mo^tvn,  2  Do  G.,  J.  & 
S.  873,  4ir,;  10  .lur.  N.  S.  1114,  llltJ;  jind 
see  Wilton  r.  Hill,  2.'.  L.  .).  Ch.  150,  V.  C. 
K.;  Wall  V.  HogerB,  L.  U.  9  K(|.  68,  M.  \l. 

2  Jacob's  Law  Diet.  tit.  Iiifiint.  The 
SRe  of  mnjority  of  females  is  fixed  by  the 
Coiistitutioij  of  Vermont  at  ei;;hteen  years. 
Young  r.  iMvis,  IJrayt.  121;  Spariia'wk  v. 
Buel,  !)  Vt.  41. 

3  Salk.  44,  025;  1  Ld.  Ray.  480;  2  id. 
1090;  1  |!la.  (.'..m.  403;  1  .Jarman  on  Wills 
(2d  Am.  ed.),  29;  Herbert  v.  Torlnili, 
1   Sid.   142;  S.    C.    liaym.    84;    State   v. 


Clark,.'!  Ilarrinj;.  557;  Hiimlin  !».  Stephen- 
son, 4  Dana,  5ii7.  As  to  fractious  of  ii  day, 
and  wiien  tiuiy  will  luid  will  not  be  re- 
garded in  the  law,  8ee  D'Obree,  tj-  parte, 
a  Sumner's  Yes.  8.'$,  note  («);  Lester  v. 
(tarlanii,  15  id.  24H,  nole  (.3). 

••  Sci-  \V;illis  r.  Ilodson,  2  Atk.  117. 

'■'  S«'e  .Musgrave  v.  I'arry,  2  Veru.  710; 
Story  K<|.  I'l.  §  59,  note. 

0  3  Atk.  209,  211;  see  also  Wallis  v. 
Hodson,  2  Atk.  117. 

1  Lutterel's  case,  cited  Prec.  Ch.  60. 


68 


SUITS   BY   PERSONS   WHO    ARE   UNDER   DISABILITY. 


Cu.  iii.§r.. 
< ^ ' 

cannot  sue 
for  spci-itic 
pertonnaiu'o 
of  a  contract ; 


must  sue  by  a 
next  friend. 


Bill  filed 
without  next 
friend,  dis- 
missed with 
costs  to  be 
paid  by 
solicitor; 

but,  in  some 
cases,  leave 
will  be  given 
to  amend. 


Who  may  be 
next  friend. 


tonuMiuH'  (if  any  net;  and  tluM-clori',  wIkti'  iVoiu  tlic  nature  of  tlie 
(lemaiul  made  by  the  iiiiant  it  would  1()1K)W  tliat,  it"  the  relief 
sought  wore  granted,  the  rules  of  mutuality  woidd  require  some- 
tliiug  to  be  done  on  liis  part,  such  a  suit  cannot  be  maintained. 
Thus,  it  has  been  held  that  an  infant  cannot  sustain  a  suit  for  the 
specitic  performance  of  a  contract :  because,  in  such  cases,  it  is  a 
general  prineijile  of  Courts  of  Equity  to  interpose  only  where  the 
remedy  is  mutual,  and  if  a  decree  were  to  be  made  for  a  specific 
performance,  as  prayed  on  the  part  of  the  infant,  there  would  be 
no  power  in  the  Court  to  compel  him  to  perform  it  on  his  part, 
either  by  paying  the  money  or  executing  a  conveyance.^ 

Although  an  infant,  as  we  have  seen,  is  in  general  capable  of 
maintaining  a  suit,  yet,  on  account  of  his  supjjosed  want  of  disci-e- 
tion,  and  his  inability  to  bind  himself  and  make  himself  liable  to 
the  costs,  he  is  incapable  of  doing  so  without  the  assistance  of 
some  other  person,  who  may  be  responsible  to  the  Court  for  the 
propriety  of  the  suit  in  its  institution  and  progress,'^  Such  person 
is  called  the  next  friend  of  the  infant ;  and  if  a  ])i\\  is  filed  on 
behalf  of  an  infant  Avithout  a  next  fi'iend,  the  defendant  may  move 
to  have  it  dismissed  with  costs,  to  be  paid  by  the  solicitor.  In  a 
case,  however,  where  a  bill  was  filed  by  the  plaintiff  as  an  adult, 
and  it  was  afterwards  discovered  that  he  was  an  infant  at  the  time 
of  filing  the  bill,  and  still  continued  so,  whereupon  the  defendant 
moved  that  the  bill  might  be  dismissed,  with  costs  to  be  paid  by 
the  plaintiff's  solicitor,  the  Vice-Chancellor  made  an  order  that 
the  jilaintiff  should  be  at  liberty  to  amend  his  bill,  by  inserting  a 
next  friend.^ 

When  an  infant  claims  a  right,  or  suffers  an  injury,  on  account 
of  which  it  is  necessary  to  resort  to  the  Court  of  Chancery,  his 
nearest  relation  is  supposed  to  be  the  person  who  will  take  him 


1  Flight  V.  Bolland,  4  Russ.  298;  Har- 
grave  v.  Ilargrave,  12  Beav.  408 ;  but  see 
Allen  V.  Davidson,  16  Ind.  416. 

2  Story  Eq.  PI.  §  57;  Hoyt  v.  Hilton, 
2  Edw.  Ch.  202.  I'liere  must  be  a  next 
friend  for  ever\'  apjilicatiou  on  behalf  of 
an  infant.  Cox  r.  Wright,  9  Jur.  N.  S.  981 ; 
11  W.  R.  870,  V.  C.  K.;  see  also  Stuart 
V.  Moore,  9  H.  L.  Cas.  440;  4  Mac([.  11.  L. 
1,  36  n.;  7  Jur.  N.  S.  1129.  An  infant,  by 
being  made  party  to  a  suit,  becomes  there- 
by a  ward  of  Court,  Gj-nn  i'.  Gilbard,  1  Dr. 
&  S.  356;  7  .lur.  N.  S.  91;  and  see  Jie 
Hodge's  Truit,  3  K.  &  J.  213;  3  .Jur.  N. 
S.  860.  Where  a  jtlaintift'  files  a  bill  as  an 
infant,  infancy  is  a  niaterial  allegation,  and 
must  be  proved  or  admitted  by  the  answer. 
Bovd  V.  Bovd,  0  (Jill  &  J.  25;  see  Shirley 
V.  "Hiigar,  3'Blackf.  228  and  note;  Hanly  v. 
Levin,  5  Ilam.  227. 

As  to  the  time  for  appointing  a,prochein 
ami.  see  Wilder  v.  Kinber,  12  Wend.  191; 
Matter  of  Frits,  2  Taige,  374;    Fitch  v. 


Fitch,  18  Wend.  513;  Haines  v.  Oatman, 
2  Douglass,  430.  In  Massachusetts,  the 
next  friend  will  be  admitted  by  the  Court 
without  any  other  record  than  the  recital 
in  the  count.  Miles  v.  Boyden,  3  Pick. 
213;  see  Genl.  Sts.  Mass.  c.  109,  §  7.  See 
also  Trevet  v.  Creath,  ]5reese,  12;  Judson 
V.  Blanchard,  3  (Jonn.  579. 

''  The  law  knows  no  distinction  between 
infants  of  tender  and  of  mature  years ;  and 
as  no  special  authority  to  sue  is  requisite 
in  the  case  of  an  infant  just  born,  so  none 
is  re(iuisite  from  an  infant  on  the  ver^'  eve 
of  attaining  his  majoritv."  Parke  B.,  Mor- 
gan V.  Thorne,  7  'M.&  W.  400,  408;  see 
Fulton  V.  Rosevelt,  1  I'aige,  178 ;  Story  Erj. 
PI.  §  60.  In  England,  a  prvchein  ami  is 
treated  as  an  officer  of  the  Court  and  re- 
sponsible accordinglv.  Morgan  v.  Thorne, 
7  M.  &  W.  400.  Ill  this  case,  the  rights 
and  duties  of  a  jn-vchein  ami  are  largely 
discussed. 

8  Flight  V.  Bolland,  4  Russ.  298. 


INFANTS. 


69 


under  his  protection,  and  institute  a  suit  to  assei't  his  rights;^  and 
it  is  for  this  reason  that  the  person  who  institutes  a  suit  on  behalf 
of  an  infant  is  termed  his  next  fiiend.  But,  as  it  firequently  hap- 
pens that  the  nearest  rehition  of  the  infant  is  the  person  who 
invades  his  rights,  or  at  least  neglects  to  give  that  protection 
to  the  infant  which  liis  consanguinity  or  affinity  calls  upon  him  to 
give,  the  Court,  in  favor  of  infants,  will  permit  any  person  to 
institute  suits  on  their  behalf;  "^  and  whoever  thus  acts  the  part 
which  the  nearest  relation  ought  to  take,  is  also  styled  the  next 
friend  of  the  infont,  and  is  named  as  such  in  the  bill.^  And 
although  an  infont  has  a  guardian  assigned  him  by  the  Court,  or 
appointed  by  will,  yet,  whei'e  the  inflmt  is  plaintiff,  the  course  is 
not  to  call  the  guardian  by  that  name,  but  to  call  hira  the  next 
friend.  But  where  the  infant  is  defendant,  the  guardian  is  so 
called :  and  if  the  guardian  be  so  called  where  the  infont  is  plain- 
tiff, it  is  no  cause  of  demuiTcr.* 

Before  the  name  of  any  j^erson  is  used  as  the  next  friend  of  an 
infant,  he  must  sign  a  written  authority  to  the  solicitor  for  that 
purpose,  which  authority  is  filed  Avith  the  bill.^ 

As  any  person  may  institute  a  suit  on  behalf  of  an  infimt,  it 
frequently  occurs  that  two  or  more  suits  for  the  same  purpose  are 
instituted  in  his  name,  by  different  persons,  each  acting  as  his  next 
friend ;  in  such  cases,  the  Court  will,  Avhere  no  decree  has  been 
made  in  any  of  the  suits,  direct  an  inquiry  to  be  made  at  chambers 
as  to  which  suit  is  most  for  his  benefit ;  and,  Avhen  that  point  is 
ascertained,  will  stay  the  proceedings  in  the  other  suits."  Where 
no  decree  has  been  made  in  any  of  the  suits,''  and  they  are  all 
attached  to  the  same  branch  of  the  Court,  and  none  of  them  are 
in  the  ])aper  for  hearing,  such  inquiry  will  be  directed  on  an  ex 
parte,  motion  :  ^  the  Court  being  satisfied,  in  the  first  instance,  with 
the  allegation  that  the  suits  are  for  the  same  pui-pose.^  Where  the 
suits  are  attaclied  to  different  branches  of  the  Court,  an  order 


Ch.  m.  §  5. 


Where  infant 
has  a 
ffuardian. 


"Written 
authority  to 
act  as  next 
friend,  to  be 
tiled  with  bill. 

Inquiry 
which  of  two 
or  more  suits 
for  the  in- 
fant's benefit. 


1  See  Bank  of  the  United  States  v. 
Ritchie,  8  Peters.  128. 

2  Story  Va\.  I'l.  §  .58  n.;  Andrews  v. 
Cradock,  Prec.  Ch.  a76;  see  Cross  v.  Cross, 
8  Jieav.  Ah^>.  A  defendant,  however,  may 
not  be  next  friend,  Pavne  v.  Little,  13 
Beav.  114;  Anon.,  11  .Juf.  258,  V.  C.  E. 

8  Ld.  lied.  2.5. 

<  Toth.  173;  Wvaft's  P.  R.  224;  see 
Holmes  V.  KieM,  12  III.  424.  An  infant 
may  sue  hy  his  next  friend,  notwitlistimd- 
\v\%  he  have  a  j'liiirriinii,  if  the  (fuardlair  do 
not  dissent.  •Thomas  r.  Dike,  11  V't.  27.'t; 
Bee  iraxk  r.  Stone,  7  Mass.  241.  The 
pcneral  fcuiirdian  of  inOmts  cannot  file  a 
nill  in  his  own  name  to  obtain  possession 
of  the  proncrtj'  of  his  wards.  But  he  must 
file  it  in  the  name  of  the  infants,  iis  their 
next  friend  Bradley  v.  Amidon.  lOpiijfjo, 
235.  It  is  commonlv  said,  that  in  Ivjiiity 
an  infant  must  defend  himself,  as  at  Law, 


by  his  f^uardian;  but  that  he  cannot  sue 
by  his  }:uardian,  but  only  by  his  next 
friend.  By  his  puardian,  is  here  to  be 
understood  his  guardian  ad  litem,  iidinitted 
bv  the  <!ourt  for  this  purpose.  Storv  Eq. 
P"I.  §  58,  note  (3).  The  Court  neveV  ap- 
points a  t,'uardian  to  prosecute  for,  but 
only  to  defend,  an  infint  party.  Priest 
V.  Hamilton,  2  Tvler,  44. 

6  15  &  IG  Vic.  c.  86,  §  11.  Ill  an  injunc- 
tion case  the  authority  was  iiermittcd  to 
be  filed  the  day  iifler  an  int'>riniition. 
Attornev-Ceiienil  r.  Murray,  13  W.  K.  il."), 
V.  <'.  Iv.  For  form  of  authority,  see  Vol. 
III. 

0  Ld.  lied.  27;  Mortimer  v.  West,  1 
SwauKt.  358;  Storv  Kq.  PI.  §  60. 

'  Kun.lle  r.  Bundle,  11  Bcav.  .33. 

^  Vur  forin'i  of  motion  paper,  anil  notice 
of  special  motion,  see  Vol.  III. 

»  Sullivan  v.  Sullivan,  2  Mer.  40. 


Course  where 
suits  attached 
to  different 
branches  of 
the  Court. 


70 


SUITS    BY   TERSONS   ■^^^IO    ARE   UNDER   DISABILITY. 


Oil.  111.  § 


Order  for  in- 
quiry sliould 
bo  in  both 
suits: 

is  no  stay  ot" 
prooeoJiiii^s. 


Where  subse- 
quent suit  is 
more  beneli- 
cial  tlum  the 
first 

After  decree 
in  one  of  the 
suits. 


TVliere  merits 
equal,  prior- 
ity prevails. 

Inquiry 
whether  a 
suit  is  for  the 
benefit  of  an 
infant. 


must  bo  (>l)t:iimMl,  in  tlio  first  instniico,  for  the  Ir.insfer  of  one  of 
tho  suits,  so  that  tliov  may  botli  be  botbro  t.lu' same  Judge ;  ^  and 
tlu'  order  for  the  inquiry  is  obtained  on  speeial  motion,  of  which 
notiee  must  be  oiven  to  the  other  parties  to  the  suits."-^  The  order 
for  the  iiuiuiry  sliouhl  be  made  in  both  suits,  and  docs  not  of  itself 
stay  the  proceedings  in  the  suits ; ''  and  the  anien(bnent  of  one  of 
the  bills,  pending  the  inquiry,  does  not  stay  the  inquiry.^  When 
the  result  of  the  inquiry  has  been  certified,  any  ap])lication  that 
may  be  necessary  is  made  by  motion,  on  notice.^  Under  special 
circumstances,  the  Court  may,  u]>on  motion,  on  notice,  make  an 
order  staying  the  suits,  without  directing  an  inquiry.'' 

If  upon  the  inquiry,  it  appears  that,  although  it  would  be  bene- 
ficial to  the  infant  to  prosecute  the  first,  yet  it  will  be  more  bene- 
ficial to  him  to  prosecute  a  subsequent  suit,  the  Court  will  stay  the 
first  suit,  and  give  the  next  friend  his  costs.''  "Where  a  decree  has 
been  made  in  any  of  the  suits  it  is  not  usual  to  direct  an  inquiry,'^ 
but  the  other  suits  will  be  stayed :  liberty  being  given  to  each  of 
the  next  friends  in  the  stayed  suits  to  apply  for  the  conduct  of  the 
suit  in  which  the  decree  was  made.^  When  another  next  friend 
takes  upon  himself  to  file  a  second  bill,  it  is  incumbent  upon  him 
to  show  some  defect  in  the  first  suit,  or  a  decided  preference  in  the 
second ;  if  their  merits  are  only  equal,  the  priority  must  prevail.^ 

As  a  check  to  the  general  license  to  institute  suits  on  behalf  of 
infants,  the  Court  will,  upon  the  application  of  the  defendant,  or 
of  any  person  acting  as  next  friend  of  the  ])laintiflr  for  the  purpose 
of  the  application,^"  where  a  strong  case  is  shown  that  a  suit  pre- 
ferred in  the  name  of  an  infant  is  not  for  the  infant's  benefit,  or  is 
instituted  from  improper  motives,  direct  an  inquiry  concerning  the 
propriety  of  the  suit ;  ^^  but  an  objection  at  the  hearing  to  the  pro- 
priety of  the  suit  was  held  too  latc.^^     If,  upon  such  inquiry,  it 


1  This  was  the  course  pursued  in  Knight 
V.  Knight,  L.  JJ.,  and  M.  R.,  29  June, 
1859,  and  V.  C.  Stuart,  29  June,  1859, 
and  9  Nov.  1859.  Compare  Duft'ort  v. 
Arrowsniith,  5  De  G.,  iM.  &  G.  434.  The 
order  for  transfer  is  made  by  the  L  C. 
or  L.  JJ.,and  the  M.  R.  if  transferred  from 
or  to  the  M.  R.  (5  Vic.  c.  5,  §  30),  and  by 
the  L.  C,  or  L.  J  J.,  alone,  in  other  cases; 
but  the  order  will  not  be  made,  unless  the 
consent  of  the  Judges  from  and  to  whom 
the  cause  is  traiisftrred  is  first  obtained. 
Such   consent    is   u>;ually  signified,  as  of 

^_course,  on  the  matter  being  mentioned  by 
"^he  counsel  of  the  [larty  moving.  For- 
merly, it  would  seem  that  the  order  for  in- 
quiry might  be  made  by  either  Court, 
without  either  of  tlie  causes  being  trans- 
ferred, Sfarten  ^.Bartholomew,  5  Beuv.  372. 

2  See  I'.ond  v.  Barnes,  2  De  G  ,  F.  &  J. 
387.  For  form  of  notice  of  motion,  see 
Vol.  III. 

3  Westbv  V.  ■\Vesthy,  1  De  G.  &  S.  410; 
11  Jur.  764". 


4  Goodale  v.  Gawthome,  1  M'N.  &  G. 
319, 323 ;  but  it  is  irregular,  in  such  a  case, 
to  obtain  an  order  of  course  to  amend, 
F'letchy;  v.  Moore,  11  Beav.  617. 

5  Staniland  v.  Staniland,  M.  R.,  21  Jan., 
1864;  and  see  Frost  r.  Ward,  12  W.  R. 
285,  L.  JJ. ;  2  De  G.,  J.  &  S.  70. 

6  Starten  v.  Bartholomew,  6  Beav.  143. 

7  'j'aylor  v.  Oldliam,  Jac  527;  but  see 
Harris  v.  Harris.  10  W.  R.  31,  V.  C.  K. 

8  Ketiyon  v-  Kenvon,  35  Beav.  300;  and 
see  Frost  v.  \Vard,'2  De  G.,  J.  &  S  70; 
Harris  v.  Harris,  10  W.  It.  31,  V.  (I  K. 

'">  Per  Lord  Cottenham,  Campbell  v. 
Campbell,  2  M  &  C.  30;  and  see  Harris 
V.  Harris,  10  W.  K.  31,  V.  C*  K. 

10  Guy  V.  Guy,  2  Beav.  4G0. 

11  Stevens  v.  Stevens,  6  Mad.  97 ;  Lyons 
V.  I'.'enkin,  Jac.  259;  Smallwood  v.  Butter, 
9  Hare,  24.  For  form  of  notice  of  motion, 
see  Vol.  HI. 

12  Lacy  V.  Burchnall,  Z  N.  R.  293. 


INFANTS. 


71 


appears  that  the  suit  is  not  for  the  benefit  of  the  infant,  either  the    Ch.  hi.  §  5. 
proceedings  will  be  stayed,^  or  else,  if  there  is  no  excuse  for  the  ^ 

fact  of  the  suit  having  been  instituted,  the  bill  will  be  dismissed  Dismissal  of 
with  costs,  to  be  paid  by  the  next  friend ;  -  and  in  the  case  of  Sale  inquiry. 
V.  Sale,^  where  it  appeared  clearly  upon  affidavits  that  the  suit  was 
commenced  by  the  next  friend,  to  promote  his  own  views,  and  not 
for  the  benefit  of  the  infant.  Lord  Langdale  M.  R.  summarily,  and 
without  a  reference  to  the  Master,  made  such  ail  order.  And 
where  an  application  was  made,  on  behalf  of  the  defendants,  that  Inquiry  as  to 
the  next  friend  of  the  infant  plaintiff  be  restrained  from  further  fj-iead!"  °^^ 
proceeding  with  the  suit,  and  for  a  reference  to  the  Master  to 
appoint  a  new  next  friend  to  conduct  it  in  his  stead :  which  appli- 
cation was  supported  by  strong  affidavits,  to  show  that  the  suit  had 
in  fact  been  instituted  from  improper  motives,  for  the  purpose  of 
benefiting  the  solicitor,  at  whose  request  the  person  named  as  next 
friend  (who  was  a  stranger  to  the  family,  and  had  lately  held  the 
situation  of  farm  servant  or  bailiff  at  monthly  wages),  had  con- 
sented to  act  as  such,  the  Master  was  directed  to  inquire,  not  only 
whether  the  suit  was  for  the  benefit  of  the  infant,  but  whether  the 
next  friend  was  a  fit  and  proper  person  to  be  continued  in  that 
character.  The  Master  was  also  directed  to  inquire  who  would  be 
the  proper  person  to  conduct  the  suit,  in  case  the  next  fi-iend  was 
removed,  and  to  report  special  circumstances.*  Where  a  decree  is 
made  in  tlie  suit,  it  is  irregular  to  direct  an  inquiry  whether  any 
benefit  has  accrued  to  the  infant  from  the  suit ;  so  as  to  make  the 
answer  to  that  inquiry  depend  on  the  result  of  tlie  accounts 
dii'ected  by  the  decree.® 

The  result  of  the  cases  seems  to  be,  according  to  the  language  of  Result  of  the 
Lord  Langdale  M.  R.  in  Starten  v.  Bartholomew^  that  the  Court  ^^^^^ 
exercises  a  very  careful  discretion  on  the  one  hand,  in  order  to 
facilitate  the  proper  exercise  of  the  right  which  is  given  to  all  per- 
sons to  file  a  bill  on  behalf  of  infants ;  and  on  the  other,  to  pre- 
vent any  abuse  of  that  right,  and  any  wanton  expense  to  the 
prejudice  of  infants." 

No  inquiry,  however,  as  to  the  propriety  of  the  suit,  will  be 


»  Ld.  Red.  27;  see  also  Da  Costa  f.  Da 
Costa,  3  P.  W.  140;  Richardson  i'.  Miller, 
1  Sim.  133;  Fulton  v.  lioseveit,  1  I'aige, 
178;  Howen  v.  I'llev,  1  Ivlw.  Ch.  148; 
Story  Kq.  I'l.  §  GO.'  In  Da  Costa  r.  Da 
Costa,  the  inquiry  was  directed  upon  a 
petition;  but  the  modern  practice  is  to 
apply  to  the  Court  upon  motion,  of  which 
notice  is  given  to  the  next  friend;  see, 
however,  Anderton  v.  Yates,  5  De  G.  &  S. 
202. 

2  Fox  V.  Suwerkrop,  1  Beav.  583. 

8  1  Heav.  080;  see  also  (Juy  r.  Guy,  2 
Bqav.  460;  .Staiiiltind  v.  Staniland,  «n<e, 
p.  70. 

<  Nalder  v.  Hawkins,  2  M.  &  K.  243; 


Towsey  v.  Groves,  9  Jur.  N.  S.  194;  11 
W.  R.  252,  V.  C.  K.;  see  also  Clavton 
t'.  Clarke,  2  Giff.  575;  7  .Jur.  N.  S.  562; 
9  W.  R.  718,  L.  .J.T.;  and  Raven  c.  Kerl, 

2  Phil.  692;  Graviitt  v.  Taiin,  1  W.  N. 
327;  15  W.  R.  83,  M.  R.;  W.  N.  (1866) 
405,  L.  .J.I. 

'>  Clavton  c.  Clarke,  3  De  G.  F.  &  .1. 
682;  7  .lur.  N.  S.  562;  2  Giff.  575;  7  Jur. 
N.  S.  252. 

••  6  Reav.  144 ;  and  see  Clayton  v.  Clarke, 

3  De  (;.,  F.  &  .J.  682;  7  .Jur.  N.  S.  502;  2 
(iiff.  575;  7  .Jur.  N.  S.  252. 

"  See  Matter  of  Frits,  2  Paige,  374 j 
Waring  v.  Crane,     Paige,  79. 


SUITS    BY   PERSONS    WHO    ARE    UNDER   DISABILITY. 


(11.  \U.^'y. 


Inquiiy  not 
iininlod  on 
ainilication  of 
the  next 
triond : 

unless  made 
in  another 
:$uit. 


Of  striking: 
out  the  name 
of  an  infant 
plaintilV,  and 
inakiuic  him 
defendant : 

in  what  eases 
proper. 


Infant  bound 
by  decree,  in 
suit  on  his 
behalf; 

but  not  his 
inheritance, 
by  any 
discretionary 
»ct. 


onlorod  ;it  tlio  iiistignlioii  (if  the  next  friend  himself;  becnuse  tlie 
Court  considers,  tliat  in  ooniniencing  a  snit,  tlie  next  friend  under- 
takes, on  his  own  part,  that  the  suit  he  has  so  connnenced  is  for 
tlie  benefit  of  the  infant.^  This  rule,  nevertheless,  upplies  only  to 
cases  where  an  apjilication  is  made  for  such  an  inquiry  in  the  cause 
itself;  if  there  is  another  cause  pending  by  which  tliQ  infant's 
property  is  subject  to  the  control  and  disposition  of  the  Court, 
such  an  inquiry  is  not  only  })ermitted,  but  is  highly  proper,  when 
fairly  and  bond  fide  made,  and  may  have  the  eflect  of  entitling  the 
next  fi'icnd  to  repayment  of  his  costs  out  of  the  infant's  estate, 
even  though  the  suit  should  turn  out  unfortunate,  and  the  bill  be 
dismissed  with  costs.- 

If  an  infant  is  made  a  co-plaintiff  with  others  in  a  bill,  and  it 
appears  that  it  will  be  more  for  his  benefit  that  he  should  be  made 
a  defendant,  an  order  to  strike  his  name  out  as  plaintiff,  and  to 
make  him  a  defendant,  may  be  obtained  upon  motion  or  summons, 
on  notice  in  either  case ;  ^  and  an  infant  heir-at-law,  against  whose 
estate  a  charge  is  sought  to  be  raised,  ought  to  be  made  a  defend- 
ant, and  not  a  plaintiff,  although  he  is  interested  in  the  charge 
when  raised ;  and  that,  where  an  infant  heir  had,  under  such  cir- 
cumstances, been  made  a  co-plaintiff^  Lord  Redesdale  ordered  the 
cause  to  stand  over,  with  liberty  for  the  plaintiffs  to  amend,  by 
making  the  heir-at-law  a  defendant  instead  of  plaintiff,  and  there- 
upon to  prove  the  settlement  anew  against  him  as  a  defendant.* 
The  reason  given  for  this  practice  is,  because  an  infant  defendant, 
where  his  inheritance  is  concerned,  has  in  general  a  day  given  him, 
after  attaining  twenty-one,  to  show  cause,  if  he  can,  against  the 
decree,  and  is  in  some  other  respects  privileged  beyond  an  adult ; 
but  an  infant  plaintiff  has  no  such  privilege,  and  is  as  much  bound 
as  one  of  full  age.^  In  amicable  suits,  however,  it  is  often  an 
advantage  to  make  an  infant  the  plaintiff;  because  he  may  have 
such  relief  as  he  is  entitled  to,  though  not  prayed  for.^ 

Although,  however,  an  infant  is,  in  general,  bound  by  a  deci-ee 
in  a  cause  in  which  he  himself  is  plaintiff,  yet  there  is  no  instance 
of  the  Court  binding  the  inheritance  of  an  infant  by  any  discre- 
tionary act :  from  this  princii)le  it  follows,  that  where  an  infant 


1  Jonesi'.  Powell, 2Mer.  141.  Butaref- 
erence  will  be  directed,  as  to  the  propriety 
of  the  suit,  upon  the  petition  and  affidavit 
of  the  infant  that  the  suit  was  commenced 
without  his  knowledge,  and  that  he  be- 
lieved it  to  be  f^oundless.  Garr  v.  Drake, 
2  .John.  Ch.  542. 

2  Taner  v.  Ivie,  2  Yes.  S.  406. 

8  Tappen  v.  Norman,  11  Ves.  56.3;  see 
Le  Fort  v.  Delafield,  3  Edw.  (Jli.  32.  For 
forms  of  notice  of  motion  and  summons, 
see  Vol.  III. 

*  Plunket  V.  Joice,  2  Sch.  &  Lef.  159. 

5  Lord  Brook  v.  Lord   Hertford,  2   P. 


Wms.  518;  Gregory  v.  Molesworth,  3  Atk. 
626;  see  also  Morison  v.  Morison,  4  M.  & 
C.  216.  The  practice  of  giving  infants  a 
day  to  show  cause  is  now  nearly  obsolete; 
but  the  present  state  of  the  law  on  this  sub- 
ject will  be  more  suitably  stated  in  the 
future  chapter  concerning  infant  defend- 
ants; see  post,  Chap.  IV.  §  10;  and  see 
Seton,419,  680-689,  and  cases  there  cited. 
"  See/JGs<,  p.  73.  A  decree  against  an 
adult  as  if  an  infant,  will  not  bind  him, 
Snow  V.  Hole,  15  Sim.  161;  Green.*. 
Badley,  7  Beav.  271,  273. 


INT  ANTS. 


73 


heir  is  plaintiff,  it  is  not  the  practice  to  establish  the  ^^11,  or  to  dr.  III.  §^. 
declare  it  well  proved ;  although,  if  there  be  no  question  raised 
concerning  its  validity,  the  Court  Avill  in  many  respects  act  upon 
it.i  According  to  this  doctrine,  in  Lord  Brooh  v.  Lord  Hertford^  Practice  in 
above  referred  to,  which  was  the  case  of  a  bill  filed  by  an  infant  partition. 
plaintiff  for  a  partition  against  a  co-tenant  in  common,  although 
the  Court  decreed  a  partition,  it  would  not  direct  any  conveyance 
to  be  made  until  the  infant  plaintiff  attained  twenty-one  ;  ^  and  so 
in  Taylor  v.  Phili2ys,^  where  it  has  been  referred  to  the  Master  to 
see  whether  certain  proposals,  which  had  been  made  as  to  the  sur- 
render of  a  copyhold  estate  by  the  infant  plaintiff,  were  reasonable, 
and  for  the  infant's  benefit,  and  the  Master  reported  that  they  were 
so,  the  Court,  nevertheless,  would  not  make  the  order  for  the  sur- 
render, without  inserting  the  words  "without  prejudice  to  the 
plaintiff,  the  infant,  after  he  shall  attain  the  age  of  twenty-one 
years."  * 

In  sreneral,  however,  where  decrees  are  made  in  suits  by  infant   Unusual  now 

.  ,       .    r,  -,  cto  pve  infant 

plaintiffs,  it  is  not  usual  to  give  the  mtant  a  day  to  show  cause."        plaintiff  a  day 

When  a  day  is  given  to  an  infant  plaintiff  to  show  cause  against  ^°  ^J"*^ 
a  decree  after  he  comes  of  age,  the  proper  course  api)ears  to  be  to   ^^  ^^^^ 
have  the   cause  reheard ;  for  which  purpose  he  must,  within  the  manner  cause 
period  appointed  by  the  decree,  present  a  petition  of  rehearing.®       s  i  ^  . 

Though  an  infant  is,  in.  ordinary  cases,  bound  by  the  effect  of  Infant  not 
any  suit  or  proceedings  instituted  on  his  behalf,  and  for  his  benefit,   mistakes  in 
vet  if  there  has  been  any  mistake  in  the  form  of  such  suit,  or  of  fo™  of  suit, 
the  proceedings  under  it,  or  m  the  conduct  of  them,  tlie  Court  conduct: 
will,  upon  application,  permit  such  mistake  to  be  rectified."     Thus,  and  may  have 
an  infant  plaintift'may  have  a  decree  upon  anymattei-  arising  from   SJ^enfitled^to, 
the  state  of  his  case,  though  he  has  not  particularly  mentioned   though  not 
and  hisisted  upon  it,  and  prayed  it  by  his  bill ;  and  accordingly, 
where  a  bill  was  filed  on  behalf  of  an  inflmt,  claiming,  as  eldest 
son  of  his  grandfather's  heir-at-law,  the  benefit  and  possession  of 
an  estate,  and  to  Iiave  an  account  of  the  rents  and  profits,  and  for 
general  relief;  and,  upon  tlie  hearing,  an  issue  was  directed  to  try 
whether  his  father  was  legitimate,  which  the  jury  found  he  was 
not,  so  that  the  plaintiff's  claim,  as  lieir-at-law,  was  defeatcnl :  he 
was  yet  allowed  to  set  up  a  claim  to.  ])art  of  the  estate,  to  Avhicli 
it  appeareil  that  lie  was  entitled  under  certain  deeds  executed  by 
his  grandfather,  but  wliidi  cl.iiin  was  iu  no  way  raised  or  insistcMl 

1  Hills  V.  Hills,  2  Y.  &  (J.  C.  C.  327.  see   I>udy  Kilingham  v.  Sir  .lohn  Nai)ior, 

2  The  Court  has  now  power,  under  the  4  Hro.  1'.   C    ed.  Toml.  .'MO;   Sir  .1.  Nii- 
Triistee  Aft,  to  di'clare  the  iiil'iintu  trustee,  pier  r.  l.iifiy   Kfliiigliam,  2  I'.  Wms.  401; 
land  to  vest  the   lands,  Uowra  )'.  U' right,  IMos.  (',7,  lor  iiii  (•xcei)tion  to  this  rule,  un- 
4   I)e  (i.,  M.  &   S.  20.') ;  sec  Si-ton   f»71,  e<  dor  verv  ])ecuiiMr  •■irciiuistances. 
«e7.,and/y.'.s<,  Chap.  XXVIII.  §  J.  «  Wyatt's  1'.  U.  22.0;  seo    ante,   p.    73, 

^  2  Ves.  S.  2:j.  n  (b). 

•  ■•  Kelt  Supt.  to  Ves.  S.  2.50.  1  Story  Eq.  IM.  §  69. 

*  Gregory  v.  Molesworth,  3  Atk.C2C ;  hut 


prayed  for; 


SUITS    BY    PERSONS    WHO    ARE    UNDER   DISABILITY. 


(11.  ni.§  i>. 
^ y ^ 

not  Ivoiiiul  by 
iiupr(i|H"r  sub- 
missions on 
his  bohalf: 


but  bound  by 
deviations 
troni  practice, 
b<')ui  tide 
assented  to; 

at  least  if 
sanctioned  by 
the  Court. 


Semble,  infant 
could  not 
concur  in  case 
for  opinion  of 
a  Court  of 
Law: 


but  may  con- 
cur in  special 
case,  under 
Sir  G.  Tur- 
ner's Act. 


Next  friend 
need  not  be  a 
person  of 
substance. 


Upon  h\  his  hill,  :ilthoii>;h  the  Court  siiid  it  might  liave  been  othcr- 
Avi.so  if  ho  li;ul  been  adult.'  And  Avhero  the  jx'rsons  acting  on 
bi'half  of  an  infant  plaintitl",  by  mistake  make  Rubniissions  or  oiiers 
on  behalf  of  the  infant,  which  the  infant  ought  not  to  have  been 
called  upon  to  make,  the  Court  will  not  suffer  the  infant  to  be 
lirejudiced.  Thus,  Avhere  an  infant  ])laintiff  had,  by  mistake,  sub- 
mitted by  her  bill  to  ])ay  oft'  a  mortgage,  which  she  was  not  liable 
to  pay.  Sir  ,T.  Jekyll  M.  II.  said  he  must  take  care  of  the  infant, 
and  not  suffer  her  to  be  caught  by  any  mistake  of  her  agent;  ^and, 
therefore,  the  infant  was  allowed  to  amend  her  bill,  on  paying  the 
costs  of  the  day.-  It  has  been  said,  however,  that  in  matters  of 
practice,  infants  are  in  general  as  much  bound  by  the  conduct  of 
the  solicitor  acting  bona  fide  in  their  behalf  as  adults  ;  ^  but  it  may 
be  doubted  Avhether  they  would  now  be  bound,  unless  the  sanction 
of  the  Court  had  been  previously  obtained ;  for  it  seems  that  a 
next  friend  or  guardian  cannot  consent  to  the  mode  of  taking  evi- 
dence, or  of  any  other  procedure,  without  first  obtaining  the  sanc- 
tion of  the  Court,  or  of  the  Judge  in  chambers.*  The  application 
at  chambers  is  made  by  summons.^ 

It  seems  to  have  been,  the  opinion  of  Lord  Eldon,  that  facts 
could  not  be  stated  in  a  case  for  the  opinion  of  a  Court  of  Law  so 
as  to  bind  infants ;  ^  but  this  is  not  now  of  any  practical  importance, 
as  the  Court  is  now  prohibited  from  directing  a  case  to  be  stated 
for  the  opinion  of  any  Court  of  Law.'' 

By  Sir  George  Turner's  Act,^  infants  are  enabled  to  concur  in  a 
special  case. 

It  has  been  before  stated  ^  that  any  person,  who  may  be  willing 
to  undertake  the  office,  may  be  the  next  friend  of  an  infant ;  and 
it  seems  that  even  a  person  who  has  been  outlawed  in  a  civil  action 
may  fill  that  character,^'^  Though  it  has  been  doubted,"  it  is  now 
clear,  as  we  have  already  seen,^^  that  a  next  friend  of  an  infant 
need  not  be  a  person  of  substance ;  '^  and  though  there  does  not 


1  Stapilton  v.  Stapilton,  1  Atk.  2,  6; 
see  also  De  Manneville  v.  De  Manneville, 
10  Ve3.  52.  59;  Walker  v.  Taylor,  8  Jur. 
N.  S.  681,  H.  of  L. 

2  Serle  v.  St.  Elov,  2  P.  Wms.  386. 

3  Tillotcon  V.  HHrf,n-ave,  3  Mud.  4?4; 
Wall  f.  I'.ushby,  1  I'.ni.  C  C.  484,  487. 

i  Ord.  5  Feb  ,  1^61,  r.  24. 
6  For  form  of  summons,  see  Vol.  III. 
6  Hawkins  r.  Luscombe,  2  Swanst.  392. 
"  15  &  16  Vic.  c.  86,  §  61. 
8  1,3  &  14  Vic.  c.  35,  §§  4,  6. 
'■<  Antt,  pp.  37,  69. 
1"  Glib.  For,  Kom.  54. 

11  Ld.  Ked  26;  Turner  v.  Turner,  1  Stra. 
708;  2  P.  Wms.  297;  2  Eq.  Ca.  Ab.  238, 
pi.  18. 

12  Ante,  p.  37. 

13  Anon.,  1  Ves.  .1.  410 ;  Squirrel  v.  Squir- 
rel, 2  Dick.   765;   Fellows  v.   Barrett,    1 


Keen,  119;  Davenport  v.  Davenport.  1  S. 
&  S.  101;  and  see  observations  of  V.  C. 
Wood  in  Hind  v.  Whitmore,  2  K.  &  J.  458. 
In  Smith  v.  Floyd,  1  Pick.  275,  it  was  held 
tliat  ill!  infant  plaintiif,  who  sues  hy  j)ro- 
cluiii  ami,  is,  under  the  statutes  of  Massa- 
ciiu«ctts,  lialjle  for  costs;  and  in  Crandall 
V.  Shiid,  11  Met  288,  it  was  held  that  a 
2)rochein  ami,  as  such,  is  not  liable  for  costs ; 
although  it  was  suggested  in  tlie  latter 
case  by  Wilde  -J.  that  this  seems  to  be 
contrary  to  the  Knglisii  practice.  See 
also  Houche  v.  liyan,  3  Hlackf.  472.  But 
where  a  person,  who  prosecutes  a  suit  in 
the  name  of  an  infant,  as  his  next  friend, 
is  insolvent,  he  will  be  compelled,  on  the 
application  of  the  defendant,  to  give  se- 
curity for  costs.  Fulton  v.  Rosevelt,  1 
Paige,  178;  Dalrymiile  v.  Lamb,  3  Wend. 
424.     In  Crandall  v.  Slaid,  11  Met.  288, 


INFANTS. 


75 


appear  to  be  any  case  where  an  infant  has  been  allowed  to  sue  by 
his  next  friend  i?ifor7na  jxiuperis,  it  would  seem  that  such  a  course 
would  be  permitted,  on  a  special  case  being  made.^ 

If  the  next  friend  of  an  infant  does  not  do  his  duty,  or  if  any 
other  sufficient  ground  be  made  out,  the  Court  will,  on  motion  or 
summons,  on  notice,-  order  him  to  be  removed.^  Thus,  Avhen  the 
next  friend  will  not  proceed  with  the  cause,  the  Court  will  change 
him.*  And  although  a  next  friend  may  not  have  been  actually 
guilty  of  any  impropriety  or  misconduct,  yet,  if  he  is  connected 
with  the  defendants  in  the  cause  in  such  a  manner  as  to  render  it 
improbable  that  the  interest  of  the  plaintiff  will  be  propei-ly  sup- 
ported, the  Court  will  remove  such  next  friend,  and  a})point  another 
in  his  place.^ 

In  Peyton  v.  Bond,^  it  appeared  that  the  solicitor  for  the  inf  mts 
acted  for  the  father  also,  and  had  been  for  ten  years  his  confiden- 
tial solicitor,  and  Sir  Anthony  Hart  V.  C.  said,  that  although  he 
was  warranted  by  high  authority  in  saying  that  in  family  suits  it 
was  proper  that  the  same  solicitor  should  be  employed  for  all  par- 
ties, yet  the  Court  will  Avatch  with  great  jealousy  a  solicitor  who 
takes  uj)on  himself  a  double  res])Ousibility ;  and  if  it  sees  a  chance 
of  his  miscarrying,  will  take  care,  where  the  plaintiffs  are  infants, 
that  .he  shall  not  stand  in  that  relation  to  a  defendant  under  cir- 
cumstances of  very  adverse  interest ;' and,  upon  this  ground,  his 
Honor  decided  that  the  solicitor  of  the  father  ought  not  to  continue 
in  tlie  chiiracter  of  solicitor  of  the  next  friend. 

It  may  be  here  remarked,  that  the  next  friend  of  an  infint  can- 
not be  permitted  to  act  as  receiver  in  the  cause ;  and  'that  where 
an  application  was  made  on  behalf  of  infant  plaintiffs,  that  the 
next  friend  might  be  at  liberty  to  go  before  the  IVfaster,  and  pro- 
pose himself  to  be  the  receiver.  Sir  Thomas  Plumer  V.  C.  refused 
to  accede  to  the  motion,  although  it  was  consented  to :  observing, 
that  it  was  the  duty  of  the  next  friend  to  watch  the  accounts  and 
conduct  of  the  receiver,  to  be  a  control  over  him  ;  and  that  the  two 
characters  were  incompatible,  and  could  not  be  united.'' 

If  the  next  friend  of  an  infant  takes  any  jjroceeding   in  the 


Ch.  III.  §  5. 


Infant  may 
sue  b}'  next 
friend,  in 
forma 
pauperis, 
semble. 

Next  friend 
removable  for 
non-perform- 
ance of  his 
duty, 

or  having  ad- 
verse interest. 


Where  same 
solicitor  acts 
for  next 
friend,  and  for 
defendants. 


Next  friend 
cannot  be 
receiver  in 
the  cause. 


290,  it  wns  said  by  Wilde  J.  that  in  nil 
casew,  if  the  dclendaiit  doubts  tlie  ability 
of  the  infant  to  iiay  costs,  the /^rocAci/j  iivii 
ma)'  be  compelled  tu  indorse  the  writ,  or 
to  procure  a  sutTicjent  imlorser,  or  to  be- 
come nonsuit.  Hut  see  Fenele)'  v.  Ma- 
hotiv,  21   I'ick.  2iJ,  214. 

i"].inds.-v  IV  Tvrrell,  24  Beav.  124;  3 
Jur.  N.  S.'lOH;  2  iJle  G.  &  J.  7;  Ante, 
p.  39. 

2  For  forms  of  notice  of  motion  and 
summons,  see  Vol  III. 

3  KuRHoll  r.  Sharp,  1  .lac.  &  W.  482; 
Lander  r.  Ingersoli,  4  Hare,  b'M. 


*  Ward  V.  Ward,  3  Mer.  706. 

fi  Peyton  r.  Ilond,  1  Sim.  390;  Redwin 
V.  Asprey,  11  Sim.  530;  Towsev  r.  (Jroves, 
0  Jur.  N.  S.  194;  11  W.  \{.  2r.2,  V.  C.  K.; 
and  see  Gee  v.  Gee,  12  W.  K.  187,  L.  .1.1.; 
San<llord  v.  Sandfonl,  9  .lur.  N.  S.  398;  11 
W.  It.  330,  V.  (;.  K.;  Llovd  v.  Davies, 
10  .lur.  N.  S.  1041,  M.  ft;  Walker  v. 
Crowfler,  2  Ired.  (Jh.  478;  I'idard  v.  Hee- 
bve.  1  \V.  W.  208;  14  W.  K.  948,  V.  C.  K. 
■«  1  Sim.  391. 

7  Stone  V.  VVisliart,  2  Mad.  04. 


Next  friend 
misconduct- 
ing himself. 


76 


SUITS    BY    PERSONS    WHO    ARE    UNDER    DISABILITY. 


Cm.  III.  §5. 


Next  friend 
or  his  wife 
may  now  be 
a  witness. 


Next  friend 
cannot  retire 
without  driv- 
ing security 
for  costs 
already 
incurred. 


Inquiry  as  to 
propriety'  of 
substitution 
of  next  friend, 
sometimes 
directed. 


I'Mu^r  winch  is  iiu'()in]i;itil>U'  Avilh  llic  advniicoiiu'iit  of  tlu>  Rtiit, 
such  as  im^viiiL!;  to  (lisc'liarLije  an  attaohmoiit  issued  by  tlic  solicitor 
in  the  regular  ]irogress  of  the  cause,  the  Court  Avill  direct  an 
inquiry  whether  it  is  fit  that  such  next  friend  should  continue  in 
that  capacity  any  longer.^  But  so  long  as  the  next  friend  con- 
tinues such  on  the  record,  he  is  considered  by  the  Court  to  be 
responsible  for  the  conduct  of  the  cause ;  and  for  this  reason.  Sir 
Thomas  I'buner  M.  R.,  on  a  petition  being  ])resented  to  him  on 
the  part  of  the  infant  plaintiff,  com])laining  of  great  delay  in  prose- 
cuting the  decree,  refused  to  refer  it  to  the  Master  to  inquire  into 
the  cause  of  the  delay,  and  to  appoint  proper  persons  on  behalf  of 
the  infant  to  assist  in  taking  the  accounts:  saying,  that  if  there  had 
been  miscon<luct,  he  would  assist  the  petitioner,  but  that  it  must 
be  in  a  regular  way.^ 

The  next  friend  of  an  infant  plaintiff  was  considered  so  far 
interested  in  the  event  of  the  suit,  that  neither  he  nor  his  wife 
could  be  examined  as  a  Avitness;  ^  but  this  disability  has  been 
removed,  by  the  recent  statutes  for  improving  the  law  of  evi- 
dence.* 

In  general,  a  next  friend  will  not  be  alloAved  to  retire  without 
giving  security  for  the  costs  already  incurred.^  And  where  the 
new  next  friend  ])roposed  in  the  notice  of  motion  to  be  substituted, 
in  the  room  of  the  one  to  bt>  withdrawn,  Avas  alleged  to  be  in  indi- 
gent circumstances,  and  an  inquiry  was  asked  for  as  to  whether  he 
was  a  proper  ])erson  to  act  in  that  capacity,  with  a  view  to  his  cir- 
cumstances. Sir  John  Leach  V.  C.  stated,  as  his  reason  for  refusing 
such  inquiry,  that  he  Avould  be  at  liberty  to  file  a  new  bill.'^ 

In  llellmff  v.  Melling^  his  Honor  refused  to  allow  anotlier  next 
friend  to  be  substituted  for  the  one  who  had  up  to  that  time  con- 
ducted the  suit  in  that  capacity,  and  who  desired  to  withdraw 
himself,  without  a  previous  reference  to  the  Master,  to  inquire 
whether  it  was  for  the  benefit  of  the  infant  that  such  substitution 
should  take  place,  as  it  might  be  that  the  suit  Avas  improper,  or 
had  been  improperly  conducted  ;  and  the  next  fi-iend  Avas  not  thus 


1  AVard  v.  Ward,  3  Mer.  706. 

2  HussfcU  r.  Sharp,  1  .Jac.  &  W .  482. 

3  Head  t-  Head,  3  Atk.  511.  Hut  it  has 
been  held  tliat  a  person  who  i'^  made  a 
prochein  ami  to  an  infant  witliout  his 
knowledge  or  consent  is  not  disqualHied 
from  being  a  witness.  Barwell  v.  (Jorbin, 
1  Rand.  131;  see  Lupton  v.  Lupton,  2 
•John.  Oh.  014.  In  a  case  where  it  ap- 
peared that  tlie  next  friend  of  an  infant 
plaintiff  was  a  material  witness,  the  Court 
allowed  anotlier  person  to  be  substituted 
in  his  place,  upon  his  giving  security  for 
the  costs  previously  incurred.  Golden  v. 
Haskins,  2  Edw.  Cfi.  311 ;  Helms  v.  Fran- 
ciscus,  2  Bland,  544. 


4  6  &  7  Vic.  c.  85 ;  14  &  15  Vic.  c.  99, 
§  2;  16  &  17  Vice   83. 

5  Ld.  Ked.  27,  note  2;  Golden  v.  Has- 
kins, 3  Edw.  Gh.  311.  It  is  sometimes 
made  a  term  of  the  order  to  substitute,  that 
the  substituted  next  friend  shall  give  se- 
curity, to  be  approved  of  by  the  judge  if 
the  parties  differ,  to  answer  tiie  defend- 
ant's costs  to  tiiat  time,  in  case  any  shall 
be  awarded.  See  Seton,  1252,  No.  6. 
The  security  usually  given  is  a  recogniz- 
ance. 

6  Davenport  v.  Diivenport,  1  S.  &  S. 
101. 

7  4  Mad.  261. 


INFANTS. 


77 


to  escape  from  costs  to  which  he  might  be  hable.  Aud  in  Har- 
rison V.  Harrison^  Lord  Langdon  M.  R.,  observed,  that  "  any  per- 
son may  commence  a  suit  as  next  friend  of  an  infant,  but  when 
once  here  in  that  character,  he  will  not  be  removed,  unless  the 
Court  is  informed  of  the  circumstances  and  respectability  of  the 
party  proposed  to  be  substituted  in  his  place,  and  that  such  person 
is  not  interested  in  the  subject  of  the  suit;"  and,  accordingly,  he 
required  the  production  of  an  affidavit  to  that  effect,  before  an 
order  was  made  to  substitute  a  new  next  frieiad :  though  the  appli- 
cation was  not  opposed  by  the  defendants.  The  apj)lication  to 
substitute  a  next  friend  in  lieu  of  one  desirous  to  retire,  is  made  by  ' 
summons,  on  notice  to  the  defendants." 

When,  in  consequence  of  the  death,  incapacity,^  or  removal  of 
the  next  friend  of  an  infant,  jjending  the  suit,  it  becomes  necessary 
to  apjjoint  a  new  next  fi'iend,  the  proper  course  of  proceeding  is, 
for  the  solicitor  of  the  plaintiff  to  a])ply  to  the  Court,  or  Judge  at 
chambers,  for  an  order  appointing  a  new  next  friend  in  his  stead,^ 
whose  fitness,  as  we  have  seen,  must  be  proved ; ''  and  after  such 
appointment,  the  name  of  the  new  next  friend  should  be  made  use 
of  in  all  subsequent  proceedings  Avhere  the  former  one,  if  alive, 
would  have  been  named.  Before  the  defendant  has  apjoeared,  the 
name  of  the  new  next  friend  may  be  introduced  into  the  record, 
under  an  order  as  of  course  to  amend;  and  after  appearance  the 
same  may  be  done,  where  the  new  next  friend  is  appointed  in  the 
place  of  a  deceased  next  friend,"  if  the  application  for  the  order  is 
made  by  the  solicitor  who  acted  in  the  suit  for  the  deceased  next 
friend.  In  other  cases  the  order  may  be  obtained  on  the  plaintiff's 
petition,  as  of  course,  if  the  defendant's  solicitors  subscribe  their 
consent  thereto ;  if  not,  by  motion  upon  notice,  or  by  smnmons  at 
chambers.^  If  the  })laintiff's  solicitor  omits  to  take  this  stej)  within 
a  reasonable  time,  tlie  defendant  may  a})ply  to  the  Court  by  motion, 
upon  notice,**  for  an  order  directing  the  approval  of  a  new  next 
friend,  and  for  the  insertion  of  his  name  as  such  in  the  proceedings.^ 
In  T^arf/e  v.  DeFerre^^  the  new  next  friend  Avas  aj)pointed  by  the 
Cliief  Clerk's  certificate,  Avithout  further  order. 

Tlie  order  appointing  the  next  friend  must,  in  every  case,  be 


Ch.  III.  §  5. 


- 1  5  IJeav.  130;  and  see  Lander  i'.  Ingcr- 
Boll,  4  Hare,  .006. 

2  For  form  of  suminnnH,  sec  Vol.  III. 

8  A  fuiiiale  iioxt  friend  will,  on  niarriagn, 
become  incapacitated  to  net  further  a.s 
such. 

■«  Westby  V.  AVestby,  2  C.  P.  Coop.  t. 
Cott.  211. 

f*  Harrison  r.  Ilarrison,  5  Heav.  130. 

^  I'Or  fornis  of  motion  paper  and  jicti- 
tion,  see  Vol.  III.;  and  for  the  order  on 
motion,  see  Seton,  12r>'2,  No.  .0. 

7  I'or  forms  of  notice  of  motion  and  sum- 


mons, see  Vol.  III.;  and  for  the  order,  see 
Seton,  1252,  No.  6. 

8  For  form  of  notice  of  motion,  see  Vol. 
III. 

'■>  As  to  the  former  practice  where  the 
order  was  oljtained  in  vx  parte  motion: 
see  Lancaster  v.  Thornton,  Ami).  308; 
Lutlolpii  V.  Saxlij',  ibid.;  12  Siin.  351; 
(Jountess  of  Shelhurne  v.  Ld.  Iiichitjiiin, 
Amb.  39H,  n.;  12  Him.  352;  liracey  v. 
Sanililbrd,  3  Mud.  468;  (Jlover  r.  Wel)ber, 
12  Sim,  351.  For  form  of  motion  paper, 
see  V.d.  III. 

w  IJniithwaite's  Pr.  658. 


Proceedings 
on  death  or 
removal  of 
next  friend. 


A\'hereplain- 
tilf  omits  to 
name  a  new 
next  friend. 


Scn'ice 
and  entry  of 
order. 


78 


SI  ITS    BY    TKKSONS    WHO    AHE    UNDKU    DISAUILITY. 


Cm.  111.  §5. 


Next  frioiul 
ncci'ssarv  on 
even-  iii>pli- 
cation  by  in- 
fant plaint  ill. 

Erteot  on  suit 
of  ini'ant 
plaiutilV 
attaining 
twenty-one : 

where  he 
adopts  suit ; 

where  he 
repudiates  it; 


liability  of 
next  friend 
to  costs. 


Infant  repu- 
diating suit, 
not  liable  to 
costs,  though 
next  friend 
die. 


Costs  of 
defendant's 


served  on  tlie  solicitovs  of  the  (lefondMiils  in  (he  cause,  and  be  left  for 
entry  in  the  eause  books  k(>i»t  by  tlie  Clerks  of  l\ecords  and  Writs.^ 

Before  api)ointing  a  ni'w  nv\{  friend,  llu' Coiiitor  Judge  requires 
to  be  satisfied  of  his  willingness  to  act;  and  an  authority  signed 
by  sueh  next  friend  should  be  jirodneed  and  iWvd.'- 

On  any  application  on  behalf  of  an  infant  plaintiff,  u  next  friend 
must  be  named  for  the  jjurposes  of  the  apidicalion.^ 

^Yhere  a  bill  has  been  filed  in  the  name  of  an  infant,  his  coming 
of  age  is  no  abatemetit  of  the  suit ;  *  but  he  may  elect  whether  he 
will  proceed  with  it  or  not.  If  he  goes  on  with  the  cause,  all 
future  proceedings  may  be  carried  on  in  his  OAvn  name,  and  the  bill 
need  not  be  amended  or  altered ;  ^  he  will  also  be  liable  to  all  the 
costs  of  the  suit,  in  the  same  manner  as  he  woidd  have  been  had 
he  been  of  age  wdien  the  bill  was  originally  filed.''  If  he  chooses 
to  abandon  the  suit,  he  may  move  to  dismiss  it  on  payment  of 
costs  by  himself,''  or  he  may  refrain  from  taking  any  step  in  it ;  but 
he  cannot  comi)el  the  next  friend  to  pay  the  costs,  unless  it  be 
established  that  the  bill  was  im])roi)erly  filed.^  Therefore,  where 
an  infant,  on  attaining  twenty-one,  moved  to  dismiss  a  bill  filed  on 
his  behalf,  with  costs  to  be  paid  by  the  next  friend,  the  Court 
refused  to  make  the  order ;  but  directed  the  bill  to  be  dismissed, 
on  the  late  infant  plaintiff  giving  an  undertaking  to  pay  the  costs, 
and  the  costs  of  the  next  friend.'-* 

If  the  infant  refrains  from  taking  any  step  in  the  suit,  he  cannot 
be  made  liable  to  costs ;  thus,  where  the  next  friend  of  an  infant 
died  during  the  minority  of  the  plaintiff,  who,  after  he  came  of 
age,  took  no  step  in  the  cause,  and  the  defendant  brought  the 
cause  on  again,  and  procured  the  bill  to  be  dismissed,  such  dis- 
missal was  without  costs ;  because  the  plaintiff,  not  having  been 
liable  to  costs  during  his  infancy,  and  never  having  rnade  himself 
liable  by  taking  any  step  in  the  cause  after  attaining  twenty-one, 
and  there  being  no  next  friend  to  be  responsible  for  them,  there 
was  no  person  against  whom  the  Court  could  make  an  order  for 
payment  of  costs.^°  In  that  case,  the  next  friend,  if  living,  would, 
of  course,  have  been  liable  to  the  payment  of  the  costs  to  the 


t  Rraithwaite's  Pr.  558. 

2  For  form,  see  Vol.  III. 

8  Cox  V.  Wright,  9  Jur.  N.  S.  981;  11 
W.  K.  870,  Y.  C.  K.;  and  see  Guy  v.  Guy, 
2  Beav.  460;  Furtado  v.  Kurtado,  6  .Jur. 
227,  as  explained  bv  Cox  v.  Wright,  9 
Jur.  N.  S.  981;  11  \V.  IJ.  870,  V.  C.  K. 
A  notice  of  motion  should  be  given  by  the 
infant  by  the  next  friend,  and  not  merely 
bv  the  next  friend.  Pidduck  v.  Boultbee, 
2'Sim.  N.  .S.  223. 

*  W'viitt's  P.  K.  225. 

5  Wyatt's  P.  K.  I  Fowl.  Ex.  Prac.  421. 
The  title  of  the  suit  in  .such  case,  however, 
is  corrected,  to  read  thenceforth  thus :  "  A. 


B.,  late  an  infant,  by  C.  D.,  his  next  friend, 
but  now  of  full  age,  ])Iairitiff." 

6  Coop.  Kq.  PI.  29;  Waring  v.  Crane, 
2  Paige,  79 ;  Story  Eq.  PI.  §  59. 

7  Where  a  decree  has  been  made,  the 
application  should  be  a  special  motion  to 
stay  proceedings.  For  form  of  motion  pa- 
per, see  Vol.  III. 

8  If  the  bill  was  improperly  filed,  the  in- 
fant may  abandon  the  suit,  and  the  costs 
will  be  charged  upon  the  next  friend. 
Waring  v.  Crane,  2  Paige,  79. 

'•'  Anon.,  4  Mad.  401. 
10  Turner  v.  Turner,  1  Stra,  708;  2  P. 
Wms.  297;  Ld.  lied.  26,  n.  t;  ai^d  see 


INFANTS. 


79 


defendant :  the  general  rule  being,  that  the  next  friend  shall  pay 
the  defendant's  costs  of  dismissing  the  plaintiff's  bill ;  and  so,  if  a 
motion  is  made  on  behalf  of  an  infant  plaintiff  Avhich  is  refused 
with  costs,  such  costs  must  be  paid  by  the  next  friend.^ 

Where  an  infant,  on  coming  of  age,  repudiates  the  suit,  that  repu- 
diation relates  back  to  the  commencement  of  the  suit,  over-riding 
all  that  has  been  done  in  it.^ 

An  infant  co-plaintiff,  on  coming  of  age,  and  desiring  to  repu- 
diate the  suit,  if  he  takes  any  step,  must  move,  on  notice,  not  to 
dismiss  the  bill,  but  to  have  his  name  struck  out  as  co-plaintiff;  ^ 
and  if  the  next  friend  requires  it,  the  late  infant's  name  must  be 
introduced  in  the  future  proceedings  as  a  co-defendant.* 

After  an  infant  sole  plaintiff  comes  of  age,  his  next  friend  ought 
not  to  take  any  proceedings  in  the  cause  in  the  name  of  the  plain- 
tiff, even  though  they  are  consequential  on  former  proceedings  if 
the  suit  is  to  be  prosecuted ;  ®  but  an  infant  co-plaintiff,  on  coming 
of  age,  will  not  be  allowed  to  appear  by  another  solicitor  or  coun- 
sel, unless  he  has  obtained  an  order  to  change  solicitors.^ 
.  The  rule  above  referred  to,  under  which  a  next  friend  is  held 
liable  to  the  costs  of  dismissing  a  bill,  or  of  an  unsuccessful  motion, 
is  applicable  only  as  between  the  next  friend  and  the  defendant  in 
the  cause;  for  the  Court  is  extremely  anxious  to  encourage,  to 
every  possible  extent,  those  who  will  stand  forward  in  the  charac- 
ter of  next  friend  on  behalf  of  infants,'  and  will,  wherever  it  can 
be  done,  allow  the  next  friend  the  costs  of  any  proceeding  insti- 
tuted by  him  for  the  infant's  benefit,  out  of  the  infimt's  estate, 
provided  he  appears  to  have  acted  hondfide  for  the  benefit  of  the 
infant.  Therefore,  where  a  suit  was  instituted  on  behalf  of  an 
infant,  in  which  there  was  a  decree  made,  under  which  the  money 
recovered  was  brought  into  Court,  and  put  out  for  the  benefit  of 
the  infant  plaintiff',  and  the  defendanl  was  ordered  to  ])ay  the  costs, 
but  ran  away  :  ujion  a  motion  by  the  solicitor  of  the  jjlaintilf  (in 
which  the  father,  who  was  the  next  friend,  and  very  poor,  joined), 
that  hiji^t-osts  might  be  paid  out  of  the  fund  in  Court,  Lord  King 
granted  the  motion,  but  with  some  reluctance.^  And  in  another 
case,  where  a  supplemental  bill  had  l)een  filed  on  behalf  of  an  infant, 
for  which  there  were  apparent  grounds,  but  which  was  eventually 


Cn.  III.  §  5. 
> Y ' 

motion  to 
dismiss. 

Costs  of 
motion  on 
intiant  plain- 
tiff's belialf. 

Repudiation 
of  suit  by- 
plaintiff 
relates  back 
to  its  institu- 
tion. 

Where  co- 
plaintiff,  on 
coming  of 
age,  desires 
to  repudiate 
suit. 

Next  friend  of 
sole  plaintiff 
not  to  proceed 
after  infant  of 
age. 


Of  next 
friend's  right 
to  costs  out  of 
the  infant's 
estate ; 

where  a 
defendant, 
ordered  to 
pay  the  costs, 
runs  away ; 


where  suit 
dismissed 
with  cost. 


Dunn  V.  Dunn,   7    De   G.,  M.  &  G.  26; 
IJur.  N.  8,  122;  3  Drew.  17;  18.Jur.  10C8. 

1  IJuckley  v.  Puckeridge,  1  Dick.  306. 
Costs  mu.st  he  paid  hy  the  next  friend  in 
every  instance  wliere  there  is  no  founda- 
tion for  the  suit.  Stephenson  i".  fitepiien- 
8on,  3  Hayw.  123;  Story  Kq.  I'l.  §  5'J. 
But  see  Oandiill  v.  Slaid,  11  Met.  288. 

2  Dunn  I'.  Dunn,  7  De  (i.,  M.  &  G.  29; 
1  .lur.  X.  S.  123,  per  L.  J.  Turner. 

8  Acres  v.  Little,  7   Sim.   138;  Guy  v. 


Guy,  2  I5eav.  460;  Cooko  v.  Fr3-cr,  4  Ueav. 
13.  For  form  ofnotit-e  of  motion,  see  Vol. 
III.;  and  for  form  of  order,  see  Seton,  1253, 
No.  8. 

■'  Uicknell  v.  Bicknell,  32  Bcav.  381; 
'J.Jur.  N.  S.  033. 

''  Brown  v.  Weatlierhead,  4  Hare,  122; 
Brown  v.  Brown,  11  Heiiv.  .102. 

0  Swift  r.  (Jrazelirook,  13  Sim.  186. 

'  Wliittaker  r.  Marhir,  1  Cox,  286. 

8  Staines  v.  Maddox,  Mos.  31'J. 


80 


Sl'ITS    BY    TEESONS    WHO    AEE    UNDER   DISABILITY. 


On.  ni.§ 


IrKiuirv 
•wlu'thcr  suit 
ii.r  inlaiit's 
beui  lit ; 

not  directed 
in  the  suit 
itself,  at  next 
friend's 
instance. 


Next  friend 
not  deprived 
of  right  of 
costs,  in  con- 
sequence of 
mistake  or 
nii.-apprehen- 
sion; 

but  will  not 
be  entitled  to 
costs,  if  suit 
instituted 
from  improper 
motives, 

or  due  dili- 
gence not 
used  to  learn 
the  facts. 


dl!*iinssod  as  against  one  of  the  defendants  with  costs,  wliieh  were 
paid  by  the  receiver  in  the  original  cause,  u])on  a  petition  by  the 
next  friend  to  be  allowed  such  costs  out  of  the  infant's  estate  in 
the  original  cause,  Lord  Ilardwicke  made  tlic  order:  observing, 
that  the  next  friend  and  the  receiver  had  done  nothing  but  wliat 
any  man  would  do  in  his  own  case:  and  that  though  it  had  turned 
out  unfortunately,  the  Court  would  not  say  tllat  they  ought  to  bear 
the  costs  ;  as  if  they  were,  nobody  would  undertake  the  manage- 
ment of  an  estate  for  an  infant.^ 

An  inquiry  may  be  directed  whether  it  is  for  the  benefit  of  the 
infant  to  proceed  with  a  suit.*^  It  seems,  however,  that  such  an 
impiiry  will  not  be  directed,  on  the  application  of  the  next  friend, 
in  the  suit  respecting  which  the  reference  is  sought,''  but  that  the 
next  friend  must  carry  it  on  at  his  own  risk  ;  which  appears  to  be 
a  proper  restraint  to  prevent  suits  of  this  description  from  being 
rashly  undertaken ;  for  as,  on  the  one  hand,  the  next  friend,  in  case 
a  fund  should  be  recovered  by  means  of  the  suit,  has,  through  his 
solicitor's  lien  for  his  costs  upon  that  fund,^  an  adequate  protection 
fi'om  losing  the  charge  he  may  have  been  put  to  by  means  of  the 
suit,  so  the  risks  which  he  runs  of  losing  those  costs,  in  case  the 
suit  should  be  unsuccessful,  tends  to  make  persons  cautious  in 
undertaking  proceedings  of  this  nature  on  behalf  of  infants,  with- 
out having  very  good  reason  for  anticipating  a  successful  result. 

Although  the  Court  will  so  far  encourage  persons  acting  fairly 
or  bond  fide  to  institute  proceedings  on  behalf  of  infants,  or  to 
protect  them,  when  it  is  possible  so  to  do,  from  all  costs-  and 
expenses  which  they  may  incur  by  such  step,  a  protection  which 
it  will  not  suffer  any  degree  of  mistake  or  misa])prehension  to 
deprive  them  of:  ^  yet,  if  it  should  turn  out  that  the  next  friend 
has  acted  from  improper  motives,  or  merely  to  answer  the  pur- 
poses of  spleen,  the  principle  which  guides  the  Court  in  encourag- 
ing an  honest  next  friend,  i.  e.,  the  anxiety  to  have  the  aifairs  of 
infants  properly  taken  care  of,  will  involve  a  dishonest  one  in  the 
expenses  of  his  own  proceeding."  And  so,  if  it  shoifld  appear 
that,  in  the  case  of  an  infint,  due  diligence  has  not  been  exerted 
to  acquire  a  proper  knowledge  of  the  facts  of  the  case,  and 
the  bill  should  be  dismissed,  or  an  order  discharged,  upon  facts 
which,  though  not  known  when  the  bill  was  filed,  or  the  motion 
made,  might  have  been  known  if  proper  inquiry  had  been  made, 
the  next  friend  will  not  be  allowed  the  costs  out  of  the  infant's 


1  Taner  v.  Ivie,  2  Ves.  S.  466;  Cross  v. 
Cross.  8  Beav  455. 

2  Taner  v.  Ivie,  2  Ves.  S.  469. 

3  Jones  V.   Powell,   2   Mer.    141;   ante, 
p.  72. 

4  Staines  v.  Maddox,  Mos.  319. 


6  Whittaker  v.  Marlar,  1  Cox,  286;  An- 
derton  v.  Yates,  5  De  G.  &  S.  202. 

e  Whittaker  v.  Marlar,  1  Cox,  28C;  and 
see  Cross  v.  Cross,  8  Beav.  455;  Clayton  v. 
Cook,  3  De  G.,  F.  &  J.  G82;  7  Jur.  N.  S. 
662. 


INFANTS. 


81 


estate.^  Tims,  where  it  appeared  that  a  writ  of  Ne  exeat  Regno 
had  been  improperly  obtained  by  the  next  friend,  on  motion  sup- 
ported by  the  affidavit  of  the  infant  plaintiff,  by  which  the  infant, 
who  was  of  the  age  of  eighteen  years,  swore  positively  to  facts 
which  it  apjjeared  he  could  not  have  known  himself,  but  which  he 
could  only  have  been  told  by  other  persons.  Lord  Rosslyn  dis- 
charged the  order,  and  directed  that  the  next  friend  should  j^ay  the 
costs  of  obtaining  it.^ 

There  appears  to  be  no  doubt,  that  a  solicitor  condu.cting  a  cause 
on  the  jjart  of  an  infant,  has  the  same  lien  u^jon  the  money  recov- 
ered in  the  suit  by  his  means,  and  at  his  exj^ense,  as  he  has  in  the 
case  of  an  adult ;  ^  and,  therefore,  if  the  suit  is  successful,  the  next 
fiiend  is,  in  general,  secure  fi'om  being  jDut  to  any  charges  on  the 
infant's  behalf  But  it  seems  that  a  solicitor  who  obtains  posses- 
sion of  papers,  as  solicitor  to  the  next  friend,  has  not  any  lien  upon 
them  by  vutue  of  such  possession.* 

It  is  said,  that  where  a  legacy  is  given  to  an  infant,  the  testator 
makes  it  necessary  to  come  into  this  coui't  for  directions  how  to 
lay  it  out ;  and  that,  therefore,  such  an  application  ought  to  be 
considered  as  an  incumbrance  on  the  estate,  and  the  costs  must  be 
paid  out  of  the  assets.^  This  rule  was  acted  upon  by  Lord  Alvan- 
ley  M.  R,,  in  a  case  where  the  executors  were  plaintiffs,  in  which 
case  his  Lordship  said  that,  if  the  testator  wishes  to  prevent  the 
costs  of  such  a  suit  from  coming  out  of  his  estate,  he  ought  to  give 
the  legacy  to  a  tiiistee  for  the  infant ;  he,  however,  said  that,  for 
the  future,  he  should  not  give  the  costs  in  such  a  case :  for  since  the 
Legacy  Act,  36  Geo.  III.  c.  52,  §  32,  the  executor  has  nothing  to 
do  but,  under  that  Act,  to  i)ay  the  legacy  into  Court,  and  then 
he  has  done  ;  and  the  infant,  when  he  comes  of  age,  may  petition 
for  it.°  Before  that  Act,  an  executoi-  could  not  safely  pay  an  in- 
fant's legacy  wdthout  a  decree. 

It  is  presumed  that  the  rule  above  laid  down  will  not  apply,  so 
as  to  prevent  an  infant  legatee  from  receiving  his  costs,  in  case  he 
is  obliged  to  institute  proceedings  in  consequence  of  the  executor's 
omitting  to  avail  himself  of  the  Act  to  2>ny  the  money  into  Court, 
since  there  is  no  power  given  by  the  Act  Ijy  which  the  executor 
can  be  coiii])ell('<l  to  ])ay  the  legacy  without  a  suit ;  and  that  where 
the  executors,  though  admitting  assets,  have  refused  or  neglected 
to  j)ay  the  legacy  into  Court,  they  would  be  decreed  to  i)ay  the 
costs. 


Ch.  III.  §  5. 


Solicitor  has 
a  lien  upon 
fund  for  his 
costs,  but  not 
upon  the 
papers. 


Of  the  costs 
of  suing  for 
an  infant's 
legacy ; 


not  in  future 
to  come  out  of 
the  testator's 
estate ; 


but  must  be 
paid  b}'  the 
executor,  if 
he  admits 
assets,  stmble. 


1  Pcnrce  v.  Pearcc,  9  Ves.  548. 

2  Hoddam  v.  Hetlierington,  6  Ves.  91, 
95. 

8  Staines  V.  Maddo.x,  Mos.  319. 

■•  Montagu  on  lAuu,  .0.3;  and  see  Turner 
V.  F-etts,  20  Heav.  1H5;  7  ])c  G.,  M.  &  G. 
243;  1  Jur.  N.  S.  4b7,  1057;  Dunn  v. 
vol?.  I. 


Dunn,  7  De  G.,  M.  &  G.  25,  20;  1  Jur. 
N.  S.  122;  ;j  Drew.  17;  18  Jur.  10U8. 

^  Anon.,  Mos.  5. 

C  \Vh(.pliani  i:  Wingfield,  4  Yes.  0.30. 
He  niiiy  now  apply  tor  it  by  summons, 
where  the  tuiid  or  stock  does  not  exceed 
300/.,  Ord.  XXXV.  1  (2). 


costs. 


82  SUITS    BY   PERSONS   WHO    ATIE   UNDER   DISABILITY. 

Ch.  III.  §0.        With  ivspoct  to  the  right  of  the  next  frieiul  of  an  infant  to  re- 

^- — Y coivo  any  thing  hevond  liis  taxed  costs  ont  of  a  general  fund,  in 

Astoiuoct  order  to  reimburse  him  for  any  extra  expense  he  may  have  been 
to  costs  '  put  to,  some  (hnerence  ot  opmion  appears  to  have  existetl  between 
!^'rj"''  ♦^-'^'^'^  Lord  Eklon  and  Sir  AVilliam  Grant  M.  R.  In  Osborne  v.  Dmne^ 
where  a  bill  had  been  filed  by  a  legatee  on  behalf  of  himself,  and 
as  next  friend  of  an  infant  legatee,  in  Avhich  the  usual  decree  was 
made,  and  the  costs  ordered  to  be  taxed  and  paid  out  of  the 
estate,  an  ai^plication  was  made  to  the  Master  of  the  Rolls,  on  be- 
half of  the  next  friend,  that  he  might  in  some  way  have  costs 
beyond  his  taxed  costs  :  either  by  a  direction  to  have  them  taxed 
as  between  solicitor  and  client,  or  by  a  reference  to  the  Master  to 
see  what  extra  costs  he  had  been  put  to ;  but  Sir  William  Grant 
refused  to  make  the  order :  saying,  that  if  a  next  friend  is  to  a 
certainty  to  have  all  that  exceeds  the  taxed  costs,  it  would  lead 
him  to  be  very  careless.  In  Fearns  v.  Yoimg^  where  an  applica- 
tion was  afterwards  made  to  Lord  Eldon  for  the  costs  of  trustees, 
as  between  solicitor  and  client,  his  Lordshij)  refused  to  make  such 
an  order,  on  the  ground  that  where  the  costs  of  a  trustee  are  di- 
rected to  be  taxed,  that  means  as  between  party  and  party,  not  in 
the  lai'ger  way ;  although,  where  a  trustee,  in  the  fair  execution  of 
his  trust,  has  expended  money  by  reasonably  and  jiroperly  taking 
oj^inions,  and  procuring  directions  that  are  necessary  for  the  due 
execution  of  his  trust,  he  is  entitled  not  only  to  his  costs,  but  also 
to  his  charges  and  ex^^enses,  under  the  head  of  just  allowances. 
His  Lordship,  however,  added,  "  With  regard  to  an  infant,  this  re- 
quires great  consideration ;  for  as  the  infant  himself  cannot  incur 
charges  and  expenses,  if  they  cannot  be  claimed  under  just  allow- 
ances, and  the  next  friend  is  to  be  at  the  whole  expense  of  the 
infant  beyond  his  costs,  persons  will  deliberate  before  they  accept 
that  office." » 


Section  VI.  —  Idiots,  Lunatics,  and  Persons  of  Weak  3Iind. 

Suits  on  their       Although,  as  it  has  been  observed,*  in  certain   cases   suits   on 
behalf  most     behalf  of  idiots  or  lunatics  may  be  instituted  in  the  form  of  in- 

properly  by  .  *' 

bm,  formations  by  the   Attorney-General,  yet  the  proper   course  of 

proceeding  to  assert  their  rights  in  Equity  is  by  bill.^ 

in  the  name  of       Suits  on  behalf  of  a  lunatic  are  usually  in.stituted  in  the  name  of 

Imt  by  h'is '      ^^^^  lunatic ;  but  as  he  is  a  person  incapable  in  Law  of  taking  any 

committee,  or  step  on  his  own  account,  he  sues  by  the  committee  of  his  estate,  if 
next  friend. 

1  7  Ves.  424.  4  Ante,  p.  9. 

2  10  Ves.  184.  5  (jr,  where  applicable,  by  administra- 
8  For  more  as  to  costs  of  infants'  suits,       tion  summons,  under  15  &  "iG  Vic.  c.  86, 

see  Beames  on  Costs,  69-71,  83-87.  §§  45-47 ;  see  post,  Chap.  XXIX. 


IDIOTS,  LUNATICS,  AND    PERSONS    OF   WEAK   MIND. 


83 


any,  or  if  none,  by  his  next  friend,  who  is  responsible  for  the  con-  Ch.  hi.  §  6. 

duct  of  the  siiit.-^     The  kmatic  must  be  named  a  co-plaintiiF,  as  ' r- -' 

well  in  a  bill  as  in  an  information,  on  his  behalf;  -  where,  however,  Lunatic  nmst 

the  object  of  the  suit  is  to  avoid  some  transaction  entered  into  by  unless  in  suits 

the  lunatic  on  the  cn-ound  of  his  incapacity  at  the  time,  it  has  been  ^°  ^^'^^'^  ^'^ 

,.  ..  own  acts, 

held,  that  a  lunatic  ought  not  to  be  a  co-plaintilf,^  because  it  is  a 
principle  of  Law  that  no  man  can  be  heard  to  stultify  himself^ 
This  distinction  was  recognized  and  adopted  in  some  early  cases,^ 
but  it  would  scarcely  be  considered  important  in  modern  times ; 
and  where  a  bill  was  brought  by  a  lunatic  and  his  committee,  to 
avoid  an  act  of  the  limatic's  on  the  ground  of  insanity,  a  demurrer, 
on  the  gi'ound  that  a  lunatic  could  not  be  allowed  to  stultify  him- 
self, was  disallowed  :  ^  the  Lord  Chancellor  observing,  that  the  rule 


1  Story  Eq.  PL  §  64;  Dorsheimer  v. 
Roorback,  3  C.  E.  Green  (N.  J.),  438; 
Norcom  v.  Rogers,  1  C  E.  Green,  484.  In 
some  of  the  States  in  America,  the  Courts 
of  Equity  are  intrusted  witli  tlie  autliority 
to  appoint  committees  for  idiots  and  luna- 
tics, as  ill  England,  and  in  such  cases  tlie 
idiots  and  lunatics  sue  by  their  committees. 
In  other  States,  idiots  and  lunatics  are  by 
law  placed  under  guardians  appointed  bj' 
other  Courts,  and  ordinarily  by  tlie  Courts 
of  Probate  of  the  State.  In  such  cases 
the  idiots  and  lunatics  sue  and  defend 
suits,  by  their  proper  guardians,  unless 
some  other  is  specially'  appointed  for  that 
purpose.  Stor>'  Eq.  PI.  §  65.  Thus  in 
New  York,  by  statute,  the  Court  of  Chan- 
cery had  the  care  and  custody  of  idiots 
and  lunatics.  2  Kev.  fetat.  N.  I'.ol  etseq. 
(ed.  lb2'J);  Matter  of  Wendell,  1  John. 
Ch.  600;  Brasher  r.  Van  Cortlaadt,  2  John. 
Ch.  242, 246.  In  Massachusetts,  the  Courts 
of  Probate  have  ihe  exclusive  authority 
to  appoint  guardians  of  insane  persons. 
Genl.  Sts.  c.  109,  §  H;  Story  Eq.  PI.  §  6-5, 
note  (1).  For  Virginia,  see  Boiling  v. 
Turner,  6  Rand.  584;  Vermont,  see  Smith 
V.  Burnham,  1  Aik.  84;  New  Jersey,  Dor- 
sheimer V.  Roorback,  3  C.  E.  Green  (N.  J.), 
438. 

2  Story,  Eq.  PI.  §  64  and  note;  see 
Goiham  c.  Gorhain,  3  Barb.  Cli.  24. 

"  A  tunutic  is  not  a  necessary  party 
plaintiff  witli  liis  committee,  on  a  bill  to 
set  aside  an  act  done  by  Ihe  lunatic  under 
mental  imbecility.  Orlley  c.  Mes-cre, 
T  John.  Ch.  139.  "  The  general  practice, 
however,"  it  was  remarked  by  Mr.  Chan- 
cellor Kent,  in  tnis  case,  "  is  to  unite  the 
lunatic  with  the  committee,  as  was  done 
in  2  Vernon,  678;  but  there  does  not  ap- 
pear to  be  any  use  in  it,  or  any  necessity 
inr  it,  as  the  committee  have  the  exclusive 
custody  and  control  of  the  e.-late  and  rights 
of  the  lunatic.  The  lunatic  may  be  con- 
sidered a  jiarty  by  his  committee;  and, 
like  tru-lec'*  of  an  insrdvent  <U;btor,  the 
commitlee  hold  the  estate  in  trust,  under 
the  <lirecti<in  of  the  Court." 

••  In  Reference  to  this  maxim,  it  is  re- 


marked by  Mr.  Justice  Story :  "  How  so 
absurd  and  mischievous  a  maxim  could 
have  found  its  way  into  any  system  of 
jurisprudence,  protessing  to  act  upon 
civilized  beings,  is  a  matter  of  wonder 
and  humiliation.  There  have  been  many 
struggles  against  it,  in  all  ages  of  tlie 
common  law,  by  eminent  lawyers,  but  it 
is  somewhat  dirticult  to  resist  the  authori- 
ties which  assert  its  establishment  in  the 
fundamentals  of  the  common  law."  "  Even 
the  Courts  of  Equity  in  England  have 
been  so  far  regardful  of  the  maxim,  that 
they  have  hesitated  to  retain  a  bill  to 
examine  the  point  of  lunacy,"  —  "and 
formerly  they  were  so  scrupulous  in  ad- 
hering to  the  maxim,  that  cases  have 
occurred  in  wdiich  a  lunatic  was  not  al- 
lowed to  be  a  part3'  to  a  bill  to  be  relieved 
against  acts  done  during  his  lunacy.  But 
this  rule  is  now  with  great  jiruprietv  aban- 
doned." 1  Story  E({.  Jur.  §  22o.  In 
America  this  maxim  lias  seldom,  if  ever, 
been  recognized  in  any  of  the  Courts  of 
common  law.  Mitchell  v.  Kingman,  5  Pick. 
431;  Webster  r.  Woodlord,  3  Day,  00; 
Grant  v.  Thompson,  4  Conn.  203;  Lang  v. 
Whiddon,  2  N.  11.  435;  Seaver  v.  Phelps, 
11  Pick.  304;  McReight  v.  Aitken,  1  Rice, 
56;  Kice  v.  Peet,  15  John.  503;  Chitty 
Cont.  (10th  Am.  ed.)  160  and  note.  In 
modern  times  the  English  Courts  of  Law 
seem  inclined  as  far  as  possible  to  escajio 
from  the  maxim.  Baxter  v.  i;arl  of  Ports- 
mouth, 5  B.  &  C.  170;  Ball  v.  Maniiin, 
3  Bligh  (N.S.),  1;  1  Story  Eq.  Jur.  §  225, 
note  (5). 

The  ground  on  which  Courts  of  Equity 
now  iiiierfere  to  set  aside  the  contracts 
ami  other  acts,  however  solemn,  of  persons 
who  are  idiots,  lunatics,  and  otherwise 
non  awipoUs  mentis,  is  fraud.  1  Story 
E().  Jur.  §  227. 

»  Attorney-General  t'.  Woolrich,  1  Ca. 
in  Cha.  153";  Attorney-General  v.  I'ark- 
hurst,  i/j.  112. 

«  Kidler  v.  Ridlcr,  1  Eq.  Cas.  Ab.  27<J, 
pi.  5;  and  see  Tothill,  130;  .Story  Eq. 
J  ur.  §  226  , 


84 


SUITS    BY    TERSONS    WHO    AllK    UNDER    DISABILITY. 


Cii.  HI.  5  0. 


to  tlio  pivjii- 
dioi'ofotlu'i's. 


Idiot  not  a 
iu'i-('s.<ar_v 
part>' ; 


committee  of 
idiot  or 
luiiatic  is. 


In  what  cases 
a  dt-nmrrer 
will  lie; 


or  a  plea ; 


to  bill  of 
di.-;covery,  as 
well  as  relief. 


that  a  liuiatio  shoiiUl  not  be  ailmitted  to  excuse  himself  on  jtretence 
of  hiuacy,  was  to  be  understood  of  acts  done  by  the  lunatic  to  the 
jn-ejudice  of  others,  but  not  of  acts  done  by  him  to  the  prejudice  of 
himself 

It  Avas  said  by  the  Lord  Keeper  Bridgman,  in  the  case  of  At- 
ioi'Hi'i/- General  v.  Woolrich,  above  referred  to,  that  the  reason  why 
a  lunatic  is  required  to  be  a  party  to  a  suit  instituted  on  his  behalf 
is,  because  he  may  recover  his  understanding,  and  then  he  is  to 
have  his  estate  in  his  own  dis])osition  ;  but  that  it  is  otherwise  of 
an  idiot :  from  Avhich  it  seems  that  an  idiot  is  not  a  necessary  party 
to  a  suit  instituted  on  his  behalf  But  neither  an  idiot  nor  a  luna- 
tic can  institute  a  suit,  nor  can  one  be  instituted  on  his  behalf, 
without  the  committee,  if  any,  of  his  estate  being  a  party,  either 
as  a  co-jilaintift' or  as  a  defendant  ;^  and  therefore,  where  the  com- 
mittee of  a  lunatic  filed  a  bill  on  behalf  of  the  lunatic,  without 
making  himself  a  co-plaintifi:^  Sir  Thomas  Plumer  M.  R.  directed 
the  case  to  stand  over,  with  liberty  to  amend,  by  making  the  com- 
mittee a  co-plaintift';^  and  in  the  I^Uhoj)  of  London  v.  NicliolU^  a 
bill  for  tithes  by  the  bishop  and  sequestrator,  during  the  incapacity 
of  the  incumbent,  was  dismissed,  because  neither  the  incumbent 
nor  his  committee  was  a  party. 

If  a  person  exhibiting  a  bill  appear  uj^on  the  face  of  it  to  be 
either  an  idiot  or  a  lunatic,  and  therefore  incapable  of  instituting 
a  suit  alone,  and  no  next  friend  or  committee  is  named  in  the  bill, 
the  defendant  may  demur ;  *  but  if  the  incapacity  does  not  appear 
on  the  face  of  the  bill,  the  defendant  must  take  advantage  of  it  by 
I^lea.^  The  objection  arising  from  lunacy  extends  to  the  whole 
bill,  and  advantage  may  be  taken  of  it,  as  well  in  the  case  of  a  bill 
for  discovery  merely,  as  in  the  case  of  a  bill  for  relief;  for  the  de- 
fendant in  a  bill  of  discovery,  being  entitled  to  costs,  after  a  full 
answer,  as  a  matter  of  course,  would  be  materially  injured  by  being 
compelled  to  answer  such  a  bUl  by  a  person  whose  property  is  not 
in  his  own  disposal,  and  who  is  therefore  incapable  of  paying  the 
costs.® 

If  the  plaintiff  became  a  lunatic  after  the  institution  of  a  suit,  it 


1  Fuller  V.  Lance,  1  Ca.  in  Cha.  19; 
Storj-  Eq.  PI.  §  64,  and  note. 

Idiots  and  lunatics  mmt  sue  in  equity 
by  their  committees  or  guardians;  in  New 
Jersey,  by  their  guardians.  Dorsheimer 
V.  Roorback,  3  C.  E.  Green  (N.  J.),  338. 

2  Woolfn'es  v.  Woolfryes,  Rolls,  Feb. 
17,  1824,  MSS. 

3  Bunb.  141. 

4  Ld.  Red.  l.o3;  Norcom  v.  Rogers,  1  C. 
E.  Green  (N.  J.),  484. 

See  the  remarks  of  Chancellor  Zabri.skie 
upon  the  assumption  of  the  text,  that  an 
idiot  or  lunatic  may  sue  by  next  friend,  in 
Dorsheimer  v.  Roorback,  3  C.  E.  Green 
(N.  J.),  440.     He  there  says:  "I  find  no 


case  or  authority  in  which  it  is  held  that 
they  may  sue  by  a  next  friend,  either 
a  volunteer  or  appointed  for  the  purpose; " 
and  it  was  held,  in  the  case,  that  a  bill 
filed  in  the  name  of  an  idiot  by  a  volunteer 
styling  himself  her  next  friend,  not  ap- 
pointed lier  guardian  upon  inquisition 
found,  nor  authorized  by  the  Court  to  file 
the  bill  as  her  next  friend,  will  be  dis- 
missed on  motion  of  the  defendant.  "  The 
motion  to  take  the  bill  from  the  files  must 
be  granted." 

5  Ld.  Red.  153,  229 ;  see  Story  Eq.  PL 
§  72.5. 

0  Ld.  Red.  153. 


IDIOTS,  LUNATICS,  AND    PERSOXS    OF    WEAK    MIXD. 


85 


was  formerly  requisite  that  a  supplemental  bill  should  be  filed,  in 
the  joint  names  of  the  lunatic  and  of  the  committee  of  his  estate, 
which  answered  the  same  purpose  as  a  bill  of  rcA-ivor  in  procuring 
the  benefit  of  former  proceedings ;  ^  and  if  the  committee  of  a 
lunatic's  or  idiot's  estate  died,  after  a  suit  had  been  instituted  by 
him  for  the  benefit  of  the  idiot  or  lunatic,  and  a  new  committee 
was  appointed,  the  proper  way  of  continuing  the  suit  was  by  a 
supplemental  bill  filed  by  the  idiot  or  lunatic  and  the  new  com- 
mittee ;  but  under  the  present  jDractice  of  the  Court,  the  suit  would 
be  continued,  in  either  of  these  cases,  by  a  supplemental  order  or 
order  of  revivor.'^  After  a  decree,  and  pending  proceedings  under 
an  inquiry,  the  Court  will  stay  the  cause  till  the  issue  of  a  com- 
mission of  lunacy  concerning  the  plaintifi"  is  known.^ 

A  committee,  pret^iously  to  instituting  a  suit  on  behalf  of  an 
idiot  or  lunatic,  should  obtain  the  sanction  of  the  Loi'd  Chancellor 
or  Lords  Justices,  who,  by  vu-tue  of  the  Queen's  sign  manual,  are 
intrusted  with  the  care  of  lunatics.  In  order  to  obtain  such  sanc- 
tion, a  statement  of  facts  showing  the  propriety  of  the  suit  should 
be  laid  before  the  Master  in  Lunacy,  and  a  report  obtained  from 
him  approving  the  suit ;  which  report  must  be  confinned  by  the 
Lord  Chancellor  or  Lords  Justices.* 

It  may  be  observed  here,  that  the  Court  of  Chancery  will  not, 
as  a  matter  of  course,  interfere  to  set  aside  contracts  entered  into 
and  completed  by  a  lunatic,  without  fraud  in  the  parties  dealing 
with  him,  even  where  such  contracts  are  overreached  by  the  inqui- 
sition taken  in  lunacy,  and  may  be  void  at  LaAV ;  ^  but  the  intei*- 
ference  of  the  Court  will  depend  very  much  upon  the  circumstances 
of  each  particular  case  ;  and  where  it  is  impossible  to  exercise  the 
jurisdiction  in  favor  of  the  lunatic  so  as  to  do  justice  to  the  other 
party,  the  Court  will  refuse  relief,  and  leave  the  lunatic  to  his 
remedy,  if  any,  at  Law.^'  It  seems  also,  that  although  a  contract 
is  entered  into  by  a  lunatic  subsequent  to  the  date  from  which  he 
is  found  by  the  inquisition  to  have  become  lunatic,  yet,  if  the  fact 
of  his  l>eing  a  lunatic  at  the  time  of  the  contract  is  denied  by  the 
defenclant,  the  establishment  of  that  fiict  is  indispensably  necessary  ; 
and  Ibrmerly  when  the  Court  had  any  doubt  upon  it,*it  directed 
an  issue  to  try  it.'' 


Cn.  III.  §  6. 


Fonner  prac- 
tice where 
plaintiff  was 
tound  lunatic 
after  siiit 
commenced ; 
or  committee 
died,  or  was 
changed. 

Present  prac- 
tice: 

supplemental 
order  neces- 
sary. 


Sanction  of 
Lord  Chancel- 
lor, or  Lords 
Justices  in 
Lunacy,  nec- 
essary- to 
institution  of 
suit  by  com- 
mittee. 


Of  setting 
aside  con- 
tracts by 
lunatic. 


^  See  Brown  r,  Clark,  3  Wooddeson, 
Lect.  378,  nofis,  where  the  form  of  such  a 
bill  1^  stated. 

2  15  &  K;  Vic.  c.  86,  §  02,  and  Ord. 
XXXII.  See  Sofni),  lliwi,  1170;  Danpar 
r.  Stewart.  9  \V.  K.  206,  V.  C.  K.;  Tliew- 
li.s  r.  Fnrrar.  cited,  Scfon,  llfir, ;  and  see 
post,  Cii:ip.  XX.XIII,  Hti-iror  iinil  Siijipli'- 
menl.  For  form'*  of  motion  paper  ainl  peti- 
tion, see  Vol.  III.  The  jiractice  a'*  to  the 
appointment  of  new  ne.xt  friends  of  idiot.s, 
lunatics,  or  persons  of  weak  mind  is  the 


same,  muMls  mutandis,  as  in  the  case  of 
infants;  see  unte,  p.  75,  76. 

3  Hartiev  V.  (;ilUrt,  13  Sim.  596. 

*  16  &  17  Vic.  c.  70,  §§  70-73,  91-97; 
and  14th  Ord.  in  Lun.  of  7th  Nov.,  1*^53, 
17  .lur.  I't.  II.  445;  see  Klmer's  I'rac.  42. 

fi  Price  t).  Berringlon,  3  M'N.  &  G.  4H6, 
490;  Yauger  v.  Skinner,!  McCarter(N. 
J.),  SH'J. 

^  Shelf,  on  Lun.  551 ;  Niell  f.  Morley, 
9  Ves.  47H,  4H1,  4H2. 

7  Xiell  V.  Morley,  9  Ves.  478. 


86 


SUITS    liY    rKlISOXS    WHO    A1{E    UNDEIl    DISABILITY. 


Cm.  III.  §0. 

'■—    r ^ 

Persons  of 
weak  miiuls 
niiiy  sue  liv 
ni'xt  tVii'iul. 


l?ill  l.v  iinl.e- 
cile  ]>oi-soii 
without,  will 
bo  taken  oft" 
the  file. 
Seats,  if  filed 
bet'oiv  iilain- 
tilf  becomes 


Sanction  of 
Court  or 
Judge,  and  in 
lunacy,  to 
consent  to 
departure 
from  ordinary- 
mode  of  pro- 
cedure. 


l'*i'rsons  of  full  :im>,  but  who  are  iiu-njinblo  of  acting  for  tliem- 
selvos,  thougli  iioitluT  i<liots  nor  lunatics,  have  been  permitted  to 
sue  by  their  next  friend,  without  the  intervention  of  the  Attorney- 
General  ;  ^  and  it  seems,  that  if  a  bill  has  been  filed  in  the  name  of 
a  ]ilaintill"  who,  at  the  time  of  filing  it,  is  in  a  state  of  mental  inca- 
])acity,  it  may,  on  motion,  ))e  taken  ofi:'  the  file.'^  If,  however,  a 
suit  lias  been  properly  instituted,  and  the  plaintiff  subsequei\tly 
becomes  imbecile,  that  circumstance  Avill  not  be  a  sufticient  ground 
for  taking  the  bill  off"  the  file.  Thus,  where  a  motion  was  made 
on  the  part  of  the  defendant  to  take  a  bill  off  the  file,  on  the 
ground  of  the  plaintiff'  having  been  for  some  time  reduced  by  age 
and  infirmity  to  a  state  of  mental  imbecility,  which  renderec^  her 
inca]>able  of  instituting  a  suit :  the  circumstances  of  the  case  not 
a]ipearing,  in  the  ojnnion  of  Lord  Eldon,  to  ^^^arrant  the  inference 
that,  at  the  time  of  filing  the  bill,  she  was  incompetent  to  authorize 
the  proceeding,  and  the  bill  appearing  to  be  a  proper  one  with  a 
view  to  her  rights  and  interests,  his  Lordship  thought,  that  as  the 
suit  was  rightly  commenced  and  the  further  prosecution  of  it 
pro|)er,  it  would  be  a  strong  step  even  to  stay  the  proceedings, 
merely  because  her  state  of  mind  was  such  that  she  could  not 
revoke  the  authority  previously  given ;  but  that  to  take  the  bill 
off'  the  file,  and  make  the  answer  waste  paper,  could  not  be  done.^ 

The  committee  of  a  lunatic,  and  the  next  friend  of  a  pei-son  of 
unsound  mind,  before  he  consents  to  any  dejiarture  from  the  ordi- 
nary mode  of  taking  evidence,  or  of  any  other  procedure  in  the 
suit,  should  first  obtain  the  sanction  of  the  Court  or  Judge  ;  *  and 
the  Committee  should  also  obtain  that  of  the  Lord  Chancellor  or 
Lord  Justice  sitting  in  Lunacy.*^ 


1  Ld.  Red.  30,  cites  Elizabeth  Liney,  a 
person  deaf  and  dumb,  by  her  next  friend, 
against  Witherly  and  others,  in  Ch. :  De- 
cree, 1  Dec,  17(50;  ditto  on  Suppiem.  Bill, 
4  Mar.  1779  If  a  person  have  religious 
scruples  against  being  a  party  to  a  suit, 
be  niav  sue  by  his  next  friend.  Malin  r. 
Malini  2  John.  Ch.  238.  A  person  in 
dotage,  or  an  imbecile  adult,  mny  sue  by 
next  friend.  C.  1).  0\ving"s  case,  1  Bland, 
373;  Bothwell  v.  Bonshell,  1  Bland,  373; 
see  Storj-  Eq.  PI.  §  60.  As  to  the  juris- 
diction of  the  Court  of  Chancer}'  with 
regiird  to  the  property  of  a  lunatic  not  so 
found  bv  inquisition,  see  Nelson  v.  Dun- 
combe.  "9  Beav.  211,  216,  219;  10  Jur. 
399;  Edwards  v.  Abrey,  2  C.  P.  Coop.  t. 
Cott  177,  and  cases  there  collected;  lie 
Burke,  2  De  G.,  V.  &  J.  124;  Jie  Tavler, 
ib.  12.5;  He  .\M"arlane,  2  .J.  &  H.  673; 
8  .lur.  N.  S.  208;  Light  v.  Ligiit,  2.5  Beav. 
248:  Williams  i:  Allen,  3.3  Beav.  241; 
Starbuck  v.  Jlirdiell.  1  \V.  N.  253,  M.  R.; 
He  Coleman,  1  W.  X.  209,  V.  C  S.;  and 
see  Seton,  709,  No   11,  and  ante,  p.  9.     By 


the  25  &  26  Vic.  c.  86,  a  summary  juris- 
diction is  conferred  in  Lunac}'  over  the 
property  of  an  alleged  insane  person,  for 
his  benefit,  where  of  small  amount,  with- 
out inquisition  or  issue;  and  see  Ord.  in 
Lunacy  thereunder  of  7  Nov.,  1862,  in  El- 
mer's Pnic.  363;  8  .lur.  N.  S.  Pt.  II.  513. 
In  the  case  of  a  bill  on  behalf  of  a  person 
of  weak  mind,  as  in  the  case  of  infants  and 
married  women,  a  written  authority  to  use 
the  name  of  the  next  friend  must  Ije  filed 
with  the  bill,  lu  &  16  Vic.  c.  86,  §  1 1.  For 
form,  see  Vol.  III.  And  see  Attornev- 
General  v.  Murray,  18  W.  Pt.  65,  V.  C.  K., 
ante,  pp.  13,  n.  (4),  09,  n.  (6).  The  next 
friend  of  a  person  of  weak  mind  is,  in  every 
respect,  in  the  same  position  as  the  next 
friend  of  an  infant. 

2  VVartnuby  v.  Wartnaby,  .lac.  377; 
Blake  r.  Smith,  Younge,  590;  Norcom  v. 
Rogers.  1  C.  E.  Green  (N.  J.),  484. 

3  Wartnaby  v.  Wartnaby,  Jac.  377; 
Stoi-y,  Kq.  I'i  §  60. 

4  For  form  of  summons,  see  VoL  III. 

5  Ord.  5th  Feb.,  1861,  r.  24. 


MARRIED   WOMEN. 


87 


Section  VII.  —  Married  Women. 


Ch.  III.  §  7. 


By  marriage,  the  husband  and  wife  become  as  one  person  in 
law;  and  upon  this  union  depends  all  the  legal  and  equitable 
rights  and  disabilities  which  either  of  them  acquires  or  incurs  by 
the  intermarriage.  One  of  the  consequences  of  this  unity  of  ex- 
istence and  interest  between  the  husband  and  wife  is,  that  at 
Common  Law  a  married  woman  cannot,  except  in  tlie  cases  men- 
tioned below,  during  the  continuance  of  her  coverture,  institute  a 
suit  alone  ;  therefore,  whenever  it  is  necessary  to  apply  to  a  judicial 
tribunal  respecting  her  rights,  the  proceeding  must  be  commenced 
and  carried  on  in  their  joint  names.^  The  exceptions  to  this  rule 
are :  when  the  husband  can  be  considered  civiliter  mortuus^  and 
when  the  wife  is  judicially  separated  from  her  husband,  or  has  ob- 
tained a  protection  order ;  ^  in  wliich  cases,  the  wife  is  looked  upon 
as  restored  to  her  rights  and  capacity  as  a  feine  sole,  and  may  sue 
alone. 

With  respect  to  what  is  called  a  civil  death  in  law,  Lord  Coke 
says,  that  a  deportation  for  ever  into  a  foreign  land,  like  to  a  pro- 
fession, is  a  civil  death,  and  that  in  such  cases  the  wife  may  bring 
an  action,  or  may  be  imi)leaded  during  the  natural  life  of  lier  hus- 
band ;  and  so,  if  by  an  Act  of  Parliament  the  husband  be  attainted 
of  treason  or  felony,  and  is  banished  for  ever,  this  is  a  civil  death, 
and  the  wife  may  sue  as  a  feme  sole  ;  but  if  the  husband  have 
judgment  to  be  exiled  but  for  a  time,  which  some  call  a  relegation. 


Consequences 
of  marriage 
on  wife's 
right  to  sue  at 
law: 


wife  cannot 
sue  alone, 

unless  hus- 
band civiliter 
moriuus, 
or  they  are 
judicially 
separated,  or 
lier  property 
is  protected 
by  order. 
Husband  is 
civiliter  mor- 
tuus  when 
transported 
for  life ; 

or  attainted 
and  banislied 
by  Act  of 
Parliameut, 


1  See  Hilton  v.  Lothrop,  46  Maine,  297; 
Williams  1-.  Coward,  1  Grant  (Penn.)  21 ; 
Bradley  v.  Emerson,  7  Vt.  369.  In  Massa- 
chusetts, a  niiirried  woman  may  sue  and 
be  sued  in  all  matters  having  relation  to 
her  separate  property,  business,  trade, 
services,  labor,  and  earnings,  in  the  same 
manner  as  if  she  were  sole.  Genl.  Sts. 
c.  108,  §  3  ;  Conant  v.  Wairen,  6  Gray,  562. 
If  i)roperty  belongs  to  tiie  wife  alone,  as 
her  sole  and  seiiariite  pro|)orty,  an  action 
respecting  it  should  be  in  her  name  alone, 
and  lier  iiu>l)aijd  slmnld  not  be  Joined. 
Hennessey  v.  White,  2  Allen,  48,  49;  see 
Conant  v.  Warren,  u/ji  snpra.  In  Ken- 
tucky, a  wife  may  sue  alone  in  an  action 
relating  fo  her  separate  ptopertj'.  Petty 
V.  Mi.li(-r,  14  15.  .Mon.  246.  So  in  Ni-w 
Hainpshirc:  Jordan  i'.  Cummings,  43  N. 
H.  134-1.'!6.  nndcr  n-ccnt  Statutes.  So 
by  the  Code  of  I'rnccdure  in  New  York; 
and  when  the  action  is  Ijctween  her-.elf  and 
husband,  she  may  sue  or  be  sued  alone. 
Jn  no  case  ne<'d  she  jjrosecnte  by  a  pirtr- 
dian  or  n>xt  friet.d.  2  Kent  (llth  ed  ), 
V>\  note.  I'lider  the  New  York  acts  of 
IHiiO  and  lt-62,  a  married  woman,  trading 
on  lier  own  account,  may  be  sued  alone  on 
a  note  given  by  her  in  the  course  "f  her 
trading.     I'.arton  u.  Beer,  36  liarb  (N.  Y.) 


78.  Having  a  perfect  capacity  to  sue,  she 
will  be  held  responsible  for  tlie  acts  other 
attorney  or  solicitor,  and  for  the  want  of 
ordinary  diligence  on  her  part.  Cayce  v. 
Powi'll,  20  Texas,  767.  In  Louisiana,  in 
a  bill  by  a  wife  to  be  relieved  fi  om  a  mort- 
gage made  by  her,  on  the  ground  of  lier 
disability  to  contract,  lier  husband  niav 
properlv  be  Joined  witli  her  as  procheui 
ami.  Bein  v.  Heath,  6  Mow.  U.  S.  228. 
A  married  w(mian,  entitled  by  law  to  sue 
in  her  own  name,  may  declare  witliout 
alluding  to  her  husband.  Jordan  r.  Cuin- 
mings,  43  N.  H.  134;  see  Wheaton  v. 
Phillips,  1  licasley  (N.  J.),  221. 

2  20  &  21  Vic  c.  8.'),  §§  21,  2.5,  26,  45; 
21  &  22  Vic.  c.  108,  §§  6-8;  27  &  28  Vic. 
c.  44;  and  see  22  &  23  Vic.  c.  01,  §§  4,  5; 
23  &  24  Vic.  c.  144,  §  6;  A'e  IJaiiisdon's 
Trust-i,  4  Drew.  446;  5  Jiir.  N.  S.  55;  7*6 
Kingslcy,  26  Hi-av.  84;  4  .lur.  N.  S.  loiO; 
Cook  v.  Kuller,  26  IJcav.  9!t;  Wudge  v. 
Weedon,  4  De  G.  &  .\.  216;  5  .lur.  N.  S. 
723;  Hathe  v.  Think  of  Knglaml,  4  K.  & 
J.  064;  4  Jur.  N.  S.  505;  AV  Wliilting- 
liain's  Trusts,  10  Jur.  N.  S.  siS;  12  \V. 
K.  775,  V.  C.  W.;  Caldicott  r.  liak-T,  13 
W.  li.  449,  V.  C.  K.;  Scaley  i'.  Ga-toii,  ib. 

h-n,  V.  c.  w. 


88 


SUITS   BY   PERSONS   WHO   ARE   UNDER   DISABILITY. 


I'll.  III.  §7.  this  is  wo  civil  Joatli.''  At  law,  also,  every  person  avIio  is  attainted 
by  onlinai-y  process  of  treason  or  Iclony,  is  disabled  to  bring  any 
aetion,  ibr  he  is  (\rtr<f  h'gon  jtositus,  and  is  accounted  in  law  cwiliter 
inortuus  ;-  and  Avln-re  the  husband  is  an  alien,  and  has  left  this 
kintidoni,  or  has  never  been  in  this  eountry,  the  wife  may,  during 
such  absence,  sue  alone,^  although,  in  ordinary  cases,  the  absence 


" ^ 

or  liy  onli- 
iiarv  iiix'ioss 

or  aliou 
abruad. 


1  Co.  Lin.  133  a.;  Storv  Eq.  PI.  ^  Gl; 
W'rijiht  V.  Wrifilit,  2  Dosaiis.  244;  Corn- 
wall V.  lloyt,  7  Cdiin.  420;  Trougliton  v. 
Hill,  2  Hiivw.  406;  Kobinson  v.  Iveynolds, 
1  Aiken,  174. 

Mr.  Chiuicellor  Kent,  2  Kent  (11th  ed.), 
154,  155,  in  reference  to  this  point,  re- 
marks, that  "  Lord  Coke  seems  to  put  the 
capacity  of  the  wife  to  sue  as  a  ftsme.  sole, 
upon  the  gmund,  that  the  ai)juration  or 
banishment  of  the  husband  amounted  to  a 
civil  death.  But  if  the  husband  be  ban- 
ished, for  a  limited  time  only,  though  it  be 
no  civil  deatii,  the  better  opinion  is,  that 
the  consequences,  as  to  the  wife,  are  the 
same,  an<l  she  can  sue  and  be  sued  as 
&feme  sole."  See  also  Lx  parte  Franks, 
IM.  &  Scott,  1.  In  Robinson  v.  Reynolds, 
1  Aiken,  174,  this  point  was  considered 
and  the  English  cases  ably  reviewed ;  but 
the  question  was,  In'  this  case,  still  left 
unsettled,  whether  transportation  or  ban- 
ishment of  the  husband  W  law,  for  a  lim- 
ited time  oul}',  would  be  suificient  to  give 
the  wife  the  capacitj-  to  sue  and  be  sued 
as  a  Jhne  sole,  h  seems,  however,  from 
the  case  of  Foster  v.  Everard,  Craw.  & 
Dix,  135,  that  a  feme  cuverl,  whose  hus- 
band has  been  transported  for  a  limited 
term  of  years,  will  not  be  allowed  to  sue 
in  Equitv  as  a  /eme  sole. 

2  2  B.  &  P.  231 ;  4  Esp.  27;  Bac.  Ab.  tit. 
Bar.  and  Feme  (M)  ;  9  East,  472. 

8  2  Esp.  554,  587;  1  B.  &  P.  357;  2  B. 
&  r.  226;  1  Bos.  &  P.  N.  R.  80;  11  Ea.st, 
301;  3  Camp.  123;  5  T.  R.  679,  682;  8  T. 
R.  545;  2  Kent  (11th  ed.),  155;  Gregory 
V.  Paul,  15  Mass.  31 ;  Jordan  v.  Cummings, 
43  N.  H.  134.  Where  the  husband  had 
never  been  in  the  United  States,  and  had 
deserted  his  wife  in  a  foreign  countrj',  and 
she  came  here  and  maintained  herself  as 
a  ytme  sole,  she  was  held  entitled  to  sue 
and  be  sued  as  a  J'tyne  sole.  Gregory  v. 
Paul,  15  Ma.ss.  31,  (Rand's  ed.),  p.  35,  n. 
a,  and  cases  cited.  So,  where  the  hus- 
band, a  citizen  of  and  a  resident  in  another 
of  the  United  States,  comf)elled  his  wife 
to  leave  him  without  providing  any  means 
for  her  support,  and  she  came  into  JLissa- 
chusetts  and  maintained  herself  there,  for 
more  than  twenty  years,  as  a  single  woman, 
she  was  held  entitled  to  sue  as  a  feme  sole. 
Abbot  V.  Bayley,  6  Pick.  89.  the  prin- 
ciple of  the  above  decisions  has  been  ex- 
tended still  further  by  the  Genl.  Sts.  of 
Mass.  c.  108,  §  29.  See  Storv  E(i.  PI. 
§  61,  and  note  to  this  point;  2  Kent  (11th 
ed),  155.  In  Beane  v.  Morgan,  4  M'Cord, 
148;  S.  C.  1  Hill,  8,  it  was  held,  that  if  the 
husband  leave  the  State,  without  the  in- 


tention of  returning,  the  wife  is  competent 
to  contract,  to  sue,  aiui  be  sued,  as  if  she 
were  a,  feme  sole.  See  Valentine  \i.  Ford,  2 
Browne,  193;  Robinson  v.  Hej'nolds,  1  Ai- 
ken, 174;  Troughton  v.  Hill,  2  Ilayw.  406; 
Rhea  V.  Rhenner,  1  Peters,  105 ;  Edwards 
V.  Davics,  16  John.  286 ;  Chitty  Cont.  (10th 
Am.  ed.)  196  et  seq. ;  Moore  w.  Stevenson, 
27  Coim.  14.  In  Gregory  v.  Pierce,  4 
Met.  478,  it  was  observed  by  Chief-Justice 
Shaw,  tliat  "  the  principle  is  now  to  be 
considered  as  established  in  this  State,  as 
a  necessary  exception  to  the  rule  of  the 
common  law,  placing  a  married  woman 
under  disability  to  contract  or  maintain  a 
suit,  that  where  the  husband  was  never 
within  the  Commonwealth,  or  has  gone 
beyond  its  jurisdiction,  has  wholly  re- 
nounced his  marital  rights  and  duties,  and 
deserted  his  wife,  she  may  make  and  take 
contracts,  and  sue  and  be  sued  in  her  own 
name  as  a  feme  sole.  It  is  an  application 
of  an  old  rule  of  the  common  law,  which 
took  away  the  disabilitj'  of  coverture  when 
the  husband  was  exiled  or  had  abjured 
the  realm.  Gregory  v.  Paul,  15  Mass.  31 ; 
Abbot  V.  Bayley,  6  Pick.  89.  In  the  latter 
case,  it  was  held,  that,  in  this  respect,  the 
residence  of  the  husband  in  another  State 
of  these  United  States,  was  equivalent  to 
a  residence  in  any  foreign  State;  he  being 
equally  beyond  the  operation  of  the  laws 
of  the  Commonwealth  and  the  jurisdiction 
of  its  Courts.  But  to  accomplish  this 
change  in  the  civil  relations  of  the  wife, 
the  desertion  by  the  husband  must  be  ab- 
solute and  complete;  it  must  be  a  volun- 
tary separation  from  and  abandonment  of 
the  wife,  embracing  both  the  fact  and  the 
intent  of  the  husband  to  renounce  de  facto, 
and  as  far  as  he  can  do  it,  the  marital  re- 
lation, and  leave  his  wife  to  act  as  a  feme 
sole.  Such  is  the  remmciation,  cou]dcd 
with  a  continued  absence  in  a  foreign 
State  or  country,  which  is  held  to  operate 
as  an  abjuration  of  the  realm." 

In  Massachusetts,  it  is  provided  by 
Statute,  that,  when  any  married  man  shall 
absent  himself  from  tlie  State,  abamloning 
his  wife  and  not  making  sullicient  jirovision 
for  her  maintenance,  or  whose  husbatid 
has  been  sentenced  to  confinement  in  the 
State's  prison,  the  Supreme  .Judicial  Court 
may,  on  her  petition,  authorize  her  to  com- 
mence, prosecute,  nnd  defend  any  suit  in 
Law  or  Equity  to  final  judgment  and  ex- 
ecution, in  like  manner  as  if  she  were  un- 
married.   Genl.  Sts.  Mass.  c.  109,  §§  31,  32. 

A  wife,  who  is  divorced  a  mensa  et 
thoro,  may  sue  as  a  feme  sole  on  causes  of 
action  arising  after  the  divorce.    Dean  v. 


MAERIED   WOMEN. 


89 


of  the  husband  affords  no  gi'ound  for  the  wife's  jiroceeding  sep- 
arately.^ 

In  these  respects,  Courts  of  Equity  follow  the  rules  of  law :  ^ 
Thus,  it  has  been  held  in  Equity,  that  where  a  husband  has  been 
banished  for  life  by  Act  of  Parliament,  the  wife  may  in  all  things 
act  as  2iferiie  sole,  as  if  her  husband  wei'e  dead,  and  that  the  neces- 
.  sity  of  the  case  requires  that  she  should  have  such  power ;  ^  and 
where  a  husband  was  attainted  of  felony,  and  pardoned  on  con- 
dition of  transportation,  and  afterwards  the  wife  became  entitled 
to  some  personal  estate  as  orphan  to  a  freeman  of  London,  such 
personal  estate  was  decreed  to  the  wife  as  a /erne  sole^ 

In  Equity,  however,  as  well  as  at  Law,  the  general  rule,  which 
requires  the  husband  to  be  joined  in  a  suit  respecting  the  rights 
of  his  wife,  prevails,  except  under  particular  circumstances,  which 
will  be  hereafter  j^ointed  out ;  but  at  Law  there  exists  a  distinc- 
tion between  actions  for  property  which  has  accrued  to  the  wife 
before  marriage,  and  actions  for  property  which  has  come  to  her 
afterwards ;  which  distinction  does  not  jirevail  in  Equity ;  for 
with  respect  to  such  debts  and  other  choses  in  action  as  belong  to 
the  wife  and  continue  unaltered,  since  the  husband  cannot  dis- 
agree to  her  interest  in  them,  and  as  he  has  only  a  qualified  right 
to  jiossess  them,  by  reducing  them  into  possession  during  her  life, 
he  is  unable  to  maintain  an  action  for  such  property  without 
making  his  wife  a  party  ;  ^  but  for  all  personal  estate  which  accrues 
to  tlie  wife,  or  to  the  husband  and  Avife  jointly,  during  marriage, 
and  for  all  covenants  made  or  entered  into  with  them  during  that 
period,  the  husband  may,  at  Law,  commence  proceedings  in  his 
own  name ;  because  the  right  of  action  haA^ng  accrued  after 
marriage,  the  husband  may  disagree  as  to  his  wife's. interest,  and 
make  his  own  absolute  :  an  intention  to  do  whicli  he  manifests  in 
bringing  an  action  in  his  own  name,  when  it  might  have  been 
commenced  in  the  name  of  both  of  them ;  ®  and  in  such  case  it 
has  been  held,  that  if  the  husband  recover  a  judgment  for  a  debt 
due  to  tlie  wife,  and  die  before  execution,  liis  jjersonal  represent- 
ative  will   be   entitled   to  the  benefit  of  it,  and  not  the   wifeJ 

must  join,  and  he  cannot  sue  alone.  This 
rule  will  Ro  farther  thi\n  nnv  other  to  rec- 
oncile all  the  cnsc«.  In  all  actions  for 
chores  in  (irlioii  chic  to  the  wife  before  mar- 
riage, the  husliand  and  wile  must  join; 
and  amouR  all  the  coiidictiuK  cases,  I  ap- 
prehend not  one  can  ho  found  in  which  it 
was  held,  that  the  husband  could  sue 
alone,  where  the  cause  of  action  would 
clenrlv  survive  to  the  wife."  See  Morse 
r.  Karl,  13  Wend.  271;  IJryantv.  Puckctt, 
3  Hcv.  2r,2. 

<"'  II).  fl2;  and  sei  Ad<l.  Cont.  701. 

"  OKlaudor  r.  I'.iiHton,  1  Vcrii.  .'f'.iG;  Gar- 
forth  I'.  Bradley,  2  Yea.  .S.  (i7u,  677. 


Cn.in.§7. 

Rules  of  Law 
followed  in 
Equity ; 

Richmond,  5  Pick.  401;  Pierce  v.  Burn- 
ham,  4  Met.  303;  see  2  Kent  (11th  ed.), 
156;  Collver  Pnrtn.  (Perkins's  cd.)  §  15. 

1  11  Kiist,    301;  I)u   Wahl    r.    IJraune, 

1  H.  &  N.  178;  4  W.  H.  046. 

2  See  Ld.  Red.  28;  Storv  V.<\.  PI.  §  61; 
Coop.  Kq.  PI.  30;  Calvert  (in  Parties,  414. 

3  Countess   cf    Portland    v.    Prodj^ers, 

2  Vern.  104  ;  1  Kq.  Ca.  Ah.  171.  PI.  1. 
*  New-ome  r   IJowver,  3  P.  Wms.  37. 
^  1   Pridit,   II.  &  NV.  03,  and  the  cases 

there  cited,  ""</.<.  In  Clapp  v.  .Stouf,'hton, 
10  Pick.  47,  it  was  remarked  by  Mr.  .Jus- 
tice Willie  :  "  I  think  the  true  rule  is,  tljat 
in  all  CH1C1  wht-rc  the  cause  of  action  sur- 
vives to  the  wife,  the  husband  and  wife 


but  a  distinc- 
tion at  Law 
between  per- 
sonal propert}' 
accrued 
before  and 
after  mar- 
riage, 


90 


SUITS    IJY    PERSONS    AVIIO    ARE    UNDER    DISABILITY. 


Ch.  III.  S 


docs  not  njv 
ply  in  Equity. 


"Wife  must  in 
all  cases  be  a 
party  to  a 
suit  for  her 
ovni  property. 

Rule  that  her 
portion  will 
not  be  paid  to 
husband 
without  a 
settlement, 
luiless  she 
consents. 


The  distinction  above  pointed  out  does  not,  hoAvever,  as  has  been 
stated,  exist  in  Courts  of  Equity,  Avhere  it  seems  necessary  that  in 
all  cases  in  which  the  husband  seeks  to  recover  the  ])ro]ierty  of  the 
wife,  he  should  make  her  a  party  co-])laintitr  with  himself,  whether 
the  ritiht  to  the  ]iro])erty  accrued  before  or  after  marriage.^  Thus, 
in  Clearer  v.  Lord  Anfjier^  "where  a  legacy  was  given  to  a  wonian 
whilst  she  Avas  covert,  and  the  husband,  without  her,  exhibited  a 
bill  for  it,  to  which  the  defendant  demurred,  on  the  groimd  that 
the  wife  ought  to  have  been  joined  in  the  suit,  the  demurrer  was 
allowed.^ 

The  ground  w\io\\  which  Courts  of  Equity  require  the  wife  to 
be  joined  as  co-]ilaintiff  with  her  husband  in  suits  relating  to  her 
own  property,  is  the  parental  care  which  such  Courts  exercise 
over  those  individuals  Avho  are  not  in  a  situation  to  take  care  of 
their  own  rights ;  and  as  it  is  presumed  that  a  father  would  not 
many  his  daughter  without  insisting  upon  some  settlement  upon 
her,  so,  those  Courts,  standing  in  loco  parentis^  will  not  suffer  the 
husband  to  take  a  wife's  ])ortion,  until  he  has  agreed  to  make  a 
reasonable  i)ro\asion  for  her,^  or  until  they  have  given  the  Avife  an 


1  See  Chem'  v.  Belcher,  5  Stew.  &  P. 
133;  Tribble  v.  Tribble,  5  J.  J.  Marsh. 
180;  Bradley  v.  Emerson,  7  Vt.  369. 

2  Freeman,  160;  S.  C.  nom.  Gierke  v. 
Lord  Anp;lesey,  Nels.  78;  see  also  Blount 
r.  Bestland,  5  Ves.  515;  Anon.,  1  Atk. 
401;  Meales  v.  Meales,  5  ■\^es.  517,  n.; 
Cnrr  r.  Taylor.  10  Ves.  574,  579. 

3  Chase"r.  Palmer,  25  Maine,  348.  In 
such  case  the  husband  and  wife  are  neces- 
sary parties.  Schuvler  v.  Hoyle,  5  .lohn. 
Q\\.  lOR:  Oldham  i\  Collins,  4  J.  J.  iMarsh. 
50;  2  Kent  (lltbed.l,  138;  Foster?).  Hull, 
2  J.  J.  Marsh.  546 ;  Griffith  v.  Coleman,  5  J. 
J.  Marsh.  600;  Pyle  r.  Crayens,  4  Litt.  18; 
Cherry  r.  Belcher,  5  Stew.  &  P.  133.  In  the 
case  of  Goddard  v.  .Johnson,  14  Pick.  352, 
at  Law,  it  was  decided  that  a  husband  may 
sue  in  his  own  ri^bt,  after  the  death  of  his 
wife,  for  a  legacy  accruing  to  the  wife 
during  the  coyerture.  In  this  case  the 
Court  said:  "  We  think  the  husband  might 
haye  sued  alone,  had  the  wife  been  still 
liying,  and  consequently  that  this  action 
may  be  sustained.  It  is  a  well  settled 
y)riiKi|ile  that  a  choit  in  action  accruing  to 
the  wife  during  coverture,  yests  absolutely 
ill  the  husband."  In  Hapgood  )■.  Hough- 
ton, 22  Pick.  480,  the  Court  confirmed  tlie 
aboye  decision.  See  Sawyer  v.  Baldwin, 
20  Pick.  378;  Dayis  v.  iSTewton,  6  Met. 
543-545:  Allen  v.  Wilkins,  3  Allen,  .322, 
323:  Steyens  r.  Beal*,  10  Cush.  291 ;  Albee 
V.  Carpenter,  12  Cush.  3R2:  Jones  v.  Rich- 
ardson, 5  Met.  249,  per  Shaw  C.  .1. 

The  subject  of  the  husband's  right  to  a 
legacy  bequeathed  to  his  wife,  or  to  a  dis- 
tributive share  in  an  estate,  in  which  she 
is  interested,  is  fully  considered,  and  the 
authorities  collected,  in  Blount  v.  Bestland, 


5  Sumner's  Ves.  515,  Perkins's  note  (ft); 
Carr  v.  Taylor,  10  id.  574,  Perkins's  note 
(c). 

4  Per  Lord  Hardwickc,  in  Jew^on  v. 
Moulson,  2  Atk.  419;  Chase  v.  Palmer, 
25  Maine,  348.  This  point  is  verj'  fully 
considered  in  2  Kent  (11th  ed.),  138  et  seq. 
If  the  husband  wants  the  aid  of  Chancery 
to  get  possession  of  his  wife's  property,  or 
if  her  property  be  within  the  reach  of  the 
Court,  he  must  do  what  is  equitable  by 
making  a  reasonable  provision  out  of  it 
for  the  maintenance  of  her  and  her  chil- 
dren. Whether  the  suit  for  the  wife's 
debt,  legacy,  or  portion,  be  by  the  husband 
or  his  assignees,  the  result  is  the  same, 
and  a  proper  settlement  on  the  wife  must 
first  be  made  of  a  jjroportion  of  the  prop- 
erty. Jhid. ;  Howard  v.  Moft'att,  2  .John. 
Ch".  200;  Diiyall  v.  Farmers'  Bank,  Mary- 
land, 4  (lill  &  .1.  282;  Whitesides  v.  Dor- 
ris,  7  Dana,  106;  Dumond  v.  Magee,  4 
John.  Cli.  318;  Kenney  r.  Udall,  5  John. 
Ch.  464;  Hayiland  v.  Bloom,  6  John.  Ch. 
178;  2  Story  Eq.  Jur.  §  1042  et  seq.  ; 
Mumfnrd  v.  Murray,  1  Paige,  620;  Fabre 
V.  Colden,  1  Paige,  166;  Sawyer  v.  Bald- 
win,  20    Pick.    378;    Davis   ».    Newton, 

6  ISlet.  543-545;  Tucker  v.  Andrews,  13 
Maine,  124;  Glen  v.  Fisher,  6  John.  Ch. 
33;  Cape  v.  Adams,  1  Desau.s.  567;  Heath 
V.  Heath,  2  Hill  Ch.  104;  Rees  v.  Waters, 
9  Watts,  90;  Myers  v.  Myers,  1  Bailey 
Eq.  24;  Helm  v.  Franciscus,  2  Bland,  545; 
Tevis  V.  Kichardson,  7  jNIonroe,  660;  Poin- 
dexter  r.  Jeffries,  15  Grattan  (Va.),  363. 
It  has,  at  length,  become  the  settled  rule 
of  the  Courts  of  Equity,  in  New  York, 
that  they  will  interf(;re,  and  restrain  a  hus- 
band from  recovering  at  law  his  wife's 


MARRIED   WOIMEN. 


91 


opportunity  of  making  her  election,  whether  the  property  shall  go  Ch.  in.  §  7. 

to  her  husband,  or  shall  be  made  the  subject  of  a  settlement  upon  ' y 

her  and  her  children. 

This  right  of  a  wife  is  termed  her  equity  to  a  settlement :  and  it  Eqiiity  to  a 

~  .  settlement: 

attaches  whenever  proceedings  are  pending  in  the  Court  of  Chan- 
cery, with  reference  to  her  personal  property,^  or  her  equitable  """hen  it 
interest  in  real  estate,^  except  as  against  the  particular  assignee  of 


Eroperty,  until  he  makes  a  provision  for 
er.  See  Van  Epps  v.  Van  Deusen,  4 
Paige,  64 :  ¥rv  v.  Frv,  7  Paige.  462 :  Mar- 
tin V.  Mnrtin,"  1  Hoff.  Ch.  462;  Udall  v. 
Kenney,  3  Cowen,  590.  Chancery  will 
interfere  in  such  case,  on  a  bill  filed  by  or 
on  behalf  of  the  wife;  Van  Epps  r.  Van 
Deusen,  4  Paige,  64;  or  on  a  petition. 
Davis  V.  Newton,  6  Met.  543. 

The  result  of  the  cases  seems  to  be,  that 
whenever  the  interests  of  a  married  wo- 
man are  brought  before  the  Court,  in  op- 
position to  the  claims  of  her  husband,  they  ' 
will  be  attended  to,  whoever  the  person 
applying  to  the  Court  may  be.  Clancy 
Rights  of  Women  (Am.  ed.'),  474;  2  Story 
Eq.  Jur.  §  1414;  Van  Duzen  v.  Yan  Duzon, 
6  Paige,  366;  Davis  v.  Newton,  6  Met. 
543,  544.  See  a  discussion  on  this  subject 
of  settlement,  in  such  cases,  in  Parsons  v. 
Parsons,  9  N.  H.  309,  320  el  seq. ;  2  Kent 
(11th  ed.),  141,  142. 

In  some  of  the  States  the  power  of  afford- 
ing such  protection  to  the  wife  does  not 
exist.  See  2  Kent  (11th  ed.),  141,  142; 
Parsons  v.  Parsons,  9  N.  H.  309,  320  et 
seq.;  Yoke  v.  Barnet,  1  Binnev,  358;  flat- 
ter of  Sliller,  1  Ash.  323.  "in  Sawyer 
V.  Baldwin,  20  Pick.  387,  in  reference"  to 
securing  a  provision  for  the  wife,  in  such 
ca>es,  the  Court  remark,  that  the  ''prac- 
tice prevail-  to  some  extent  in  New  York, 
but  is  repudiated  in  other  States.  It  would 
seem  to  be  re])Ugnant  to  what  we  deem 
the  legal  rights  of  the  husband,  and  would 
never  be  carried  so  far  here  as  it  lias  been 
in  England."  Hut  in  Davis  v.  Newton, 
6  Met.  543,  speaking  of  the  wife's  right  to 
a  suitable  idlowauce,  in  such  ca«es,  the 
Court  remark,  that  it  "  is  an  Equity  which 
Courts  will  u]iliold  in  all  cases  where  the 
husband,  his  creditors,  or  his  assignees 
have  occasion  to  come  info  Court  to  obtain 
posses*i<in  of  the  property,  an<l  wherever 
a  Court  of  Equity  can,  in  anv  form,  exer- 
cise jurisdicfinn  over  the  subject."  "The 
authority  of  the  Court  to  niiike  such  allow- 
ance is  a  widl-estiiblislied  principle  of 
Equity,  and  lias  befn  recofinized  by  this 
Court."  Per  .Shaw  C.  J.  in  Gardner  i". 
Hooper,  3  (Jrav,  .398,  404;  see  Gas.sett  v. 
Grout,  4  Met.  488. 

Mr.  Chiincllor  Kent,  2  Kent  (11th  ed.), 
141,  142,  remarks,  that,  "  though  such  a 
protection  cannot  be  afforded  to  the  wife 
in  Pcniisylvaniii,  where  there  ix  no  (Viurt 
of  <'baiicer\',  nor  in  New  Hampshire, 
where  Equity  powers,  to  a  sfK-cific  extent 
only,  lire  cf)nlrrred  by  Statute  upon  the 
Supreme  Court  of  common-law  jurisdic- 


tion; yet  I  presume  that  it  exists  in  most 
of  the  other  States  where  Courts  are  estab- 
lishpd  with  distinct  Equity  powers,  ac- 
cording to  the  English  sj'stem,  or  with 
legal  and  equitable  powers  united,  accord- 
ing to  the  more  general  prevailing  practice 
in  the  United  States.  It  exists  in  Georgia, 
Marj-land,  and  Tennessee,  and  in  the  latter 
State  protection  is  even  afforded  in  their 
Courts  of  Law.  Corlev  r.  Corlev,  22  Geo. 
178;  M'Elhattan  r.  Howell,  4  Hayw.  19; 
Duvall  r.  Farmers'  Bank  of  Marvland, 
4  Gill  &  J.  282."  So  in  Maine,  tucker 
V.  Andrews,  13  Maine,  124.  For  other 
States,  see  Heath  r.  Heath,  2  Hill  Ch.  104; 
Myers  v.  Mj-ers,  1  Bailey  Eq.  24;  Helm  v. 
Franciscus.  2  Bland,  545;  Tevis  r.  Rich- 
ardson, 7  Jlonroe,  660;  Durr  i\  Bowver, 

2  M'Cord,  368;  Argenbright  v.  Campficll. 

3  Hen.  &  M.  144.  In  North  Carolina,  if 
the  aid  of  a  Court  of  Equity  is  required 
by  the  husband  to  enalile  liim  to  take  pos- 
session of  his  wife's  property,  he  must 
make  reasonable  provision  for  her.  But 
in  that  State  the  wife  cannot,  by  a  suit  in 
Equity,  stop  him,  though  he  be  insolvent, 
from  taking  possession,  unless  her  claim 
be  founded  upon  a  marriage  settlement. 
Brvan  v.  Bryan,  1  Dev.  Eq.  47;  Allen  v. 
Allen,  6  Ired.  Eq.  293;  2  Kent  (11th  ed.), 
142,  143. 

The  wife's  equity  extends  as  well  to 
real  as  to  personal  property.  Moore  v. 
Moore,  14  B.  Mon.  259.  '  In  this  last 
case  it  was  allowed  to  her  out  of  the  pro- 
ceeds of  lands  whidi  descended  to  her 
during  coverture;  and  she  was  permitted 
to  assert  this  right  by  original  bill.  Where 
a  wife  joined  her  husband  in  the  convey- 
ance of  lands,  and  the  husljand  became 
insolvent  before  the  price  was  paid,  a  suit- 
aide  settlement  was  decreed  to  lier  out 
of  the  price.  Lay  v.  Brown,  13  B.  Mon. 
29.5. 

It  is  a  vain  attempt,  says  Mr.  Justice 
Story,  to  ascertain  by  general  reasoning 
the  nature  or  extent  (tf  tlie  above  doctrine, 
for  it  stands  upon  tlie  practiceof  the  Courts. 
2  Storv  Eq.  .lur.  §  1407;  2  Kent  (11th. 
ed.),  141. 

1  Even  where  the  fund  is  not  in  Court, 
see  Henry  v.  Ogle,  1  C.  P.  Coop.  t.  Cott. 
447. 

2  Sturgis  V.  Cbampneys,  5  M.  &  C.  97; 
Hiinson  V.  Keating,  4  Hare,  1;  Wortliam 
r.  I'l'inlierlon,  1  De  (',.  k  S.  641;  but  see 
(Jlenves  v.  Pavne,  1  De  (;.,.L  i^-  S.  S7.  In 
Smith  V.  Matthews.  3  De  G.,  F.  &  .1.  139, 
it  was  held  that  tlie  possible  estate  by 
curtesy  of  the  husband  could  not  be  inter- 


92 


SUITS   BY   PERSONS   WHO   ARE   UNDER   DISABILITY. 


1 

wifo  ninv  hor- 
self  institute 
prowodiiij^s 
to  niiso  the 
equity; 
attaches  to 
wife's  life-in- 
terest. 

"Wife's  equity 
to  a  settle- 
ment is  dis- 
tinct from  her 
rijjht  by  sur- 
vivorship. 


fii.lll.  §  :.  ]i^>,.  liio-ostato.^  She  may  liorst'lt"  institute  ])rocoo(lino;s  for  tlie  pur- 
]ioso  of  raisinp;  licr  equity ;  ^  but  it  cannot  be  enforced  until  the 
Ct)ui't  is  about  to  make  a  decree  or  order  directing  payment,  trans- 
fer, or  ajiplicatiou  of  tlie  ])roperty.' 

The  question  Avliether  the  riglit  .attaches  to  the  wife's  hfi'-in- 
terest  has  been  much  discussed  ;  but  it  is  now  determined  that, 
subject  to  the  above-mentioned  exception,  it  does  so  attach.* 

The  right  of  a  married  woman  to  have  a  settlement  made  upon 
herself  and  lier  children,  out  of  her  ])ersonal  property  wiiich  is  the 
subject  of  a  suit  m  Equity,  is  totally  distinct  from  her  right  by 
sur^•ivorship  to  such  of  her  choses  in  action  as  have  not  been 
reduced  into  possession  during  the  joint  lives  of  herself  and  hus- 
band. The  right  by  survivorship  is  a  legal  right,  a]>p]ying  equally 
to  her  legal  and  equitable  interest ;  but  lier  right  to  a  settlement 
dejiends  iipon  the  pecuhar  rule  of  Courts  of  Equity  before  alluded 
to,  wliich,  standing  in  loco  parentis  with  regard  to  a.  feme  covert^ 
^y\\\  not  suffer  the  husband  to  take  the  Avife's  portion  until  he  has 
agreed  to  make  a  reasonable  provision  for  her  and  her  children, 
unless  they  ai'e  saj:isfied  that  it  is  with  her  free  consent  tliat  it  is 
paid  over  to  him.^  This  rule  of  Equity  is  not  of  modern  adoption, 
but  has  been  recognized  and  acted  upon  from  a  very  early  period. 
In  the  case  of  Tanjidd  v.  Davenport^  Avhich  occurred  in  the 
14  Chas.  I.,  Lord  Keeper  Coventry  takes  notice  of  it ;  and  it  has 
been  acknowledged  and  followed  in  all  subsequent  cases,  where  a 
wife  has  had  a  demand  in  her  own  right,  and  application  has  been 
made  to  a  Court  of  Equity  to  enforce  it.''  "Where,  however,  the 
demand  is  not  one  which  accrues  to  the  husband  in  right  of  his 
wife,  althougli  he  may  be  entitled  to  it  under  a  contract  made 
upon  his  marriage,  yet  if  he  alone  has  the  right  to  sue  for  it,  the 
equity  of  the  A^dfe  to  a  settlement  will  not  attach.*  Thus,  where, 
in  contemplation  of  marriage,  the  father  of  the  intended  wife 
covenanted  to  j^ay  1000?.  to  the  husband  on  man-iage,  and  also 


Rule  as  to  her 
equity  is  not 
of  modern 
adoption. 


Will  not 
attach  where 
husband 
alone  has  the 
right  to  sue. 


fered  with.     See  Barnes  v.  Robinson,  9  Jur. 
N.  S.  245;  11  W.  R.  276,  X.  C.  S. 

1  Tidd  r.  Lister,  .3  De  G.,  M.  &  G.  857, 
861,  869;  18  Jur.  543;  and  see  Durham  v. 
Crackles,  8  Jur.  N.  S.  1174,  V.  C.  W. 

2  Lady  Elibank  v.  Montolicu,  5  Ves. 
737;  and  cases  collected  in  IJosvil  v. 
Brander,  1  P.  Wms.  459;  Buncombe  v. 
Greenacre,  2  De  G.,  F.  &  J.  509;  7  Jur. 
N.  S.  175;  I'ostgate  v.  Barnes,  9  Jur.  N. 
S.  456;  11  W.  U.  .356,  V.  C  S. ;  Barnes  v. 
Robinson,  9  Jur.  N.  S.  245;  11  W.  R.  276, 
V.  C.  S. 

8  .Jewson  V.  Moulson,  2  Atk.  419;  De 
La  Garde  f.  Lemiiriere,  6  Beav.  344;  Os- 
borne V.  Jlorfjan.  9  Hare,  432;  Wallace  v. 
Auhljo,  1  Ur.  &  Sm.  216 ;  9  Jur.  N.  S.  687 ; 
2  X.  R.  567,  L.  JJ ;  1  De  G.,  J.  &  S.  643. 


4  Sturgis  v.  Champnevs,  5  M.  &  C.  97; 
Wilkinson  r.  Charlcswofth,  10  Beav.  324; 
see,  liowever,  Sliillito  v.  Collett,  7  Jur. 
N.  S.  385,  where  V.  C.  Kindersley  held, 
that  an  annuity  j^iven  to  a  married  woman 
by  will,  niijiht  be  paid  to  her  husband 
without  her  consent  in  Court. 

5  Jewson  V.  Moulson,  2  Atk.  419. 

0  Tothill,  114;  and  see  1  Spence  Eq. 
Jur.  681,  590. 

'  Jewson  V.  Moulson,  2  Atk.  419;  Milner 
V.  Colmer,  2  1'.  Wins.  041;  Adams  v. 
Peirce,  3  P.  Wms.  1 1 ;  lirown  v.  Klton, 
ih.  202;  Harrison  v.  Buckle,  1  Stra.  239; 
Winch.  V.  Page,  Bunb.  86;  Middlecome  ?;. 
Marlow,  2  Atk.  519. 

8  Brooke  v.  Hickes,  12  W.  R.  703,  V. 
C.  S. 


MAREIED    WOMEN. 


that  his  heirs,  or  executors,  should,  ^thin  six  months  after  his 
death,  pay  the  fiuther  sum  of  500/.  to  the  husband  as  the  re- 
mainder of  the  vnie's  portion,  it  was  held,  that  the  wife  was  not 
entitled  to  a  settlement  out  of  the  500/.,  as  it  never  was  her  money, 
and  was  only  a  debt  due  to  the  husband  fi-om  the  father.^ 

In  order  to  ascertain  whether  the  married  woman  waives  her 
equity  to  a  settlement,  and  consents  to  her  husband  taking  the 
property,  the  practice  of  the  Court  is,  when  she  is  resident  in  Lon- 
don, or  is  willing  to  attend,  for  the  Judge  to  examine  her  apart 
from  her  husband,  at  the  time  of  pronouncing  the  decree  or  order 
disposing  of  the  fund :  -  in  which  case,  a  note  of  the  examination 
is  made  by  the  Registrar  in  Court,  and  is  embodied  in  the  decree 
or  order.  K  the  mamed  woman  is  unable  or  unwilling  to  attend 
the  Court,  o-R-ing  to  her  residence  in  the  country  or  other  cause, 
her  examination  may  be  taken  by  commissioners,  under  an  order 
specially  appointing  them  for  this  purpose.^  Such  order  may  be 
made  in  various  fonus,  and  at  different  stages  of  the  proceedings. 
Thus,  where,  on  pronouncing  the  decree  or  order  deahng  with  the 
fund,  it  is  suggested  by  counsel  that  an  immediate  examination  of 
the  wife  by  commissioners  is  intended,  the  Court,  to  save  expense, 
will  sometimes  direct  the  fund  to  be  carried  over  to  the  separate 
account  of  the  wife,  and  by  the  same  order  aj^point  the  commis- 
sioners, reserving  liberty  to  apply :  in  which  case,  on  completion 
of  the  examination,  an  application  for  pa5^nent  of  the  fund 
may  be  made  by  petition,*  or,  in  cases  where  there  is  jurisdiction 
at  chambers,  by  summons.^  Or,  the  Court  will  direct  the  drawing 
up  of  the  decree  or  order  to  be  suspended  lor  a  few  days,  to  afford 
an  opportunity  of  taking  the  examination  in  the  interval :  in  the 
latter  case,  an  ex  parte  summons  ^  is  thereupon  taken  out  for  an 
order  to  appoint  the  commissioners ;  and  when  the  examination 
has  been  completed,  the  matter  is  mentioned  again  to  the  Court, 
and  the  decree  or  order  is  directed  to  be  drawn  up,  embodying 
therein  the  result  of  the  examination. 

Wliere,  in  any  case,  a  fund  has  been  earned  over  to  the  wife's 
separate  account,  an  api)lication  to  deal  with  it  may  be  made  by 
petition,'  or,  where  there  is  jurisdiction  at  chambers,  by  summons.^ 
When  made  by  petition,  the  usual  course  is  to  get  the  petition 
answered  for  a  day  sufhciently  distant  to  allow  of  the  examination 
Ijeing  taken  in  the  mean  time;  on  the  petition  being  thus  an- 


Ch.  III.  §  7. 


How  equity 
waived  by 
wife : 


on  examina- 
tioa  by  the 
Court. 


By  commis- 
sioners under 
an  order; 
order,  how 
obtained; 

where  fimd 
dealt  with  at 
the  hearing; 


after  fund 
carried  over; 


and  petition 
to  pay  out  i 


1  Brett  r.  Forcer,  3  Atk.  403.  For  case 
of  a  Ic>;acy  ^\\bx\  to  liusbaiul  and  wife 
jointly,  see  Atchcson  v.  Atiheson,  11  lleav. 
48.5,  488. 

2  On  this  subject  see  Seton,  667,  671; 
1  BriL'hts  H.  &  W.  88;  'I  Story  Ya\. 
Jur.  §  1418,  and  cases  cited;  Ward  ». 
Amory,  1  Curtis,  410,  432;  Sperling  v. 
Kochlort,  8  Summer's  Ves.  175,  note;  Bin- 


ford  »'.  Bawden,  1  id.  512,  and  note  (a)  and 
cases  cited. 

»  See  form,  Seton,  668,  No.  4. 

■*  For  form,  see  Vol.  III. 

6  Ibid. 
0  Ibvl. 

7  Ibid. 

8  Ibid. 


94 


SUITS    BY    TEESONS    AVIIO    ARE    UNDEU    DISABILITY. 


rn.iii.§ 


or  summons 
to  pay  out. 


Consent  in 
court,  or  at 
chambers,  on 
petition  or 
summons,  to 
pay  out. 
Who  may  be 
commission- 
ers. 


Examination 
how  taken. 


Examination 
abroad:  how- 
taken. 


sworotl,  :m  ex  parte  sunuuous  ^  is  taken  out  at  cliainbcrs  for  an 
order  to  appoint  the  conunissioners,  and  the  examination  is  taken 
thereon  before  the  petition  is  heanl.  If  the  petition,  in  any  case, 
is  brought  on  before  the  wife  is  examined,  an  order  to  examine 
her  will  be  made,  and  the  j)etition  will  be  ordered  to  stand  over 
till  the  return  thereto ;  ^  after  such  return,  the  petition  will  be 
placed  in  the  paper  and  disposed  of. 

If  the  application  for  payment  out  is  made  by  summons,  evi- 
dence of  the  title  to  the  fund  should  be  adduced  on  the  hearing, 
and  the  summons  will  be  adjourned  till  after  the  examination  :  to 
procure  which,  a  summons^  is  next  taken  out  for  an  order  to 
appoint  commissioners ;  and  when  the  examination  has  been  per- 
fected, the  summons  to  j^ay  out  is  brought  on  again,  and  an  order 
made. 

The  married  woman  may,  however,  attend  the  Court  at  the 
hearing  of  the  petition,  or  the  Judge  at  chambers,  on  the  summons, 
to  pay  out  the  fund,  and  give  her  consent,  so  as  to  save  the  expense 
of  an  examination  by  commissioners.* 

It  is  usual,  but  ^ot  essential,  to  apjjoint  professional  persons  as 
commissioners ;  and  they  must  not  be  concerned  for  the  husband 
in  the  matter  to  which  the  examination  relates ;  but  it  does  not 
appear  to  be  the  practice  to  recpiire  an  affidavit  of  their  litness, 
unless,  perhaps,  Avhere  they  are  to  act  abroad  and  do  not  seem,  by 
their  descriptions,  to  be  legal  practitioners  or  jjublic  functionaries. 
Three  or  four  persons  are  ordinaiily  appointed,  two  of  whom  may, 
and  usually  do,  act  without  the  rest.  An  examination  by  one 
commissioner  only  is  not  deemed  sufficient. 

The  married  woman,  on  attending  the  commissioners,  is  exam- 
ined by  them  secretly  and  apart  irom  her  husband,*  to  whom,  in 
what  manner,  and  for  what  purpose  she  is  willing  and  desirous 
that  the  ftiud  should  be  disposed  of;  they  read  over  to  her  the 
order  under  which  the  examination  is  taken,  and  exj^lain  to  her  its 
pui-j)ort;  the  examination  is  taken  in  writing,  and  is  signed  by 
her;  a  certificate  of  the  examination,  written  at  the  foot  thereof,  is 
then  signed  by  the  commissioners;  an  affidavit  verifying  all  the 
signatures  is  made;  and  the  examination,  certificate,  and  affidavit® 
are  filed  at  the  Record  and  Writ  Clerks'  Office:  whence  office 
copies  are  jirocured. 

Where  the  married  woman  is  abroad,  an  order  will  be  made 

^  The  liusband,  or  his  solicitor,  or  any 
person  connected  with  them,  should  not 
be  present  at  this  examination ;  see  lie 
Bendysiie,  3  Jur.  N.  S.  727:  5  W.  li.  816, 
V.  C.  K. 

<!  For  forms,  see  Vol.  III. ;  and  see  Ee 
Tasburgii,  1  V.  &  B.  507., 


1  For  form,  see  Vol.  III. 

2  See  form  of  order,  Seton,  G58,  No.  4. 
8  For  form,  see  Vol.  III. 
*  It  i-eems  a  Chief  Clerk  has  no  power 

to  take  the  examination  of  a  married 
woman:  see  1.0  &  16  Vic.  c.  80,  §  30.  For 
form  of  order,  where  the  examination  is 
taken  at  chambers,  see  Seton,  658,  No.  3. 


ment. 


MARRIED   WOMEN.  95 

appointing  commissioners  resident  there ;  ^  and  the  mode  of  taking  Cn.  in.  §  7. 
and  authenticating  an  examination  out  of  the  British  dominions,  ^—  y — ~^- 
is  exemplilied  by  the  following  case.  In  Minet  v.  IIydi\-  the  order 
was,  that  she  should  appear  before  some  of  the  plaintiffs,  and  a 
magisti-ate  of  Leyden,  to  be  privately  examined  as  to  her  consent : 
such  examination  to  be  in  wi'iting,  in  the  French  or  German 
language,  and  to  be  signed  by  her,  and  attested  by  notaries  public, 
whose  certiticate  thereof  was  also  to  be  in  writing,  either  in  the 
French  or  German  language.  It  was  also  ordered,  that  such  sign- 
ing and  certificate  should  be  verified  by  the  affidavit  of  some 
credible  witnesses,  either  in  the  German  or  French  language, 
before  a  projier  magistrate  of  Leyden ;  and  that  the  examination, 
certificate,  and  affidavit  should  be  translated  into  English  by  cei- 
tain  notaries  public,  sworn  to  the  truth  of  their  translation.^ 

Where,  however,  the  wife  is  domiciled  abroad,  and  in  a  country  Where  \dfe 
by  the  law  of  which  there  is  no  equity  to  a  settlement,  but  the  abroad.^ 
whole  is  payable  to  the  husband,  her  consent  is  not  necessary ;  * 
that  the  law  is  so  must,  however,  be  jiroved  as  a  fact  in  each 
case.^ 

Before  a  fund  belonging  to  a  married  woman  will  be  paid  out  Affida\-it 
of  Court,*^  an  affidavit  is  required  to  be  made  by  the  husband  and  °^  ^°  settle- 
wife,  that  no  settlement,  or  agreement  for  a  settlement,  has  been 
made ;  or,  if  there  is  any  settlement,  or  agreement,  then  an  affida"sdt 
by  them  identifying  the  instrument,  and  stating  that  there  is  no 
other ; ''  and  the  instrument  must  be  2)roduced.  Where  produced 
in  Court,  the  counsel  of  the  husband  and  Avife  certifies  that  he  has 
carefully  perused  it,  and  that  the  fund  in  question  is  not  afi'ected 
thereby ;  ^  but  where  produced  in  chambers,  an  affidavit  by  their 
solicitor  to  the  Uke  efi'ect  is  required.^  On  an  application  for  an 
order  to  examine  the  wife,  unless  the  affidavit  of  no  settlement  be 
produced,  the  order  will  direct  that  it  be  made  before  the  exami- 

1  Parsons  v.  Dunne,  2  Ves.  S.  60;  Bour-  M.  R.,  legacies  of  250Z.  each  to  a  French- 
dillon  V.  Adair,  3  Bro.  C.  C.  237 ;  Gibbons  man's  daughters,  married  to  French  sub- 
t;.  Kibbey,  7  Jur.  X.  S.  121^8;  10  \V.  U.  jects,  were  ordered  to  be  paid  to  tiie  wives. 
65,  V.  C.  K. ;  Wcdderburn  v.  U'cdder-  «  See  Ilougii  t'.  Uyley,  2  Cox,  157 ;  El- 
burn,  M.  li.  in  Ciiarnb.  0  Aug.,  1804.  rington  o.  l';irington,  4  Drew.  645. 

2  'i  liro.  C.  C  <jtj3.  "  For  forms,  see  Vol.  III.     When   the 
8  2  liro.  C.  C.  ed.  Belt,  p.  662,  n.  1;       joint  alUdavit   cannot    be    obtained,   the 

see  also  Parsons  v.  Duune,  Belt's  Sup.  to  Court  has  been  sati-lied  with  other  evi- 

Ves.  .S.  276.  dence,  Howland  v.  Oakley,  14  Jur.  S45,  V. 

*  Campbell  o.  French,  3  Ves.  321;  Dues  C.   K.  15.;  Anon.,  3  .lur.  N.  S.  83U,  V.  C. 

V.   Smith,  .Jac.  544;  Anstrutiier  v.  Adair,  W.     As  to  tlie  allidavit  rcipiired  where  the 

2  M.   &  K.   513;   Ilitclicock  o.  Cleiidiiien,  wife  was  ilfad,  and  an  aliidavit  of  no  set- 

12  Beav.   534;  .M'Cormick  o.  Garnett,  6  tlement  could  not  be  obi. lined,  see  Clarke 

De  G.,  M.   &   G.  278;  18   ,Jur.    412;  see,  v.  Woodward,  25  Beav.  455.     VVheie  the 

however,  Schwabacher  i*.  Becker,  2  Sm.&  settlement  was  Scotch,  the  Court  required 

G.  Api>.  4;  but  if  tlieyV?Ke  a/vm-l  is  a  ward  the  aliidavit  of  a  Scotch  advocate  that  it 

of  Court,  lh(!   ca.se   is   rlilfcreiit,  and  the  did  not  all'ect  the  fund, /dc  Todd,  Shand  «. 

Court  will  direct  a  settlement.  In  re  Twee-  Ki<ld,  \'J  Heav.  582. 
dale'.M  Settleiiumt,  .Johns.  IW).  t*  See  form  of  recital  thereof  in   Seton, 

I  M'Cormick    r.    Garnett,   ubi  suj>.     In  657,  No.  2. 
Sutherland  v.  Young,  5  L.  T.  N.  S.  738,  «  For  form,  see  Vol.  III. 


96 


SUITS    BY   PERSONS   WHO   ARE    UNDER   DISABILITY. 


(11.  III.  § :. 


Consent  of 
wife :  at  what 
stage  taken. 


Not  taken,  if 
under  age. 


If  wife  con- 
sent, Court 
cannot  refuse 
to  pay  fund 
to  nusband ;' 


nation  is  taken :^  in  ■wliit-h  case,  it  is  nsual  to  swear  the  aflidavit 
before  one  of  tlie  eoniniissioners  appointed  by  the  order,  if  lie  is 
competent  to  administer  an  oath  in  Ch.'incery,  Where  tlie  mar- 
riage is  not  otherwise  ])roved,  the  altida\it  slionhl  state  the  time 
and  phice  of  the  marriage,  and  a  certiticatc  tliereof  shonkl  be  ex- 
hibited.- 

As  a  general  rule,  the  consent  of  the  wife  Avill  not  be  taken  l)y 
the  Conrt  until  the  amount  of  the  fund  is  clearly  ascertained^ 
exce])t  Avhere  it  is  subject  only  to  a  deduction  for  costs  ;^  but  her 
consent  has  been  taken  to  the  part  ascertained  fi'om  time  to  time.^ 
Formerly,  it  was  not  the  jiractice  of  the  Court  to  direct  a  fund 
belonging  to  a  married  woman  to  be  paid  out  of  Court  at  the 
hearing  of  the  cause ;  "^  but  it  was  directed  to  be  transferred  to  a 
separate  account,  usually  entitled  the  account  of  the  husband  and 
wife ;  and  after  such  transfer,  a  petition  was  presented  for  payment 
out  of  Court  of  the  money  so  transferred.''  Now,  however,  where 
the  %\dfe  appears  in  Court  and  consents,  the  fund  may  be  directed 
to  be  i^aid  out  at  the  hearing  of  the  cause,  or  on  further  considera- 
tion.^ 

If  the  wife  be  not  of  full  age,  she  is  incapable  of  giving  her 
consent;  in  that  case,  therefore,  the  Court  will  not  examine  her, 
but  will  require  the  husband,  in  case  he  applies  to  this  Court,  for 
her  equitable  joroperty,  to  make  a  proper  settlement  upon  her.^ 
If  the  wife  is  of  age,  and  persists  in  giving  her  consent,  and 
waiving  her  equity  to  a  settlement,  it  apj^ears  that  the  Court  can- 
not refuse  to  act  in  accordance  with  her  wish.^°  In  Mx  parte 
Iligliain^^  however.  Lord  Hard  wick  considered  himself  entitled  to 
object  to  the  whole  fund  being  paid  over  to  the  husband,  who  was 
in  trade,  even  though  the  wife  consented ;  but  in  the  previous  case 
of  Willats  V.  Cay,^'^  where  th(j  wife  had  appeared  in  Court,  and 
being  examined  desired  that  the  whole  money  might  be  2>aid  to 
her  husband,  the  Master  of  the  liolls,  although  the  parties  had 
married  without  the  consent  of  the  wife's  relations,  and  the  hus- 
band apjjeared  to  be  insolvent,  refused  to  refer  it  to  the  Master  to 


1  See  form  of  order,  Seton,  658,  No.  4. 
The  V.  C.  Kindersley  requires  the  affida- 
vit to  be  jiruduced  before  the  order  to  ex- 
amine is  made,  Seton,  0d3. 

2  See  form  of  alKdavit  in  Vol.  III. 

8  Sperling  v.  Kochlort,  8  Ves.  1G4,  178; 
"Woollands  v.  Crowther,  12  Ves.  174,  178; 
Jernegan  v.  Baxter,  G  Mad.  32 ;  Moss  v. 
Dunlup,  8  W.  K.  3'J,  V.  C.  W.  S.  C.  nam. 
Anon.,  5  .Jur.  N.  S.  1124. 

•»  I'acker  v.  I'acker,  1  Coll.  92;  Mus- 
grove  V.  Flood,  1  .lur.  N.  S.  1086,  V.  C. 
W.;  Roberts  v.  Collett,  1  Sm.  &  G.  138. 

5  Powell  V.  Merrett,  Seton,  001. 

6  Campbell  v.  Harding,  6  Sim.  283. 

7  Jbid. 


8  13  &  14  Vic.  c.  35,  §  28 ;  and  see  ante, 
p.  93. 

5*  Stubbs  V.  Sargon,  2  Beav.  496 ;  Abra- 
ham V.  Newcombe,  12  Sim.  566.  As  to 
the  course,  where  the  wife  is  non  compos, 
see  Caldecott  v.  Harrison,  Seton,  663. 

10  See  2  Story  Eq.  Jur.  §  1418,  note; 
Murray  v.  Lord  Eliljank,  10  Sunmcr's  Ves. 
84,  and  note  ;  Ward  v.  Amory,  1  Curtis, 
419,  432 ;  Sawyer  v.  Baldwin,  20  Pick.  378, 
388. 

11  2  Ves.  S.  579.  The  ground  of  this 
decision  appears  to  have  been,  that  the 
lady  had  been  a  ward  of  Court;  see  also 
Biddies  v.  .Jackson,  26  Beav.  282;  3  De  G. 
&  .J.  544;  4  .Jur.  N.  S.  1069;  5  id.  901. 

12  2  Atk.  67. 


MARRIED   WOMEN.  97 

consider  a  scheme  for  securing  a  provision  for  the  wife  :  observing,    Ch.  m.  §  7. 

that  it  was  never  done  nnless  ch-cumstances  of  fraud,  or  of  com-    ■ y '■' 

pulsion  on  the  part  of  the  husband  appeared;  and  that  a  wife  unless  there 
might  as  well  dispose  of  her  personal  estate,  over  which  she  has  s^ancesT" 
an  absolute  control,  as  of  real  estate,  which  she  might  do  by  join-  ^'^'^'^• 
ing  in  a  fine  with  her  husband.^ 

It  woidd  seem  that,  as  long  as  the  money  remains  in  Court,  the  Consent  may 
wife  may  claim  a  settlement  out  of  it,  although  she  has  consented  be  revoked 
t04ts  being  paid  to  her  husband;  or  that,  at  any  rate,  this  is  so  payment  out 
where  she  was  not  aware  of  material  circumstances  at  the  time  of 
givmg  her  consent.^ 

It  seems  that,  where  a  wife's  consent  has  been  ah-eady  given   Second  ex- 
upon  her  examination  before  another  competent  tribunal,  she  need  ^"hen'dS' 
not  be  again  examined  in  a  Court  of  Equity ;  thus,  in  Camphell  v.   Paused  with. 
French,^  Lord  Kosslyn  did  not  think  it  necessary  to  issue  a  com- 
mission to  take  the  examination  of  a  manied  woman  residing  in 
America,  as  she  ajipeared  to  have  been  examined  under  a  commis- 
sion issued  by  the  government  of  Virginia,  and  had  consented  to 
a  power  of  attorney  to  receive  the  legacy,  which  had  been  executed 
by  her  husband.     And  so  it  has  been  held,  that  where  a  married 
woman  is  entitled  to  a  share  of  money  arising  from  the  sale  or 
mortgage  of  an  estate  which  has  been  mortgaged  or  sold,  and  in  , 

order  to  effect  such  sale  or  mortgage  she  has  joined  in  levying  a 
fine  of  her  share,  and  for  that  purpose  has  undergone  the  usual 
examination  in  the  Court  where  such  fine  has  been  levied,  she  will 
be  barred,  by  the  fine,  of  her  equity  for  a  settlement.^ 

The  right  of  a  married  woman  to  have  a  settlement  made  of,   Consent  dis- 
or  out  of,  a  fund  in  Court,  arises,  however  small  the  fund  may  be ;  ft'llnid  under 
but  if  it  is  under  iZlJU/.,  or  is  likely  to  be  reduced  thereto  by  costs,^  200/.,  or  Ml. 
or  produces  less  than  10/.  a  year,"  she  may  waive  her  equity  to  a  ^"'  ''"^""'' 
settlement  without  being  separately  examined." 

When  the  Accountant-General  is  directed  to  pay  or  transfer  any   Effect  of 
sum  of  money  or  stock  to  an  utimari-ied  woman,  and  she  marries   J";»™"Ke  on  a 
before  payment  or  transfer,  and  the  sum  does  not  exceed  200/.,  or  previmisiV 
10/.  a  year,  the  Accountant-General  may  pay  or  transfer  the  same  plia 'to  Uie ''*" 

1  See   Milner  v.  Colmer,   2    P.   Wins.  price:  Geddes  ex  parte,  4:  Rich.  Kn.  .301- 

!??^  /'I'm'  '^"""y,/-    Athol.   2    Mk.  444,  oritmiiy  i,e  voluntarily  waived:  Ward  r! 

448;  Oldham   /;.  Iluglies  ih.   452;  Heaile  Arnorv,  1  Curtis,  4iy;  tee  now  3&  4  Wdl. 

V.  Greenhank,  3  Atk.  0!».0,  7uy;  Parsons  v.  IV.  c.  74  §   77,  substilutini,'  an  acknowl- 

Dunne,  2  \  es.  S.  (JU;  Mi„ct  r.  Hyde,  2  ed^'ed  deed   for  a  (ino:    Shellord,  K.  P. 

Uro.  C.   C.  603;  iJimmoch  v.   Atkinson,  Stat.  38U. 

3    Hro.  C.  C.    lyr,;  l.llii,   ,;.  Atkinson,  ib.  6  Uoljerts  v.  Collett,  1   Sm.   &  G.  138: 

GO.j;  Mood  V.  Uurlton,  4  Hro.  C.  C.  121.  hut  see   Sporlc  r.  liarnaby,  10  Jur.  N.  S. 

i  Uat~on  r.  Miir.shall,  17  Ueav.  303.  1142,  V.  C.  S. 

»  3  V\m.  321,  323.  0  .See  Seton,  600;  Ord   I.  1. 

■'  .May  f.  Honer,  4  Sun.  360;  Wright  w.  7  Jie  Kincaid,  1   Drew.  320.     The  case- 

Arnold,  14  B    Mon.  038.     The  wile  may  of  Vm\w    i\   Kinnev,  4    Huss.   428,  is  not 

waive  her  ri;,'ht   l.y  [..Tniittint,'   the   con-  now   binding.  He  Cutler,    14   liciiv.   22(1; 

veyance:  \Vri>rl,t  ,•.  Arnold,  14    15.   Mon.  an<l    km-   \U,„4y  ,-.  lliggins,  2  Jur.  N.  S. 

C38;    so   by  joining   in  a  receipt  for  the  1008,  V.  C.  W. 


woman. 


VOL.    I. 


98 


SUITS   BY   TERSONS   AVHO    AUE    UNDER   DISABILITY. 


cii.  in.  5  7. 


Where  fund 
exceeds  tlie 
Hbuve  limit. 


Examination 
required, 
thoufrh  pay- 
ment desired 
to  wife  on  her 
separate  re- 
ceipt. 

Consent  not 
taken,  where 
property  is  a 
remainder  or 
reversion. 


When  it  con- 
sists of  a  re- 
mainder, and 
there  is  a 
power  of  ap- 
pointment in 
the  survivor, 
quaref 


to  llie  voinan  and  lu'.r  Imshand,  upon  jn'oof  of  \hv  inamnge,  and 
siu'li  aflidavit  ot"  no  setlk'nicnt  as  lia.s  been  mentioned  above ;  ^  or, 
in  case  there  has  been  a  settlement,  upon  the  aliidavit  of  the 
solicitor,  that  in  his  judgment  the  settlement  does  not  afiect  the 
fund.''  But  where  the  fund  in  Court  exceeds  the  limit  above 
mentioned,  a  sj)ec'ial  order  for  payment  is  necessary :  which  can  be 
obtained  at  chambers,  on  ex  parte  summons,^  supported  by  the 
production  of  the  order  under  which  the  fund  was  directed  to  be 
jiaid  to  the  woman,  the  Accountant-General's  certificate,  and  an 
affidavit  by  her  and  her  husband  of  the  marriage,  and  of  no  settle- 
ment;^ or  by  ])etition,''  on  the  like  evidence,  where  there  is  no 
jurisdiction  at  chambers. 

The  Court  will  not  dispense  with  the  sej^arate  examination  of 
the  married  woman,  in  cases  where  it  is  ])roposed  to  pay  the  fund 
to  her  se])aratc  receii)t ;  as  that  would  be,  in  efi'ect,  the  same  as 
payment  to  the  husband,® 

The  rule  of  the  Court  appears  to  be,  that  the  Avife  can  only  con- 
sent to  part  with  that  interest  which  is  the  creatm-e  of  a  Court  of 
Equity:  viz.,  the  right  which  she  has,  in  a  Court  of  Equity,  to  claim 
a  provision  by  way  of  settlement  on  herself  and  children,  out  of  the 
pro])erty  Avhich,  at  Law,  the  husband  could  take  ])ossession  of  in 
her  right.''  This  equity  arises  uj^on  the  husband's  legal  right  to 
present  possession ;  and  the  principle  has  no  application  to  a  remain- 
der or  reversion,  which  can  only  be  passed  to  the  husband  when  it 
falls  into  possession.^  With  respect  to  an  interest  of  this  descrip- 
tion, it  has  been  stated  generally,  that  the  Court  will  not  allow 
her,  by  any  act  of  hers  during  coverture,  to  bind  her  future  rights. 
Without  her  consent,  the  Court  will  not  deal  with  it  or  dispose  of 
it  at  all ;  and  her  consent  the  Court  will  refuse  to  take.^  Thus,  a 
]>etition,  which  had  for  its  object  the  payment  to  the  husband  of 
a  sum  of  money,  to  which  the  wife  was  entitled  in  reversion  alter 
the  death  of  her  motliei",  was  refused.^" 

In  Macarmick  v.  Buller^^  however.  Lord  Kenyon  M.  R.  made 
an  order,  upon  the  consent  of  a  married  woman  given  in  Court,  for 
the  payment  of  trust  money  to  her  husband,  which  appears  to  be 


1  Anie,^  p.  95. 

2  Ord.  I.  1.  2,  3. 

8  See  form  in  Vol.  III. 

6  Ihid. 

6  Mawe  V.  Heaviside,  7  Jur.  N.  S.  817; 
9  W.  K.  649,  V.  C.  K. ;  Gibbons  v.  Kibbey, 
7  Jur.  N.  S.  1298;  10  W.  K.  55,  V.  C.  K. ; 
and  see  Seton,  664;  but  see  Clark  v. 
Clark,  1  W.  N.  106;  14  VV.  K.  440,  V.  C. 
S.,  where,  husband  consenting,  fund  was 
paid  on  separate  receipt  of  wife. 

''  Pickard  v.  Roberts,  3  Mad.  385. 

8  Ihvl. 

9  Per  Lord   Cottenham,  in    Frank  v. 


Frank,  3  M.  &  C.  178;  Woollands  v. 
Crowclier,  12  Sumner's  Ves.  174,  Perkins's 
note  («)  aiifl  ciises  cited;  2  Story  Eq.  Jur. 
§  1413,  and  notes  and  cases  cited.  She 
may,  however,  now  rcleiise  her  equity, 
under  the  provisions  of  the  20  &  21  Vic. 
c.  57. 

10  Pickard  »;.  Roberts,  3  Mad.  384;  see 
StiflFe  V.  lOveritt,  1  M.  &  C  37,  41 ;  Rich- 
ards V.  Ciiainbeis,  10  Ves.  580;  Ritchie  v. 
Broadbeiit,  2  ,J.  &  W.  456;  Osborne  v. 
Morgan,  9  Hare,  434;  and  post^  p.  117 
ei  seq. 

11  1  Cox,  357. 


i 


MARRIED    WOMEN.  99 

completely  at  variance  with  the  rule  laid  down  in  the  cases  just    Ch.I1I.§7. 

cited.     In  that  case,  on  the  mamage  of  the  plaiutifl;  a  simi  of  " , '•' 

9000?.  had  been  vested  in  trustees,  upon  trust  to  pay  the  interest 
to  the  husband  for  life,  and  after  his  death  to  the  wife  for  hfe,  and 
upon  the  death  of  the  survivor  to  pay  the  principal  to  such  persons 
as  such  survivor  should  direct ;  but  the  husband,  having  occasion 
for  the  money,  joined  with  the  wife  in  executing  a  deed-poll, 
whereby  they  appointed  the  money  immediately  to  the  husband  ; 
and  upon  personal  examination  of  the  wife  in  Court,  the  trustees 
were  diix'cted  to  pay  the  money  to  the  husband. 

Where  2.  feme  covert  was  tenant  in  tail,  in  remainder  after  a  sub-  Under  tenant 
sisting  life-estate,  of  money  to  be  laid  out  in  land,  it  was  held  by  ^^  '^^'  ^'^'^• 
Sir  John  Leach  M.  R.  that  she  could,  by  an  arrangement  with  the 
tenant  for  life,  and  on  a  private  examination  under  the  7  Geo.  IV. 
c.  45,  consent  to  the  payment  of  a  portion  of  the  money  to  the  hus- 
band.^ But  that  Act,  it  is  to  be  remarked,  gave  to  the  tenant  in 
tail  in  remainder  an  immediate  right  to  apply,  in  concurrence  with 
the  tenant  for  life,  for  the  pa;y^nent  of  the  money  out  of  Court ;  so 
that  the  order  thus  made  under  the  Act  was  not  at  variance  with 
the  rule  above  noticed,  that  the  wiie  can  only  consent  to  part  with 
that  which  the  husband,  in  her  right,  has  an  hnmediate  right  to 
reduce  into  ])ossession. 

As  a  general  rule,  where  the  money  has  arisen  fi-om  the  sale  of  Disentailing 
land,  and  is  liable  to  be  re-invested  in  land,  the  Couit  will  take  the   ^.f^eiVX*"' 
consent  of  the  married  woman,  without  requiring  the  usual  for-  pensed  with. 
malities  on  a  disj)osition  of  land.'^ 

In  the  case  of  Whittle  v.  Henning^  the  ijni)ortant  question  came   Where  wife, 

before  Lord  Cottenham,  whether  a  man-ied  woman,  entitled  under   <'"'^'<'*^5^ '» 
iii  i.  i  •  •    .  .    •  ..       T    .       '  reversion  to  a 

settlement  to  a  re\-ei-sionary  interest  m  a  iund  in  Court,  could,  by  money  fund, 
obtaining  assignments  of  all  the  interests  in  the  fund  previous  to  Sests?™' 
tiiat  settled  upon  herselt;  make  herself  absolutely  entitled  to  the 
whole  fuiifl,  so  as  to  have  it  paid  out  of  Court.     It  was  held,  after 

1  lit  Silcock,  3  liuss  3G9.     This  Act  is  9  Jur.  N.  S.  942;  but  see  lU  Watson  uU 

repealed  hy  <j  6:4   Will    IV    c  /4,  §  70,  mp.     For  or.ler  for  payment  to  the  hu- 

and  provisions  suhstitute.l  by  \  it  et  se'j.  band,  on  the  wife's  ch-ction  to  take  money 

li  See  liintord  v.  liovvden,  1  Ves.  J.  .012;  as  land,  see  Seloii,  GiiO;  and  after  a  dis- 

Ke  Silcock,  3  H.i;_s.  309,  underfhe  repealed  entailing;  assmance  and  her  examination 

Act;   /■x/.<,,7..    ■Jh.son  2  ^   ik(:  Kx.  528;  ihid.     Where  the  fund  was  small,  not  ex- 

Ue  Tyler    8  WK    -,40    V.  C.  VV  ;    lU  ceedin^?   30/.,   her  examination    was    dis- 

Hayes,  9  W  .  R.  (09,  \.  C.  k.;  lit  Worth-  pensrd  with,  He  Clark   U   N    i;   «■>   V    0 

mf,'ton,  lA.  n. ;  Setoii,  000,  under  the  j)res-  S.:   II  .lur.   N.  S.  7;   13  \V     |{    .ini    noiii 

ent  Act.     For  other  orditrs  for   payment  l'ollr,.k  v.    15irminf,d.ani,   Wolveilumiptoii' 

out  to  tenants  m  tail,  without  a  disentail-  and  Stonr  \'allev  h'ailway  Co.,  ){,■  (Jhirke' 

ing  assuraiin-,  se.=  .Sowry  r.  Sowry,  8  .Jur.  As  to  th,;  formalities  required   bv  the  3  & 

?■■!       Vn  ^'-  ^;,v  \  ^T}\  '''"•'''T."     ^  ^^'"''  '^'-  '■  '^- "'  <•'«  *-•«■'*«  "'■ "  """•■•i^''» 

Kailway,  30  lieav.  216;  Jit  Ilolden,  1    H.  woman,  see   Shellord.  K.   1'.  Stal.   402  et 

&  M.  44.0;  Ut  Ilohlen,  10  .Jur.  N.  S.  308.  «vy,,  ,„„1  717   el  s,>j.  ;  and  for  preerdfiits 

V.  C.   .S.;    /Ce   Watson,  16.    1011,   I..  .I.J.;  of  discntailinf;  deeds.  iO.  Ain.x.;    2  I'ri- 

Nottley  r.  Talmer,  L.  JC.  1   K(|.   241;  11  deaux  Conv.  4.!1  els,,,. 

Jnr.  N.  S.  90S,  V    C,    K.     Such   an   order  a  2   Phil.  731:  11   Ijuav.  222;  Story  v. 

was  refused   by  V.  C.  K.  lu  Jie    lyldeii,  Tonge,  7  lleav.  91. 


100 


SUITS    BY    PEKSONS    WHO    ARE    UNDER    DISABILITY. 


Cn.  III.  § 


Exnmiiiation 
dispeiisi'il 
■\vitli,  whoii' 
tlio  tiiiul  is 
lier  soparate 
estate, 


except  where 
her  husband 
is  to  be  the 
recipient. 


Where  she 
refuses  to  give 
her  consent. 


nil  dalnn-ato  judoniciit,  and  a  review  of  all  tlic  c-ase.s,  tliat  she  could 
not  do  so. 

Where  jn'opeity  is  settU'd  to  the  separate  use  of  a  married 
woman,  her  separate  examination  is  not  necessary  in  order  to  puss 
her  interest  to  a  purchaser.  The  i)rinciple  upon  which  this  riile 
is  founded  is,  that  she  is,  as  to  that  pro])erty,  a  feyne  sole,  and,  as 
such,  has  a  disj)osing  })ower  over  it ;  ^  and  it  ai)])lies  as  much  to 
reversionary  property  as  to  property  in  possession.-'  Upon  the 
same  principle,  where  a  married  woman  to  whom  an  annuity  Avas 
bequeathed  for  her  separate  use,  joined  with  her  husband  in  assign- 
ing jiart  of  it  for  a  valuable  consideration,  and  she,  the  husband, 
anil  the  ])urchaser,  afterwards  filed  a  bill  against  the  executors  of 
the  testator  under  whom  the  annuity  was  claimed  :  a  doubt  having 
occurred  whether,  in  such  a  case,  a  decree  could  be  taken  by  con- 
sent. Sir  J.  Leach  M.  R.  Avas  of  opinion  that  it  could,  and  directed 
the  decree  to  be  drawn  up  accordingly.^ 

But  although,  Avhere  ])roperty  has  been  settled  to  the  separate 
use  of  a  married  woman,  the  Couit  will  give  effect  to  her  aliena- 
tion of  such  property,  in  the  same  manner  that  it  gives  effect  to  an 
alienation  by  a  feme  sole,  the  rule  does  not  extend  to  transactions 
with  her  husband,  which  are  looked  u])on  by  the  Court  with  con- 
siderable jealousy;  so  much  so,  that  the  Court  has  refused  to  pay 
the  separate  money  of  the  wife  to  the  husband,  without  the  exam- 
ination of  the  wife  in  Court.*  It  is  not,  however,  to  be  understood 
that  a  AAafe  may  not,  in  any  case,  dispose  of  her  separate  property 
to  her  husband,  unless  by  consent  in  Court,  or  before  commission- 
ers. Several  instances  have  occurred  Avhere  Avives,  by  acts  injmis, 
have  parted  with  separate  projaerty  to  their  husbands.^  It  should 
be  observed,  hoAvever,  that  such' gifts  are  never  to  be  inferred  with- 
out A'cry  clear  eAddence." 

If  a  married  woman,  upon  being  examined  apart  from  her  hus- 


1  Unless  she  is  restrained  from  antici- 
pation, see  Symoiids  v.  Willies,  12  W.  K. 
541,  M.  K. 

■^  Sturgis  V  Corp,  13  Ves.  190;  and  see 
Keener.  Johnston.  1  Jones  &  Car.  255; 
see  Sperling  v.  Kochfbrt,  8  Sumner's  Ves. 
175  and  note  (o)  and  cases  cited;  2  Story 
Eq.  Jur.  §  1413  Hnd  notes. 

•*  Stinson  v.  Asliley,  5  Russ.  4;  but  it 
would  seem  that  there  must  be  an  aflidavit 
of  no  settlement,  Anon.,  3  Jur.  N.  S.  S39, 
V.  C.  W. 

i  2  Bright,  H.  &  W.  257;  Gulian  v. 
Trimbev,  2  J.  &  \V.  457,  n.;  Wordsworth 
V.  Dayrl-ll,  2  Jur.  N.  S.  «31,  V.  C  K.;  and 
see  Viilnes  i'.  Busk,  2  Ves.  J.  498.  Jn 
Anon.,  3  Jur.  N.  S.  831>,  beiore  referred  to, 
thefuiid  was  paid  to  the  wife  on  herse))a- 
rate  receipt,  without  examination  in  Court ; 
but,  quwrt,  whether  tiiis  was  not  done  in 
consequence  of  her  living  separated  from 


her  husband.  As  to  the  mode  by  which 
the  liusband  can  be  excluded,  where  the 
wife  is  entitled  to  stock  for  her  separate 
use.  see  Suton,  603.  But  see  Jie  Crump, 
34  Beav.  670,  where  a  fund  settled  to  the 
separate  use  of  a  married  woman  was 
ordered  to  be  transferred  into  the  joint 
names  of  herself  and  her  husband. 

6  Bawlet  f.  Dehival,  2  Ves.  S.  6b3;  see 
Sherman  v.  Elder,  1  Hilton  (N  Y.),  178, 
476. 

6  Rich  V.  Cockell,  9  Ves.  369;  Harvey 
V.  Ashley,  cited  2  Ves.  S.  671 ;  3  Atk.  607 ; 
Co.  Litt.  by  Harg.  3  a.  n.  A  wife  may 
bestow  her  separate  property  upon  her 
husband,  by  appointment  or  otlierwise,  as 
well  as  upon  a  stranger.  2  Story  E(|.  Jur. 
§§  1395,  1396;  Jlctiioiiist  Kpis.  Church  v. 
.Jaques,  3  Jonn.  Ch.  86-114;  liradish  v. 
Gibbs,  3  John.  Ch.  523;  see  Smith  v. 
Sweet,  1  Cush.  470-473. 


MARRIED    WOMEN. 


101 


band,  refuses  to  give  her  consent  to  the  money  being  paid  to  him, 
the  consequence  of  such  refusal  is,  that  the  Court  directs  a  proper 
settlement  to  be  made,  generally  determining  at  once  ^  the  amount 
to  be  settled,  and  referring  it  to  chambers  to  approve  of  the  neces- 
sary deed ;  and  the  proceedings  are  usually  completed  there,  without 
ftirther  mention  to  the  Court.^  If  the  fund  is  small,  it  is  usual,  for 
the  ])urpose  of  saving  the  expense  of  a  deed,  to  settle  the  fund  at 
once  by  the  decree  or  order.^ 

It  is  to  be  remarked,  that  although  the  Court  will,  iu  general, 
oblige  the  husband  to  make  a  settlement  upon  his  wife  and 
children  of  any  property  which  he  may  be  entitled  to  in  right  of 
his  wife,  for  the  recovery  of  which  it  is  necessary  to  resort  to  a 
Court  of  Equity,  yet,  where  there  is  no  suit  pending,  the  husband 
is  authorized  to  lay  hold  of  his  wife's  property,  wherever  he  can 
find  it." 

There  is  no  doubt  that,  pre\-iously  to  a  bill,  a  trustee  who  is  in 
possession  of  the  wife's  i)ro})erty,  real  or  personal,  may  jDay  the 
rents  of  the  real  estate  to  the  husband,  or  may  hand  over  to  him 
the  personal  estate ;  ^  and  the  Court  will  not,  upon  bill  filed,  recall 
it.^  But  the  trustee  may  equally  refuse  to  pay  the  husband  till 
compelled  by  the  filing  of  a  bill,  in  order  that  the  wife  may  obtain 
the  full  benefit  of  the  jn-otection  afforded  her  by  a  Court  of  Equity; 
and  the  circumstance  that  the  wife  joined  with  the  husband  in 
making  the  demand  is  of  no  weight  whatever.''  Where,  however, 
a  bill  lias  already  been  filed,  a  trustee  cannot  exercise  his  discretion 
upon  this  point ;  as  the  bill  makes  the  Court  the  trustee,  and  takes 
away  from  the  actual  trustee  his  right  of  dealing  with  the  property, 
without  its  sanction. 

With  respect  to  the  nature  of  the  settlement  made  by  the  Court, 
and  the  ])ro[tortion  of  the  interest  given  to  the  wife,  no  certain 
rule  can  be  laid  down :  the  amount  being  entirely  in  the  discretion 
of  the  Court,^  and  depending  upon  the  particular  circumstances  of 


Ch.  III.  §  7. 


Where  a  suit 
is  not  pend- 


trustee  maj' 
pay  fund  to 
husband, 


but  may  re- 
fuse. 


After  bill 
filed,  trustee's 
discretion 
ceases. 


Nature  of  set- 
tlement. 


1  Coster  V.  Coster,  9  Sim.  597,  GOo; 
Napier  v.  Xapier,  1  Dr.  &  Wiir.  407. 

'•^  For  foniiH  of  orders,  see  Soton,  CC4; 
ami  for  the  practice  at  chambers,  see  post, 
Chap   .XXIX. 

8  Sfton.  <;*i.1:  Re  Cutler,  14  Ueav.  220; 
Baifsluiw  1'.  Wiiitfr,  .0  |)p  (}.  &  S.  4<ifJ; 
Watson  r.  Mar>.hitli,  17  Ik-av  3t;.3;  and 
see  iibstract  of  onl^r.  ih.  p.  W>:>;  He 
Kincaid,  1  Drew.  320;  Wright  iv  Kin;,'.  18 
Beav.  4'i]  ;  Duncombe  «'.  (irceriacrc,  No 
2,  29  lir-av.  T,'H;  fur  form  of  summons  fur 
the  scltjcmi-nl  of  a  fund,  sec  Vol  III. 
Where  the  busbniid  rffusiMl  U)  exi'(  iile  tli') 
settlcmcnf,  mid  the  triiutci's  d<'clin"d  to 
act,  the  (mill  was  ordi'n.'d  to  ri-maiti  in 
('onrt  as  setlh-d,  and    tlie    inferi'st  to  be 

f>aid  to  the  wife  for  her  scpiiriite  use  for 
ife,  IU  IJntt,  cited,  Seton,  071. 


4  .Jewson  V.  Moulson,  2  Atk.  419;  2 
Kentdlth  ed),  141:  Howard  c.  Motfat, 
2  .lohn.  011.200;  Thomns  v.  .Shepi.anj,  2 
MTord  Ch.  .30;  Matter  of  Hume  Walker, 

1  Lloyil  &  G.  \hO,  cases  Temp.   Plunket; 

2  .Slorv  Kq.  .Jur.  §  1403,  and  notes;  see 
Van  I'liips  i\  A'aii  Dciiseii.  4  I'ai^e,  04; 
Frv  »'.  I'"rv,  7  Pai^e,  402;   Wiles  r.   Wiles, 

3  Sid.  1 ;  "I'ool  V.  .Morris,  29  Geo.  374. 

C  Miirruy  v.  I.ord  I'.libaiik,  10  Vca.  90. 

"  (jlaister  v  Hewer,  8  Ves.  200;  Mac- 
fiulav  i-  riiilips,  4  Ves.  15;  Miirrav 
1'.  Klibank,  10  Ves.  90;  2  Story  Ki|.  .Jur. 
§  1410. 

'  Ht  Swan's  Settlement,  12  W.  R.  738, 
V.  C.  W.;  2  ir.  &  M.  34:  but  see  May  v. 
Armstrong,  1  W.  N.  233,  V.  C  S. 

"  Kennv  r.  Udall,  5  .lolin.  Ch.  404;  2 
Kent  (lull  ed.),  140,  141.     This  equity  of 


102 


SUITS    RY    PETtSOXS   "WHO    ARE    UNDER   DISABILITY. 


Cii.  ni.5 


Husiviiui, 

•while  main- 
tniiiinc  wile 
and  ciiililron, 
is  usually  al- 
lowed the 
whole  inter- 
est; 

Seats,  the 
whole,  or  a 
portion,  will 
be  settled  im- 
mediately on 
them. 

Amount  to  be 
settled, 
depends  on 
the  particular 
circum- 
stances : 
Cases  where 
the  whole  has 
been  settled. 
Cases  where 
part  only  has 
been  settled. 


v:\ch  cMso.  Tf  the  husbiind  is  living  with  her,  ami  maintaining 
luT  and  lu'i-  i-liiMrcn,  ho  will,  in  the  absence  of  any  special  circnin- 
staiu-es,  1)0  allowed  the  interest  on  the  whole,  so  long  as  he  main- 
tains her.^  When  the  hushand  is  not  living  with  the  wife  and 
maintaining  her  and  lu'r  ehildren,  as  when  he  has  become  l)ankni])t 
or  insi>lvent,  or  has  deserted  her,  the  whole,  or  some  portion  of  the 
fund  will  be  settled,  immediately,  upon  the  wife  and  children. 
AVith  regard  to  the  amount  wdiich  will  be  settled,  it  has  been 
l)efore  observed,  that  this  dejiends  upon  all  the  circumstances  of 
each  particular  case;"'^  but  it  may  be  mentioned,  that  the  whole 
fund  has  been  settled :  where  the  husband  was  bankrupt,  and  had 
received  large  advances  fi-om  the  wife's  father ;  ^  where  the  husband 
deserted  his  wife,  and  contributed  nothing  to  her  support;^  where 
the  husband  was  insolvent,  and  had  received  large  sums  in  right 
of  his  wife ;  ^  and  Avhere  the  husband  was  bankru])t,  and  had 
deserted  his  wife ; "  and  in  the  recent  reports,  numerous  cases  will 
be  found  in  which,  under  the  circumstances,  the  whole  fund  was 
settled.'^  In  other  cases,  the  fund  has  been  divided  ;  ^  and  in  the 
oilier  cases  one-half  has  been  frequently  settled;^  but  the  rule  that 


the  wife  stands  upon  the  peculiar  practice 
of  the  Court,  and  not  on  any  general  rea- 
soning. Kennv  v.  Udall,  supra  ;  2  Story 
Eq.  Jur.  §  1407;  2  Kent  (11th  ed.),  140, 
141. 

1  BuUockr.  Menzies,4Ves.  798;  Sleech 
V.  Thorington,  2  Ves.  S.  560.  Where  the 
husband  lives  with  his  wife,  and  maintains 
her,  and  has  not  misbehaved,  the  course 
is  to  allow  him  to  receive  the  interest  and 
divi'lends  on  all  property.  Kenny  v. 
Udall,  .5  .John   Ch.  464. 

-  1  lie  Court  may,  in  its  discretion,  give 
the  whole,  or  part  only  of  the  property  to 
the  wife,  according  to  the  circumstances 
of  the  case.  Kenny  v.  Udall,  5  .John.  Ch. 
464;  Iluviland  v.  Bloom,  6  .John.  Cli.  178, 
180,181.  Tlie  amount  of  such  provision 
must  depend  on  circumstances,  amongst 
which  the  amount  of  the  property,  the 
age,  health,  and  condition  of  the  wife, 
the  number,  age,  sex,  and  health  of  her 
children,  if  any,  would  be  fit  subjects 
of  consideration.  In  this  respect,  in  a 
case  directl}'  before  the  Court,  it  would 
be  proper  for  the  Court  to  avail  itself  of  tlie 
aid  of  a  Master,  to  inquire  into  and  report 
the  circumstances,  and  to  report  what 
would  be  a  suitable  provision  for  the  wife. 
Cases  may  be  supposed,  in  which,  if  the 
property  were  small,  and  had  been  kept 
entirely  distinct  from  that  of  the  husband, 
and  where  the  exigencies  of  the  family 
were  such  as  to  require  it.  it  would  be 
proper  to  appropriate  the  whole  of  such 
property  to  the  use  of  the  wife  and  her 
children.  Davis  v.  Newton,  6  Met.  544. 
"The  Court  may,  in  its  discretion,  give 
the  whole,  or  part  on)}',  of  the  property  to 
the  wife,  accordii^g  to  the  circumstances 


of  the  case."     2  Kent  (11th  ed.),  140, 141 ; 
Haviland  v.  Bloom,  6  John.  Ch.  178,  180, 
181. 
8  Gardner  v.  Marshall,14  Sim.  575,  584. 

4  Gilchrist  v.  Cator,  1  De  G.  &  S.  188 ; 
lie  Ford,  32  Beav.  621;  9  Jur.  N.  S.  740. 
In  Kernick  v.  Kernick,  4  N.  R.  .133,  V.  C. 
W.,  where  the  husband  had  deserted  the 
wife,  but  maintained  their  children,  the 
whole  fimd  was  settled  on  her  for  life;  but 
leave  was  reserved  to  liim  to  appl}',  on  her 
death,  in  respect  of  the  payment  to  him  of 
any  part  of  the  income  during  his  life. 

5  Scott  V.  Spashett,  3  M'N.  &  G.  599. 

G  Dunkley  v.  Dunkley,  2De  G.,  M.  &G. 
390,  896. 

7  lie  Cutler,  14  Beav.  220;  Marshall 
V.  Fowler,  16  Beav.  249;  Ee  Kincaid,  1 
Drew.  326 ;  Watson  v.  Marshall,  17  Beav. 
362;  Francis  v.  Brooking,  19  Beav.  347; 
Barrow  v.  Barrow,  5  De  G.,  M.  &  (}.  782; 
Gent  V.  Harris,  10  Hare,  384;  Jie  Wilson,  1 
Jur.  N.  S.  569,  V.  C.  S.  ;Koeberi'.  Sturgis, 
22  Beav.  588;  lie  Disney,  2  Jur.  N.  S.  206, 
V.  C.  W. ;  lie  Welchman,  1  GiflT.  31 ;  5  Jur. 
N.  S.  886;  Smith  v.  Smith,  3  Gift"  121; 
Ward  V.  Yates,  1  Dr.  &  S.  80;  Duncombe 
».  Greenacre,  29  Beav.  578;  7  Jur.  N.  S. 
650;  Jie  Tubbs,  8  W.  II.  270,  V.  C.  K.  ; 
and  see  lie  Grove,  3  Giff  575;  9  Jur.  N. 
S.  38;  lie  Merriman,  10  W.  K.  334;  Ker- 
nick V.  Kernick,  4  N.  R.  533,  V.  C.  W. 

8  Napier  v.  Napier,  1  Dru.  &  War.  407; 
Coster  i'.  Coster,  9  Sim.  597;  Kx  parte 
Pngh,  1  Drew.  202;  Bagshaw  d.  Winter, 
6  De  G.  &  S.  460;  Walker  v.  Drury,  17 
Beav.  482. 

9  .Jewson  V.  Moulson,  2  Atk.  417,423; 
Worrall  v.  Marlar,  1  Cox,  153 ;  2  Dick. 
647 ;  Brown  v.  Clark,  3  Ves.  166 ;  Fringle 


MARRIED   WOMEN. 


103 


one-half  is  generally  the  proportion  settled,  which  is  often  referred 
to  in  the  older  reports,  is,  it  would  seem,  not  much  regarded  in  the 
more  recent  cases ;  ^  where,  however,  the  fund  is  under  200/.,  it  is 
the  usual  practice  not  to  divide  it.^ 

The  Court,  however,  will  not  permit  the  equity  of  the  wife,  to 
maintenance  out  of  her  own  fortune,  to  be  defeated  by  any  trick 
or  contrivance  for  that  purpose  on  the  part  of  her  husband.  If, 
therefore,  as  in  Colmer  v.  Colmer,'^  he,  with  an  intention  to  desert 
her  (which  he  afterwards  carries  into  eflect),  makes  a  fraudulent 
conveyance  of  his  and  her  property,  upon  trust  to  pay  his  own 
debts,  the  transaction  will  not  prejudice  her  right  to  maintenance ; 
but  the  Court  ydW  follow  her  property  into  the  hands  of  the  trus- 
tees, and  order  her  an  allowance  suitable  to  her  fortune,  and  the 
circumstances  of  her  husband,  althougli  it  may  be  necessary,  in 
order  to  effect  that  purpose,  to  resort  to  part  of  his  own  property 
so  vested  in  trust. 

It  is  to  be  observed,  that  the  Court  Avill,  as  has  been  shown,  not 
only  ai)i)ropriate  the  interest  of  a  wife's  equitable  property,  for 
her  support,  in  cases  where  she  has  been  deserted  by  her  husband, 
or  obliged  to  leave  him  in  consequence  of  his  improper  conduct 
towards  her,  but  it  will,  under  similar  circumstances,  if  a  stranger 
has  advanced  to  the  wife  money  for  her  maintenance,  order  it  to 
be  repaid  to  him  out  of  her  estate.^  Thus,  in  Griaj  v.  Pearhes,^ 
where  it  appeared  that  the  wife  was  unprovided  for;  that  her 
husband,  after  having  gone  to  sea  and  deserted  her,  had  subse- 
quently to  his  return  neither  cohabited  with  her,  nor  afforded  her 
any  support,  but  had  since  gone  to  the  East  Indies,  and  had  not 
been  again  heard  of;  and  that  it  was  unknown  whether  he  were 
living  or  dead ;  and  it  also  appeared  that  A.  had  made  advances 
to  her  of  30/.  a  year  during  the  above  period,  which  were  her  only 
support :  upon  ajjplication  being  made  to  the  Court,  that  so  much 
of  the  wife's  stock  standing  in  the  Accountant-Gencrars  name  as 
would  raise  210/.  might  be  sold,  and  tlie  proceeds  paid  to  A.  in 
satisfaction  of  his  debt,  and  that  a  further  sum  of  50/.  might  be 
paid  to  the  wife,  and  that  the  dividends  upon  the  remaining  fund 
mifdit  in  future  bo  i)aid  to  lier  for  licr  sup]»ort,  the  application  Avas 
granted  :  A.  having  made  an  attidavit,  tliat  lie  was  induced  to 
make  the  advances  upon  the  failli  <>f  Ix'ing  rci^iid  llicni  out  of  the 
above  proi)erty.     In  pronouncing  his  judgment.  Lord  Eldon  thus 


V.  Ho(l(,'soii,  lb.  617,  620;  Steiiimetz  i'. 
Ilalthin,  1  (Jlvn  &  J.  64;  Kxiinrte  O'Fer- 
thII,  ih.  r!47  ;  vVrclicr  r.  Gardner,  G.  1*. 
Coop.  .'{40;  Spirett  r.  Willows;  Vi.  W.  U. 
784,  V.  C  S  :  adimied  by  L.  (J.,  L.  U. 
1  Ch.  Ap.  n2fi:  Vl  Jur  N.  S.  53H. 

^  lit  Kiiicaid,  1  Druw.  ;!'20;  Ward  i>. 
Yates,  1  Dr.  &  S.  ^o;  Archer  r.  (ianlner, 
C.  i'.  Coop.  '-iVi;  Spirett  f.    Willows,    12 


W.  U.  734;  Re  Tiibbs,  8  W.  K.  270,  V.  C. 
K.;  but  see  /if  (Jrovi',  3  CifT.  57.');  9  .Jur. 
N.  S.  3S;  lie  Grunt,  14  W.  li.  I'.U,  V.  G.  S. 

2  .M(.s.  IIS,  Vl\;  sec  also  Atlicrt.iu  v. 
Xdwell,  1  Cox,  22H. 

»  1  Urifrht,  II.  &  W  258. 

■«  18  Ves.  1%;  and  see  Re  Ford,  82 
Beav.  621;  9  Jur.  N.  S.  740. 


Ch.  III.  §  7. 


Right  of  wife 
to  mainte- 
nance out  of 
her  property, 
cannot  be 
defeated  by 
contrivance 
of  husband. 


Court  will 
order  a 
stranger  to  be 
repaid  his 
advances  for 
maintenance 
of  deserted 
wife. 


104 


SUITS   BY   TEUSOXS   "WHO   AKE    UNDER   DISABILITY. 


Cii  1II.§ 


Wife  not 
entitled  to 
maintenance, 
if  she  loaves 
her  husband 
without 
cause ; 

or  has  been 
guilty  of 
gross  miscon- 
auct 


Wife's 
equity,  as 
against  hus- 
band's partic- 
ular assignee. 


Wife  surviv- 
ing entitled 
to  arn-ars  of 
life-interest 
not  received 
by  husband 
during  cover- 
ture. 


o\])rosso(l  liiiusi'll":  '' T  ]\a\o  a  slvoticj  iin]^i'ession  \i]ion  my  iiiind 
that  this  has  been  dono,  ami,  iiidopeiKlcntly  of  ])rec'0(lent,  I  think 
thi'  Court  may  do  it:  as  tlio  hiis))aiul,  deserting  his  wife,  leaves 
her  credit  for  necessaries,  and  would  be  liable  to  an  action;  and 
altliough  exi'ciition  could  not  be  had  against  the  stock,  the  effect 
might  be  obtained  circuitously,  as  he  could  not  relieve  himself, 
except  by  giving  his  consent  to  the  application  of  this  fund." 

If  a  husband  be  Avilling,  and  offer  to  maintain  his  wife,  and  she, 
without  sufficient  reason,  refuse  to  reside  with  him :  upon  his 
a}>})lication  for  the  interest  of  her  fortune,  the  Court  will  order 
payment  of  it  to  him,  even  though  he  decline  to  make  a  settlement 
upon  her.^ 

As  to  the  effect  of  the  wife's  misconduct  upon  her  equity  for  a 
maintenance,  it  is  a  trite  observation,  that  persons  appealing  to  a 
Court  of  justice  ought  to  enter  it  with  clean  hands ;  ?'.  e.,  they 
must  be  worthy  and  proper  to  receive  the  redress  which  they 
seek :  hence  it  follows,  that  if  the  wife  has  been  guilty  of  gross 
misconduct,  a  Court  of  Equity  will  not  consider  her  to  be  entitled 
to  protection.  If,  therefore,  she  has  committed  adultery,  or  has 
eloi)ed  from  her  husband  without  a  sufficient  reason,  the  Court 
will  remain  passive,  and  not  interfere  at  her  suit  to  allow  her  a 
maintenance  out  of  her  equitable  property .^ 

The  question  whether,  in  the  case  of  a  particular  assignee  claim- 
ing by  purchase  fi-om  the  husband  for  a  valuable  consideration, 
the  Court  would  or  would  not  impose  upon  him  the  condition  of 
making  a  settlement,  was  long  considered  doubtful ;  ^  it  is  now 
settled,  however,  that  such  an  assignee  of  a  capital  fund  is  bound 
to  make  a  pro\dsion,  out  of  the  fund,  for  the  wife  and  her  chil- 
dren ;  *  but  the  assignment  for  value  by  a  husband,  of  his  wife's 
life-estate,  wall  prevail  against  her,^  though  he  desert  her,  or  leave 
her  destitute,"  during  their  joint  lives,  but  not  after  his  death.'' 
On  principle,  however,  it  seems  difficult  to  distinguish  between 
the  case  of  a  capital  fund  and  a  life-interest.^ 

Although,  in  general,  the  Court  allows  the  Imsband,  whilst  he 
maintains  his  wife,  the  income  of  her  property,  yet  it  must  not  be 
supposed  that  this  is  an  absolute  right  on  his  jiart,  or  that,  upon 

Pryor  v.  Hill,  4  Bro.  C  C.  139;  Macaulay 
V.  Philips,  4  Vos.  19. 

4  Macaulay?'.  Philips,  4  Ves.  19;  Franco 
V.  Franco,  4  Ves.  515,  530;  Johnson  v. 
.Johnson,  1  J.  &  W.  472;  Carter?;.  Taggart, 
5  De  G.  &  S.  49;  1  De  G.,  M.  &  G.  286; 
Tidd  V.  Lister,  3  Do  G.,  M.  &  G.  857 ;  18  Jur. 
543. 

s  Elliott  i;.  Cordell,  5  Mad.  149;  Stanton 
r.llall,  2  K.  &  M.  175. 

6  Tidd  V.  Lister,  3  De  G.,  M.  &  G.  587 ; 
18  .lur.  543. 

V  Stifle  V.  Everitt,  1  M.  &  C.  37. 

8  He  Duffy,  28  Beav.  386. 


1  Bullock  iJ.  Menzies,  4  Ves.  798;  see, 
however,  Eedes  v.  Kedes,  11  Sim.  569;  see 
Fry  V-  Frv,  7  Paige,  402;  Martin  v.  Mar- 
tin, 1  Hoff.  Ch.  462;  2  Kent  (lltli  ed.), 
140:  2  Storv  En.  .lur.  §  1426  and  notes. 

2  1  Bright,  H.  &  W".  249  et  serj  ;  Bidl  v. 
Montgomerv,  2  \'es.  .1.  191 ;  Duncan  v. 
CHmpbell,  12  Sim  616  ;  Carr  v.  F.Hsta- 
brooke.  4  Sumner's  Ves.  146,  note  (a);  2 
Storj'  Eq.  Jur.  §§  1419,  1426;  but  see  Ite 
Lewin's  Trusts,  20  Heav.  378;  Kernick  v. 
Kemick,  4  N.  R.  853,  V.  C.  W.;  Greedy 
V.  Lavender,  13  Beav.  62. 

8  Like   V.   Beresford,   3  Ves.   506,   511; 


MARRIED   WOMEX. 


105 


the  death  of  the  husband,  his  representative  is  entitled  to  the 
arrears  of  income  accrued  during  his  life.  As  a  general  rule,  the 
wife  sur^aving  is  entitled  to  all  property  of  her  own  not  reduced 
into  possession  during  the  coverture ;  and  this  applies  to  the 
arrears  upon  life  income  which  accrued,  but  were  not  received 
during  the  coverture.^ 

It  is  to  be  observed  that,  under  the  Marriage  Acts,  4  Geo.  TV. 
c.  76,  §  2.S,  and  19  &  20  Vic.  c.  119,  §  19,^  in  "the  case  of  a  mar- 
riage solemnized  between  parties  under  age,  by  false  oath  or  fi-aud, 
the  guilty  party  is  to  forfeit  all  property  accruing  from  the  mar- 
riage ;  but  such  property  may,  by  order  of  the  Coui-t,  made  upon 
information  file<l  by  the  Attorney-General,  be  secured  for  the 
benefit  of  the  innocent  party,  or  the  issue  of  the  marriage,  as  the 
Court  shall  think  fit,  so  as  to  prevent  the  offending  party  from 
deriving  any  interest,  in  any  estate,  or  pecuniary  benefit  from  the 
man-iage.  Under  the  Act,  4  Geo.  IV.  c.  76,  it  has  been  held,  that 
the  Court  has  no  discretion  to  mitigate  the  penalty,  but  in  the 
case  of  the  property  being  that  of  the  wife,  is  bound  to  settle  and 
secure  all  such  property,  past,  present,  and  fixture,  for  the  benefit 
of  herself,  or  the  issue  of  the  marriage.^ 

It  appears  formerly  to  have  been  considered,  that  if  the  husband 
had  made  a  settlement  upon  his  wife  upon  their  marriage,*  the 
wife  would  be  debarred  of  her  right  to  a  further  provision  out  of 
any  property  which  might  subsequently  accrue  to  her.*  This  is 
not  the  nile,^  but  in  such  cases  it  depends  upon  the  tei-ms  of  the 
settlement;  for  if  it  a]ipcars,  either  by  exjiress  words  or  by  fair 
inference,  that  it  was  the  intention  of  the  parties  that  the  husband 
should  be  the  purchaser  of  the  fixture  as  well  as  the  present  prop- 
erty of  the  wife,  the  Court  will  not  require  the  husband  to  make 
an  additional  settlement.*'  In  such  cases,  however,  the  settlement, 
for  this  purpose,  must  either  express  it  to  be  in  consideration  of 
the  wife's  fortune,  or  the  contents  of  it,  altogether,  must  import  it, 
and  j)lainly  im])ort  it,  as  much  as  if  it  were  expressed.'^     But  in 


Ch.  III.  §  r. 


In  case  of  a 
clandestine 
maniage,  all 
property 
must  be  sel> 
tied. 


Effect  of  pre- 
vious settle- 
ment on 
wife's  equity. 


1  Wilkinson  v.  Cliarlsworth,  10  IJeav. 
824. 

2  See  ante,  p.  10. 

8  Attomfv-Oeneral  r.  Miillav,  4  IJu.=s. 
329;  7  Beav.  351;  Attornev-Gener.il  v. 
Lucas,  2  Hare,  506;  2  I'iiil.  753;  Attorney- 
General  r.  Severne,  1  C^oll.  313. 

*  Lanoy  r.  I)uk<'  of  AHiol.  2  Atk.  44fi; 
Ff-e  I'oindcxter  v.  .(cll'ries,  15  Gnittan  ( Va.), 
863. 

6  March?'.  Head,  3  Atk.  720;Tomkvn«n 
Ladbroke,  2  Ves.  S.  591.  595;  Stackpolo 
V.  Beauinf)nt,  3  Ves.  89,  98;  J.ndy  Klibank 
V.  Montolieii,  5  Ves.  737. 

0  Rrookp  )'.  Mickes.  12  W.  R.  703.  V.  C. 
S.  In  Ilavilim'lv.  Bloom.  O.Iolin  <'|i.  178, 
the  rule  in  l",r|uity  wiiscon'-idercd  a«  settled, 
that  the  wife's  equity  to  a  suitable  i)ro- 


vision  for  the  maintenance  of  herself  and 
her  children,  out  of  her  .separate  estate, 
lying  in  action,  was  a  valid  right,  and 
exfenilcd,  not  only  to  property  which  she 
owned  tlu7n  Wf/,  but  to  property  descended 
or  devised  to  her  during  coverture.  A 
new  equity  arises  to  the  wife  upon  prop- 
erty newly  acfpiired,  nnd  atla<,'lies  upon 
it  equallv  as  upon  thiit  wliich  she  brought 
witli  her  upon  marriage.  In  A'x  p/nie 
Beresffinl,  1  Desaus.  20.'!,  the  Court,  after  a 
full  discussion,  ordered  a  new  settlement 
in  favor  of  the  wife  on  a  new  accession  of 
fortune.  .See  Carr  v.  Tavlor,  10  .Sumner's 
Ves.  574. 

^  Per  Lord  KIdon,  in  Druce  r.  Denison, 
6  Ves.  390. 


lOG 


SUITS    BY    TEKSONS    WHO    ARE    UNDER    DISABILITY. 


Cn.  III.5 


Wife's  equity 
is  for  bciiolit 
ot'lier  chil- 
dren, as  well 
as  herself; 


but  does  not 
survive  to 
children; 


except  where 
contract  or 
order  for  set- 
tlement in 
her  lifetime. 


Wife's  equity 
mav  be 
waived  at 
any  time 
before  settle- 
ment finally 
ordered. 


(lotrniiiniii^  tlu>  nmouiit  to  be  sottlod,  any  previous  sottlciiicnt  is 
iilways  taki'ii  into  consideration  ;  ^  as  is  also  the  amount  of  prop- 
erty received  by  the  husb;uid  in  right  of  his  Avifo.'^ 

Tlie  wife's  equity  to  a  settk'nient  is  not  for  lier  benefit  only,  but 
for  that  of  herself  and  children;^  and  though,  as  has  been  before 
stated,*  she  may,  u])on  her  examination,  waive  it,  she  cannot  take 
the  benefit  of  it  for  herself,  and  relinquish  it  on  behalf  of  her 
children. 

]>ut  though  the  equity  Avhich  compels  the  husband  to  make  a 
settlement  out  of  the  wife's  personal  estate  is  the  right  of  the 
children,  as  well  as  of  the  wife,  yet  it  does  not  survive  to  the  chil- 
dren, after  her  death  ;  ^  but  in  such  case,  the  whole  fund  will  go  to 
the  husband  by  survivorship."  It  has  been  thought  that  Sir  Thomas 
Sewell  M.  R.  in  the  case  of  CocJcel  v.  I^/up^os,''  acted  in  direct  con- 
tradiction to  Lord  Northington's  decision  upon  this  point  in 
Scriven  v.  Tapley.  It  ajipears,  however,  fi-om  the  very  elaborate 
judgment  of  Sir  Thomas  Plumer  V.  C.  in  Lloyd  v.  Williams,^  that 
the  former  case  has  been  erroneously  reported,  and  that  it  does  not 
bear  ui>()n  the  question. 

In  Murray  v.  Lord  Elibanlc^  and  particularly  in  the  above-cited 
case  of  Lloyd  v.  Williams,  all  the  previous  cases,  and  the  reasoning 
upon  the  subject,  have  been  collected  and  commented  u})on  ;  and 
it  ajipears  from  them  to  have  been  the  opinion,  both  of  Lord  El- 
don,  and  of  Sir  Tliomas  Plumer,  that  the  children  have  no  equity 
after  the  death  of  the  mother,  unless  there  has  been  a  contract,  or 
a  decree  or  order,  for  a  settlement,  in  her  lifetime.^"  Where  there 
has  been  a  decree,  it  appears  that  under  the  former  practice,  the 
children  carried  on  the  suit  by  supplemental  bill,  and  now  it  is 
apprehended  that  it  would  be  done  by  an  order  under  the  52d 
section  of  15  &  16  Vic.  c.  86. 

The  wife  may,  at  any  time  before  the  settlement  has  been  finally 
ordered,  appear  in  Court,  or  before  Commissioners,  and  waive  her 
nght,  so  as  altogether  to  defeat  her  children."     She  cannot,  how- 


1  Lady  Elibank  v-  Montolieu,  5  Ves. 
737;  Freeman  v.  Fairlio,  11  Jur.  447,  V. 
C  E. ;  Re  Erskine,  1  K.  &  J.  302. 

i  Green  v.  Otte,  1  S.  &  S.  250,  254; 
Napier  v.  Napier,  1  Ur.  &  War.  407. 

3  Murray  r.  Lord  Elibank,  10  Ves.  84; 
Llovd  v.  Williams,  1  Mad.  450,  459;  Jie 
Walker,  L.  &  (i.  t.  Suf,'.  209;  Hodgeiis 
V.  Hodpens,  4  CI.  &  F.  323;  11  Hli.  62; 
2  Kerit(llth  ed.),  140;  .Jolin^on  r.  Johnson, 
1  J.  &  \V.  472,  contra,  would  not  now,  it  is 
apprehended,  be  followed. 

'»  Ante,  p,  92. 

5  Scriven  r.  Tafilev,  2  Eden,  337;  Amb. 
509;  Fenner  v.  Tavlor,  2  K.  &  M.  190;  De 
la  Garde  v.  Lempricre,  6  Beav.  344;  Baker 
V.  IJavMon,  «  Hare,  210;  Lovett  ?».  Lovett, 
John.'  118;  Wallace  v.  Auldjo,  2  N.  K.  567, 


L.  J.J.;  2  Dr.   &  Sm.  216;  9  Jur.  N.  S. 
687;  IDeG.,  J.  &S.  643;  2  Story  Eq.  Jur. 
§  1417  and  note, 
c  Wallace  v.  Auldjo,  ubi  auj). 

7  1  Dick.  391. 

8  1  Ma<l.  450,  464. 

9  10  Ves.  84,  92 

1"  1  Mad.  4G7;  and  see  Lloyd  w.  Mason, 
5  Hare,  149,  152;  Groves  v.  Clarke,  1 
Keen,  132,  136;  S.  C.  suIj.  ncmi.  Groves  v. 
Perkins,  6  Sim.  576,  584;  but  see  Vaughan 
V.  Parr,  20  Ark.  600. 

H  Barrow  v.  Barrow,  4  K.  &  J.  409,  424; 
and  see  liowe  v.  Jackson,  2  Dick.  004; 
Murray  v.  Lord  Elibank,  10  Ves.  84; 
Martin  t».  Mitchell,  cited,  ib.  89;  Steiu- 
metz  V.  Halthin,  1  Glynn  &  J.  64. 


MARRIED   WOMEN. 


107 


ever,  after  insisting  upon  her  riolit  to  a  settlement  as  against  her 
husband's  assignees  in  bankruptcy,  subsequently  waive  her  equity, 
and  defeat  her  children's  interest,  except  it  be  in  favor  of  the  as- 
signees.^ After  a  contract  entered  into  on  the  part  of  the  husband 
to  make  a  settlement,  it  would  seem  that  the  wife  can  waive  it  as 
far  as  her  own  interest  is  concerned,  but  not  for  her  children.^ 

It  seems  that  if,  after  a  reference  to  approve  of  a  settlement,  one 
of  the  parties  die  before  the  settlement  be  approved  of  by  the 
Court,  and  there  are  no  children  of  the  marriage,  the  right  of  sur- 
vivorship, as  between  the  husband  and  the  wife,  is  not  affected. 
Thus,  in  Macmday  v.  Fhihps,^  Lord  Alvanley  M.  R.  laid  it  down, 
that  if  the  ^-ife  had  died  even  after  a  proposal  had  been  made  by 
the  husband  under  such  an  order,  the  husband  would  have  been 
entitled.  His  Lordship,  however,  said,  that  he  did  not  mean  to 
determine  what  the  case  would  have  been  if  the  proposal  had  been 
approved  of  by  the  Court,  and  a  settlement  ordered  to  be  made, 
as  perhaps  then  the  Court  would  have  considered  it  as  actually 
made  ;  and  that  he  was  far  from  detennining  that,  in  such  a  case, 
the  settlement  would  be  entirely  at  an  end ;  on  the  contrary,  he 
thought  it  would  be  binding,  and  that  the  accident  would  make 
no  difference.  However,  in  JBalchcin  v.  I^akhci?i,*  Sir  James 
Parker  V.  C.  held,  that  after  the  Master  had  approved  of  a  settle- 
ment, the  wife,  upon  the  death  of  her  husband,  might  still  repudiate 
the  settlement,  or  set  up  her  claim  by  survivorship. 

It  may  be  observed  here,  that,  as  a  general  rule,  if  the  wife  be 
an  adulteress,  living  apart  from  her  husband,^  a  Court  of  Equity 
will  not  interfei'e,  i;pon  her  application  for  a  settlement  out  of  her 
own  choses  in  action.  In  ^ome  cases,  however,  under  special  cir- 
cumstances, a  settlement  in  her  favor  has  been  made,  notwith- 
standing tlie  adultery;"  and,  of  course,  if  she  is  not  an  adulteress, 
her  living  apart  from  her  husband  is  no  bar  to  her  equity.''  In 
cases  of  tliis  description,  the  fact  of  the  husband  living  apart  fi'om 
his  wife,  and  not  supporting  her,  is  a  reason  against  the  fund,  or 
the  income,  being  j)aid  to  liim  ;  *  but,  nevertheless,  in  some  cases, 
this  lias  been  done.'-' 

Where,  however,  feftiale  wards  of  Court  are  marrird  without  its 


ch.  III.  §  r. 


Death  of  hus- 
band or  wife 
before  actual 
approval  of 
settlement, 
will  not  affect 
right  by  sur- 
vivorship, if 
no  children. 


Effect  of 
wife's  adul- 
tery. 


1  Wliitten  V.  Sawyer,  1  IJeav.  o'j3; 
Biirker  r.  Lea.  G  Ma'l.'S.JO. 

2  Anon..  2  Ves.  S.  071:  and  Fenncr  c. 
Taylor.  2  U.  &  M.  I'jO,  nver>in(r  S.  C.  1 
Sim.  lO'j;  Lovett  v.  Lovctt,  .John.  118. 

8  4  Ves.  10. 

*  5  I)e  G.  &  S.  319;  and  see  Heath  v. 
Lewis,  10  .lur.  N.  S.  IO'J.3;  13  W.  K.  12!), 
V.  C.  .S.,  where  the  wife,  l)eiiif,'  sul)se- 
quently  divorced,  was  allowed  to  repudi- 
ate the  J'ettlcnient. 

fi  1  Briplit,  H.  &  W.252;  Carr  t).  Ea.«ta- 
brooke,  4  Ve».  140;  Ball  v.  Montgomery, 


2  Ves.  J.  191,  199;  Watkvns  v.  Watkyns, 
2  Atk.  97;  and  see  Jud>.'ment  of  I.'.  J. 
Turner  in  Harrow  v.  IJarrow,  5  De  G.,  M. 
&  G.  795. 

•■'  Greedv  i'.  Lavender,  13  Beav.  62;  Re 
Lewin's  1  rust,  20  Beav.  378. 

'  Kedcs  r.  Eedes,  11  .Sim  569;  and  see 
Kernick  v.  K.-niick,  4  N.  H.  533,  V.  C.  W. 

•*  Carr  r.  I'iM^talirooke,  4  Vcs.  140. 

c  Ball  r.  Montgomery,  2  Ve.s.  .1.  191; 
Duncan  v.  Campbell,  12  Sim.  610,  036, 
638. 


108 


SUITS    IIY    PKUSOXS    "WHO    AlJE    UNDER    DlSAlilLITY. 


Form  of  set- 
tlement. 


Suits  by  wife; 


suit  by 
husband  and 
■wife  as  co- 
plaintiffs,  is 
the  suit  of  the 
husband. 


consent,  Mlt1\(->uo-li  tlioy  nl'torwards  live  in  Mdullcry,  tho  Court  will 
(MifoiTO  :i  sottlcMiuMit:^  beciuise,  tlu'  iiiMrringt^  being  a  contoin])t, 
tho  Oourt  tlioroby  obtained  jurisdiction  to  coinniit  tlio  husband,  in 
i'onse(]uonco  of  his  misconduct,  until  he  should  make  a  ])roper  set- 
tlonicnt,  and  will  not  ]iart  with  tliat  power  until  that  act  be  done, 
Avhatever  may  be  the  irregularity  of  the  Avife's  conduct :  which 
may  be  attributed,  in  some  degi-ee,  to  her  husband's  conduct  in 
prcHMiring  such  a  clandestine  marriage. 

With  reference  to  the  form  of  settlement,  it  is  to  be  observed, 
that  the  practice  is  to  settle  the  property  in  trust  for  the  wife,  for 
her  separate  use,  for  life,  without  power  of  anticipation,  and  after 
her  death,  for  her  children  ;  and  in  default  of  children,  for  her  ab- 
solutely, if  she  survives  her  husl)and  ;  but  if  she  dies  in  his  lifetime, 
then  in  trust  lor  her  husband,  or  his  assignees.- 

Having  now  treated  of  the  subject  of  a  married  woman's  equity 
to  a  settlement,  into  which  we  have  been  led  in  considering  the 
ground  on  which  the  Court  of  Chancery  requires  a  wife  to  be  joined 
as  co-plaintiif  with  her  husband  in  suits  relating  to  her  own  prop- 
erty :  we  may  return  to  the  subject  of  suits  by  fetnes  covert  gen- 
erally.^ It  is  now  settled,  that  all  cases  in  Avhich  the  husband  and 
wife  sue  as  co-plaintiffs  together,  or  in  which  the  husband  sues  as 
next  friend  of  his  wife,  are  regarded  as  suits  of  the  husband  alone.* 
And  upon  this  principle,  where  a  married  woman,  having  a  sei)arate 
interest,  joins  as  a  co-plaintiff  with  her  husband,  instead  of  suing 
by  her  next  friend,  the  suit  will  not  prejudice  a  future  claim  by  the 
wnfe  in  respect  of  her  separate  interest ; '"  and  it  has  been  decided, 
that  a  suit  by  a  husband  and  wife  against  the  trustees  of  the  wife's 
separate  property,  cannot  be  pleaded  in  bar  to  a  subsequent  suit 


1  Biill  V.  Coutts,  1  V.  &  B.  292,  302,  304 ; 
Re,  Walker,  L.  &  G.  t.  Sug.  299;  and  see, 
penerally,  as  to  the  mode  in  wliich  tlie 
Court  deals  with  the  property  of  a  female 
ward  marrying  without  consent.  Field  v. 
Moore,  7  De  G.,  M.  &  G.  691 ;  2  Jur.  N.  S. 
14.5. 

2  Carter  v.  Tapffart,  1  De  G  ,  M.  &  G. 
286;  Ragshaw  v.  Winter,  5  De  G.  &  S. 
466 ;  Gent  r.  Harris,  10  Hare.  383 ;  Seton, 
666;  Ward  «.  Yates,  1  Dr.  &  S.  80;  hut 
see  SpiraU  r.  Willows.  L.  K.  1  Cli.  Ap. 
420;  12  .lur.  X.  S.  .538,  S.  C,  where  it  was 
held  that,  except  uniler  special  circnm- 
stances,  the  ultimate  remainder  in  default 
of  issue  should  be  to  the  husband;  nnd 
Bee  form  of  order,  where  fund  was  settled 
b}'  the  order.  Watson  'v.  Marshall,  17 
Keav.  365;  I)uncoml)e  v.  Greenacre,  Xo. 
2,  29  Beav.  578;  lit  Tubbs,  8  W.  R.  270, 
V.  C.  K.;  .Seton,  605. 

8  A  wife  may,  in  a  Court  of  Equity,  sue 
her  husband,  and  be  sued  bv  him.  2 
Storv  Kq-.Iur.  §  1308,  §  1414;  Van  Duzcn 
V.  Van  Duzen,  6  I'aige,  360 ;  Story  Kq.  I'l. 


§  01,  and  note,  and  cases  cited  to  this  point; 
Lonpc  V.  White,  5  .T.  .J.  Marsh.  230;  Dowel! 
V.  Covenhoven,  5  Paige,  581.  A  husband, 
who  has  received  the  rents  and  profits  of 
real  estate,  held  in  trust  for  the  separate 
use  of  the  wife,  who  has  separated  from 
him,  is  riglitl}'  joined  as  a  defendant  in 
a  bill  by  her  against  the  trustees  to 
enforce  the  trust.  Ayer  v.  Aycr,  10  Pick. 
327. 

4  Wake  ».  Parker,  2  Keen,  59,  70 ;  Davis 
V.  Prout,  7  Beav.  288,  290;  Johnson  v. 
Vail,  1  McCarter  (N.  .J.I,  423.  A  plea  of 
insolvency  of  the  hu'^b;ind,  was  disallowed 
to  a  bill  1)3'  him  and  his  wife  for  ))ayment 
of  an  annuity  befiueathed  fur  the  benefit 
of  the  latter,  which  had  fallen  into  posses- 
sion after  the  insolvency,  the  assignees 
declining  to  interfere.  Glover  v.  Weedon, 
3. lur.  N.  S.  90.3,  V.C.  S. 

5  lluglK's  V.  Evans,  1  S.  &  S.  185; 
Turner  v  Turner,  2  De  G.,  M.  &  G.  28, 
37;  .lohnsoii  u.  Vail,  1  McCarter  (N.  .T.), 
423,  426,  and  cases  there  cited  to  this 
point. 


MARRIED    WOMEN. 


109 


by  lier  by  her  next  fi-iend  against  the  trustees  and  her  husband, 
although  the  rehef  prayed  in  both  suits  is  the  same.^ 

In  general,  therefore,  where  the  suit  relates  to  the  separate  prop- 
erty of  the  -wife,^  it  is  necessary  that  the  bill  should  be  filed  in  her 
name,  by  her  next  li-iend,^  otherwise,  the  defendant  may  demur,'* 
upon  the  ground  that  the  wife  might  at  any  Hiture  time  institute 
a  new  suit  for  the  same  matter,  and  that,  u^^on  such  new  suit  being 
instituted,  a  decree  in  a  cause  over  which  her  husband  had  the 
exclusive  control  and  authority,  would  not  operate  as  a  valid  bar 
against  her  subsequent  claim."  Where,  however,  the  suit  is  for  a 
chose  in  action  of  the  wife,  not  settled  to  her  separate  use,  the 
defendant  cannot  object  to  the  husband's  suing  jointly  with  her  as 
co-plaintiff;  nor  will  her  right  to  a  settlement  be  prejudiced  by  the 
fact  of  her  husband  being  so  joined  with  her  in  the  suit. 

Where  the  wife  sues  by  her  next  fi-iend,  the  husband  nmst  still  be 
a  party,  and  it  is  usual  to  make  him  a  defendant ;  ®  but  a  husband 
having  no  adverse  interest  to  his  Avife,  may  be  made  a  co-plaintiff." 

As  a  wife  may  sue  her  husband  in  respect  of  her  separate 
property,*  so  may  a  husband  in  a  similar  case  sue  his  wife.^     Such 


Ch.  m.  §  7. 


If  suit  relates 
to  separate 
property  of 
wife,  she 
should  sue  by 
her  nest 
frieud, 


and  the  hus- 
band bo  made 
a  defendant. 


In  what  cases 
husband  may 
sue  wife, 


1  Reeve  v.  Dally,  2  S.  &  S.  464.  On 
this  principle,  a  plea  of  release  by  the 
husband,  to  a  bill  by  the  husband  and 
wile  for  jiroperty  limited  to  her  separate 
use,  was  held  g<jod.  IStooke  i'.  Vincent,  1 
Coll.  527. 

2  Where  the  bill  is  filed  to  rectify  a 
marriage  settlement,  the  wife  ought  to  be 
a  party  independently  of  her  husband. 
M  Gilldowney  i;.  Pemberton,  10  L.  T.  N. 
S.  292,  V.  O.  W. 

8  .See  Hunt  i'.  Booth,  1  Freem.  Ch.21.5; 
Bri"igus  V.  M'.Kennii,  14  Md.  258;  Knigiit 
V.  Knigiit,  2  Iliiyw.  101;  Grant  v.  \ m\ 
bchoonhoven,  0  l^'aige,  255;  Shermiin  v. 
Burnhani,  6  IJarb.  (S.  C.j  403;  Heck 
V.  Vollmer,  2'J  ,Md.  507,  511.  In  Bein  v. 
Heath,  0  How.  U.  S.  228,  Mr.  Justice 
McLean  said,  "  Where  the  wile  comphiins 
ot  the  husbund,  and  asks  relief  iigainst 
him,  she  must  u.se  the  name  of  some  other 
person  in  prosecuting  the  suit;  but  wliere 
the  act.>)  of  the  husband  are  not  com- 
plained of,  he  would  seem  to  be  the  most 
suitable  person  to  unite  with  her  in  the 
suit.  Tdis  is  a  matter  of  practice  within 
the  discretion  of  tlie  Court.'.'  .Sec  .Jolinson 
V.  Vail,  1  McCarter  (N.  .].)  423,  42'!,  427. 

•*  .See  Jotmson  v.  Vail,  1  McCarter  (N. 
J.),  423. 

6  Wake  V.  Parker,  2  Keen,  59,  70;  Story 
Eq  I'l.  §  03  and  note;  see  also  Warren  v. 
Buck,  4  lieuv.  05,  as  to  the  time  when  the 
objection  can  be  taken  by  tlie  defendant; 
and  ser;  llo[)e  v.  Fox,  I'j.  &  H.  450;  7 
Jur.  N.  S.  IftO,  where  the  suit  related  to 
the  execution  of  a  (lower  vested  in  a  mar- 
rieil  woman;  and  see  Mendcs  r.  Uuedal- 
la(.\o.  2),  10  U.  K.  485,  v.  (J.  W.  If  the 
husband  and  wife  join  iu  a  suit  a-»  plain- 


tiffs, or  in  an  answer  as  co-defendants, 
it  will  be  considered  as  the  suit,  or  the 
defence  of  the  husband  alone,  and  it  will 
not  prejudice  a  future  claim  by  the  wife  in 
respect  of  her  separate  interests,  nor  will 
the  wife  be  bound  by  any  of  the  allega- 
tions therein  in  any  luture  litigation. 
Johnson  v.  Vail,  1  McCarter  (X.  J.J,  423; 
Bird  V.  Davis,  1  McCarter  (N.  J.),  467, 
470. 

(i  Wake  0.  Parker,  2  Keen,  59 ;  England 
V.  Down-;,  1  Beav.  06;  i  avis  v.  Pruut,  7 
Beav.  2c  8,  200;  and  see  Hope  v.  Fox,  ubi 
sup.;  liichards  v.  Millctt,  11  VV.  K.  1035, 
M.  K.;  9  Jur.  N.  S.  1066.  The  practice, 
when  the  husband  improperly  joins  with 
the  wile  as  plaintitf,  is  not  to  dismiss  the 
bill,  but  to  give  permission  to  the  wife  to 
amend  by  adding  a  next  I'rieiid,  and  mak- 
ing the  husband  a  defendant;  and  when 
no  objection  is  interposed,  to  decree  the 
fund  to  be  paid  to  a  trustee  for  the  use 
of  the  wile.  Johnson  v.  Vail,  1  McCarter 
(N.  J.),  423. 

"  Bcardmoie  i'.  Gregory,  2  H.  &  M. 
491;  11  Jur.  X.  S.  363;  and  see  iMeddow- 
crolt  r.  Campbell,  13  Beav.  184;  I'latel 
V.  Craddock,  U.  V.  Coop.  469,  4M;  Smith 
V.  Etches,  1  H.  iSc  M.  558;  9  Jur.  X.  b. 
1228;  10  id.  124. 

>*  See  Woodward  c.  Woodward,  9  Jur. 
N.  S.  882,  1.,.  C.  Jn  a  suit  by  a  wife  tor 
her  se|iarate  estate,  the  husband  is  a 
necessary  defendant.  Johnson  v.  Vail,  1 
McCarter  (N.  J.),  423. 

'•'  Warner  i'.  Warner,  1  Dick.  90;  Ainslie 
V.  Medlicott,  13  Vcs.  266;  and  making  licr 
a  defendant,  is  an  admission  tnut  the  suit 
relates  to  her  separate  estate.  iCiirl  f.  I'cr- 
ris,  19  Bchv.  67;  1  Jur.  X.  S.  5;  2  Story 


no 


SUITS    BY    TEKSOXS    WHO    ARE    UNDER   DISABILITY. 


C'li.  111.  K. 


ami  will'  sue 
husbaiul. 


Suit  insti- 
tuted ou  her 
bchalt; 
without  her 
consent,  ■will 
be  dismissed, 
on  her 
application. 

Written 
autliority  of 
next  friend 
necessars'. 


suit,  limvoviT,  c-:ui  only  bo  in  respect  of  his  wife's  sepsifatc  estate: 
for  a  husbaml  cannot  have  a  discovery  of  liis  own  estate  against 
his  wife.^  In^  those  cases  where  it  is  necessary  that  a  suit  respect- 
ing the  pro])erty  of  a  married  woman  sliouhl  be  instituted  against 
lier  husband,  or  that  the  husband  should  be  one  of  tlie  defen(hints : 
as  the  wife,  being  under  the.  disability  of  coverture,  cannot  sue 
alone,  and  she  cannot  sue  under  the  protection  of  her  husband,  she 
must  seek  other  jn-otection,  and  the  bill  must  be  exhibited  in  her 
name,  by  her  next  friend,'-  who  is  named  as  such  in  tlie  bill,  as  in 
the  case  of  an  infant."  A  bill,  however,  cannot,  as  in  the  case  of 
an  infant,  be  liled  by  a  next  friend  on  behalf  of  a  married  woman, 
without  her  consent ;  *  and  if  a  suit  should  be  so  instituted,  upon 
special  motion,  supported  by  her  affidavit  of  the  matter,  it  will  be 
dismissed.^ 

As  in  the  case  of  an  infant,  a  written  authority  from  the  next 
friend  to  use  his  name  must  be  filed  with  the  bill.®  So  also,  in  all 
applications  to  the  Court,  by  petition  or  othei'wise,  by  a  married 
woman  with  respect  to  her  separate  estate,  she  must  ajiply  by  her 
next  friend.'^ 


Eq.  Jur.  §  1368;  Story  Eq.  PI.  §  02.  In  a 
suit  to  set  aside  a  will,  securing  to  the 
testator's  daughter,  who  is  a  married 
woman,  and  to  her  issue,  a  share  of  the 
testator's  property,  for  lier  separate  use 
during  coverture,  the  husband  and  wife 
should  not  join  as  parties  plaintiff,  their 
interests  being  in  coiitiict;  but  the  wife 
should  be  made  a  defendant.  Alston  v. 
Jones,  3  Barb.  Ch.  397.  Where  a  suit 
is  instituted  by  a  wife  for  the  protec- 
tion of  her  separate  property  against 
creditors  of  the  husband,  the  husband  can- 
not legallj'  be  joined  as  plaiiitill',  his  in- 
terest claimed  by  the  creditors  being 
adverse  to  that  of  his  wife.  Johnson  v. 
Vail,  1  McCarter  (N.  J.),  423.  A  married 
man  may  sue  his  wife  in  her  character  of 
executrix,  for  a  debt  due  to  him  by  the 
testator.  The  institution  of  the  suit  by  the 
husband  will  be  considered  as  an  authority 
to  her  to  be  sued.  Alexander  v.  Alex- 
ander, 12  La.  An.  588. 

1  Brooks  c.  Brooks,  Prec.  Ch.  24. 

2  Grifiith  V.  Hood,  2  Ves.  S.  452;  Story 
Eq.  I'l.  §§  01,  03;  Dowell  v.  Covenhoven, 
6  Paige,  581;  Wood  f.  Wood,  8  Wend. 
357;  (iarlick  v.  Strong,  3  Paige,  440. 
Leave  to  lile  bill  by  a  married  woman 
witliout  next  friend  refused,  although  the 
validity  of  the  marriage  was  contested.  ■ 
Caldicott  V.  Baker,  13  vV.  K.  449,  V.  C. 
K.;  and  see  Si  aley  v  Gaston,  ifj.  577,  V. 
C.  W.  A  defendant  cannot  act  as  next 
friend,  Payne  u.  Little,  13  Beav.  114;  but 
a  married  woman  defendant  may  appeal 
bv  a  co-defendant  as  her  next  friend. 
Elliot  V.  Iiice,  7  De  G.,  M.  &  G.  475;  3 
Jur.  N.  S.  597.  She  cannot,  hovvever, 
piresent  a  petition  of  appeal   without  a 


next  friend,  although  another  person  joins 
in  the  petition,  and  the  suit  relates  to  her 
separate  estate.  Picard  v.  lline,  L.  R. 
5  Ch.  Ap.  274. 

•^  Ld.  lied.  28.  Where  the  husband  is 
under  any  of  the  disabilities  enumerated, 
ante,  p.  87,  the  wife  is  considered  as  a 
feme  sole,  and  may  sue  without  the  inter- 
vention of  a  next  friend ;  and  where  he  is 
out  of  the  jurisdiction,  see  Postgate  v. 
Barnes,  9  Jur.  N.  S.  456;  11  VV.  K.  356, 
V.  C.  S.  Any  objection  for  want  of  a 
next  friend  should  be  made  as  soon  as 
possible.     Sealey  v.  Gaston,  13  W.  U.  577, 

V.  c.  w. 

^  Ld.  Red.  28.  For  form  of  consent, 
see  Vol.  III.  If  she  is  an  infant,  her  con- 
sent is  uunecessaiy.  Wortham  t'.  Pember- 
ton,  1  I)e  G.  &  S.  644;  9  Jur.  291. 

5  Andrews  v.  Cradock,  Prec.  Ch.  376; 
Gilb.  30;  Cooke  v.  Fryer,  4  Beav.  13; 
Story  I'^q.  PI.  §  01;  Randolph  v.  Dicker- 
son,  5  Paige,  751.  The  objection  cannot 
be  taken  by  a  defendant;  it  must  be  by  a 
next  friend  on  beiialf  of  the  married 
woman.  Davies  v.  Whitehead,  1  W.  N. 
102,  M.  R.  For  tbrm  of  notice  of  motion, 
see  Vol.  III. 

6  15  &  16  Vic.  c.  86,  §  11.  For  form  of 
authority,  see  V^ol.  III.  In  an  injunction 
case,  an  information  was  allowed  to  be 
filed,  on  an  undertaking  to  file  the  au- 
thority the  following  day.  Attorney-Gen- 
eral V.  Murray,  13  W.  R.  05,  V.  C.  K. 
And  see,  as  to  liability  of  next  friend, 
who^e  name  had  been  used  without  his 
knowledge  previous!}'  to  this  Act,  Bligh 
V.  Tredgett,  6  De  (i.  &  S.  74. 

7  lit  Waugh,  15  Beav.  508;  but  she 
may  apply  without  a  next  friend,  where 


MAREIED    WOMEN.  Ill 

The  next  Mend  of  a  married  woman  need  not  be  a  relation,^ .  Ch.  hi.  §  7. 

but  he  must  be  a  person  of  substance,  because  he  is   liable   to    ' y •'  . 

costs ;  ^  and  in  this  respect  there  is  a  material  difference  between  ^^xt  friend 

'  ^  ...  need  not  be  a 

the  next  friend  of  a  feme  covert  and  of  an  iniant :  lor  any  person  relation,  but 

may  file  a  bill  in  the  name  of  an  infant,  but  the  suit  of  a  feme  person  ot^ 

covert  is  substantially  her  own  suit,  and  her  next  friend  is  selected  substance; 

by  her.^     In  the  former   case,  therefore,  as  we   have   seen,*  the 

Court  does  not  require  that  the  next  friend  should  be  a  person  of 

substance,  because  if  the  friends  of  an  infant  are  poor,  the  infant    • 

might,  by  such  a  rule,  be  deprived  of  the  opportunity  of  asserting 

his  right;  but  in  the  case  of  a/ewie  covert,  as  the  object  for  which 

a  next  friend  is  required  is,  that  he  may  be  answerable  for  the 

costs,^  tlie  Court  expects  that  the  jjerson  she  selects  to  fill  that 

oflice  should  be  one  who  can  j^ay  the  costs,  if  it  should  turn  out 

that  the  proceeding  is   ill-founded ;   and,  therefore,  if  the   next  or  suit  wiU  be 

fi-iend  is  in  insolvent  circumstances,  it  will  order  the  suit  to  be  gives  security 

stayed  until  he  gives  security  for  costs.®  for  costs. 

It  is  obvious  that  cases  might  arise  where  the  rule,  that  the   Femecmert 

11       1 
next  friend  of  Sifeme  covert  must  be  a  person  of  substance,  would  ^.^ere  jugtice 

be,  practically,  a  denial  of  justice.     In  such  cases  the  Court,  as  we  re(iuires,  to 

have  seen,"  allows  her  to  sue,  or  continue  a  suit,  without  a  next  ^^xt  friend, 

fiiend :   and,  if  need   be,  in  forma  pauperis  :  ^  or  to  present   a  ^"^^  m  forma 

"^  .,..  .,  .Q      pauperis. 

petition,  in  a  case  where  the  Court  has  j  urisdiction  without  suit.^ 

If  the  next  friend  of  a  married  woman  dies,  or  becomes  incapa.-  Chanfje  of 
ble  of  acting,  or  if  for  any  reason  the  plaintifi"  desires  to  remove   by^cfeath^or 
her  next  friend,  she  may,  at  any  time  before  the  defendants  have  otlierwise. 
entered  an  appearance  to  the  bill,  introduce  into  the  record  the 

she  has  obtained  a  protection  order  under  v.  Peraberton,  1  Do  G.  &  S.  644;  9  Jur. 

2n&  21  Vic.  c.  So,  §  21.    Bathe  v.  iiank  of  291. 

England,  4  K.  &  J.  i>M\  4  Jur.  N.  S.  505;  *  Ante,  p.  74. 

lie  Kainsdon,  5  ,lur.  N.  S.  55,  V.  C.  K. ;  &  See  Re  Wills,  9  Jur.  N.  S.  1225;  12 

4  Drew.  446.     If  a  motion  on  behalf  of  a  W.  H.  97,  V.  C  S. 

married  woman  be  ni;ide  without  a  next  ^  bniitli  v.  Etches,  1  H.  &  M.  711;  9 

friend,  the   solicitor   instructing   may    be  Jur.    N.    S.    1228;    10    id.    124.      A   next 

ordered  tr)  pav  the  cost->.     I'earse  v.  Cole,  friend  has  been  ordered  to  give   security 

10  Jur.  214,  \^.  (J.  K.  for  costs,  though  tiie  husband,  who  had, 

1  The  husband  may  be  joined  with  his  however,  no  substantial  interest,  was  a 
wife,  as  next  friend,  in  a  suit  in  which  he  co-plaintitl'.  8.  C. ;  but  see  Caldicott  v. 
has   no    inten-st,  in   Louisiani.     liein    v.  Uaker,  13  \V.  li.  449,  V.  C.  K. 

Heath,  6  How.  U.  S.  228.     See  Johnson  '  Ante,  p.  37. 

V.  Vail,  1  McCarter  (N.  J.),  423.  8  Wellesley  v.  VVelleslev,  10  Sim.  1;  1 

2  Anon.  1  Atk.  570;  Pennington  v.  De  G.,  M.  &  G.  501;  Wellesley  *'.  Moin- 
Alvin,  1  S.  &  S.  204;  Drinan  ('.iMannix,  ington,  IH  Jur.  662,  V.  C.  K.;  Re  Foster, 
3  Dr.  War.  154;  Jones  v.  Fawcett,  2  lb  licav.  525;  /ic  Lancaster,  18  Jur.  229, 
Phil.  278;  Stevens  r.  Williams,  1  Sim.  N.  L.  (J.  and  L.  JJ.;  D'Uechsner  c.  Scott, 
S.  545;  Wilton  v.  Hill,  2  Do  G.,  M.  ik  V,.  24  lieav.  239;  Crouch  v.  Waller,  4  Dc  G. 
807-809;  Hind  v.  Whitmore,  2  K.  &  J.  &  J.  43;  5  Jur.  N.  S.  326;  He  IJarne.s,  10 
458,  where  all  the  cases  are  reviewed;  Re  W.  U.  4")4,  V.  C.  S.;  Smith  v.  Etches  ubi 
Wills,  9  .lur.  N.  S.  1225;  12  W.  J{.  97,  V.  sup.  An  order  for  this  purpose  is  neces- 
C  S.;  ICIliot  V  Ince,  7  I)e  <i.,  M.  ik  (J.  sary,  which  may  be  obtaincvl  on  special 
475;  3  Jur.  N.  S.  597;  see  also  l^owileii  apjilication  by  ex jtnrte  motion,  see  Coiil- 
V.  Hook,  8  15c!iv.  399,  402,  which  must  sling  i'.  Coulsting,  8  IJcav.  403.  For  form 
now  be  looked  upon  as  overruled.  of  motion  pai)er,  see  Vol.  III. 

8  Gamble  v.  Atlee,  2  De  (i.  &  S.  745;  «  Jn  re   Uakewell,  8   Uo  G.,  M.  &  G. 

but  see,  where  she  is  an  infant,  Wortham       116;  17  Jur.  334. 


112 


SUITS    BY   PERSONS    WHO    ARE    UNDER    DISABILITY. 


Cm.  III.  5  7. 


Where  frme 
covert  apitlies 
to  change 
next  friend, 
Coiu't  hiis  a 
discretion. 


Retiring  next 
friend  ordered 
to  give 
security  for 
past  costs. 
Consent  to 
act  of  new 
next  friend. 

Where,  on 
death  or 
bankruptcy 
of  next  tiiend, 
plaint  itt" 
neglects  to 
appoint  a  new 
one. 


Order 
appointing 
new  next   . 
friend,  must 
be  served  and 
left  for  entry. 


Sanction  to 
departure 
from  ordinary 
course  of 
procedure. 


name  oi^  ;i  new  next  iVioiul,  uiuler  ;m  order  as  ol"  course  to  amend. 
After  apiie.irance,  the  same  may  be  done,  where  a  new  next  friend 
is  to  be  named  in  the  ])hiee  of  u  deceased  next  friend,  if  the  ai)pli- 
cation  for  the  order  is  made  by  the  soUcitor  wlio  acted  in  tlie  suit 
for  the  deceased  next  friend ;  but  in  other  cases,  the  order  to 
apjioint  a  new  next  friend  is  special,  and  must  be  obtained  either 
in  Court  on  motion,  of  which  notice  must  be  given,  or  on  a  sum- 
mons in  Chambers,  which  must  be  served.-^ 

Where,  however,  a  marrietl  woman  ai)plies  for  leave  to  cliange 
her  next  Iriend,  it  is  in  the  discretion  of  the  Court  to  grant  or 
refuse  the  appHcation ;  and  it  will'  be  refused,  where  there  is  reason 
to  believe  that  the  defendant's  security  for  costs  will  be  thereby, 
prejudiced;^  and  if  the  order  be  made,  the  new  next  friend  is 
usually  required  to  give  security  to  ansAver  the  past  costs,  and  to 
abide  by  the  order  of  the  Court  as  to  future  costs ;  ^  and  in  l^ayne 
v.  Little^^  the  retiring  next  friend  was  required  to  give  security  for 
the  costs  incurred  up  to  the  time  of  the  change. 

Upon  an  application  to  appoint  a  new  next  friend,  the  Court  or 
Judge  usually  requires  to  be  satisfied  of  his  wilUnguess  to  act; 
this  may  be  evidenced  by  the  production  of  his  written  consent.* 

If  the  plaintiff  neglects  or  refuses  to  obtain  the  order  in  the 
case  of  the  next  friend's  death,  the  defendant  may  apply  to  the 
Court,  by  motion  upon  notice,  for  an  order  directing  her  to  name 
a  new  next  friend  within  a  limited  time,  or  in  default  that  the  bill 
may  be  dismissed  with  costs ;  ®  and  where  the  next  friend  becomes 
bankrupt,  an  order  will,  in  like  manner,  be  made,  staying  the  pro- 
ceedings until  a  solvent  next  friend  is  appointed,  or  the  plaintiff 
has  obtained  leave  to  sue  in  forma  lyauptrh? 

Wherever  a  new  next  friend  is  appointed,  the  order  aj^ijointing 
him  must  be  served  on  the  solicitors  of  the  defendants,  and  be  left 
for  entry  in  the  cause  books  kept  by  the  Clerks  of  Records  and 
Writs ;  and  thereupon,  in  all  future  proceedings  in  the  cause,  the 
name  of  the  new  next  friend  so  ap})ointed  will  be  introduced,  in  the 
place  and  stead  of  the  former  next  Iriend.** 

The  next  friend  of  a  married  woman,  before  he  consents  to  any 
de])arture  fi-om  the  ordinary  mode  of  taking  evidence,  or  of  any 
other  procedure  in  a  suit,  should  obtain  the  sanction  of  the  Court, 
or  of  a  Judge  in  Chambers.^  The  application  at  Chambers  is  made 
by  summons.^** 

6  Bailee  v.  Barlee,  1  S.  &  S.  100.  For 
form  of  notice,  see  Vol.  III. 

'  Wilton  V.  Hill,  2  Ue  G.,  M.  &  G.  807; 
D'Oechsner  w.  Scott,  24  Beav.  239;  see 
also  l-'eiinmgton  y.  Alvin,  1  S.  &  S.  264; 
Driiiaii  v.  Alaiiiiix,  3  L>r.  &  War.  154. 
For  fijiin  uf  notice  of  motion,  see  Vol.  III. 

s  BraitliWiiite's  I'r.  .jub. 

'J  Ord.  5  Feb.,  IbOl,  r.  24. 

For  form  of  summons,  see  Vol.  III. 


1  For  forms  <if  notice  of  motion  and 
summons,  see  Vol.  III.;  and  for  form  of 
order,  see  Setoii,  1252. 

2  .Jones  V.  Faweeit,  2  Phil,  278;  and  see 
Greenaway  v.  liutheram,  9  Sim.  b8. 

3  Lawley  v.  Ilalpen,  liunl).  310;  Percy 
f.  Percy,  '\I.  P..  in  Cliainb.  9  Dec,  18«3. 
For  form  of  order,  see  Seton,  1252. 

4  14  Beav.  047;  16  Beav.  563. 

5  For  form  of  consent,  see  Vol.  III. 


MARRIED    WOMEN. 


113 


If  the  next  fiiencl  of  a  married  woman  goes  to  reside  out  of  the 
jurisdiction,  the  practice  with  respect  to  giving  secmity  for  costs 
is  the  same  as  if  the  next  friend  had  been  himself  the  actual 
plaintiff.^ 

Upon  filing  a  bill  in  Chancery,  either  by  her  next  friend  or  in 
forma  pauperis,  a  married  woman,  in  respect  of  the  sirit,  is  held  to 
have  taken  upon  herself  the  liabilities  of  a /erne  sole,  and  therefore 
may  be  attached ;  ^  and  her  separate  estate  becomes  hable  to  pay 
the  costs  incuiTcd.^ 

If  a  bill  has  been  filed  by  2.  feme  sole,  and  she  intermarry  pend- 
ing the  suit,  the  proceedings  are  thereby  abated,  and  cannot  prop- 
erly be  continued  without  an  order  of  re^ivor.*  If,  however,  a 
female  plaintiff  marries,  and  afterwards  proceeds  in  the  suit  as  a 
fem£  sole,  the  mere  want  of  an  order  of  revivor  is  not  an  error  for 
which  a  decree  can  be  reversed,  upon  a  bill  of  review  brought  by  a 
defendant :  because,  after  a  decree  made  in  point  of  right,  a  matter 
which  may  be  pleaded  in  abatement  is  not  an  error  upon  which  to 
ground  a  bill  of  review." 

It  has  been  determined,  that  if  a  female  jilaintiff  marries  pendino- 
a  suit,  and  afterwards  before  revivor  her  husband  dies,  an  order  of 
revivor  becomes  unnecessary :  her  incapacity  to  prosecute  the  suit 
being  removed ;  yet  the  subsequent  proceedings  ought,  however,  to 
be  in  the  name  and  Avith  the  description  which  she  has  acquired  by 
the  marriage.® 

Where  a  bill  has  been  filed  by  a  man  and  his  wife  touching  the 
personal  property  of  the  wife,  and  the  husband  dies  pending  the 
suit,  no  abatement  of  the  suit  takes  place,  but  the  wife  becomes 
entitled  to  the  Ijenefit  of  the  suit  by  survivorshi]),'  unless  any  act 
lias  been  done  which  may  have  the  effect  of  depriving  her  of  that 
right ;  and  she  may  continue  the  suit  without  an  order  of  revivor.* 

5  Viscountess  Cranborne  v.  Dalmahoy. 
Nels.  80;  1  Ch.  R.  231.  So  at  Law,  it  a 
woman  sues  or  is  sued  as  sole,  and  j  udg- 
ment  is  ajjainst  her  as  sucii,  tliou{,'li  slie 
was  coetrt,  she  sliall  be  estojiped,  and  the 
siieriir  shall  .tai<e  advanta^'e  of  tlie  estop- 
pel.   1  Siilk.  3 10;  1  Roll.  Abr.  (stiy,  pi.  6U. 

«  I>d.  Red.  yo;  and  Godkin  v.  Earl  Fer- 
rers, there  referred  to. 

">  And  it  extends  to  interest  accrued 
duriuf,'  the  life  of  the  husband,  and  not 
received.  Wdkinson  /-.  Charlesworth,  10 
Beiiv.  324;   11  ,hir.  044. 

«  M'Dowl  V.  Charles,  C  John.  Ch.  132; 
Vaughim  v.  Wilson,  4  Hen.  &  M.  453. 
The  executor  of  a  deeea.sed  husband  can- 
not inuintain  a  suit  upon  a  clwie  in  action 
which  accrued  during  coverture  to  the 
wife  of  the  deceased,  who  survived  him, 
and  which  was  not  reduced  into  possession 
by  him.  bond  v.  Omwiiy,  11  Md.  612; 
bnowhill  V.  SnowhiJI,  1  Green  Ch.  30. 


Ch.  III.  §  7. 


Next  fi-iend, 
going  to 
reside  out  of 
jurisdiction, 
must  give 
security  for 
costs. 

By  filing  bill, 
Jeine  covert 
takes  upon 
herself 
liabilities  of 
feme  sole,  in 
respect  of 
suit. 

Suit  abates 
by  marriage 
of  female 
plaintiff". 


Effect  of  hus- 
band's death 
before   . 
revivor. 


Effect  of  hus- 
band's death 
on  joint  suit. 


1  Alcock  r.  Alcock,  5  De  G.  &  S.  671, 
ante,  p.  28. 

■i  Ottway  V.  Wing,  12  Sim.  90. 

8  Barlee  v.  Barlee,  1  S.  &  S.  100;  Mur- 
ray V.  Barlee,  4  .Sim.  82,  'Jl;  3  M.  &  K. 
20y,  21'J;  see,  however,  Jie  I'ugli,  17  Beav. 
336.  As  to  the  liability  of  the  wife's 
separate  estate  for  her  debts  and  engage- 
ments, see  .Johnson  c.  Gallagher,  7  .lur.  N. 
S.  273,  'J  \V.  K.  .506,  L.  J.j. ;  3  Ue  G.,  K.  & 
J.  494,  where  the  cases  are  reviewed; 
G'eenough  i-.  .Shorrock,  4  N.  R  40,  L.  J.J.; 
3  N.  I{.  .099,  .M.  R. 

*  See  Trezevant  i".  IJroughton,  5  W.  R. 
517;  .Set<m,  1105,  1170,  .M.  R.  Where  a 
woman  lil.'d  her  bill  as  a  spinster,  and  it 
afterwards  ajipeared  she  had  a  husband 
living,  proceedings  were  stayi.'d.on  motion 
by  the  defendant,  tdl  the  a|»pointmi-nt  of 
a  next  friend,  (irant  t'.  Mdls,  29  L.  T.  11 ; 
and  see  I'vke  r.  Holcombe,  9  .Jur.  30«,  V. 
C.  K.  B.;  iJavey  v.  Bennett,  3  W.JC.  3.53, 
V.  C.  W. 

VOL.   I.  8 


Ill 


SUITS    liY   PERSONS   AMTO   ARE    UNDER   DISABILITY. 


Cit.  III.  V 


FAXixt  of 
wife's  (loath 
ou  joint  suit. 


Effect  of 
death  of  both. 


When  suit 
may  he 
continued  by 
hu.sl)and, 
without 
administer- 
ing to  vn(e. 


If,  however,  she  does  not  think  jn-ojier  to  pvoeccd  with  tlie  cause, 
she  will  not  he  liable  to  the  costs  already  incurred :  because  a 
woman  cannot  be  nuide  resj)onsible  for  any  act  done  by  her  hus- 
band during  the  coverture ;  but  it"  she  take  any  stc])  in  the  cause, 
subsequent  to  her  husband's  dcatli,  she  will  make  herself  liable  to 
the  costs  from  the  beginning,^ 

A  ditferent  rule,  with  respect  to  the  right  to  continiie  a  suit 
instituted  by  a  husband  and  wife,  prevails  when  the  wife  dies  in 
the  lifetime  of  her  husband,  from  that  which  is  acted  upon  when 
the  husband  dies  in  the  lifetime  of  his  wife ;  for  in  the  former  case, 
although  the  husband,  uj)on  the  death  of  liis  wife,  becomes  entitled 
to  all  her  chases  in  action,  he  does  not  acquire  such  title  by  sur- 
vivorship, but  in  a  new  character,  and  an  absolute  abatement  of 
the  suit  takes  place ;  so  that,  to  entitle  himself  to  continue  it,  the 
husband  must  first  clothe  himself  with  the  character  of  her  personal 
re]>resentative,  by  taking  out  administration  to  her  effects,^  and 
then  obtain  an  order  of  revivor.^  And  here  it  is  to  be  observed, 
that  if,  after  the  death  of  the  wife,  the  husband  were  to  die  before 
the  termination  of  the  suit,  the  party  to  continue  the  suit  is  the 
person  to  whom  administration  has  been  granted.  According  to 
the  present  practice  of  the  Court  of  Probate,  administration  is 
granted  to  the  representatives  of  the  husband,  unless  next  of  kin 
of  the  wife  are  the  persons  beneficially  entitled  :  the  former  practice 
hav-ing  been  otherwise.* 

But,  although  it  is  in  general  necessary  that  a  husband,  after  the 

death  of  his  wife,  ])cnding  a  suit  instituted  by  them  for  the  recovery 

of  her  personal  jjroperty,  shoidd,  in  order  to  entitle  him  to  proceed 

with  the  cause,  take  out  administration  to  his  wife,  and  then  obtain 

an  order  of  revivor,  yet  if  any  act  has  been  done  the  effect  of  which 

would  have  been  to  deprive  the  wife,  in  case  she  had  outUved  her 

husband,  of  her  right  by  survivorship,  and  to  vest  the  pro})erty  in 

marriage  by  her  decease.  It  was  then  a 
chose  m  action,  and,  being  a  promissory 
note,  payable  to  the  order  of  the  wife,  no 
one  could  sue  upon  it,  unless  he  could 
trace  a  title  to  it  under  the  original  payee." 
pp.  322,  323.  Sue  2  Kent  (11th  ed.),  135, 
136;  Garforth  v.  Bradley,  2  Ves.  S.  675; 
Kiihards  v.  Kichards,  2  li.  &  Ad.  447 ; 
Gaters  v.  Madulcy,  0  JI.  &  W.  423;  Hart 
V.  Steidiuns,  0  Q.  B.  iJ37 ;  Scarpellini  «. 
Atcheson,  7  C^.  15.  864;  J(;nes  v.  Kichard- 
.son,  5  Met.  247,  249;  IJryan  v.  Ro:/ks,  25 
Geo.  622 ;  Vaughan  v.  I'arr,  20  Ark.  600. 

3  For  form  of  order,  where  husband, 
being  defendant  in  wife's  suit,  revives  as 
lier  administrator,  see  Murray  v.  Newbon, 
Seton,  1164.  I'he  order  can  be  obtained 
on  motion  or  petition  of  course.  See  post, 
Chap.  XXXlil.,  litvivor  and  Supplement. 

*  Wnis.  on  Executors,  360.  See  Ikyan 
V.  Rooks,  25  Geo.  622;  but  see  Vaughan 
V.  Parr,  20  Ark.  600. 


1  Ld.  Red.  59;  see  also  3  Atk.  726; 
Bond  V.  Simraon.s,  ib.  21;  Mills  v.  Barlow, 
11  \Y.  R.  351,  L.  JJ. 

2  See  Pattee  v.  Harrington,  11  Pick. 
221;  Needles  I'.  Needles.  7  Oliio  (N.  S.), 
432;  McCasker  v.  Golden,  1  Hradf.  (N.  Y.) 
64;  Williams  v.  Carle,  2  Stockt.  (N.  J.) 
543.  A  right  of  the  husband  to  administer 
on  his  wife's  choses  in  action,  for  his  own 
benefit,  is  held  to  be  incompatible  with  the 
legislation  of  Vermont.  Holmes  v.  Holmes, 
28  Vt.  705.  It  has  been  held  in  Massa- 
chusetts, that  the  administrator  of  the 
estate  of  a  married  woman  may  maintain 
an  action  upon  a  note  given  and  made 
payable  to  her  during  coverture,  if  during 
her  life  her  liusband  did  not  reduce  it 
to  pos.^^ession,  or  do  anj'  act  indicating 
an  intention  to  take  it  to  himself.  Allen 
V.  Wilkins,  3  Allen,  321.  Bigelow  C.  J. 
said:  "  His  right  to  reduce  it  to  possession 
was  at  an  end  on  the  dissolution  of  the 


MARRIED    "SVOMEX.  115 

the  husband  absolutely,  the  husband  may,  it  is  apprehended,  con-    Ch.  hi.  §  7. 

tinue  the  suit   in   his   individual   character,  -without   taking   out    "- — y ^ 

administration  to  his  wife.  In  such  case,  however,  it  will  be  neces- 
sary, if  such  act  has  taken  place  subsequently  to  the  institution  of 
the  suit,  to  bring  the  fact  before  the  Court  by  means  of  an  amend- 
ment or  a  supplemental  statement  or  bill,  unless  it  appears  upon 
the  proceedings  which  have  already  taken  place  in  the  cause. 

This  distinction  renders  it  important  to  consider  what  the  cir-  How  wife's 
cumstances  are  which  will  have  the  effect  of  so  alterin<>-  the  prop-  "S^*  ^^^ , . 

,  ^  i-i  1-,^,  ,  oil       sunivorship 

eity,  as  to  vest  the  right  to  the  wile's  personal  property  absolutely  defeated: 
in  the  husband,  and  entitle  him  to  proceed  in  a  suit  without  assum- 
ing the  character  of  her  personal  representative. 

Upon  this  subject  it  is  to  be  observed,  that  a  mere  intention  ^  to  not  by  action 
alter  the  proi)crty  will  not  have  the  effect  of  givino-  the  husband  o^fiit.  witli- 

,,■,,.,..  ,,  „  ^         '^  out  judgmeut 

tne  absolute  right  in  it ;  and  therefore,  the  mere  bringing  an  action  or  decree  for 

at  Law,  or  filing  a  bill  in  Equity,  will  not  alter  the  property,  unless  hSndV*' 

there  be  a  judgment  or  decree  for  pajTiient  to  the  husband  alone.^ 

And  it  has  been  decided,  that  an  appropriation  by  an  executrix  of  nor  by  ap- 

80  much  of  the  assets  of  her  testator  as  was  necessary  to  discharge  P™P';i'it'"n- 

a  legacy  bequeathed  to  a  married  woman,  Avas  not  such  a  change 

of  the  property  as  would  vest  it  in  the  husband. 

But  it  seems,  that  if  a  person  indebted  to  a  mamed  woman,  or  iiow  defeated 
holding  money  belonging  to  her,  pay  such  money  into  Court,  in  a  1'-^'  P=|y'»"i<^ 
cause  to  which  the  husband  and  wife  are  parties,  such  payment  will 
be  considered  as  an  alteration  of  the  property ;  for,  as  properly  it 
could  only  have  been  paid  during  coverture  to  the  husband,  the 
circumstance  of  its  having  been  paid  into  Court  will  not  alter  the 
rights  of  the  parties,  and  it  Avill  be  considered  as  a  payment  made 
to  him.3     For  the  same  reason,  where  the  jewels  of  the  wife  had  or  deposit  in 
been  dei)Osited  in  Court  Ijy  the  husband  under  an  order,  they  were  *^°"^' 
considered  as  belonging  to  the  husband's  executors,  and  not  to  the 
rej)resentative  of  the  wife  who  had  survived:  because,  havino-  been 
in  the  possession  of  the  husband,  oven  a  tortious  act  could  not 
devest  that  property,  and  turn  it  into  a  chose  in  action ;  *  much 
less  could  a  payment  into  Court  under  an  order.     And  so,  where  a 
married  woman,  who  was  the  committee  of  the  estate  and  person  <""'^er  iu 
of  lier  lunatic  husband,  was  entitled  to  stock  whicli  was  standino-  ^""^^■^'' 
in  the  name  of  a  trustee  for  her,  and  this  stock  was,  by  an  order 

I  See  Forrest  D.  W!irrinf,'ton.  2  Desaus.  Snowhill,  1  Green   Ch.  36,37;   Glann  v 

254,  2C1;  IJarbcrw  Slade,  30  Vt.  I'Jl.  Younglove,  27  IJarb.  (N    Y.)  48  •;  Lock- 

■^  See  Stroll),'  r.  .Smith,  1   Met.  470.     To  hart  v.  Cameron,  29  Ala.  S.Or,;    Wulden  v. 

conmitute  a  reduction  to  piLSsession,  and  a  Ciiamhers,  7  Ohio  (N.  S),  30;  Walhice  v. 

change  of  property  of  tlie  wife's  c/ioses  in  Taliaferro,  2   (,,'all,   447.      The    reduction" 

nc7i'/n,  the  hut^l.and  mUHt  do  .some  positive  iiece.M.«ary  is  tliat  into   po.ssession,  not   of 

and  uni-(|uivoc;il  act  to  reduce  them  to  his  tlie   thin/'    itself,    hut   of   the    title    toil, 

own  pos-^esHJon.     I'.arber  >:  Sln.le,  30  Vt.  Stronf,'  ./.  in  Tritt  v.  Caldwell,  31   IVnu. 

l!tl:  Kims  r.  Hughes,  3  iJe^aus.  ir,r,-  Hail  St.  2:J3. 

>•.  Young,  37  N.  H.  134;  Amiover  r   Mer-  »  Packer  v.   Wyndham,  Prec.  Ch.  412. 

rimack  Co.,  37  N.   H.  437;    Snowhill   v.  *  Jbid. 


or  transfer  by 


116 


SUITS   BY   PERSONS    AVIIO   ARE   UNDER   DISABILITY. 


Cii.  III.  §7. 


TVlicre 
money  car- 
ried to  joint 
account ; 


or  transferred 
to  trustees. 


Effect  of 
promissory 
note  to  wife. 


iii;ulo  ill  till'  lunnoy,  trnnsforrcMl  into  the  name  of  the  Accountnnt- 
(.ioiur.il,  in  tho  niiittiT  of  the  lunacy,  and  part  of  it  was  afterwards 
sold  out  and  applii'd  in  paynuMit  of  eosts  in  the  lunacy,  Lord  Lynd- 
luirst  held,  that  the  mode  in  which  the  stock  had  been  dealt  with 
amounted  to  a  reduction  into  possession  by  the  husband:  because, 
as  ]>nyment  by  the  trustee  to  the  lunatic,  or  to  the  conunittee, 
Avould  have  been  a  reduction  into  possession,  so  payment  into 
Court,  to  the  credit  of  the  lunacy,  Avas  equally  a  reduction  into 
possession  for  the  lunatic ;  and  upon  this  ground  his  Lordship 
refused  to  grant  a  petition,  presented  by  the  wife  after  the  death 
of  the  lunatic,  praying  that  the  stock  might  be  transferred  to  her, 
as  belonging  to  her  by  survivorship.^  If,  hoAvever,  money  paid 
into  Court  be  carried,  by  order,  to  the  joint  account  of  the  husband 
and  wife,  the  case  will  be  different,  and  the  wife  will  not  be 
deprived  of  her  right  of  survivorship,  in  the  case  of  the  Imsband 
dying  before  he  has  procui'ed  an  order  for  the  payment  of  it  out  of 
Court ;  '^  and  it  seems,  that  a  mere  payment  or  transfer  of  money 
or  stock  to  trustees  for  the  benefit  of  the  wife,  will  not  give  the 
husband  the  absolute  right  to  the  money,  to  the  exclusion  of  the 
wife.'^ 

It  ajipears  formerly  to  have  been  held,  that  a  promissory  note 
given  to  a  wife  during  coverture  became  the  ])ro])erty  of  the  hus- 
band absolutely,  as  the  wife  could  not  acquire  proj^erty  during 
coverture;  and  upon  this  principle,  Lord  Hardwicke,  in  Light- 
bourne  v.  Holyday*  held,  that  upon  the  death  of  the  husband,  in 
a  suit  respecting  a  note  of  this  description,  the  suit  abated ;  and 
in  Hodges  v.  Beverley^  it  was  determined,  that  a  note  given  to  a 
feme  covert  was,  upon  her  husband's  death,  to  be  considered  as  his 
assets.®     But  in  JSfash  v.  Ncish^  Sir  Thomas  Plumer  V.  C.  held, 


1  Inre  .Jenkins,  5  Russ.  183,  187.  The 
right  of  ii  'lusband  to  reduce  to  his  posses- 
sion the  chases  in  action  of  the  wife,  cannot 
be  exerci-ed  by  a  guardian  appointed  over 
him  as  an  insane  person,  but  the  property 
continue-  vested  in  tlie  wite.  Andover  v. 
Merrimrick  Co.,  .37  N.  II.  437. 

2  Jbid. ;  and  see  Baldwin  v.  Baldwin,  5 
De  G.  &  S.  .319;  L;ipiimandaye  u.  Teissier, 
12  Beav.  20G;  13  Jur.  1040. 

3  Priiiyle  V  Pringle,  22  Beav.  631;  and 
see  £x  parte  Norton,  &  De  G.,  M.  &  G. 
258;  2  Jur.  N.  S.  479;  see,  however, 
Hansen  r.  Miller,  14  Sim  22,  26;  8  Jur. 
209,  3-52;  Cuninghani  v.  Antrobus,  16 
Sim.  436,  442,  13  Jur.  28;  Buruham  v. 
Bennett,  2  Coll.  254;  9  Jur.  888. 

*  2  Kq.  Ca.  Ab.  1,  pi.  .5;  2  Mad.  13-5,  n. 

5  Bunb.  188;  see  Yutes  v.  Sherrii  gton, 
11  M.  &  W.  42,  and  12  ,M.  &  W.  8.>5,  as 
to  the  effect  of  bankruptcy  of  tiie  husband 
upon  a  promissory  note  given  to  the  wife 
durn  sola. 

6  So  it  has  been  held  in  Massachusetts 


both  as  to  promissory  notes  and  as  to  le- 
gacies and  tlistributive  shares  in  intestate 
estates,  the  separate  property  of  the  wife; 
the  necessity  for  a  reduction  to  possession 
seems  to  have  been  overlooked.  Tlius  in 
Commonwealth  i-.  Maidey,  12  Pick.  173,  it 
was  determined  by  the  Cnurt  that  a  pro- 
missory note  given  to  a  feme  covert  for 
her  separate  use,  for  the  consideration 
of  her  distributive  share  in  an  intestate 
estate,  becomes  immediately  the  pro- 
pert}-  of  the  husband.  This  was  after- 
wards contirmed  in  Stevens  v.  Beals, 
10  Cush.  291.  See  Shuttlcworth  v. 
Noyes,  8  Mass.  229;  Trvon  v.  Sutton, 
13  "Cal.  490;  Holland  v.  Moody,  12  Ind. 
170.  And  in  Goddard  v.  .Johnson,  14 
Pick.  352,  it  was  even  decided,  that  a 
husband  might  sue  in  liis  own  right,  after 
the  death  of  bis  wife,  for  a  legacy  accruing 
to  the  wife  during  the  coverture,  although 
he  had  done  nothing  to  reduce  it  to  pos- 


7  2  Mad.  133,  139. 


MARRIED   "WOMEN. 


117 


that  a  note  given  to  a  Avife  was  a  chose  in  action  of  the  Trife,  and 
survdved  to  her  on  tlie  death  of  her  husband,^  and  that  the  cii-cum- 
stance  of  the  husband  having  received  the  interest  and  part  of  the 
capital  in  his  lifetime,  for  which  he  gave  a  receipt,  did  not  alter  the 
nature  of  the  property,  but  that  the  remainder  of  the  money  still 
remained  a  chose  in  action? 

In  the  last  case,  a  receipt  of  part  of  the  money  by  the  husband 
was  not,  as  we  have  seen,  hekl  sufficient  to  alter  the  nature  of  the 
property  in  the  remainder,  so  as  to  deprive  the  wife  of  her  right  to 
it  by  survivorship.  In  general,  however,  if  the  husband,  either 
alone  or  jointly  with  his  wife,  authorize  another  person  to  receive 
the  property  of  the  wife,  whether  it  be  money,  legacy,  or  other 
thing,  and  such  person  actually  obtain  it,  such  receipt  will  change 
the  wife's  interest  in  the  property,  and  be  a  reduction  into  posses- 
sion by  the  husband.^  Thus,  in  Dosipell  v.  Earle.,^  where  an 
executor,  with  the  wife's  consent,  had  paid  a  legacy,  to  which  the 
wife  was  entitled  on  the  death  of  her  mother,  to  the  husband, 
upon  his  undertaking  to  pay  the  interest  to  the  mother  during  her 
life,  and  the  wife,  having  survived  her  and  her  husband,  filed  a  bill 
claiming  the  money  against  the  husband's  executors,  the  bill  was 
dismissed. 


Ch.  III.  §  ■ 


Payment  of 
part  to 
husband, 
insufficient  as 
to  residue. 


His  receipt,  or 

that  of  a 

person 

authorized 

by  him,  a 

sufficient 

reduction. 


sespion  during  her  lifetime.  The  same 
was  maintuined  in  H;i])f;ood  i'.  Hougliton, 
22  Pi  k.  4f0,  and  in  Albee  v.  Carpeiiter, 
12  Cu-^h.  .3b2,  .386.  See  Strong  v.  Smith, 
1  Met.  476.  But  the  Court  seem  to  have 
receded  from  the  doctrine  in  .Jones  v. 
Richard-.on,  5  Met.  247,  24!>,  and  admitted 
that  it  wa"!  "contrary  to  dpcided  cases." 
And  in  Allen  v.  Wi'lkiiis,  3  Allen,  321, 
322,  Bigclow  C.  •!.  sjiiii:  " /«  a  certain 
sense,  a  ch<ist  in  action  which  becomes  the 
property  of  the  wife  diirinfi;  coverture, 
mny  be  'aid  to  be  the  absolute  property  of 
the  hu.sbaiid.  He  has  the  right  to  do  any 
act  to  reduce  it  into  his  own  possession. 
»S'o  lonij  us  ht  (iHil  /lis  irife  ni-c  Oath  Ucini), 
the  etitirejMjf  i/is/xmeiirli  is  in  him.  And 
it  was  decided  in  thin  case,  that  the  admin- 
istrator of  the  estiite  of  a  m;irried  wmnnn 
may  maintain  an  action  on  a  note  given 
aTid  made  [myable  to  h<r  duriiic  coverture, 
if  duriiifr  her  life  her  husliami  did  not  reduce 
it  to  posse-Hion,  or  do  any  act  indicating 
an  intention  to  tiike  it  to  hirnstlf.  See 
Yates  ('.  Sherrington,  11  .M.  &  W.  42,  and 
12  M.  &  VV.  K,o,  an  to  the  eftVct  of  bank- 
ruptcy of  the  husband  njion  a  promissory 
note  L'iven  to  the  wife  'lum  sola. 

1  Allen  V  Wdkin^  3  Allen,  321;  .Tones 
V.  Kicinirdvoii,  r,  M.-r.  247,  249;  2  Kent 
(11th  ed  ).  I3.'>;  IJarlH-r  r.  Slade,  30  Vt. 
191;  JJarron  ?•.  Barron.  24  Vt.  375;  Hall 
V.  Younff.  37  N.  H.  134,  145,  146;  Coffin 
V.  Morrdl.  22  X.  H  3.'i2;  Snowliill  r. 
Snowhill,  1  Creen  Ch.  30;  Dane  r.  AlW-n, 
1  CrcenCli  4ir);  l'oinde.\teri'.  Blackburn, 
1  Ired.  Ch.  2iJ6. 


In  Hall  V.  Young,  37  N.  H.  146,  it  is 
stated  as  the  settled  law  of  New  Hamp- 
shire, that  the  personal  property  of  the 
wife  at  the  time  of  the  marri:ige,or  accru- 
ing to  her,  in  her  own  right,  subsequently, 
whether  it  consists  in  spec'fic  chattels, 
money,  or  ckosts  in  action,  tind  however 
it  may  fnll  to  her,  whether  by  legacy, 
gift  iiite)'  vivus  or  cniisa  moiiis,  as  her  dis- 
tributive share  in  the  estate  of  a  person 
deceased,  or  otherwise,  if  it  accrues  inde- 
pendently of  her  husbiind,  and  not  upon 
any  consideration  moving  from  or  con- 
nected with  him.  it  remains  her's  until  lie 
exercises  liis  marital  right  by  reducing  it 
to  possession. 

■^  Hunter  v  Hallett,  1  Edw.  Ch.  388. 
The  receipt  by  a  husband  of  dividends 
accruing  from  stock  standing  in  his  wife's 
name,  is  evidence  of  a  reduction  to  pos- 
se—^ion  of  the  dividends,  but  not  of  the 
stock.  Burr  v.  Sherwood,  3  Hradf.  (N. 
Y.)  86.  See  Taggart  r.  Hold  in,  10  Md. 
104  If  the  husbanil  takes  anew  security, 
in  his  own  name,  for  a  debt  due  to  his 
wife,  while  sole,  her  riglit  by  survivorship 
is  tberebv  destroyed.  Searing  v.  Searing, 
9  Paige.  283. 

3  2  Kent  (11th  ed.),  137;  Schuyler  v. 
Hoyle,  5  .bihn.Ch.  I'.iO;  .Idhnsfon  f."  .lohn- 
stoii.  1  Crint  (I'eini.),  468. 

■♦  12  Ves.  473;  see  also  Hurnham  f. 
Hennflt,  2  C<i|l.  254:  9  .lur.  8KS;  Hansen 
I'.  Miller.  14  Sim  22,  26;  H  .hir.  20;i.  352; 
and  Ciniingham  r.  Anirobns,  16  Sim.  436, 
442;  13  .hir.  2h;  but  see  I'ringle  v.  I'ringle, 
22  Heav.  631. 


118 


Sl'ITS    IJY    TERSONS    AVIIO    ARE    UNDER   DISABILITY. 


rn.lll.§ 


Effect  of  a 
jmlLrmont  at 
"Law : 


when'  wife  is 
not  a  party ; 


where  she  is. 


Effect  of 
decree  in 
Etjuity. 


Decree  for 
payment  to 
husband  and 
vrife,  sur- 
vives. 


Tlu'  mrre  jiroof,  in  l):iiil<.nii>t('y,  of  :i  debt  due  to  llu'  wife  by 
the  husb:MuI,  will  not  alter  the  jn'operty  of  the  debt,  and  it  still 
reiuains  a  c/ioae  hi  actioK.^  It  secins,  howeviT,  that  an  award  by 
an  arbitrator  giving  nioncy  to  the  husband,  to  wliich  he  was 
entitled  in  right  of  his  wife,  will  liave  the  etfeet  of  altering  the 
jiro]>erty,  and  giving  it  to  the  husband  absolutely.'^ 

Witli  respect  to  the  effect  of  a  judgment  at  Law  in  altering  the 
]>roperty  of  a  wife's  chose  in  action,  niucli  depends,  as  we  have 
seen,''  upon  whether  tlie  wife  is  or  is  not  named  in  the  proceeding. 
If  the  wife  be  not  a  party  (which  she  need  not  be  at  Law,  if  the 
right  accrued  to  her  during  coverture),*  a  judgment  in  an  action 
commenced  by  the  husband  will  vest  the  property  in  him  :  so  that, 
in  the  event  of  his  death  before  execution,  the  wife  would  be  de- 
prived of  her  right  by  survivorshij) ;  '^  this,  however,  will  not  be 
the  case  if  the  wife  be  a  party :  in  which  case,  if  the  husl)anil  die 
after  judgment  and  before  execution  sued  out,  the  judgment  will 
survive  to  her.^ 

Decrees  in  Equity,  as  we  have  seen,''  so  far  resemble  judgments 
at  Law  in  this  respect,  that,  until  the  money  be  ordered  to  be 
paid,  or  declared  to  belong  to  the  one  or  the  other,  the  rights  of  the 
parties  mil  remain  undisturbed  ;  ^  but  an  order  for  payment  of  a 
sum  of  money  to  the  husband,  in  right  of  his  wife,  changes  the 
property,  and  vests  it  in  the  husband.^ 

Where,  however,  a  decree  or  order  has  been  made  by  the  Court 
for  the  paj-meut  of  a  sum  of  money  to  the  husband  and  wife,  and 
either  party  dies  before  payment,  the  money  will  belong  to  the 
survivor.  Thus,  where  a  plaintiff  and  his  wife  brought  their  bill 
against  an  executor  for  a  legacy  bequeathed  to  the  wife  before 
marriage,  and  a  decree  was  made  that  the  money  should  be  paid 
to  the  plaintiffs :  ujjon  a  question  whether  the  money  should  go  to 
the  wife  or  to  the  administratrix  of  the  husband,  the  Court  referred 
it  to  one  of  the  Judges  to  certify,  who  gave  it  as  his  opinion  that 
a  decree  in  Chancery  for  money  or  any  other  personal  thing,  being 
a  judgment  in  Equity,  was  of  the  like  nature  with,  and  ought  to 
be  governed  by,  the  same  rules  as  a  judgment  for  a  debt  or  dam- 
ages at  Common  Law,  and  consequently  that  the  interest  or  ben- 
efit of  the  decree,  and  the  money  due  thereby,  ought  to  go  and 


1  Anon.,  2  Vern.  707. 

2  Oglander  v.  Baston,  1  Vern.  396. 
8  Antt,  p.  89. 

4  Ibid. 

6  Oglander  v.  Baston,  vbi  sup. ;  see  Pier- 
son  V.  Smith,  9  (Jhio(N.  S.),  554;  Needles 
V.  Needles,  7  Ohio  (N.  S  ),  4.32. 

6  Garforth  v.  Bradlev,  2  Ves.  S.  676; 
see  2  Kent  (llth  ed.),"l.37,  138;  McDowl 
V.  Charles,  6  .John.  Ch.  132;  Searing  v. 
Searing,  9  Paige,  283. 


T  Ante,  p.  115. 

8  See  Heygate  v.  Annesley,  3  Bro.  C  C. 
(Perkins's  ed.)  362,  Mr.  Eden's  note  (n), 
where  the  cases  on  this  subject  are  cited 
and  considered;  Knight  v.  Brawner,  14 
Md.  1. 

'■>  Hevgate  v-  Anneslev,  3  Bro.  C.  C. 
362;  and  see  Tidd  v.  Li.ster,  3  I)e  G.,  M. 
&  G.  857,  871;  18  .Tur.  543;  Walker  v. 
Walker,  25  Mis.  (4  .Jones)  367;  Walden 
V.  Chambers,  7  Ohio  (N.  S.),  30. 


MARRIED   WOMEN.  119 

be  to  such  of  tlie  parties  as  should  have  the  right  thereto  in  case    Ch.  m.  §  7. 

it  were  a  judgment  for  debt  or  damages  at  Common  Law :  accord-   ' y  —'■ 

ing  to  which,  if  a  judgment  be  had  by  husband  and  wife,  in  an 
action  brought  by  them  for  a  debt  due  to  the  wife  before  marriage, 
and  the  luisband  dies  after  the  judgment,  and  before  execution 
sued,  the  debt  due  on  the  judgment  belongs  to  the  wife,  and  she 
may  sue  execution  upon  the  judgment,  and  not  the  executor  or 
administrator  of  the  husband.^  Upon  the  same  principle,  in 
Forbes  v.  Phipjis,-  where  a  decree  was  made  that  one-sixth  of  the 
residue  to  which  the  wife  was  entitled  should  be  paid  to  her  and 
her  husband,  and  the  wife  died  before  the  money  was  received,  it 
was  determined  by  Lord  Xorthington  that  the  husband  was 
entitled  to  the  money,  not  as  administrator  to  the  wife,  but  as 
survivor  under  the  decree. 

With  respect  to  the  effect  of  an  assignment  by  the  husband  of  Husband's 
his  wife's  chose  in  action,  upon  her  rioht  of  survivorship,  it  has  ^f 'ff""^*"?* 

'      ^  ~  1 '  ot  reversion 

been  for  some  time  settled,  that  where  the  chose  in  action  is  not  does  not  bar 
capable  of  immediate  reduction  into  possession,  as  where  it  is  in  bvlurvivor- 
re version  or  expectancy,  an  assignment  of  it  will  not  bar  the  right  ^^^P' 
which  the  wife  would  otherwise  have  had  to  possess  it,  in  the 
event  of  her  surviving  her  husband,  unless  it  is  actually  reduced 
into  possession  before  his  death.     And  where  a  prior  life-interest  and  prior  life- 
is  assigned  to  the  wife,  there  will  be  no  equitable  merger,  so  as  to  ass^^r«?d  t 
enable  the  husband  and  wife  to  deal  ^\'ith  the  reversion,  and  bar  wif "will  not 
her  right  of  survivorship.*  merge. 

By  the  '20  &  21  Vic.  c.  57,  a  husband  and  -wife  can  now,  how-   Wife  may 
ever,  in  the  manner  and  suliject  to  the  restrictions  therein  men-  hermS^n- 
tioned,  effectually   assign   her   reversionary   interest  in   i^ersonal  ary  interest  in 
estate.  P*^"°"''^^^'- 

It  appears  formerly  to  have  been  considered  that,  in  this  respect,  No  difference 
tliere  existed  a  difference  between  legal  and  ec^uitable  choses  in  and^muitable 
action,  or,  to  speak  more  correctly,  between  choses  in  action  and  '''"^^^  *" 
equitable  interests  in  the  nature  of  choses  in  action.     With  respect  ' 

to  tlie  l.'itter  it  appears  to  liave  been  thought,  that  an  assignment 
of  them   by  the  husband  would,  in   certain   cases,  without  any 

1  Nanney  v.    Martin,  \    Vh.  Rep.  234;  see  Bisliopp  «.  Colel)rook,  11  .Tur.  793,  V. 

Coppin  V. ,2  V.  Wnii.  4:i'i.    If  tliere  C  K. ;  Hancliett  v.  IJriseoe,  22  IJeav.  400; 

be  a  decree  in  IC<|iiity  in  favor  of  the  lius-  Crittenden  v.  I'osey,  1  Head  (Tenn.),  311; 

band  and  wife,  and  the  hu^^bMnd  (ii<!s,  the,  Uulierley  v.  Day,  IG  Beav.  33;  Uof^ers  v. 

decree  will  survive  t'l  the  wife,  thoiiffii  her  Ancaster.  11    Ind.  300;  Lynn  v.    Hriuliey, 

name    ini^dit   not   liave    been    necessarily  iMet.  (Ky.)  232;  Hair  r'  Avery,  28  Ala. 

joined  in  the  ppieeedi'if^s.     Muse  v.  F,dt,'er-  207.      Hut  it  is  held  iti  I'ennsyivaiiia,  that 

ton,  (;.  VV.  Dud.  Kq.  179;  Knight  «.  Braw-  a   husband    may   assign    lor"  a     valuable 

ner.  14  Md.  1.  consideration    the    wife's   choses  in  (wtion 

'^  1  Kd'-n,  hi'i.  whetlier  they   be  presently   rediicil'le.  or 

8  Whittle  r.  Henning,  3   Phil.  731,  73");  be  reversionary  interests,  "or  possibilities. 

12.1ur.  107<J;  ii.  29K;  11  IJ.-av.  222,  over-  Webb's   Ai)peal,  21    I'enn.   24S;    Smith's 

ruling:  Creed  v.  I'erry,  14   Sim.  U'j2,  and  Estate,  22  I'enn.  130. 

Hall  v.  llugonin,  ib.  595;  10  Jur.  940;  and 


1  -20 


SIITS    BY    PKKSONS    WHO    AUK    UNDKU    DISARILITY. 


(-11.  111.57. 


nor  between 
a  chose  in 
action, 
incapable  of 
beinj;;.  and 
one  capable 
of  being,  but 
not  actually, 
reduced  info 
possession 
during;'  hus- 
band's life. 


rodiii-lion  into  possession  bcforo  his  iloatli,  linve  the  oflbct  of  tlefeat- 
ino-  the  wifo's  riolit  to  thoni  by  survivorship ;  Jiiid  attempts  have 
heon  made  to  establisli  distinctions  in  this  respect  between  assio^n- 
ntents  for  vahiable  consideration,  and  assignments  without  consid- 
eration or  by  (Operation  of  hnv  :  the  former  liaving  ])een  consitlered 
as  barrinsi"  tlie  riiiht  of  tlie  surviving  >vife,  and  the  hitter  as  not 
having  tliat  effect.  The  decisions,  however,  of  Sir  Thomas  Phuner, 
in  Iloriishy  v.  Lee,^  and  Purdeio  v.  Jachson^  have  removed  all 
doubts  upon  this  subject ;  and  have  shown  that  no  such  distinc- 
tion as  that  sup]ioscd  between  legal  and  equitable  choses  in  action., 
or  between  assignments  of  the  latter  for  valuable  consideration, 
and  voluntary  or  general  assignments,  exists.^  In  the  latter  case, 
Sir  Thomas  Plumer,  after  long  argument,  and  a  diligent  and  careful 
investigation  of  all  the  cases  which  had  occui-red  \\\)0\\  the  point, 
ex])ressed  his  opinion  to  be,  "that  all  assignments  made  by  the 
husband  of  the  wife's  outstanding  personal  chattel  which  is  not  or 
cannot  be  then  reduced  into  possession,  "whether  the  assignment 
be  in  bankru])tcy  or  under  the  Insolvent  Act,  or  to  trustees  for  the 
l)ayment  of  debts,  or  to  a  purchaser  for  a  valuable  consideration, 
pass  only  the  interest  which  the  husband  has,  subject  to  the  wife's 
legal  right  by  survivorship."  * 

It  will  have  been  observed,  that  the  rule,  as  laid  down  by  Sir 
Thomas  Plumer,  is  confined  to  such  otitstanding  personal  chattels 
of  the  wife  as  are  not,  or  cannot,  be  reduced  into  possession  ;  from 
whence  an  opinion  at  one  tmie  prevailed,  that  the  rule  did  not 
apply  to  assignments  for  valuable  consideration  of  such  choses  in 
action  as  at  the  time  of  the  assignment  were  capable  of  reduction 
into  possession,  or  as  became  reducible  into  possession  before  the 
death  of  the  husband.  This  opinion  had  the  high  authority  of 
Lord  Lyndhurst,  who,  in  Honner  v.  Morton^  thus  explained  the 
principle :  "  Equity  considers  the  assignment  by  the  husband  as 
amounting  to  an  agreement  that  he  will  reduce  the  property  into 
possession;  it  likewise  considers  what  a  party  agrees  to  do  as 
actually  done  ;  and  therefore,  where  the  husband  has  the  power 
of  reducing  the  property  into  possession,  his  assignment  of  the 
chose  in  action  of  the  wife  will  be  regarded  as  a  reduction  of  it  into 
possession."  ®     It  appears,  however,  from  later  cases,  that  the  dis- 


1  2  Mad.  16;  see  also  Huteliings  «. 
Smith,  9  Sim.  137;  2  Jur.  231. 

2  1  Kuss.  1,  24,  42 

8  It  is  said  by  Mr.  Chancellor  Kent,  2 
Kent  (11th  e.l.),  137,  that  a  voluntary  as- 
signment by  the  husband  of  the  wife's 
chosfs  in  action,  without  consideration,  will 
not  bind  her,  if  she  survives  him;  see  also 
to  the  same  effect,  Hartman  v.  Dowdel,  1 
Rawle.  279 ;  Parsous  /;.  Parsons,  9  N.  H. 
321,322;  Saddinjrton  v.  Kinsman,  1  Bro. 
C  C.  (Perkins's  ed.)  51,  and  notes;  Mit- 


ford    V    MitfonI,  ■  9    Sumner's     Ves.    87, 
note  (i). 

4  1  Kuss.  70;  see  also  Honner  v.  Morton, 
3  Russ.  6.5;  Watson  «.  Dennis,  ib.  90; 
Stam|)'T  V.  Harlier,  5  Mad.  157,  164. 

5  3  Ru.ss.  68. 

6  The  liusband  may  assign,  for  a  valua- 
ble consideration,  his  wife's  choses  in  action 
to  a  creditor,  free  from  the  wife's  contin- 
gent right  of  survivorship.  Such  an 
appropriation  of  the  property  is  tlie  ex- 
ercise of  an  act  of  ownership  for  a  valua- 


MARRIED    WOMEN. 


121 


tinction  which  has  been  thus  pointed  out,  between  the  effect  of  an  Cii.  m.  §  7. 
assignment  for  vahiable  consideration  by  the  husband,  upon  a  chose 
in  action  which  is  capable  of  being  reduced  into  possession  and 
one"  which  is  not,  can  no  longer  be  relied  upon.^  This  point  came 
before  Sir  J.  L.  Knight  Bruce  V.  C,  in  Ashhy  v.  Ashlnj^^  who, 
after  stating  that  he  agreed  in  the  opinion  expressed  in  the  last- 
mentioned  case  of  Ellison  v.  JEIwin,  decided,  that  an  assignment 
by  a  husband  for  valuable  consideration  of  a  wife's  chose  in  action^ 
M'hich  had  fallen  into  his  ])ower  during  his  life,  but  had  not  been 
in  fact  reduced  into  possession  by  him,  did  not  prevent  the  right 
to  the  chose  in  action  from  survivinar  to  the  T\ife. 


In  the  case,  moreover,  of  assignments  by  act  of  law,  no  dis- 
tinction exists  between  assignments  of  choses  in  action  capable  of 
immediate  reduction  into  possession,  and  those  which  are  not  so. 
Thus,  in  Pierce  v.  Thornly^  where  a  married  woman  had  a 
vested  interest  in  possession  in  a  legacy,  and  her  hiisband  became 
bankrupt  and  died,  it  was  decided  that  the  widow,  and  not  the 
assignee,  Avas  entitled  to  the  money :  because  the  assignment  in 
bankruptcy  could  not  pass  to  the  assignee  a  larger  right,  or  better 
title,  than  the  husband  himself  had,*  which  was  a  right  to  reduce 
the  legacy  into  possession,  but  which  was  not  done  in  his  lifetime. 
Of  course,  the  assignment  imder  bankruptcy   passes   the  whole 


In  assifirn- 
ments  by  act 
ot"  law,  no 
distinction 
between 
choses  in 
oc<ion  capable 
of  reduction 
into  posses- 
sion, and 
those  not  so. 


ble  purpose,  and  an  actual  appropriation 
of  the  chattel  which  the  liusband  had  a 
riKht  to  make.  2  Kent  (lltli  ed.),  ]«6, 
137;  Schuylerr.  Hovie,  5  John.  Ch.  I'JG; 
Kcnnev  (•  Udall,  5  .John.  Ch.  464;  Lawrv 
V.  Houston,  3  Howard  (i\Iiss  ),  394:  Siter 
V.  Jordan,  4  Itawje,  463;  Tritt  v.  Colwell, 
31  Penn.  St.  228.  The  doctrine  that  the 
husband  may  assipn  the  wife'.s  clioses  in 
acCum  for  a  valuable  C')nsideration,  and 
tlicreby  bar  lier  of  iier  right  l)y  survivor- 
ship in  file  del)t,  lint  subject,  nevertheless, 
to  the  wife's  (-(luify,  has  been  frcimcntly 
declared,  and  is  understood  to  be  the  rule 
best  8ustaine<l  by  auliiority.  2  Kent  (11th 
ed.),  137;  Br^•an  r.  Spruill,  4  Jones  Kq. 
(N.  C.)27;  '■'ee  Tobin  r  Di.xoii,  2  Mot. 
(Kv.)  422;  Shprnian  v.  I;ei<rart,  7  W.  & 
S.  "I6!t;  VVebl)'s  App.  21  Tcnn.  St.  248; 
Smiiie's  Ksiatc,  22  I'enn.  St.  130.  It  is 
held  in  Alabama,  that  the  husbMiid's  ms- 
siffnee  for  valuable  coiisideratioii  is  not  cn- 
tith'd  as  airairist  the  wife  to  her  rJicses 
in  nrAiim,  unless  he  reduces  Iheni  to  pos- 
Bo.ssion  durinf?  coverture,  (ieorf^e  !'. 
CJoUlsby,  23  Aiii.  326;  ArrinutoM  r  Var- 
horoui;li,  1  .lone*  K(|.  72;  but  see  'I'ultli! 
V.  I'ViwIer,  22  (.'oiin  58,  and  Marion  v. 
Titsworth,  18  15.  Mon.  682;  Hill  v.  I'own- 
flcnd,  24  Texas,  575. 

2  Kent  (llih  ed.),  13S,  139,  notes ;  Siter 
»'.  Jorilan,  4  Itawle,  46H;  Mcriwclher  v. 
Booker,  5    Litt.  256;    I'inkurd  v.  Smith, 


Litt.  Sel.  Cas.  331;   Dade   v.  Alexander. 

1  Wash.  30;  Tune  v.  Cooper,  4  Sneed 
(Tenn.),  296;  Houck  v.  Caniplin,  25  Miss. 
(4  Jones)  378;  Needles  v.  Needles,  7  Ohio 
(N.  S.),  4.32. 

1  Ellison  V.  Elwin,  13  Sim.  309,  315; 
S   C.  nam.  Elwvn  v    Williams,  7  Jur.  337. 

2  1  Coll.  553*;  8  Jur.  1159;  .see  also  Box 
V.  Jackson.  Dm.  42,  83;  2  Con.  &  L.  005; 
Le  Yasseur  r.  Scratton,  14  Sim.  116; 
Michelmore  r.  Mudge.  2  Giff.  183. 

«  2  Sim.  167,  176;  and  sec  Gavner  v. 
Wilkinson,  2  Dick.  491;  1  Bro.  C."  C  50. 
n.;  Mitford  r   Mitford,  9  Yes.  87,  95,  100. 

■*  A  {reneral  ass'fjnmeut  in  bankruptcy 
or  under  insolvent  laws,  passes  the  wife's 
propi^rty.  and  her  choses  in  action,  but 
subject  to  her  rifjht  by  survivorship;  and 
if  t)ie  Imsband  dies  lelbre  tlu;  assignees 
have  reduced  the  iiropeitv  to  possession, 
it  will  survive  to  the  wife,  tor  the  assignees 
rio-sess  the  same  rights  a<  the  luislmnd 
before  the    bankru])tcv,  and    none    other. 

2  Kent  (11th  ed.),  138.  and  note;  Yan 
Epj)s  I'.  Van  l>cnsen,4  I'aige,  64;  Out  well 
V.  Van  Winkle.  1  Crecn  Ch.  516;  Mitford 
r.  Mitford,  9  SuniiU'r's  A'es.  H7,  Perkins's 
notes  («),  and  (r);  Saddiiigton  r.  Kins- 
man, 1  Bro.  C.  ('.  (  Perkins's  ed.)  44,  notes; 
Mitchell  )'.  Winslow,  2  Story,  630;  Moore 
r  Moore,  14  B  Mon.  259;  I'oor  v.  llazle- 
ton.  15  N.  H.  664;  Mann  v.  Iliggins,  7 
Gill,  206. 


122 


SUITS    BY    PERSONS    WHO    ARE    UNDER   DTSARILITY. 


Cii.  III.  §7. 

'-     y ' 

As-!i<;nint'iit 
by  liusliaiul 
will  not 
lU'privi'  witl> 
of  rijjht  to  ii 
settk'UK'iit ; 


nor  will  hor 
concurrence 
tbea'iii,  where 
otherwise 
inviilid ; 


nor  that  of 
her  father 
during  her 
infancy. 

Effect  of  hus- 
band's release 
of  her  choses 
in  action ; 


intiTt'st  ot'tlio  Imshnnd  in  the  -wiib's  chose  in  action,  at  the  tiino  of 
till'  l):iHkrii|itoy.' 

It  follows,  thoivtori',  that  an  assigiiiiu'ut  \)\  the  Imsbaiul  of  bis 
wife's  equitable  chose  in  action,  Avill  neithei-  have  tlie  efteet  of  de- 
})riving  the  wife  of  her  right  to  it  in  the  event  of  her  surviving  her 
husbanil,  nor  of  dejmving  her  of  her  equitable  right  to  a  settlement 
out  of  it,  should  any  a]i|)lieation  for  that  jiurpose  be  made  by  her 
diwing  the  lifetime  of  her  husband,'-  And  even  the  wife's  concur- 
rence in  the  assignment  by  her  husband  during  coverture  (unless 
under  the  powers  conferred  by  tlie  Act  above  referred  to),''  will  not 
have  the  effect  of  rendering  such  assimiment  valid  against  her 
claim  by  survivorship,  in  cases  Avhcre  an  assignment  by  her  hus- 
band alone  would  not  have  had  that  consequence.*  Where,  also, 
a  feme  covert  is  an  infant,  the  circumstance  of  her  father  being 
party  to  the  deed  will  not  alter  the  interest  of  the  wife."^ 

With  respect  to  the  effect  of  a  release  by  the  husband,  in  depriv- 
ing his  wife  of  her  right  by  survivorship  to  her  choses  hi  action, 
not  reduced  into  possession  during  the  coverture,  it  appears  that 
he  can  release  debts  due  to  her  before  maniage;  legacies  abso- 
lutely given  to  her;®  and  interests  accruing  to  her  under  the 


1  Ripley  V.  Woods,  2  Sim.  165;  2  Kent 
(11th  ed.),  138  and  notes;  I.vnn  r.  Brad- 
lev,  1  Met.  (,Kv.)  232;  Duke  v.  Palmer, 
10  Rich.  Eq.  380;  Bugg  i'.  Franklin,  4 
Sneed  (Teiui.),  582. 

2  Ante^  p.  89 ;  Bryan  i".  Spruill,  4  Jones 
Kq.  (N.  C.)  27.  In  Kenney  v.  IJdall,  5 
John.  Ch.  464;  S.  C.  3  Cowen,  590,  it  was 
held,  that  the  wife's  equity  attached  upon 
her  pergonal  property,  whenever  it  was 
subject  to  the  jurisdiction  of  the  Court, 
iinii  was  the  object  of  a  suit,  in  any  hands 
to  which  it  might  come,  or  in  whatever 
manner  it  might  have  been  transferred. 
It  makes  no  difference  whether  the  appli- 
cation to  the  Court  for  the  property  be 
by  the  husband,  or  his  representatives,  or 
assignees,  or  by  the  wife,  or  her  trustee, 
seeking  a  provision  out  of  the  property. 
This  equitj'  is  equally  binding,  whether 
the  transfer  of  the  property  be  In'  opera- 
tion of  law,  under  a  commission  of  bank- 
ruptcy, or  by  levy  of  an  execution,  or  by 
act  of  the  party  to  general  assignees,  or 
to  an  individual,  or  whether  the  particular 
transfer  was  voluntary,  or  made  upon  a 
good  and  valuable  consideration,  or  in 
payment  of  a  just  debt.  2  Kent  (11th 
ed').  140;  Durr't'.  Bowver,  2  M'Cord  Ch. 
(S.  C.)  368;  Duvall  v.  Farmers'  Bank  of 
Maryland,  4  Gill  &  J.  282;  Earl  of  Salis- 
bury r.  Newton,  1  Kden,  370;  Bosvil  v. 
Bninder,  1  I*.  Wms.  458;  2  Story  Eq.  Jur. 
§  1412:  Lvtm  r  Bradley,  1  Met.  (Ky.)  232; 
Bradley  v.  .McKenna,  14  Md   258. 

In  Davis  v.  Newton,  6  Met.  537,  the 
Court  held,  that  while  an  assignee  of 
an  insolvent  debtor,  under  the  Statute 
of  Massachus'-tts,  18:38,  e.  103,  is  proceed- 
ing to  reduce  the  choses  in  action  of  the 


debtor's  wife  to  possession,  or  after  he  has 
obtained  payment  thereof,  and  before  dis- 
tribution of  the  debtor's  estiite,  the  wife 
may  apply  to  the  Court,  by  bill  or  petition, 
for  a  suitable  provision  "to  be  made  for 
her,  out  of  the  proceeds  of  such  clioses  in 
action,  and  the  Court  will  make  such 
provision  according  to  the  circumstances 
of  the  case.  See  also  to  the  same  point 
Mitford  V.  Mitford,  9  Sumner's  Ves.  87, 
Perkins's  notes;  Prvor  v.  Hill,  4  Bro. 
C.  C.  (Perkins's  ed.)  143,  note  (a);  Van 
Epps  D.  Van  Deusen,  4  Paige,  64;  Smith 
V.  Kane,  2  Paige,  303;  Steiinnetz  v.  Hal- 
then,  1  Glvn  &  Jam.  64;  Elliot  v.  Waring, 
5  Monroe,"  341;  2  Story  Eq.  Jur.  §  1411; 
Saddiiigton  v.  Kinsman,  1  Bro.  C.  C. 
(Perkins's  ed.)  44,  and  notes;  Perryclear 
V.  Jacobs,  9  Watts,  509;  Mumfo'rd  v. 
Murray,  1  Paige,  620;  Fry  ?'.  Fry,  7  Paige, 
462;  Martin  v.  Martin,  1  Hoft'.  Ch.  462; 
Burden  v.  Dean,  2  Sumner's  Ves.  607, 
note  («);  Lumb  v.  Mibies,  5  Sumner's 
Ves.  617,  note  (6),  and  cases  cited;  Dearin 
V.  Fitz])atrick,  1  Meigs,  551. 

3  20  &  21  Vic.  c.  57. 

4  See  Jie  >Vhittingham,  10  Jur.  N.  S. 
818;  12  W.  R.  775,  V.  C.  W.,  as  to  effect 
of  protection  order,  in  defeating  an  assign- 
ment of  reversionary  intere-t  which  lell 
into  possession  after  the  order  had  been 
obtained.  Re  Insole,  L.  R.  1  Eq.  470;  11 
Jur.  N.  S.  1011,  M.  K. 

5  Stamper  v.  Barker,  5  Mad.  157.  164. 

6  (iilb.  Eci-  88;  2  Roll.  134;  1  Brijiht, 
H.  &  W.  72  ;  Sir  L.  Shad  well  V.  C.  held, 
however,  in  the  case  of  Harrison  v.  An- 
drews, 13  Sim.  595,  that  a  receipt  was 
insufficient. 


MARRIED    WOMEN. 


123 


Statutes  of  Distributions,  and  the  like,^  and  that  these  acts  might 
be  done  by  him,  although  he  and  his  wife  were  divorced  a  mensa 
€t  thoro,  because  the  marriage  still  subsisted.'^  In  the  case  oflfore 
V.  Becher,^  a  single  woman  being  entitled  to  an  annuity  secured  by 
bond,  married;  her  husband  executed  a  release  of  the  annuity, 
and  died,  leaving  his  wife  surviving ;  it  turned  out  that  the  release 
had  been  executed  under  a  mistake  and  was  inoperative,  so  that  it 
was  not  necessary  to  decide  ui)on  its  eflect  on  the  wife's  right  by 
sur\'ivorship.  Sh-  Lancelot  Shadwell  V.  C,  however,  observed, 
"  K  a  man  gives  a  bond,  or  a  promissory  note,  to  secure  an  annuity 
to  a  single  woman,  and  she  afterwards  marries,  her  husband  may 
release  the  bond  or  note ;  and  if  he  releases  the  security,  there  is 
an  end  to  the  annuity."  * 

Where,  however,  the  interest  of  the  wife  in  the  chose  in  action 
is  reversionary,  the  release  of  the  husband  is  as  inoperative  as  his 
assignment,  to  affect  the  wife's  right  by  sur\'ivorship,5  It  seems 
also  that  the  assignment  or  release  by  the  husband  during  cover- 
ture of  his  wife's  annuity,  does  not  prevent  her  right  by  survivor- 
ship to  pajTuents  accruing  after  his  death ;  it  being  considered  that 
each  successive  payment  thereof  constitutes  a  separate  reversionaiy 
interest.^ 

It  is  to  be  observed,  that  the  rules  above  laid  down  apply  to 
those  interests  of  the  wife  which  are  of  a  strictly  personal  nature. 
In  the  case  of  those  interests  which  fill  under  the  description  of 
chattels  real,  important  distinctions  exist  with  respect  to  the  effect 
of  an  assignment  l)y  a  husband,  in  l>arring  his  wife  of  her  right  in 
them  by  survivorship.'' 

The  interest  given  by  the  law  to  the  husband  in  the  chattels 
real  which  a  wife  has,  or  may  be  possessed  of  during  mariiage,  is 
a  quaHfied  title :  being  merely  an  interest  in  right  of  his  wife, 
with  a  power  of  alienating  during  coverture ;  ^  so  that,  if  he  do 
not  dispose  of  liis  wife's  terms  for  years  or  other  chattels  real  in 
his  lifetime,  her  right  by  survivorship  will  not  be  defeated;  if, 


Cii.  III.  §  7. 


where  rever- 
sionary. 

Effect  of 
assif^nment 
or  release  by 
husband  of 
wife's 
annuity. 


Chattels  real 
of  wife : 


nature  of 
husband's 
interest 
therein ; 


his  assign- 
ment will 
defeat  her 


1  2  Kent  (llth  ed.),  135,  1.36,  137; 
Commonwealth  r.  Manley,  12  Pick.  170; 
Marshall  v.  Lewi",  4  Litt.  141 ;  Tentle  v. 
Muiicy,  2  .1.  .J.  Marsh.  82;  Schuylfr  v. 
Hoyle,  6  .lolin.  Cii.  liiO;  Manion  <>.  Tits- 
worth,  1«  H.  .Mon.  5S2;  Lowerv  v.  Cr.ii},', 
80  Miss.  (Geo  )  19;  Needles  I'.'Needies,  7 
Ohio(N.  S.),  432. 

■■^  Ste|)heMs  v.  I'otty,  Noy,  46;  Cro.  Eliz. 
90S;  but  this  cannot  be  done  after  a  dis- 
solution of  marriat^'*,  nor  after  a  judicial 
separation  or  protectiun  order.  Widls  v. 
Malb'.n.  31  Heav.  48;  8  .Jur.  N.  S.  249; 
Henfh  V.  Lewis,  10  .Jur.  N.  S.  1093;  13  \V. 
H.  12H,  V.  C.  S. 

8  12  Sim    40.');  0  .lur.  93. 

■*  See  Shcpard  t'.  Shejiard,  7  .lolin. 
Ch.  57. 


6  Rogers  V.  Acaster,  14  Beav.  445;  see 
Terry  i".  Brunson,  1  Rich.  Ch.  68. 

c  ^jtilfe  ('.  Everitt,  1  M.  &  C.  37,  41; 
Thompson?'.  IJutler,  Moore,  522;  VVliit- 
niarsli  v.  Robertson,  1  Y.  &  C.  C.  C. 
71');  6  .lur.  921;  Whittle  v.  Henning,  2 
riiil  731;  12  .Fur.  1076;  and  see  Tidd  t'. 
Lister,  3  De  G.,  M.  &  G.  857,  874;  18  Jur. 
543. 

7  On  this  subject,  see  1  Bright,  H.  & 
W.  94-111. 

8  In  a  mnrprinal  abstract,  9  Mod.  104, 
it  is  sai'l  th:it  a  wife  l)eing  possessed  of  a 
term  of  years,  and  having  married  an 
alien,  the  "marriage  is  not  a  gift  in  law  of 
tiie  term. 


1-2  i 


SUITS    r.Y    PERSONS    WHO    AKF,    UNDER    DISABILITY. 


rifflit  by  sur- 
vivorship; 


if  ho  survive, 
he  takes  them 
as  n  marital 
ri-lit. 

No  distinc- 
tion between 
legal  and 
equitable 
chattels; 


nor  between 
trust  of  a  term 
and  term 
itself; 


On. III. §7.  lidwovcf,  ho  do  iu>t  :\V\vu  llu'in,  niul  li(>  survive  liis -will',  llio  l:nv 
ijivos  llu'in  \o  liiin  :  not  :is  rc'])n'S('ntiii!j;  tlic  wife,  but.  :is  ;i  niMfital 
viiilit.^  Tims,  if  w/one  covert  has  :i  term  for  years,  ami  dies,  tlie 
k-aso  is  the  lmsl)aii(rs,  and  he  may  maintain  ejectment  without 
taking  out  letters  of  administration  ;''^  and  if  a  wiie,  tenant  for  a 
term  of  years  of  a  eopyhold,  marries  and  dies  before  the  term  is 
exjiired,  the  liusband  shall  continue  ■without  any  new  admission  or 
fine.^  These  rules  equally  a])]ily  where  the  interest  of  the  wife  in 
the  chattel  is  only  eciuitable;  thus,  where  a  term  of  years  deter- 
minable upon  lives,  was  assigned  to  trustees  in  trust  for  a  woman 
who  married  and  died :  upon  a  question  whether  this  trust  Avent 
to  the  husband,  who  survived,  or  to  the  wife's  administrator,  it 
was  held  clearly,  that  the  trust  of  a  term,  as  well  as  the  term 
itself,  survived  to  the  husband,  and  that  he  need  not  take  out 
administration ;  *  and  so,  as  we  have  seen  in  the  last  case,  if  a  man 
assign  over  the  trust  of  a  tenia  which  he  has  in  right  of  his  wife, 
this  shall  prevail  against  the  wife,  though  she  survives.^  This 
doctrine,  as  far  as  regards  the  trusts  of  a  term  assigned  to  a 
trustee  for  a  wife  before  marriage,  appears  to  have  been  first  laid 
doAATi  by  the  House  of  Lords,  on  appeal  in  Sir  E.  Turner's  case,^ 
which,  from  the  report  of  the  subsequent  case  oi  Pitt  v.  IlmU^ 
appears  to  have  excited  the  surprise  of  Lord  Chancellor  Notting- 
ham;  who,  however,  after  some  hesitation,  said  he  must  be  con- 
cluded by  the  Lords'  judgment,  and  decreed  accordingly .''  The 
ground  of  the  decision  in  Sir  IE.  Turner's  case  appears  to  have 
been  this :  that  as  the  husband  can  at  Law  dispose  of  a  term  for 
years,  so  he  may  dispose  of  the  trust  of  a  term  in  Equity,  because 
the  same  rule  of  property  must  prevail  in  Equity  as  well  as  at 
LaAV ;  ^  and  this  has  ever  since  been  considered  as  the  law  of  the 
Court.^ 

In  'Walter  v.  Smmder?,^^  a  distinction  was  attempted  to  be  drawn, 
in  argument,  between  a  term  in  trust  to  raise  money  for  a  woman, 
and  a  trust  of  the  term  itself  for  the  woman ;  but  the  Master  of 
the  Rolls  determined  that  no  such  distinction  could  be  taken.^^  It 
has  also  been  held,  that  if  the  wife  has  a  judgment,  and  it  is  ex- 
tended upon  an  elegit^  the  husband  may  assign  it  Avithout  consider- 


nor  between 
term  in  trust 
for  wile,  and 
term  in  trust 
to  raise 
money  for 
her. 


1  2  Kent  (11th  ed.),  134.  The  wife's 
interest  in  a  chattel  rf>al  may  be  as^ipned 
by  the  husband.  Merriweatlier  k.  Brooker, 
5  Litt.  256. 

•^  I'ale  r.  Mitchell,  2  Eq.  Ca.  Ab.  138, 
pi.  4,  n.  {(C). 

3  Earl  of  Bath  i-.  Aljiiey,  1  Dick.  263 
arg 

*  Pale  V.  Mitchell,  uhi  sup. 

5  Packer  v.  Wyndliam,  Free.  Ch.  412, 
418;  Sanders  v.  Paf;e.  3  Cli  Hep.  223; 
Pitt  )'.  Hnnf,  1  Vern.  18;  2  Clia.  Ca.  73; 
Uonne  v.  Hart,  2  K.  &  M.  360,  364. 


8  1  Vern.  7. 

T  1  Vern.  18;  2  Cha.  Ca.  73. 

8  Per  Lord  Ilardwicke,  in  Jewson  v. 
Moulson,  2  Atk.  417,  421. 

'■>  Bates  ('.  Dandy,  2  Atk.  207;  more 
fully  reported,  3  Huss.  72,  n  ;  Inclefbni  v. 
Northcote,  3  Atk.  430;  see  Marsliall  v. 
Lewis,  4  Litt.  141;  Hunter  v.  llallutt,  1 
Edw.  Ch   388. 

i«  1  Eq.  Ca.  Ab.  58,  pi,  5. 

11  See  also  Packer  v.  Wyiidham,  Prec. 
Ch.  412,  418. 


MARRIED   WOjMEN. 


125 


ation.  So,  if  a  judgment  be  given  in  trust  for  a  feine  sole  who 
manies,  and,  by  consent  of  her  trustees,  is  in  possession  of  the 
land  extended,  the  husband  may  assign  over  the  extended  interest ; 
and  by  the  same  reason,  if  she  has  a  decree  to  liokl  and  enjoy 
lands  untQ  a  debt  due  to  her  is  jjaid,  and  she  is  in  possession  of 
the  land  under  this  decree  and  marries,  the  husband  may  assign 
it  without  any  consideration,  for  it  is  in  the  nature  of  an  extent.^ 
A  husband  may,  as  we  have  seen,  assign  his  wife's  mortgage  for  a 
tenn ;  but  if  the  mortgage  be  in  fee,  then  it  seems  clear  that  the 
wife's  right  to  the  debt  by  survivorship  is  not  affected  by  any 
assignment  made  by  the  husband,  or  by  his  bankruptcy:  unless 
the  debt  is  reduced  into  possession  in  his  lifetime.'-^ 

It  is  an  established  principle,  in  deciding  upon  the  effect  of 
mortgages,  whether  of  the  estate  of  the  wife,  or  the  estate  of  the 
husband,  that  if  the  wife  joins  in  the  conveyance,  either  because 
the  estate  belongs  to  her,  or  because  she  has  a  charge  by  way  of 
jointure  or  dower  out  of  the  estate,  and  there  is  a  mere  reservation, 
in  the  proviso  for  redemption  of  the  mortgage,  which  would  carry 
the  estate  from  the  jDcrson  who  was  owner  at  the  tune  of  executing 
the  mortgage :  there  is  a  resulting  trust  for  the  benefit  of  the  wife, 
or  for  the  benefit  of  the  husband,  according  to  the  circumstances 
of  the  case.^ 

It  is  to  be  observed,  that  although  the  husband  is  considered 
entitled  to  assign  the  trust  of  a  term  or  other  real  chattel  created 
for  the  benefit  of  his  Avife,  yet,  where  a  term  or  chattel  real  has 
been  assigned  in  trust  for  a  wife,  with  the  privity  or  consent  of 
lier  Imsband,  then  Avithout  doubt  lie  cannot  dispose  of  it.*  A 
fortiori  he  may  not,  if  he  make  a  lease  or  term  of  }'ears  for  the 
benefit  of  his  wife.^  And  where  a  term  was  raised  out  of  the 
wife's  inheritance,  and  vested  in  trustees  for  jourposes  Avhich  Avere 
satisfied,  and  sulject  thereto  for  the  benefit  of  the  Avife,  her  exec- 
utors, administrators,  and  assigns,  it  Avas  held,  that  the  particular 
puqjose  being  served  for  Avliich  the  term  Avas  raised,  the  trust  did 
not  go  to  tlie  luisban<l,  Avlio  Avas  the  administrator  of  tlie  Avife,  but 
followed  the  inheritance."  From  this  it  may  be  interred,  that 
the  assignment  of  the  trust  of  such  a  tt'iiii  l)y  the  husband  in  the 


Cn.  m.  §  7. 


Where  decree 
for  wife  to 
hold  lands  till 
a  sum  paid. 
Husband 
may  assign 
wife's  mort^ 
gage  for 
years,  but  not 
her  interest 
in  fee,  so  as 
to  bar  her 
right  by 
survivorship. 

Resulting 
trust  in 
mortgage  of 
husliand's  or 
wife's  estate, 
where  she 
joins. 


Where  trust 
of  a  term  is 
assigned  in 
trust  for  wife, 
with  consent 
of  husband, 
he  cannot 
dispose  of  it. 

Resulting 
trust  of 
satisfied  trust 
term,  created 
out  of  wife's 
inheritance. 


1  Lord  Carteret  v.  Piisciiall,  3  1'.  Wnis. 
200. 

'^  IJurnctt  V  Kinnaston,  2  Vern.  401; 
Milf.r.l  r.  Mitford,  9  Ves.  87,  O:. ;  Packer 
V.  W'yndliain,  iihi  siiji.;  I'unbiW  r.  .lackson, 
1  Kuss.  0^;  Homier  i;  Morton,  3  liuss.  Co; 
Klli^on  I'.  Klwin,  13  Sim.  300;  S.  (J.  noin. 
Elwyn  V.  VVilliums,  7  .Jur.  337  ;  overruling 
Bo^vil  r.  Hrandcr,  1  P.  Wms.  45«;  liutes 
V.  iJaii'ly,  u/ji  siiji. 

8  Lord  iicdes'lale,  in  .Jackson  v.  Lines, 
1  HIigh,  I'^O,  cited  by  Sir  .L  L.  Knight 
Bruce  V.  C.   in    Clark  v.  Burgli,  2  Coll. 


227;  9  .Jur.  079;  and  see  3  De  G.,  M.  & 
G.  15. 

••  Sir  K.  Turner's  case,  1  Vern.  7;  see 
also  IJosvil  V.  iJrander,  1  1".  Wms.  458; 
Pitt  i:  Hunt,  1  Vern  IS,  wiiere  Lord  Not- 
tiii};liam,  however,  .said,  tiiat  to  [jrevent  a 
husband,  lie  must  be  a  party  to  tiic  assign- 
ment. 

^  Wiche's  case,  Scacc.  Pasc.  8  Jac , 
cited  1  Vern  7,  Ed.  Kailhby,  nods. 

0  Bent  V.  Stampford,  2  Preem.  288;  2 
Vern.  620;  Prec.  Oh.  252. 


i2r. 


SUITS    UY    TEKSOXR   WHO    ARE    UNDER    DISABILITY. 


(.'II.  HI.  V 


Krtbot  otdi- 
von'o  <i  ineiisd 
ei  tlioro,  on 
hHsbiiiurs 
rights  in 
wife's  term 
of  vcars. 


Agreement 
by  husband 
to  assign  her 
chattels  real, 
^vill  deprive 
her  of  sur- 
vivorship. 


Underlease 
by  him,  good 
against  her 
pro  tantu. 


Assignment 
upon  con- 
dition, and 
entry  for 
breach,  where 
breach  cannot 
take  place  in 
hia  lifetime; 


litrlimo  ot'  tlio  wife,  would  nut   affect  tlic  wite's  interest  in  it  by 
snrvivorsliij). 

In  an  anonymous  case  Avhicli  oceuvs  in  0  Modern  Re])orts,^  it 
a])i)ears  that  w  fttne  covert,  but  who  liad  been  divorced  a  iiiomd  et 
thor(\  and  liad  ahniony  allowed  to  su2)i)ort  her,  a])plied  to  the 
Court  to  restrain  her  hnsband  from  jiroceeding  to  sell  a  tenn  of 
years  of  which  she  was  possessed  before  her  marriage,  and  that  the 
CotTrt  at  first  refused  the  injunction,  becanse  the  se])aration  a 
mensd  et  thoro  did  not  destroy  the  marriage,  and  during  the  time 
the  marriage  continued,  the  husband  had  the  same  power  to  dis- 
pose of  the  term  which  he  had  in  right  of  his  wife,  as  he  would 
have  had  if  it  had  been  in  his  own  right ;  but  afterwards,  npon 
counsel  still  pressing  for  an  injunction,  in  order  that  the  merits  of 
the  cause  might  come  before  the  Court,  and  insisting  very  much 
upon  the  hardship  of  the  case,  the  Court  granted  it,  on  the  ground 
that,  though  the  marriage  continues  notwithstanding  the  divorce, 
yet,  under  such  circumstances,  the  husband  does  nothing  in  his 
ca})acity  of  husband,  nor  the  wife  in  that  of  wife.  It  is  to  be 
remarked,  however,  that  this  was  merely  an  interlocutory  order, 
to  prevent  the  term  being  i^arted  with  by  the  husband  till  the 
question  should  be  properly  discussed,  and  it  does  not  apjiear  that 
any  fuilher  proceedings  were  ever  had  in  the  cause. 

It  seems,  that  an  absolute  transfer  or  assignment  by  the  husband 
of  his  W' ife's  term  of  years,  or  other  chattel  real,  is  not  requisite  to 
deprive  the  wife  of  her  right  by  survivorshii:) ;  but  that,  since  an 
agreement  to  do  an  act  is  considered  in  equit}'  the  same  as  if  the 
act  were  done,  so,  if  the  husband  agree  or  covenant  to  dispose  of 
his  wife's  term  of  years,  such  coveniiut  will  be  enforced,  although 
he  dies  in  her  lifetime.^ 

The  power  which  the  law  gives  the  husband  to  alien  the  whole 
interest  of  his  wife  in  her  chattels  real,  necessarily  authorizes  him 
to  dispose  of  it  in  part ;  il^  therefore,  the  husband  be  possessed  of 
a  term  of  years  in  right  of  his  wife  or  jointly  with  her,  and  demise 
it  for  a  less  term,  reserving  rent,  and  dies,  such  demise  or  under- 
lease will  be  good  against  her,  although  she  survive  him  :  but  the 
residue  of  the  original  term  will  belong  to  her,  as  undisposed  of  by 
her  husband.'' 

So  also,  if  the  husband  alien  the  Avhole  of  the  term  of  Avhich  he 
is  possessed  in  right  of  his  w^ife,  upon  condition  that  the  grantee 
pay  a  sum  of  money  to  his  executors,  and  then  dies,  and  the  con- 
dition is  brcjken,  upon  wdiich  his  executors  enter  upon  the  lands, 
this  dispo.sition  by  the  husband  will  be  sufficient  to  bar  the  wife  of 


1  9  Mod.  43. 

2  Bates  V.  Dandy,  2  Atk.  207 ;  3  Kuss. 
72,  u.  ;   see  also  Steed  v.  Cragh,  9  Mod. 


4.3;    Shannon    v.   Bradstreet.    1    Sch.   & 
Lef.  .52. 

^  Sym's  ca.se,  Cro.  Eliz.  33;   Co.  Litt. 
46  b. 


MARRIED    WOMEN. 


127 


her  interest  in  the  term  :  it  having*  been  wholly  disposed  of  by 
him  during  his  Hfe,  and  vested  in  the  grantee.^  It  seems,  however, 
that  if  the  condition  had  been  so  framed  that  it  might  have  been 
broken  in  the  husband's  lifetime,  and  he  had  entered  for  the  breach, 
and  had  then  died  before  his  wife,  without  making  any  disposition 
of  the  term,  she  would  be  entitled  to  it  by  survivorship  :  because 
the  husband,  by  re-entry  for  a  breach  of  the  condition,  was  returned 
to  the  same  right  and  interest  in  the  term  as  he  was  possessed  of 
at  the  time  of  the  grant ;  viz.,  in  right  of  his  wife.^ 

In  cases  of  assignments  by  the  husband  of  his  wife's  chattels 
real,  the  wife  "^•ill  be  equally  barred  of  her  sm-vivorship,  whether 
the  assignment  be  for  a  valuable,  or  without  any  consideration  ;  ^ 
but  it  is  to  be  observed,  that  there  is  a  great  distinction  where  the 
disposition  is  of  the  whole  or  j^art  of  the  property,  and  where  it  is 
only  a  collateral  grant  of  something  out  of  it ;  for  although,  if  a 
husband  pledge  a  tenri  of  years  of  his  wife  for  a  debt,  and  either 
assign  or  agree  to  assign  all  or  part  of  such  tenn  to  the  creditor, 
the  transaction  wUl  bind  the  wife,*  yet,  if  the  transaction  be  col- 
lateral to,  and  do  not  change  the  property  in  the  term,  as  in  the 
grant  of  a  rent  out  of  it,  then,  Lf  the  wife  survive  the  husband,  her 
right  being  paramount,  and  her  interest  in  the  chattel  not  having 
been  displaced,  she  will  be  entitled  to  the  term,  discharged  from 
the  rent.^ 

Moreover,  it  has  been  decided,  that  the  husband  cannot  assign 
a  reversionary  interest  of  his  wife's  in  chattels  real,  of  such  a  de- 
scription as  that  it  cannot  by  possibility  vest  during  the  coverture.® 

In  regard  to  the  right  of  the  husband's  executors,  or  his  sur- 
viving wife,  to  rent  reserved  upon  underleases  of  her  chattels  real, 
and  to  the  arrears  of  rent  due  at  the  husband's  death,  there  is  a 
difibrence  of  opinion  in  the  books,  which  may  probably  be  recon- 
ciled by  attending  to  the  manner  in  which  the  rents  were  reserved. 
Accordingly,  if  the  husband  alone  grant  an  underlease  of  his  wife's 
tenn  of  years,  reserving  a  rent,  that  would  be  a  good  demise,  and 
bind  the  wile  as  long  as  the  sub-demise  continued;  the  husband's 
executors,  therefore,  would,  as  it  is  jjresumed,  he  entitled  not  only 
to  the  subsequent  accruing  rents,  but  to  the  arrears  due  at  his 
death.'  And  it  would  seem,  that  the  princi])le  of  the  last  case 
would  entitle  the  executors,  to  the  exclusion  of  the  surviving  wife, 
to  subsequent  rents  and  all  arrears  at  tlie  Inisband's  death,  although 
the  wife  was  a  i)arty  to  the   underlease,  [irovided  the   rent  were 


1  Co.  Mtt.  46  b. 

2  See  Watts  v.  Thomas,  2  P.  Wms  304, 
360. 

3  Lord  Carteret  ii.  Pa«cliHl,  3  P.  Wros. 
197,  200;  Milt'ord  <\  Mitfonl,  U  Ves.  W. 

*  Hates  t-.  Dundy,  2  Atk.  207 ;  3  Kuss. 
72,  n. 


6  Co.  Litt.  184  b. 

0  Dubcrloy  v.  Day,  10  Heav.  33;  10  Jur. 
6H1;  IJogcrs  I'.  Aiitiister,  II  Iiid.  300;  And 
see  Sale  v.  Saunders,  24  Miss.  24. 

7  1  Roll.  Abr.  344,  340;  Co.  Lilt.  46  b. ; 
2  Lev.  100;  3  Keb.  300;  1  Bright  IL  & 
\V.  43-47. 


Ch.  m.  §  7. 


where  breach 
may  happen 
during  his 
life. 


No  difference 
between 
voluntary 
assignment, 
and  assign- 
ment for 
valuable 
consideration 
of  chattels 
real. 


Husband 
cannot  assign 
a  cliattel  real 
of  wife  inca- 
pable of  vest- 
ing dming 
coverture. 
AVlicre  rents 
resen'ed  upon 
underlease  of 
wife's  term. 


128  SUITS    BY    PERSONS    WHO    AllE    UNDER    DISABILITY. 

I'll.  III.  §T.     rosorvoJ  to  the  IiusUmuiI  only:  becauso  the  oHect  ol"  the  sub-demise 

^■^ Y '    and  reservation  was  an  absohite  disposition,  jt>ro  tanto,  of  the  wife's 

original  term,  wliit-h  she  eouUl  not  avoid,  and  the  rent  was  tlio  sole 
and  absohite  property  of  the  luisbaud.^  But  if,  in  the  hist  case,  the 
irnt  had  been  reserved  by  tlie  husband  to  himself  and  wife,  then, 
as  their  interests  in  the  term  granted  and  the  rent  reserved  were 
joint  and  entire,  it  is  conceived  that  the  wife,  upon  surviving  her 
husband,  would  be  entitled  to  the  future  rents,  and  that  she  would 
be  equally  entitled  to  the  arrears  of  rent  at  her  husbantl's  death : 
because  they  remaining  in  action,  and  being  due  in  respect  of  the 
joint  interest  of  the  husband  and  wife  in  the  terra,  would,  with 
Law  of  Scot-  their  principal  the  terra,  survive  to  the  wife.^  It  may  lastly  be  re- 
land,  as  to  marked  that,  by  the  law  of  Scotland,  the  choses  in  actio/i  of  the 
in  action.  Avifc  becouie  the  2)roperty  of  the  husband,  without  any  condition 
on  his  part  of  reducing  them  into  possession.  If,  therefore,  an 
English  testator  leaves  a  legacy  to  a  married  woman  domiciled  in 
Scotland,  and  her  husband  dies  before  payment,  the  legacy  is  the 
projierty  of  the  husband's  representatives,  and  not  of  the  widow. 
Where,  however,  in  such  a  case,  the  executors  paid  the  legacy  to 
the  wddow,  in  ignorance  of  the  law  of  Scotland,  the  payment  to  her 
was  held  to  be  good.^ 

1  The  rents  and  profits  of  a  wife's  real  rents  of  her  lands,  though  she  may  have 

estate,    which     accrue    during  coverture,  an  equity  to  a  settlement  out  of  the  rents, 

belong  absolutely  to  the  husband,  and  do  as  against  her  husband's  vendees.     Smith 

not  survive  to  the  wife  after  his  death.  v.  Long,  1  Met.  (Ivv.)  486. 

Clapp  V.  Stoughtou,  10  Pick.  463;  Bennett  ^  4  Vin.  Abr.  117,  D.  a. 

r.  Ueunett,  34   Ala.    53.      In   Kentucky,  3  Leslie  i'.   Baillic,  2  Y.  &  C.  C.  C.  91, 

even  under  Rev.  Sts.  art.  2,  §  1,  p    387,  95;  7  Jur.  77. 
the  wife  has  not  a  separate  estate  in  the 


CHAPTER   IV. 


PERSONS    AGAmST   WHOM    A    SUIT    MAY   BE    INSTITUTED. 


Section  I. —  Generally. 


Hayixg  pointed  out  the  persons  who  are  capable  of  instituting 
suits  in  Equity,  and  considered  the  peculiarities  of  practice  ap- 
plicable to  each  description  of  parties  complainant,  we  come  now 
to  the  consideration  of  the  persons  against  whom  suits  may  be  com- 
menced and  carried  on,  ;ind  the  practice  of  the  Court  as  ap2)licable 
to  them. 

A  bill  in  Equity  may  be  exhibited  against  all  bodies  poUtic  and 
corporate,  and  all  other  persons  whatsoever,  who  are  in  any  way 
interested  in  the  subject-matter  in  litigation,^  except  only  the 
Sovereign,  the  Queen-consort,  and  the  Ileir-apparent ;  whose  pre- 
rogatives prevent  their  being  sued  in  their  own  names,  though  they 
may  in  certain  cases,  as  we  shall  see  presently,  be  sued  by  their 
respective  Attorneys  or  Solicitoi's-General.^ 


■Wlio  may  be 
defendants : 


1  Story  Eq.  PI.  §  68. 

-  In  England,  the  King  and  Queen, 
though  tliey  may  sue,  are  not  liable  to  be 
sued;  and  m  America  a  similar  exemption 
generally  belongs  to  the  Government  <jr 
Mate.  Btory  Kq.  I'l.  §  69.  This  rule  a|)- 
plies  only  where  the  State  is  a  j)arty  to 
the  record,  and  not  where  the  State  is  only 
interested  in  the  suhject-matter  of  a  suit 
brought  against  her  ollicers  in  their  oflicial 
capacity  in  a  Court  of  Chancery.  Michigan 
Slate  IJank  r.  lla>lings,  1  Douglass,  'i'iij. 

No  direct  suit  can  be  maintained  against 
the  United  States,  without  the  aiUhorit}' 
of  an  Act  of  Congress,  nor  can  any  dnect 
judgment  be  awarded  against  them  for 
cosis.  Marshall  C.  J.  in  (Johens  v.  Vir- 
ginia, 6  Wheat.  411,  412;  United  States 
f.  <JlarkC,  8  I'eters,  444;  United  States  v. 
Baniey,  C.  C.  Maryland,  3  Hall,  Law  .J. 
12«;  United  States  (J.  Wells,  2  Wash.  C. 
C  161.  Hut  if  an  action  Ije  brxught  by 
the  Unite!  States,  to  recover  iiiDiiey  in 
the  hands  of  a  purty,  he  may,  by  w.iy  of 
defence,  set  up  any  legal  or  ei)uitable 
claim  he  has  against  the  United  States, 
and  need  not  in  such  case  be  turned  ruunil 
to  an  application  to  (Jongress.  Act  ol 
Congress,  .March  3d,  17'.»7,  c.  74,  §§  3,  4 ; 
United  Stales  v.  Wilkiiis,  6  Wheat.  13o, 
VOL..  I. 


143;  Walton  V.  United  States,  9  Wheat. 
651;  United  States  v.  McDaiiiel,  7  Peters, 
16;  United  States  v  Ringgold,  8  Peters, 
163;  United  States  v.  Clarke,  8  Peters, 
436;  United  States  v.  Kobeson,  9  Peters, 
31b;  United  States  v.  Hawkins,  10  Peters, 
12o  ;  United  States  v.  Bank  of  the  Metrop- 
olis, 1.5  Peters,  377. 

I'ormerly  one  of  the  United  States 
miglit  be  sued  by  the  citizens  ol  another 
State,  or  by  citizens  or  subjects  of  any 
foreign  State.  See  Chisholin  v.  State  of 
Georgia,  2  Dallas,  419.  Ihe  law  in  this 
respect  was,  however,  changed  by  an 
ameii'lnienl  of  the  Constitution  of  tlio 
United  States,  which  (Art.  XI.  of  the 
Amendments)  declares  that  the  judicial 
[lower  of  the  United  States  shall  not  bo 
construed  to  extend  to  any  suit  in  Law  or 
hijuity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of 
another  State,  or  by  citizens nr  subjects  of 
any  foreign  State.  This  inhibition  ap- 
plies only  to  citizens  or  subjects,  and  dues 
not  extend  to  suits  by  a  State  or  by  foreign 
Stales  or  I'owers.  The  Cherokee  Niitii)n 
r.  (ieorgia,  o  Peters,  1;  New  .lersey  v. 
New  York,  5  Peters,  284.  Ihey  retain  the 
capacity  to  sue  a  State  as  it  was  original- 
ly granted   by  the  Constitution;    and  the 


All  bodies 
politic  and 
corporate, 
and  persons: 
except  the 
Soverergn, 
Queen-con- 
sort, and 
Heir-appar- 
ent, who  are 
sued  by  their 
Attorneys- 
General. 


mo 


PERSONS    AGAINST    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


(^11.  IV.  §1. 


rcrsdiis  who 
ciiniuit  bo 
sued  alone. 


Married 
women. 


Idiots  and 
lunatics. 


Infants. 


But  bank- 
rupts, out- 
laws, attaints, 
and  convicts, 
cannot,  in 
general,  be 
defendants. 


l>ut  although  all  |ifrsons  are  subjectt'd  to  be  sued  in  E(Hiity,  lliorc 
aro  some  individuals  whose  riglits  and  interests  are  so  mixed  up 
and  blended  Mitli  those  of  others,  that  a  bill  eannot  be  brought 
against  them,  unless  sueh  other  ])ersons  are  joined  with  them  as 
eo-dctendants ;  and  there  are  Qther  individuals  who,  althougli  tlieir 
interests  are  distinct  and  independent,  so  that  they  may  be  sued 
alone  upon  the  record,  are  yet  incapable,  from  the  want  of  maturity 
or  weakness  of  their  intellectual  faculties,  of  conducting  their  own 
defence,  and  must,  therefore,  ap])ly  for  and  obtain  the  assistance 
of  others  to  do  it  on  their  behalf 

In  the  first  class  are  included  married  Avomcn,  whose  husbands 
must  be  joined  with  them  as  co-defendants  upon  the  record  :  unless 
they  are  ])laintiffs  or  exiles,  or  have  abjured  the  realm,  or  tlie  wife 
has  been  judicially  separated  or  has  obtained  a  protection  order  ;^ 
and  persons  Avho  have  been  found  idiots  or  Imiatics,  whose  com- 
mittees must  be  made  co-defendants  with  the  persons  whose 
l)ro})erty  is  intrusted  to  their  care.''^ 

Under  the  second  head  are  comiirised  infants,  and  all  persons 
who,  although  they  have  not  been  found  idiots  or  lunatics  by  in- 
quisition, are  nevertheless  of  such  weak  intellects  as  to  be  incapable 
of  conducting  a  defence  by  themselves  ;  in  both  which  cases  the 
Court  will  appoint  guardians,  for  the  puq^ose  of  conducting  the 
defence  on  their  behalf 

There  is  another  class  of  persons,  who,  although  they  are  under 
no  personal  disability  which  prevents  their  being  made  amenable 
to  the  jurisdiction  of  the  Court,  yet  from  the  circumstance  of  their 
property  being  vested  in  others,  cither  permanently  or  temporarily, 
*are  not  only  incapable  of  being  made  defendants  alone,  but  as  long 
as  the  disalnlity  under  which  they  labor  continues,  ought  not,  as 
a  general  rule,  to  be  parties  to  the  record  at  all.  In  this  class  are 
included  bankrupts,  outlaws,  and  persons  attainted  or  convicted  of 
treason  or  felony. 


Section  II. —  The  Queen^ s  Attorney- General. 


Attorney- 
General 
may  be  a 
defendant, 
where  rights 
of  the  Crown 
are  incident- 
ally in 
question. 


Although  the  Queen's  Attorney-General,  as  reiiresenting  the 
interests  of  the  Crown,  may,  in  certain  cases  which  will  be  pres- 
ently pointed  otit,  be  made  a  defendant  to  a  bill  in  Equity,  yet  this 
is  to  be  understood  as  only  applicable  to  cases  in  which  the  in- 
terests of  the  Crown  are  incidentally  concerned ;  for  where  the 
rights  of  the  Crown  are  immediately  in  question,  as  in  cases  in 


Supreme  Court  of  the  United  States  has 
original  jurisdiction  in  the  case  of  suits  by 
a  foreign  State  against  one  of  the  members 
of  the  Union.     See  Chisholm  v.  State  of 


Georgia,  2  Dallas,  418.     See  a\snExparte 
Madrazzo,  7  Peters,  627;  antt,  17,  note. 

1  See  ante,  p.  87. 

2  Ld.  Red.  30. 


THE  queen's  attorxey- general.  L31 

which  the  Queen  is  in  actual  possession  of  tlie  property  in  dispute,  Ch.  iv.  §  2. 

or  where  any  title  is  vested  in  her  which  the  suit  seeks  to  divest,  a  ' y — ~^' 

bill  will  not  in  general  lie,  but  the  party  claiming  must  apply  for  ^  ^'^^J  are 

relief  to  the  Queen  herself  by  Petition  of  Right.^  questira,'^ 

A  Petition  of  Right  to  the  Queen  is  a  document  in  which  the  application 

^  ^  must  be  by 

petitioner  sets  out  his  right,  legal  or  equitable,  to  that  which  is  petition  of 
demanded  by  him,  and  prays  the  Queen  to  do  him  right  and  justice,   p^^.  ^' 
and,  upon  a  due  and  la^N^ftil  trial  of  his  right  and  title,  to  make  him  object  of 
restitution.     The  proceeding  by  Petition  of  Right  exists  only  for  P^*'^'''"= 
the  purpose  of  reconciling  the  dignity  of  the  Crown  and  the  rights 
of  the  subject,  and  to  protect  the  latter  against  any  injury  arising 
from  the  acts  of  the  former ;  but  it  is  no  part  of  its  object  to  enlarge 
or  alter  those  rights.^ 

The   laAV   relating  to  Petitions  of  Rights,  and  the  procedure   Practice  on 
therein,  is  amended  and  simijlilled  by  a  recent  Act  of  Parliament :  ^  pe*iti<]ns  of 

v         !•  r      ^  •   ^     •  •     •  rignt  in 

the  object  oi  which  is,  to  assimilate  the  proceedings,  as  nearly  as  Chancery, 
may  be,  to  the  practice  in  actions  and  suits  between  subject  and  ed'by  1' &  24 
subject,  and  to  provide  for  the  recovery ^of  costs.     This  statute  '^'^^-  «•  34; 
enacts,  that  a  Petition  of  Right  may  be  intituled  in  any  one  of  the 
superior  Courts  of  Common  Law  or  Equity  at  Westminster,  in 
which  the  subject-matter,  or  any  material  part  thereof,  would  have 
been  cognizable  between  subject  and  subject ;  and  shall  state  the 
Christian  and  surname,  and  usual  place  of  abode,  of  the  supi)liant, 
and  of  his  attorney,  if  any,  and  set  forth,  with  convenient  certainty, 
the  facts  entitling  him  to  rehef ;  be  signed  by  him,  his  counsel,  or 
attorney;  and  be  then  left   with   the   Home    Secretary   for   her 
Majesty's  fiat  that  right  be  done.* 

The  Act  and  the  General  Order  issued  in  pursuance  thereof,^  andbyGen- 
also  provide,  that  ui)on  such  fiat  being  oljtained  to  a  Petition  of  ^''^^  ^'^'^^'"' 
Right  in  Chancery,  the  petition  and  fiat,  together  with  a  ])rinted 
copy  thereof,  whei-e  it  is  in  writing,  shall  be  filed  at  the  Record 
and  Writ  Clerk's  Office,  and  be  marked  with  the  name  of  the 
Judge  before  wliom  it  is  intended  to  be  prosecuted  ; »  tliat  printed 
copies  for  service  shall  be  sealed  in  tlie  same  manner  as  bills  ;''  that 
interrogatories  may  be  fiU-<l  and  marked,  and  served  Mith  the 
petition,  for  the  cxainiiiation  of  the  respondents,  other  than  the 

1  Reeve  v.    Afforney-General,   2   Atk.  public  trust,  it  is  presumed,  that  the  At- 

223,  cited  1  Ves.  S.  44tJ;  Ld   Red.  31,  102;  torncy-tieiieral  inav  be  made  a  defendant, 

Ryes  V.  Duke  of  Welliiifjton,  9  Hcav.  57'.»,  as  he  may  be  in  Knf,'l:ind  " 

600;    see  also   Kelkin   i).  Lord  Herbert,  1  2  Per  Lord  Cottenham,  in  Motickton  v. 

\)r   &  S.  008;  s  .lur.  N.  S.  itO;  Story  K(i.  Attorn.'V-General,  2  I\['N.  &  G.  412. 

PI.  §  (59.     Mr  .Fiislice  Story,  in  a  note  to  ■'  2:i  I'v  24  Vir.  c.  .'M. 

thissectioniiihislviuilyl'li-adinf,'.  remarks  i   ll/ot    §§    1,2.     J'or  form  of  petition, 

that,  "  In   AmirKH  m.  such  f,'eneral  rem-  see  ib.  Sclnd.  No   1;  and  Vol.  III. 

edy  l>y  p.-tition  (.1  rJKht  exists  against  the  6  Qrd.  1  Feb.,  18G2;  7  .Jur.  N.  S.  Pt.  2, 

Government,  or,  if  it  e.\ists  at  all,  it  is  a  283. 

privilege  created  by  Statute  in  a  few  States  «  Ord.  rr.  1,  2. 

only.    In  cam^s  where  the  (Jovernment  has  7  OrJ.  r.  3. 
an  intere.tt  in  the  subject  as  a  matter  of 


132 


PEKSOXS    AGAINST    WHOM    A    SUIT    ]\IAY    BE    INSTITUTED. 


{•ii.lV.  V2. 


Right  of 
suppliant  to 
proceed 
under  former 
practice, 
reserved. 

Former 
practice. 


Attoniry-Cu'iu'ral ;  *  tlint  a  (.•()] >y  of  the  petition  aiul  liat  sliall  be 
kit  at  tlio  Ortice  of  the  Solicitor  to  the  Treasury,  with  an  iiulorse- 
iiunt  thereon,  ])rayini;-  for  a  ])lea  or  answer  on  Lehalf  of  her  INlajesty 
witliin  twenty-eight  chiys;-  that  a  eopy  of  the  j)etition,  aUowance, 
and  tiat  shall  be  served  u])on,  or  left  at  the  last  or  tisual  or  last 
known  place  of  abode  of  tlie  person  in  the  enjoyment  of  the  proj)- 
erty  or  right,  indorsed  with  a  notice,  requiring  him  to  appear 
Avithin  eight  days,  and  to  j)lead  or  answer  within  fourteen  days, 
alter  service  ;  that  sucli  j)erson,  if  he  intends  to  contest  the  ])etition, 
must  enter  an  ai)pearuiice  to  the  same  ;  ^  that  further  time  to  plead 
or  answer,  or  to  demur,  may  be  allowed  by  the  Court  or  a  Judge ;  ^ 
that  in  default  of  plea,  answer,  or  demurrer  in  due  time,  the  Court 
or  Judge  may,  on  tlie  api)lication  of  the  su})pliant,  order  tlu;  petition 
to  be  taken  as  confessed ;  ^  that  a  decree  may  be  made  thereupon, 
or  u2)on  demurrer,  or  after  hearing ;  ^  that  costs  may  be  recoverable 
by  or  against  the  Crown,  the  suppliant,  and  any  other  parties  to 
the  proceedings ;  "^  that  the  Judge  shall,  on  the  apj)lication  of  the 
sup2)liant,  certify  to  the  Lords  of  the  Treasury,  or  to  the  Treasurer 
of  the  Household,  any  decree  entitling  the  supjjliant  to  relief,  and 
they  may  thei-eupon  satisfy  him  the  same  ;  *  that  persons  may  sue 
and  defend  in  forma  paiqyeris  ,'^  and  generally,  that  the  ])ractice 
and  course  of  proceeding  in  reference  to  suits  shall  be  applicable 
to  Petitions  of  Right :  which  in  this  respect  are  to  be  considered 
as  bills ;  ^°  but  the  Act  is  not  to  prevent  any  suppliant  proceeding 
as  before  the  passing  thereof." 

According  to  the  practice  before  the  passing  of  the  Act,  the 
petition  was  to  be  determined  in  Chancery^,  and  the  method  was 
this :  the  jaetition  was  presented  to  the  Queen,  who  subscribed  it 
with  these  words,  "  soi  droit  fait  al  partie :  i.  e.,  let  right  be  done 
to  the  party ;  and  thereupon  it  was  delivered  to  the  Chancellor, 
in  forma  juris  exequend :  i.e.,  to  be  executed  according  to  law; 
and  directions  were  given  that  the  Attorney-General  should  be 
made  a  party  to  the  suit ;  ^^  upon  the  petition,  however,  the  Court 
would  neither  adjudicate  upon  the  merits,  nor  inquire  into  the 
facts.  The  whole  duty  of  the  Court,  at  that  stage  of  the  pi-oceed- 
ings,  was  to  j)ermit  the  party  to  pursue  the  usual  course  of  prose- 
cuting his  suit,  and  for  that  purpose  a  commission  was  directed  to 


1  Ord.  r.  4.  For  form  of  interrogatories, 
'see  Vol.  III. 

■■'  Act,  §§  3-5.  For  forms  of  indorse- 
ment, see  ih.,  ScLed.  Nos.  2,  3 ;  and  Vol. 
III. 

3  For  form  of  appearance,  see  the  Act, 
Sched.  No.  4;  and  Vol.  III.  No  time  is 
limited  for  the  entry  of  an  appearance  on 
behalf  I  if  the  Queen 

4  Act.  §§  4,  5.  For  forms  of  pleas,  an- 
swers, an'i  demurrers,  see  Vol.  III. 

6  Act,  §  8. 


6  Act,  §§  8,  9. 

T  JOid.  §§11,  12. 

8  Jbid.  §§  13,  14.  For  form  of  certifi- 
cate, see  iO.  Sched.  No.  5;    and  Vol.111. 

a  Ord.  rr.  5,  G. 

in  Act,  §  7;  Ord.  r.  7;  by  r  8,  the  officers 
of  the  Court  are  to  perform  similar  duties, 
and  the  fees  and  allowances  are  to  be  the 
same,  as  in  suits  between  subjects. 

11  Act,  §  18. 

12  Coop.  Eq.  PI.  23;Ld.  Ked.  31;  and  see 
Anstey  on  Petitions  of  Kight. 


THE    QUEEN  S    ATTORNEY-GENERAL. 


133 


issue,  to  inquire  into  the  allegations  of  the  petition.  The  order  for 
the  commission  could  not,  however,  be  obtained  without  direct 
appUcation  to  the  Court,  and  notice  to  the  Attorney-General.^ 

The  case  of  Viscount  Cantei-hury  v.  The  Attorney-  General^  was 
a  Petition  of  Right,  in  which  the  petitioner,  Viscount  Canterbury, 
claimed  compensation  from  the  Crown  for  damage  alleged  to  have 
been  done  in  the  preceding  reign,  to  some  property  of  the  petition- 
er, wliile  Speaker  of  the  House  of  Commons,  by  the  fire  which,  in 
the  year  1834,  destroyed  the  two  Houses  of  Parliament.  To  this 
petition,  a  general  demurrer  was  filed  by  the  Attorney-General, 
and  was  allowed  by  Lord  Lyndhurst:  from  whose  judgment  it 
would  api)ear,  that  the  Petition  of  Right  is  the  remedy  which  the 
subject  has  for  an  illegal  seizure  on  the  part  of  the  Crown,  of  lands 
or  goods ;  but  that  there  is  no  such  form  of  proceeding  applicable 
to  a  case  which,  as  between  subject  and  subject,  would  be  a  claim 
for  unli(piidated  damages.^ 

Although,  in  general,  a  l)ill  cannot  be  filed  against  the  Attorney- 
General  for  the  puri30se  of  enforcing  equitable  rights  against  the 
direct  interests  of  the  Crown,  yet,  in  certain  cases,  bills  were  enter- 
tained on  the  Equity  side  of  tlie  Court  of  Exchequer,  as  a  Court  of 
Revenue,  against  the  Attorney-General,  as  representing  the  Queen, 
for  the  purpose  of  establishing  claims  against  the  estates  or  rev- 
enues of  the  Crown,  which,  in  the  Court  of  Chancery  or  other 
Courts,  could  not  liave  been  instituted  Avithout  proceeding  in  the 
first  instance  l)y  Petition  of  Right.*  Tliere  is  another  class  of  suits 
against  the  Attorney-General,  which  were  frequently  instituted  on 
the  Equity  side  of  the  Court  of  Excliequer,  as  a  Court  of  Revenue ; 
Vi2.,  suits  for  the  pui-pose  of  relieving  accountants  to  the  Crown 
against  tlie  decisions  of  the  Commissioners  for  auditing  the  Public 
Accounts,  under  tlie  25  Geo.  III.  c.  52.  It  was  decicU'd,  before 
the  abolition  of  tlie  equitable  jurisdiction  of  the  Court  of  Ex- 
chequer,'^ that  Avhen  })ublic  accountants  had  reason  to  be  dis- 
satisfied with  the  detemiination  of  such  Commissioners,  either  in 
disallowing  tlieir  articles  uK  discharge  or  in  im])()sing  surcharges, 
they  miglit  proceed  on  the  E<piity  side  of  the  Excliecpier,  against 
the  Attorney-General,  and  not  against  the  Commissioners;  and 
that  the  projier  mode  of  ))roceeding  in  such  cases  Avas  by  bill  only, 
and  not  by  motion  or  petition."     It  was  also  held,  that  the  statutes 


Cn.  IV.  §  2. 


Petition  of 
riglit  not 
applicable, 
where  the 
claim,  if  be- 
tween subject 
and  subject, 
would  be  for 
unliquidated 
damages. 


Attorney- 
General 
mif^ht  be  sued 
in  certain 
cases  in  the 
Equity 
Exchequer, 
although  the 
Crown  was 
directly 
interested. 


So  he  might 
be  a  defend- 
ant in  suits  by 
accountants 
to  the  Crown ; 


who  proceed- 
ed by  a  bill : 
not  by  a 
nioti<in  or 
petition; 


and  might  do 
so,  even 
during  the 


1  He  l;ol)son,  2  I'hil.  84. 

2  1  I'hil.  306.  324. 

8  In  adilitioii  to  the  cases  above  referrcwl 
to,  file  following  iire  some  of  the  reci'ntiy 
reported  cascH  of  Petitions  of  Hight:  /ili; 
Baron  de  Hode,  and  lit.  Viscount  Canter- 
bury, 2  I'hil.  8.',;!  C.  r.  Coop.  t.  Cott. 
143,  wliert!  the  j)nictir(!  was  fully  consid- 
ered l(V  Lord  Cottenham:  Ht  Carl  \'on 
Fruntzius  2  De  G.  &  .1.  12i;;  Hn  Koll,  4 
De  G.  &  J.  44 ;  lU  Holmes,  2  .1.  &  II.  Wl' ; 


8  Jur.  N.  S.  76;  Tobin  v.  The  Queen,  16 
C.  1$.  N.  S.  310,   315;    10  .lur.  N.  S.  103'J. 

^  I.uthwicii  V.  Attorn<y-(;eii('ral.  refer- 
red to  in  I'eeve  ?'.  Attorney-tn'iieral,  2 
Atk.  223;  Casberd  v.  Attorney-tieneral, 
6  I'ri.   411;  and  see  6  Vic.  c.  6,  ante,  p.  6. 

<>  By  f)  Vic.  c.  5,  fi/j/e,  p.  5. 

"  Colebrooke,  »'.  Atloriu'V-Ci-nenil,  7 
I'rl.  146;  Crawford  r.  Attoriiev-tieiieral, 
it).  1;  /■•>  piiilv,  (Jolehrooke,  7  I'ri.  b7 ;  Ex 
purU  Uurrand,  3  Aiist.  743. 


134 


PERSONS   AGAINST   AVIIOM   A   SUIT   MAY   BE    INSTITUTED. 


Cii.  IV.  §-2. 


tlu'ir 
ncoounts. 

Tliis  jiirisdii"- 
tion  may  now 
be  oxiToised 
by  tlu"  Court 
of  Chancery. 


In  such  suits, 
the  Attorney- 
General  is  not 
pmteeted 
from  diseov- 
en-.  if  plain- 
titf  entitled 
to  relief; 


providing  for  tlie  n'lii'l'ol'iu'couiitaiits  to  the  Cnnvn  mhmv  not  eon- 
tiiu'd  to  cases  mIuti'  the  ;u'('oniit;i)it  liad  actually  bcH'ii  sued  or 
impeded  ;  but  that  he  iniiiltt  proceed  immediately,  even  dining  tlie 
])assing  of  his  accounts,  by  bill  in  Equity,  as  it  were  (juia  tbnet} 
There  seems  no  reason  to  doul)t,  that  aecoiuitants  to  the  C-rown 
are  now  entitled  to  the  same  relief;  and  it  also  a]>poars,  that  tlie 
jurisdiction  in  all  tlu'  above  cases  is  still  retained  by  the  Court  of 
Exchequer;-  but  that  the  Court  of  Chancery  has  concurrent 
jurisdiction.^ 

It  is  to  be  observed,  that  where  an  accountant  to  the  Crown 
seeks  relief  by  means  of  a  bill  against  the  Attorney-Genei-al,  the 
Attorney-General  cannot,  if  the  accountant  is  entitled  to  relief, 
protect  himself  by  demurrer  from  making  the  discovery  sought  by 
the  bill ;  and  in  the  case  of  Deare  v.  2'he  Attorney-  General^  such 
a  demurrer  was  overruled.^  In  that  case,  the  Attorney-General 
had  filed  an  information,  in  the  Court  of  Exchequer,  against  an 
army  agent,  for  an  account  of  his  dealings  with  the  War-office ; 
upon  which  the  defendant  filed  a  cross-bill  against  the  Attorney- 
General  and  the  Secretary-at-War,  alleging  that  certain  trans- 
actions had  taken  place  between  him  and  the  War-office  which 
amounted  to  a  settlement  of  accounts,  and  praying  a  quietus.  To 
this  bill  the  Attorney-General  and  Secretary-at-War  put  in  general 
demurrers  :  alleging,  as  the  cause  of  demurrer,  that  it  a])peared  by 
the  bill  that  they  Avere  sued  as  officers  of  his  Majesty's  govern- 
ment, acting  for  and  on  behalf  of  his  Majesty,  and  concerning 
matters  arising  out  of  and  within  their  duty  and  em])loyment  as 
such  })ublic  officers,  and  not  in  any  manner  in  their  piivate  char- 
acter as  individuals.  On  the  argument  of  the  demurrer,  it  was 
alleged  on  the  part  of  the  Attorney-General,  that  the  piaintifl:'  in 
the  cross-bill  was  not  entitled  to  the  relief  he  prayed ;  and  it  was 
strongly  urged  that,  not  being  entitled  to  the  relief,  he  was  not 
entitled  to  the  discovery ;  but  Lord  Abinger  L.  C.  B.  held,  that, 
although  the  plaintilF  was  not  entitled  to  the  specific  relief  prayed, 
yet  that,  inasmuch  as  taking  the  facts  stated  in  the  bill  to  be  true, 
they  amounted  to  a  clear  defence  to  the  information  exhibited 
against  him  by  the  Attorney-General,  he  was  entitled  to  this  sort 
of  relief;  namely,  to  have  the  benefit  of  the  discovery,  for  the 
purpose  of  adducing  those  facts  before  the  Court  in  a  sj^ecific  and 
distinct  fonn,  when  both  the  causes  should  come  on  together. 
His  Lordship  further  said,  he  was  not  prepared  to  say  that  a  bill 
of  discovery  ever  had  or  ever  could  be  filed  against  the  Attorney- 

1  Colebrooke  v.  Attorney-General,  vhi  8  Attornev-General  ?'.  The  Corporation 
sup.                                                                         of  London,  "8  I5eav.  270,  285;  1  H.  L.  Ca. 

2  Attorney-General  v.  Hailing,  15  M.  Ss      440,  and  see  ante,  p.  5. 

W.  687,  700;  Attornev-General  v.  Hullett,  4  1  Y.  &  C.  Ex   197,  207. 

ib.  97 ;  8  Beav.  2S8,  n  ;  Attorney-General 
V.  Kingston,  6  Jur.  155,  Ex. 


THE    QUEEN  S   ATTOKNEY-GENERAL. 


135 


General,  for  a  discovery  of  facts  that  could  be  neither  in  his  per- 
sonal nor  in  his  official  knowledge,  or  that  the  Crown  would  be 
bound,  through  the  medium  of  the  Attorney-General,  to  make 
that  discovery ;  but,  at  the  same  time,  it  had  been  the  practice, 
which  he  hoped  never  would  be  discontinued,  for  the  officers  of  the 
Crown  to  throw  no  difficulty  in  the  way  of  any  proceeding  for  the 
purpose  of  bringing  matters  before  a  Couit  of  justice,  where  any 
real  point  that  required  judicial  decision  had  occurred. 

In  cases  in  which  the  rights  of  the  Crown  are  not  immediately 
concerned,  that  is,  where  the  Crown  is  not  in  possession,  or  a  title 
vested  in  it  is  not  sought  to  be  impeached,  but  its  rights  ai-e  only 
incidentally  involved  in  the  suit,  it  is  the  practice  to  make  the 
Queen's  Attorney-General  a  party  in  respect  of  those  rights.^ 
Indeed,  it  seems  that  in  all  cases  of  this  description,  in  which  any 
right  appears  to  be  in  the  Crown,  or  the  interest  of  the  Crown 
may  be  in  any  way  affijcted,  the  Court  mil  refuse  to  proceed 
without  the  Attorney-General,-  unless  it  is  clear  the  result  will  be 
for  the  benefit  of  the  Crown,^  or  at  least  that  it  will  not  be  in  dis- 
affirmance or  derogation  of  its  interests.^ 

Thus,  in  Hatch  v.  Wastall.,^  and  in  Ilaywarcl  v.  Fry^  where,  in 
consequence  of  the  outlawry  of  the  defendants,  it  was  held  that 
all  the  defendants'  interest  was  forfeited  to  the  Crown,  the  Court 
directed  the  plaintitf  to  obtain  a  grant  of  it  from  the  Exchequer, 


Ch.  IV.  §  2. 


Where  rights 
of  Crown  are 
only  incident- 
ally involved, 
the  Attorney- 
General  must 
be  a  party; 

and  Court 
will  not  pro- 
ceed without 
him; 


as  where 
defendant  is 
an  outlaw ; 


1  Ld.  Red.  30,  31.  In  a  suit  pending  in 
the  Supreme  Court  of  the  United  States, 
relative  to  di^^puted  boun<lary  between  two 
States,  a  motion  made  by  the  Attornej'- 
General  on  behalf  of  the  United  States, 
before  a  replication  had  been  filed,  for 
leave  to  intervene,  not  technically  as  a 
party  to  the  suit,  was  allowed,  and  leave 
was  given  him,  without  becoming  a  party 
to  the  suit,  to  file  testimonj- and  be  heard 
on  the  argument,  but  not  to  interfere  with 
the  pleidings  or  evidence  on  behalf  of 
either  of  the  States.  Florida  v.  (Jeorgia, 
17  How.  U.  S.  478.  This  course  of  pro- 
cedure was  admitted  to  be  at  variance 
with  tlir  P^iiglish  practice  in  cases  where 
the  Government  have  an  iiiteri'st  in  the 
issue  of  the  suit,  but  it  was  ailoi)tcd  to 
obviate  an  olijection,  that  seemed  to  arise, 
that  the  I'nited  States  could  not,  under 
the  provisions  of  the  Constitution,  become 
parties  in  the  United  States  Courts,  in  tiie 
legal  sense  of  the  term,  to  a  suit  between 
two  States.  The  other  States  were  held 
to  be  concerned  in  the  adjustment  of  tlie 
boundar}-  in  dispute,  and  their  interests 
are  represented  l)y  the  United  States. 
Tiiney  V..  .1.  said:  "It  would  hardly' l)e- 
come  this  triliunal,  intrusted  with  juris- 
diction  wlicre  sovereignties  are  concerned, 
and  with  power  to  prescribe  its  own  mnde 
of  proceedmu',  -to  do  injustice  ratiier  than 
depart  from  Knglish  precedents.  A  suit 
in  a  Court  of  ju-<tice  between  such  parties, 


and  upon  such  a  question,  is  without  ex- 
ample in  the  jurisprudence  of  any  other 
country.  It  is  a  new  case  and  requires 
new  modes  of  proceeding.  And  if,  as  has 
been  urged  in  argument,, the  United  States 
cannot,  uniier  the  Constitution,  become  a 
party  to  this  suit,  in  the  legal  sense  of  that 
term,  and  the  English  mode  of  proceeding 
in  analogous  cases  is  then-Corf  impracti- 
cable, it  furnishes  a  conclusive  argument 
for  adopting  the  mode  pntposed.  For 
otherwise  there  must  be  a  failure  of  jus- 
tice."     Several  of  the   Judges  dissented. 

'^  By  5  &  6  Vic.  c.  69,  §2,  the  Attorney- 
General  is  to  be  made  a  party  defendant  in 
all  suits  under  that  Act  touching  any 
honor,  &c.,  in  which  the  (^ueen  uuiy  have 
any  estate  or  interest.  As  to  the  necessity 
of  making  the  Attornev-Gcneral  a  party  in 
the  cases  of  aliens,  felons,  no  heir-at-law, 
no  next  of  kin,  lunatics  and  idiots:  see 
itnte,  Chap.  II.,  §  1;  Calvert  on  I'arties, 
388,  ti  sc/.  Where  ne.xl  of  kin  of  lunatic 
are  unknown,  petition  under  Trustee  Act, 
18.50,  should  b(f  Served  on  Attoi"ney-(jen- 
eral,  and  not  on  Solicitor  to  the  Treasury 
Rt  Kourke,  2  De  (J.,  .1.  &  S.  426. 

8  Ilovenden  v.  Lord  Annesley,  2  Sell.  & 
I-ef.  618. 

"t  Stalford  r.  Kail  of  Anglesev,  IlMrdres, 
181. 

5  1  P.  VVms.  445. 

8  lb.  446;  and  see  Ke.K  w.  Fowler,  IJunb. 
38. 


ir>n 


PERSONS    AGAINST    WHOM    A    SUIT    MAY    BK    INSTITUTED. 


rii.  IV.  §-2. 


or  suit  ri'liites 
to  houiularios 
of  i>n>viiu'os 
in  11  colony ; 

or  parties 
claim  under 
distinct 
gTimts  tVoni 
tile  Crown, 
n'servinfr  dif- 
ferent rents. 

Where  a  title 
in  the  Crown 
a]ipears  u]>on 
the  record, 
tlioufjh  no 
claim  is 
made. 


Where  the 
Sovereign  i.s 
concerned  as 
protector  of 
the  rights  of 
others : 


nnd  to  ninkc  tlu>  Att(>nu'v-(u'iuM-nl  :v  ]t:trtv  to  the  suit.  In 
/>Knyiss  v.  W/u'((tt\^  Ijonl  llanlwicko  diivt'tod  tlie  case  to  stand 
over,  in  order  that  the  Attorney-(TC'iu'ral  niiglit  be  made  a  ])arty  ; 
and  in  Penn  v.  Lord  JJaltimore^-  wliicli  was  a  suit  Ibr  the  execu- 
ticm  of  articles  rehiting  to  the  boundaries  of  two  ])rovinces  in 
America,  liehl  iukUm-  letters-]>atent  from  the  Kino;,  the  cause  was 
ordered  to  stand  over  for  the  same  purjiose.  In  like  manner, 
in  Jlovenden  v.  Lord  Anneslei/,^  in  which  the  parties  chiimed 
under  two  distinct  gi*ants  from  the  Crown,  each  reserving  a  rent, 
but  of  different  amotnits,  it  was  hehl  that,  inasmuch  as  the  riglits 
of  the  Crown  Avcre  concerned,  the  Attorney-General  ought  to  be 
before  the  Court.*  In  Jiardai/  v.  Hussell,^  Lord  Rosslyn  dis- 
missed the  bill,  because  a  title  a])peared  upon  the  record  for  the 
Crown,  although  no  claim  had  been  made  on  its  behalf;  and  upon 
the  same  princi])le,  in  Dodder  v.  Tlie  Jiavh  of  EoHjhmd^  Lord 
Eldon  refused  to  order  the  dividends  of  stock  purchased  by  the 
old  Government  of  Switzerland,  which  had  been  received  before 
the  filing  of  the  bill,  to  be  paid  into  Court  by  the  trustees,  on  the 
a])i)lication  of  the  new  Government,  which  had  not  been  recog- 
nized by  the  Government  of  this  country,  until  the  Attorney- 
General  was  made  a  party  to  the  suit.  But  although,  in  cases 
where  a  title  in  the  Crown  appears  uj^on  the  record,  the  Court 
will  not  make  a  decree  unless  the  Attorney-General  be  a  party  to 
the  suit,  yet  it  seems  that  the  circumstance  of  its  a])pearing  by  the 
record  that  the  plaintiff  has  been  convicted  of  manslaughter,  and 
that  a  commission  of  attainder  has  been  issued,  will  not  support  a 
plea  for  not  making  the  Attorney-General  a  party :  because  an 
inquisition  of*  attainder  is  only  to  inform,  and  does  not  entitle  the 
Crown  to  any  right.''  It  seems,  however,  that  in  this  respect  an 
inquisition  of  attainder  differs  from  a  commission  to  inquire  whether 
a  person  under  whom  the  plaintiff  claims  was  an  alien  :  the  former 
being  only  for  the  sake  of  informing  the  Crown,  but  the  latter  to 
entitle.* 

The  necessity  of  making  the  Attorney-General  a  party  is  not 
confined  to  those  cases  in  which  the  interests  of  the  CroAvn  in  its 
own  right  are  concerned,  but  it  extends  also  to  cases  in  which  the 
Queen  is  considered  as  the  protector  of  the  rights  of  others. 
Thus,  as  we  have  seen,^  the  grantee  of  a  chose  in  action  from 
the  Crown  may  either  institute  proceedings  in  the  name  of  the 
Attorney-General,  ^r  in  his  own  name,  making  the  Attorney- 
General  a  defendant  to   the   suit ;    and   so,  in  suits  in  which  the 


1  1  Eden.  177,  l&l. 

2  1  Ves.  S.  444. 

3  2  Sell.  &  Lef.  607. 
<  Ih.  617. 

6  3  Ves.  424,  436. 


«  10  Ves.  352,  3-54. 

7  Burke  v.  Brown,  2  Atk.  399. 

8  Ibid. 

9  Antt,  p.  7. 


THE    queen's    attorney-general. 


137 


Crown  may  be  interested  in  its  character  of  protector  of  the  rights 
of  others,  the  Attorney-General  should  be  made  a  party.  Thus, 
the  Attorney-General  is  a  necessary  party  to  all  suits  where  the 
subject-matter  is,  either  Avholly  or  in  part,  money  appropriated  for 
general  charitable  purposes  :  because  the  Queen,  as  parens  jpatrice., 
is  supposed  to  superintend  the  administration  of  all  charities,  and 
acts  in  this  behalf  by  her  Attorney-General.^  Where,  howevei-, 
a  legacy  is  given  to  a  charity  already  established,  as  where  it  is 
given  to  the  trustees  of  a  particular  foundation,  or  to  the  treasurer 
or  other  officer  of  some  charitable  institution,  to  become  a  part  of 
the  general  funds  of  such  foundation  or  institution,  the  Attorney- 
General  need  not  be  a  party,  because  he  can  have  no  interference 
with  the  distribution  of  their  general  funds.^  And  it  seems  that 
there  is  a  distinction  where  trustees  of  the  charity  are  ap- 
pointed by  the  donor,  and  where  no  ti-ustees  are  appointed,  but 
there  is  a  devise  immediately  to  charitable  uses ;  in  the  latter  case, 
there  can  be  no  decree  urdess  tlie  Attorney-General  be  made  a 
party,  but  it  is  otherwise  where  trustees  are  appointed  by  the 
donor.^  Therefore  where  a  bill  was  filed  to  establish  a  will,  and 
to  perform  several  trusts,  some  of  them  relating  to  charities  in 
"vvhicli  some  of  the  trustees  were  plaintiffs,  and  other  trustees  and 
several  of  the  cestui  que  trusts  Avere  defendants,  an  objection,  be- 
cause the  Attorney-General  was  not  made  a  defendant,  was  over- 
ruled :  it  being  considered  that  some  of  the  trustees  of  the  charity* 
bcdug  defendants,  there  might  be  a  decree  to  compel  the  execution 
of  trusts  relating  to  these  cliarities.^  In  that  case,  it  was  said 
by  Lord  Macclesfield,  that  if  there  should  be  any  collusion  between 
the  parties  relating  to  the  charity,  the  Attorney-General  might, 
notwithstanding  a  decree,  bring  an  information  to  establish  the 
charity  and  set  aside  the  decree,  and  that  he  might  do  the  same, 
though  he  were  made  a  defendant,  in  case  of  collusion  between  the 
parties.  But  it  seems  that  the  mere  circumstance  of  the  Attorney- 
General  not  having  been  made  a  party  to  the  proceeding,  Avill  not 
l)e  a  sufficient  ground  to  sustain  an  information  for  the  j)urpose  of 
Betting  aside  a  decree  made  in  a  former  suit,  unless  the  decree  is 
impeache<l  upon  other  groumls." 


1  "The  duty  of  inaintaiiiinf;  \\\i-  ri;;lit» 
of  the  puhlic.  iiikI  of  a  nLinil>('r  of  piT^oiiH 
too  inilefinitc  to  vindicate  tlioir  own,  has 
vested  in  the  f 'oniinonwcaltli,  and  is  <'xcr- 
cised  in  Ma'-suchnsetta.  ns  in  Knffland, 
throuuli  tlu;  Attorney-'Jcnfral.  (Join^;  e. 
Enicrv,  16  Pick.  1 19;"  f 'ounlv  Atfonicv  r. 
May,V,Cu.Mh.3;iK-340;(;eril.  St.s.  c.  14.  §20. 
It  is  upon  this  ground,  that,  in  a  suit  insfi- 
tutcrl  hy  the  trus'ics  of  a  chsirify  to  olitaiu 
the  instru'tion- of  thn  Court,  thi- Altoriicy- 
Gcncrnl  should  \w  made  a  partv  dr'fcniinnt, 
an  he  hiis  been  hv  order  of  the  Court  in 
thiBcuse."     Gray  J.  in  Jackson  iv  I'tnliips, 


Cn.  lY.  §  2. 

"■ > ' 

as  where  the 
subject- 
matter  is 
appropriated 
to  charity ; 


unless  charity 

already 

established. 


Distinction, 
in  frifts  to  a 
charitj-, 
where  a  trus- 
tee appointed, 
and  where 
not  so. 


14  Allen,  539.579,580;  see  Harvard  Col- 
Icf^e  r.  .Society  for  Promoting  Theological 
Kducalion.  3  ("jrav,  280. 

2  Wellbeloveiir.  .Jones,  1  S.  &  S.  40, 
43;  Chittv  v.  I'flrker,  4  Hro.  C.  C.  3ft. 

3  4Vin."500.  PI.  11,  m>lis;  2  Kq.  Ca.  Ab. 
107,  pi.  13,  n. 

*  It  afipeiirs  from  a  subsequent  part  of 
the  ca^c  that  one  of  the  trustees  of  tlie 
charity  wiis  nbroad. 

^  M'oiiil  r.  Lawson.4  Vin.  500,  pi.  11;  2 
Eq.  Cii.  .Ab.  107,  pi    13. 

•>  Aftorney-Ueneral  v.  Warren,  2  Swanst. 
291,311. 


138 


PERSONS   AGAINST   WHOM   A   SUIT   MAY   BE    INSTITUTED. 


Cn.  IV.  §  -2 

' r ■' 

"Wlu'iv  '^\(\  is 
toacharitiible 
instiltitioii 
not  of  a 
|HTinanent 
natuiv.  or 
whoso  objects 
are  not 
detined. 


"Wliere  piven 
to  trustees  of 
an  existing 
charity,  but 
on  definite 
trusts. 


Where  pri- 
vate charity 
concerned. 


AVlieii  it  is  said  that,  in  cases  where  a  legacy  is  given  to  the 
trustees  of  a  charity  ah'eady  in  existence,  for  tlie  general  purposes 
of  the  charity,  it  will  not  be  necessary,  in  a  suit  concerning  it,  to 
make  the  Attorney-General  a  (lefen(hint,  the  rule  must  be  under- 
stood to  Mjtjdy  only  to  those  charities  which  are  of  a  ])ennanent 
nature,  and  whose  objects  are  detined;  for  it  has  been  determined, 
that  where  legacies  are  given  to  the  officers  of  a  charitable  insti- 
tutiou  which  is  not  of  a  permanent  nature,  or  whose  objects  are 
not  detined,  it  is  necessary  to  make  the  Attorney-General  a  party 
to  a  suit  relating  to  tliem.  Thus,  in  the  case  of  Wellbeloved  v. 
Jones,^  where  a  legacy  was  given  to  the  officers,  for  the  time 
being,  of  an  academical  institution,  established  at  York  for  the 
education  of  dissenting  ministers,  which  officers,  with  the  addition 
of  such  other  persons  as  they  should  choose  (in  case  they  should 
think  an  additional  number  of  trustees  necessary),  were  to  stand 
possessed  of  the  money,  upon  trust,  to  apply  the  interest  and  divi- 
dends for  the  augmentation  of  the  salaries  of  dissenting  ministers, 
a  preference  being  given  to  those  who  should  have  been  students 
in  the  York  institution,  and  in  case  such  institution  should  cease, 
then  upon  trust  that  the  persons  in  whose  names  the  fund  should 
be  invested,  should  transfer  the  same  to  the  princii)al  officers  for 
the  time  being  of  such  other  institution  as  should  succeed  the  same, 
or  be  established  upon  similar  principles :  Sir  John  Leach  V.  C. 
upon  a  bill  filed  by  the  officers  of  the  institution,  praying  to  have 
the  fund  transferred  to  them,  to  which  the  Attorney-General  was 
no  party,  ordered  the  case  to  stand  over,  with  leave  to  amend  by 
making  the  Attorney-General  a  jiarty :  his  Honor  observing,  that 
tlic  Court  could  never  ])ermit  the  legacy  to  come  into  the  hands  of 
the  plaintiffs,  who  hap})ened  to  fill  particular  offices  in  the  society, 
but  would  take  care  to  secure  the  objects  of  the  testator  by  the 
creation  of  a  proper  and  jiermanent  trust,  and  upon  hearing  the 
cause,  would  send  it  to  the  Master  for  that  pur])ose ;  and  that  it 
wouM  be  one  of  the  duties  of  the  Attorney-General  to  attend  the 
Master  upon  the  subject.  And  even  in  cases  where  a  legacy  is 
given  to  the  trustees  of  a  charity  already  in  existence,  the  trusts  of 
wliich  are  of  a  ])ermanent  and  definite  nature,  unless  it  appears, 
froni  the  terms  of  the  bequest,  that  the,trusts  ui)on  which  the  legacy 
is  given  are  identical  Avith  those  upon  which  the  general  funds  of 
the  corporation  are  held,  it  is  necessary  to  make  the  Attorney- 
General  a  party .^ 

It  is  to  be  observed  also,  that  the  Attorney-General  is  a  necessary 


1  1  S.  &  S.  40,  43. 

2  Corporation  of  the  Sons  of  the  Clerfjy 
V.  Mose,  9  Sim.  eiO,  61.3.  A  bill  in  Equity 
for  the  transfer  of  a  public  charity  to  new 
trustees  may  be  filed  by  the  present 
trustees  in  tlieir  owu  names,  making  the 


Attornej'-General  a  defendant.  Harvard 
College  «.  Society  for  Promoting  Theolog- 
ical Education,  3  Gray,  280;  Governors 
of  Christ's  Hospital  v.  Attorney-General, 
5  Hare,  257 ;  see  Jackson  v.  Phillips,  14 
Allen,  639. 


THE    queen's   attorney-general. 


139 


party  only  where  the  charity  is  in  the  nature  of  a  general  charity  ; 
and  that  where  it  is  merely  a  private  charity,  it  will  not  be  neces- 
sary to  bring-  him  before  the  Comt.  Thus,  where  the  suit  related 
to  a  voluntary  society,  entered  into  for  the  purpose  of  providing  a 
weekly  payment  to  such  of  the  members  as  should  become  neces- 
sitous, and  their  widows.  Lord  Hardwicke  overruled  the  objection 
that  the  Attoniey-General  was  not  a  party  :  because  it  Avas  in  the 
nature  only  of  a  private  charity.^ 

When  the  Attorney-General  is  made  a  defendant  to  a  suit,  it 
is  entirely  in  his  discretion  whether  he  will  put  in  a  full  answer  or 
not.^  Foi-merly,  the  usual  course  was  for  him  to  put  in  a  general 
answer,  stating  merely  that  he  was  a  stranger  to  the  matters  in 
question,  and  that,  on  behalf  of  the  Crown,  he  claimed  such  rights 
and  interests  as  it  should  appear  to  have  thei*ein,  and  prayed  that 
the  Com-t  would  take  care  of  such  rights  and  interests  of  the 
Crown  in  the  same.^  In  cases,  however,  in  which  the  interest  of 
the  Crown,  or  the  purposesof  public  justice  require  it,  a  full  answer 
will  be  put  in:*  as  in  Craufurd  v.  The  Attorney- General,^  in 
which  case  the  Lords  of  the  Treasury  had  directed  that  the  ques- 
tion might  be  brought  before  the  consideration  of  a  Court  of 
Justice  ;  and  it  would,  therefore,  have  been  unbecoming  in  the 
Attorney-General  to  urge  any  matter  of  form  which  might  prevent 
the  case  fi-om  being  properly  submitted  to  the  Court  before  which 
it  was  brought.®  In  Errington  v.  TJie  Attorney- General,''  the 
AttoiTiey-General,  being  one  of  the  defendants  to  a  bill  of  inter- 
pleader, ])Ut  in  the  usual  general  answer,  upon  which  the  other 
defendants  moved  that  the  bill  miglit  be  dismissed,  and  the  injunc- 
tion dissolved  ;  the  Attorney-General  opposed  the  motion,  and  at 
the  same  time  prayed  that  he  might  be  at  liberty  to  withdraw  his 
general  answer,  and  put  in  another,  insisthig  upon  the  particular 
right  of  the  Crown  to  the  money  in  question:  which  was  granted. 

The  answer  of  the  Attorney-General  is  put  in  without  oath,  but 
is  usually  signed  by  him.  And  it  seems  that  such  an  answer  is  not 
lial)le  to  l)e  exceptetl  to,  even  though  it  be  to  a  cross-bill  filed  by 
the  defendant  in  an  information,  for  the  jtui-jjose  of  obtaining  a 
discovery  of  matters  alleged  to  be  material  to  his  defence  to  the 
infoiTnation.  We  have,  however,  seen  before  that  where  a  cross- 
\)\\\  is  filed  against  the  Attorney-General,  prapng  relief  as  well  as 
discovery,  he  cannot  ]»rot('ct  himself  from  answering  by  means  of  a 
demurrer:"  but  whether  lie  couM,  l)y  such  means,  protect  himself 


Cn.  IV.  §  2. 


1  Anon..  3  Atk.  277. 

2  Ouvisdti  V.  Attorney-General,  6    Pri. 
398.  n. 

8  See  Hiinb.  303 ;  1  Hare,  223. 
*  Colebrooke  v.  Attoniey-General,  7  I'ri. 
192. 


6  7  I'ri.  1. 

•5  Sec  also  Deare  v.  Attorney-General,  1 
Y.  &  G.  Kx.  11)7. 

7  Huiil).  303. 

8  Deare  v.  Attorney-General,  ubi  sup.  ,- 
(tnle,  p.  134. 


Answer  of  the 
Attorney- 
General, 
general  form 
under  late 
practice. 


Answer  of 
Attorney- 
General  is  put 
in  without 
oath,  and 
cainiot  be 
excepted  to. 


110  PEnSONS    AGAINST    MllOM    A    8UIT    MAY    BE    INSTITUTED. 

Cm.  IV.  §'2.     iVoin   ;iiis\vrrin<j:  m  mere  l)ill  ot"  discovcrv,  docs  not  ;iii)i(';ir  to  have 

■"^ •\'~ —     lu'rii    (Ii'cidcMl  ;  it    is   most    jirobnbk'   tlint   he   ininlit,  :iiid    that  tlio 

Court  wouhl,  in  such  a  case,  it'  discovery  were  Avanted   from  the 

Crown,  leave  tlie  ])arty  to  ])veter  liis  Petition  of  IJiylit.-' 

Prosont  Under  the  present  ])rnotice,  the  usual  course  is  lor  tlie  vVttorney- 

prai  HI.  GiMieral  to  |)nt  in  no  answer;  hut  in  (^ases  of  the  dcseri))tiou  above 

mentioned,  it  is  ]»i-esumed  that  the  ]n-o])er  course  is  to  file  iiiterrof;- 

atories  for  his  examination,  and   tliat   he  would  tlien  ]>ut  in  a  full 

answer. 

His  rigiit  to  The  ricfht  of  the  Attorney-General  to  receive  his  costs,  where  he 

costs. 

is  made  a  defendant  to  a  suit,  has  been  before  noticed  ;  '^  it  will 

suffice,  therefore,  here  to  repeat,  that  there  seems  to  be  no  rule 

against  the  Attorney-General  receiving  his  costs,  where  he  is  made 

a  defendant  in  res])ect  of  legacies  given  to  charities ;  and  that  in 

3Iog(jrld(/e  v.  Tliachwell^  costs  were  given  to  all  parties,  including 

tlie  Attorney-General,  as  between  solicitor  and  client,  out  of  the 

fund  in  Court.     It  appears  also  that  lie  fi-equently  receives  his 

costs  where  he  is  made  a  defendant  in  respect  of  the  rights  of  the 

Crown,  in  cases  of  intestacy.*     There  is  no  invariable  practice  of 

giving  him  his  costs  in  all  cases  out  of  the  fund,  the  subject-matter 

of  the  suit.^ 

Solicitor-  During  the  vacancy  of  the  office  of  Attorney-General,  the  So- 

defrndant'^*^*^   licitor-General  may  be  made  a  defendant  to  snp])ort  the  interests 

during  of  the  Crown ;  ^  and.  where  there  has  been  an  information  by  the 

■  office  of  At-      Attorney-General,  the  object  of  which  has  been  to  set  up  a  general 

torney-Gen-      i-X^^xvA  on  behalf  of  the  Crown,  at  variance  Avith  the  interests  of  a 
eral,  and  in  .    .  '  t  /. 

informations     ])ublie  charity,  the  Solicitor-General  has  been  made  defen<lant,  for 

at  varianelf^     the  purj^ose  of  su])porting  the  interests  of  such  charity  against  the 
^  with  iiitrrcsts  general  claim  of  the  Attorney-General.     On  the  other  hand,  where 
ity,  or  of  the    iin  information  was  filed  by  the  Attorney-General,  claiming  certain 
Crown.  property  for  charitable   purposes,  inconsistent  with  the   rights  of 

])roj)erty  of  the  Crown,  the  Solicitor-General  was  made  a  defendant, 
as  the  officer  on  Avhom  the  representation  of  such  rights  had  de- 
volved.'' 

The  means  of  obtaining  the  appearance  or  answer  of  the 
Attorney-General,  will  be  found  in  the  subsequent  Chapters  upon 
Process." 

1  Deare  v.  Attorney-General,  tibi  sup.  5  Perkins  v.  Bradley,  1  Hare,  219,  234. 

2  Ante,  p.  12.  6  Ld.  Red.  102. 

8  7  Ves.''36,  88,  affirmed  by  H.  L. ;  see  13  "^  Attorney-General  v.  Dean  and  Canons 

Ves.  416.  of  Windsor,  24  Beav.   679;  4  Jiir.  N.   S. 

*  Attorney-General  V.  Earl  of  Asliburn-  818;  1  H.  L.  Ca.  369;  6  Jur.  N.  S.  833; 

ham,   1   S.  &   S.  397;    mile,   p.    12;    see  and   see    Attorney-Cieneral    v.    Mayor   of 

now  18  &  19  Vic.  c.  90,  §  1,  as  to  co.sts  of  Bristol,  2  J.  &  W.  312;  Attorney-General 

Attorney-General   in    revenue  suits;    and  v.    Ironmongers'    Company,  2    M.    &    K. 

24  &  2.0"Vic.  c.  92.  §  1,  in  cases  as  to  sue-  578,  n. 

ce.ssion  dutv.     And  see  23  &  24  Vice.  34,  8  See  post,  Chap.  VIII.  §  4;  Chap.  X. 

§§  11,  12,  ante  p.  132.  §  2. 


GOVERNMENTS   OF   FOREIGN    STATES    AND   AMBASSADORS.  141 

Ch.  IV.  §  3. 
Section  III. —  Governments  of  Foreign  States  and  Atnhassadors.   ^     .  ^     _. 

It  has  before  been  stated,  that  the  Sovereign  of  a  foreign  country  a  foreign 
reeosnized  by  this  Government,  may  sue  either  at  Law  or  in   Sovereign,  by 

o  •'  ,.  „  ,..,,  suing  here, 

Equity,  in  respect  of  matters  not  partaking  of  a  pohtical  char-  submits  to  the 
acter;^  and  it  has  been  determined,  that  if  he  files  a  bill,  a  cross-  Jurisdiction; 
bill  may  be  filed  against  him  ;  because,  by  suing  here,  he  submits   bill  may  be 
himself  to  the  jurisdiction  of  the  Court;  and,  in  such  a  case,  if  re-   filed  against 
quired,  he  is  bound  to  answer  ujaon  oath.'^  ■ 

The  question  whether  a  foreign  Sovereign,  who  has  not  sub-  Dul-eof 
mitted  to  the  jurisdiction,  can  be  sued  in  the  Couits  of  this  country,  y^King'^of 
was  raised  in  the  case  of  the  Duke  of  JBrunsicick  v.  27ie  King  of  llanovtr. 
Sanover.^  It  was  an  important  feature  in  this  case,  that  the  de- 
fendant, as  a  subject  of  this  kingdom,  had  renewed  his  allegiance 
after  his  accession  to  the  throne  of  Hanover,  and  exercised  the 
rights  of  an  Englisli  peer.  The  general  object  of  the  suit  was  to 
obtain  an  account  of  jjroperty  belonging  to  the  plaintifl",  alleged  to 
have  been  possessed  by  the  defendant,  under  color  of  an  instrument 
creating  a  sj^ecies  of  guardianship  unknown  to  the  law  of  England. 
None  of  the  acts  com])lained  of  took  place  in  this  country,  or  were  . 
done  by  the  defendant  before  he  became  King  of  Hanover.  More- 
over, though  it  Avas  not  necessary  to  decide  the  question,  the 
Court  seemed  to  consider  tliat  those  acts  were  of  a  political  char- 
acter. The  defendant  demurred  to  the  bill ;  and  in  giving  judg- 
ment upon  the  demurrer,  Lord  Langdale  M.  K.  after  elaborately 
reviewing  all  the  authorities  and  arguments  upon  the  subject, 
saitl :  "  His  Majesty  the  lung  of  Hanover  is,  and  ought  to  be,  ex- 
empt from  all  liability  of  being  sued  in  the  Courts  of  this  country, 
for  any  acts  done  by  him  as  King  of  Hanover,  or  in  liis  character 
of  sovereign  prince;  but  being  a  subject  of  the  Queen,  lie  is  and 
ought  to  be  lialjle  tu  be  sued  in  the  Courts  of  this  country,  in  re- 
spect of  any  ads  anil  liaiisactions  done  by  him,  or  in  which  he 
may  have  been  engaged,  as  such  subject.  ^Vnd  in  respect  of  any 
act  done  out  of  the  realm,  or  any  act  as  to  which  it  uiay  be  doubt- 

1  Anlt,  J).  17.  Clielin-t'ord    L.  C  ,  and   by   Lord  Cairns 

2  llullftt  v.  King  of  Spain,  2  Hiigli,  N  S.  L. .).,  that  the  Court  may  stay  proceedings 
47;  1  Oow  &  CI.  lO'J;  S.  C.  V  LJligh  X.  S.  in  the  original  suit,  until  the  means  of 
36y.  A  foreign  Sovereign  State,  acting  discovery  are  secured  in  the  cross-suit, 
under  n  repuhlican  form  of  jiovcrnnii'iit  >ee  Columbian  (joverumeiit /•.  Hothscliild, 
and  recognized  in  that  cajiacity,  may  vue  1  >im.  it4;  I'licdcaii  v.  I'liiied  Stales  oi' 
in  the  Knglish  Courts  in  its  own  ii.inic  so  America  mid  AikIicw  .lolin-on,  \,.  ii.  - 
recognized.  Such  State  is  not  bound  to  Ki|.  OoU;  S.  C.  imiu.  United  States  of 
sue  in  the  name  of  any  ollicer  of  the  (iov-  America  i'.  I'rioieau,  J2  .)ur.  N.  S.  724; 
eminent,  or  to  join  us  co-j)laiiititf  any  United  ^tat^•s  of  America  t'.  Wagner, 
8uch    otHcer   on    whom    proce-s    may    be  L.  li.  3  Ki].  724. 

served,  «iid  wlio  miiy  be  called  upon  to  ^  U  Ueav.  1 ;    aflirined  2    H.  I^.  Ca.   1 ; 

give  discovery  upon  11   crosh-bill.     (;'nited  and    see   Wadswortli  *'.  t^U'i'ii  ol    ^pain, 

Stotes  ol  AiiiVrica  /■.  Wiigmr,  I,.  K.  2  Ch.  17  (^  li.  171 ;  <il;id-tonc  r.  Miisurus  15ey, 

Ap.    6b2.      but    it   was    held    by     Lord  1  H.  &  M.  4'J5;  y  Jur.  N.  S.  71. 


142 


PERSONS    AGAINST    WII03I   A   SUIT   MAY   BE    INSTITUTED. 


On.  IV.  5  ■?. 


Where 
foreign  State 
is  interested 
in  Ciintl  about 
to  be  distrib- 
uted. 


Ambassa- 
dors. 


Where 
subjects  of 
Sovereipn, 
to  whom 
accredited. 


t'ul  wlu'tlicr  it  oiii;]il  to  l)c  nttiilmtiMl  to  tlii' chafMctov  of  Sovereign, 
or  to  the  eliaractor  ofsiihjeet,  it  appeal's  to  me,  tliat  it  ought  to  be 
]>iv;>iiine(l  to  be  attributed  rathi-r  to  tlie  eliaraeter  of  Sovereign, 
'than  to  tlie  eharaeter  of  subject."^  Aceordiiigly,  as  it  did  not 
a])|iear  that  tl\e  alleged  acts  and  transaetions  ol'the  defendant  were 
of  siu-h  a  deserijition  as  could  render  hiiu  liable  to  be  sued  in  this 
country,  the  demurrer  was  allowed.  It  furtlicr  appears  from  the 
last-mentioned  case,  that  as  a  Sovereign  ]»rince  is  pvuiiu  facie  en- 
titled to  special  imnnmities,  it  ought  to  a})j)ear  on  the  bill  that  the 
case  is  not  one  to  which  such  s})ecial  immunities  extend.'^ 

There  have,  moreover,  been  cases  in  which,  the  Court  being 
called  upon  to  distribute  a  fund  in  which  some  foreign  Sovereign 
or  State  may  have  had  an  interest,  it  has  been  tliought  exj)edient 
and  i)roper  to  make  such  Sovereign  or  State  a  party.  The  effect 
has  been  to  make  tlie  suit  perfect  as  to  parties,  but,  as  to  the 
Sovereign  made  a  defendant,  the  effect  has  not  been  to  compel,  or 
attempt  to  compel,  him  to  come  in  and  submit  to  judgment  in  the 
ordinary  coiu-se,  but  to  give  him  an  0])portunity  to  come  in  and 
claim  his  right,  or  establish  his  interest  in  the  subject-matter  of 
the  suit.* 

With  regard  to  Ambassadors,  by  Stat.  7  Ann,  c.  12,  all  writs 
and  jirocesses  sued  forth  and  prosecuted,  Mdiereby  the  person  of 
any  Ambassador,  authorized  and  received  as  sttch  by  her  Majesty, 
may  be  arrested  or  imprisoned,  or  his  goods  distrained,  seized,  or 
attached,  are  to  be  deemed  to  be  utterly  null  and  void.  This  Act 
Y)rofesses  to  be,  and  has  frequently  been  adjudged  to  be,  declara- 
tory,* and  in  confirmation  of  the  Common  Law;  and,  as  Lord 
Tenterden  said,^  "  it  must  be  construed  according  to  the  Common 
Law,  of  which  the  law  of  nations  must  be  deemed  a  ])art."  The 
5th  section  of  the  Act  excepts  the  case  of  a  bankru2:)t  in  the  service 
of  any  Ambassador.^ 

Cases  have  frequently  occurred  in  which  an  Ambassador  has 
himself  been  a  subject  of  the  Sovereign  to  whom  he  was  accred- 
ited; and,  notwithstanding  some  difference  of  opinion,  it  seems 
to  be  considered,  that  such  an  Ambassador  would  not  enjoy  a 
perfect  immimity  from  legal  process,  but  would  enjoy  an  immu- 
nity extending  only  to  such  things  as  are  connected  with  liis  office 
and  ndnistry,  and  not  to  transactions  and  matters  wholly  distinct 
and  independent  of  his  office  and  its  duties.'' 


1  5  Beav.  57. 

2  See  0  Ueav.  58. 

8  Ibid.  39.  In  Gladstone  v.  Muslims 
Bey,  1  H.  &  M.  495;  9  .Jur.  N.  S.  71,  the 
Sultan  was  made  a  defendant,  but  did  not 
appear. 

•»  1  IJ.  &  C.  502. 

5  Jbid. 

6  See  as  to  this  statute.  Service  v.  Casta- 


neda,  2  Coll.  56 ;  Taylor  v.  Best,  14  C.  B. 
487;  16  Jur.  402;  see  also  Glndstone  v. 
Musurus  Bey,  vJn  sup..,  in  which  V.  C. 
Wood  held  on  this  statute,  that  a  foreiffn 
!inib;is'^ail(ir  cannot  be  impleaded  before 
an  Knf^lish  tribunal. 

V  tj  Jieiiv.  52.  As  to  the  rights  and  ex- 
emptions of  Ambassadors,  see  1  Kent  (11th 
ed.),  38  ctstq.  182. 


CORPORATIONS   AND   JOINT-STOCK   COIVIPANIES.  143 

Cii.  IV.  §  4. 
Section  IV. —  Corpcyrations  at^  Joint- Stock  Companies. ,, ■ 

It  has  been  stated  before,^  that  coiijorations  aggregate  must  be   CoriMrations 
sued  by  their  coiporate  name,  that  is,  by  their  name  of  foundation :   g^fj'^fy^cor-® 
thougli  it  has  been  said  tliat,  if  a  corporation  be  known  by  a  par-   poratename; 
ticuhir  name,  it  is  sutficient  to  sue  it  by  that  name.^     This,  how- 
ever, must  be  confined  to  the  case  of  a  corporation  by  prescription ; 
for  in  other  cases,  where  the  commencement  of  it  appears  by  the 
record,  it  can  have  no  other  name  by  use  than  that  under  which 
it  has  been  incorporated,  and  the  Court  A^dll  not  permit  it  to  be 
sued  by  any  other  name.^ 

A   corporation  aggregate   which   has  a  head   cannot  be   sued  but  not  with- 
wdthout  it :  because  without  its  head  it  is  incomplete.^     It  is  not,   ^^^  ^^®  '^'^*'^- 
however,  necessary  to  mention  the  name  of  the  head ;  ^  nor  is  it  Individual 
in  general  proper  to  make  individual  members  of  aggregate  cor-   ^oTnetel^arjr 
porations  parties  by  their  proper  Christian  and  surnames  :  though   parties; 
cases  may  occur  where  this  will  be  pennitted,  for  the  purpose  of 
compelling  a  discovery  from  them  of  some  fact  which  may  rest  in   unless  for 
their  own  knowledge.     Thus,  in  the  case  put  by  Lord  Eldon,  in  Svei^^^'.^  '^ 
Diimmer  v.   The   Corporation  of  Chippenham^  of  an  individual 
coii)orator  whose  estate  was  charged  witli  a  rent  or  payment  to  a 
charitable  use,  of  which  the  corporation  had  the  management,  and 
who  had  obtained  possession  of  the  deed,  and  had  destroyed  or 
cancelled  it,  his  Lordship  was  of  o])inion  that,  upon  an  information 
for  tlie  ])urpose  of  having  the  estate  of  the  charity  properly  ad- 
ministered by  the  corporation,  it  would  be  perfectly  competent  to 
call  upon  the  mayor,  if  he  was  the  individual  implicated  in  that 
conduct,  not  only  to  answer  with  the  rest  under  their  common 
seal,  but  also  to  answer  as  to  the  circumstances  relative  to  the 
dee<l  supposed  to  be  in  his  hands.     So  also,  in  the  principal  case, 
which  was  that  of  a  bill  by  a  schoolmaster  against  a  corporation 
who  were  trustees  of  a  ch;u-ity,  to  be  relieved  against  a  resolution 
of  the  trustees  Ijy  which  lie  was  dei)rived  of  his  office  of  school- 
master, on  tlie  grcnind  that  the  resoluti<ni  ha<l  been  pronounced  by 
five  of  the  members  of  the  corporation,   iVom  iiupmjx'r  motives 
with  reference  to  a  pai'Iiamcntary  election,  lo  which  bill  the  five 

1  Ante^  p.  21.  poration  of  tlio  I''r(,'ncli  I'l-otc-taiit  Ciuireii 

2  Attoriifiy-flcnprnl  r.  Corporation  of  luivinK  l)ccoinu  divided  into  se])anite 
Worce.'^ter,  2  I'liil.  3;  1  C.  1'.  Coop.  t.  ciiurclies,  :ind  there  beiiif;  n<i  ]iul>lii;  oHi- 
Cott.  18.  cer  lit  the  head   of  tlie  corijorution,  the 

8    Ibid.     A  corporation  can  be  called  to  bill  was  properly  filed  aj^aiiist  the  t^overn- 

nnswer    only    by    its    corporHle    name.  \\\^   body  of   the  particular   cluirch,  and 

Biiiney's  cawe,  '/  Bland,  MSi\  see  (m(t,  21,  not  ajrainst  the  corporation  by  its  corpo- 

note.  rate  name. 

<  2  Bnc.  Ab.   lit.  Corp.  (K.)  IM.  2.     In  6  3  Salk.  10.3;  1  Leon.  307. 

Daugars  r.    Itivaz,  2X  Beav.  2:53,  249;  <i  <>  14  Yes.  240,264. 
Jur.  N.   S.  bo4,  it  was  held,  that  the  cor- 


144 


PERSONS    AGAINST   WHOM    A    SUIT   MAY    BE    INSTITUTED. 


Oil.  IV.  §4.     nu'inbors   woro   iiiiuU'   ]):irlios,   ibr  ilu'  ])uriK)st'  of  i)l»t:iiiiini!:  from 

• Y tln'iii  :iii  answer  upon  oalh  as  to  their  alleged  iniproj)er  conduct,  a 

deniurrt'r,  which  had  been  i)Ut  hi  by  these  five  members  on  tile 
ground  that  no  title  was  shown  to  the  discovery  against  them, 
was  overruleil  by  J^ord  Eldon.  ^Vnd  in  the  case  of  the  Attorney- 
General  V.  Wilso)i^^  a  corjtorate  body,  suing  both  as  plaintift'  and 
relator,  sustaineil  a. suit  against  live  persons,  formerly  members  of 
the  corporation,  in  respect  of  unauthorized  acts  done  by  them  in 
the  name  of  the  corporation.^ 

It  has  been  thought  that,  as  a  corporation  can  sue  within  a  for- 
eign jurisdiction,  there  is  no  reason  Avhy  it  may  not  be  sued  with- 
out its  jurisdiction,  in  the  same  manner,  and  under  the  same 
regulations,  as  domestic  corporations ;  •*  and  accordingly,  in  some 
States,  foreign  corporations  have  been  held  to  answer  to  actions 
in  their  Courts.*  Corporations  created  by  any  other  State,  having 
property  in  Massachusetts,  shall  be  liable  to  be  sued,  and  their 
property  shall  be  subject  to  attachment,  hi  like  manner  as  residents 
of  other  States  having  property  in  that  State  are  liable  to  be  sued 
and  their  property  to  be  attached.^ 
^„         .  The  practice  of  making  the  officers  or  servants  of  a  corporation 

Officers  of  -i  °  .,...,,  , . 

corporations     parties  to  a  suit,  for  the  purpose  oi  eliciting  from  them  a  discovery, 

Tankt^forthe  ^^P^^^  oviXXi,  of  the  matters  charged  in  the  bill,  has  been  too  fre- 
quently acted  npon  and  acknowdedged  to  be  now  a  matter  of 
doubt."  The  first  case  which  occurs  upon  the  point  is  an  anony- 
mous one,  in  Vernon,'^  where  a  bill  having  been  filed  against  a 


parti 
purpose  of 
discovery. 


1  C.  &  P.  1,  21;  Angell  &  Ames,  Corp. 
§  676. 

2  There  are  cases  in  which  a  bill  in 
Equity  will  lie  iigainst  a  corporation  tor 
diverting  or  raisap[)l ying  its  tunds  or  credit, 
&c.,  h\  one  of-  it^.  int^nbers.  Cunlitfe  v. 
M;inciiester  and  Bolton  Canal  Co.,  1  My.  & 
1{.  131,  note;  Dodge  v.  Wolsey,  18  How. 
U.  S.  331;  Maiiderson  v.  Cuniinercial 
Bk.,  28  I'enn.  379;  Bait.  &  Ohio  K.K.  Co. 
r.  City  of  Wheeling,  13  Gratt.  40 ;  I'ea- 
body  V.  Flint,  6  Allen,  5'.2;  Angell  &  Ames, 
Corp  (Gth  ed.)  §  391;  Salomons  v.  Laing, 
12  Beav.  339;  Hodges  v.  Screw  Co  ,  o  li. 
I.  9;  K.II.  Co.  V.  Harris,  27  Mis.s.  517  ;  pusl, 
Parties  V>  suit;  see  ller?ey  v.  Veazie,  ^4 
Maine,  9.  An  individual  stockholder  may 
maintain  a  suit  in  Iviuity  against  the  direc- 
tors of  a  corporation  for  misconduct  in 
oftice.  Allen  t.  Curtis,  26  Conn.  456; 
Scldey  V.  Dixon,  24  Ceo.  273;  Kean  v. 
John.-"on,  1  Stock.  (X.  .1.)  401;  Binney's 
case,  3  Btiud,  14J;  Kevere  v.  Boston 
Copfjer  Co.,  15  Pick.  351;  Brown  v. 
Vandyke,  4  Halst.  Ch.  (N.  J.)  797;  see 
Durfee  v.  Old  Colony,  &c.  K.K.  Co.,  5 
Allen,  230;  unit,  26,  and  note. 

■i  Bushel  V.  Commonwealth  Insurance 
Co.,  15  Serg.  &  li.  176 ;  Angell  tk  Ames, 
Corp.  (6thed.)§  402. 


^  Daj'  V.  P^ssex  County  Bank,  13  Vt. 
97 ;  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen, 
9  iMissou.  422;  Angell  &  Ames,  Corp. 
(0th  ed.)  §  402-407. 

6  Genl.  Sts  of  Mass.  c.  68,  §  16;  Sillo- 
way  V.  Columbian  Ins.  Co.,  8  GrMj',  199; 
see  Libby  v.  Hodgdon,  9  N.  H.  394; 
Moulin  ».  Ins.  Co.,  4  Zabrisk.  222;  Thomas 
I',  ilerchaiits'  Bank,  9  Paige,  215;  Nash 
V  Rector,  &c.  of  the  Evangelical  Lutheran 
Church,  1  Miles,  78;  Peckliam  v.  North 
Parish  in  Haverhill,  16  Pick.  274;  Erick- 
son  V.  Nesinith,  4  Allen,  237. 

But  in  Williston  v.  Alich.  Southern  and 
Northern  Ind.  K.K.  Co.,  13  Allen,  400,  it 
was  held  tliat  no  equitable  reliel  can  be 
granted  in  Massachunets  against  a  toreign 
corporation  which  has  neither  officers  nor 
place  of  business  in  Massachusetts,  for  a 
lailure  to  declare  and  pay  dividends 
according  to  the  stipulations  of  their  cer- 
tificates of  stock.  Service  of  the  writ  had 
been  made  in  this  case  only  by  trustee 
process,  attaching  funds  in  the  hands  of 
the  debtors  of  the  defendants  in  Massa- 
chusetts. See  Stephenson  v.  Davis,  66 
Maine,  73. 

0  Ld.  Hed.  188,  189. 

'  1  Vern.  117;  but  the  answer  cannot 
be  read  against  the  Corporation :  Wych  v. 


CORPORATIONS    AND    JOINT-STOCK    COMPANIES. 


145 


corporation  to  discover  writings,  and   the  defendants  answering    Ch.  IV.  §  4. 

under  their  common  seal,  and  so,  not  being  sworn,  would  answer 

nothing  to  their  prejudice,  it  was  ordered  that  the  clerk  of  the 

company,  and  such  j)rincipal  members  as  the  plaintiff  should  think 

fit,  should  answer  on  oath,  and  that  the  Master  shoidd  settle  the 

oath.     In  the  case  of  Glasscott  v.  Copper  Miners'    Company,^  the 

plaintiiF  was  sued  at  Law  by  a  body  corporate,  and  tiled  his  bill 

for  discovery  only :  making  the  governor,  deputy-chairman,  one  of 

the  directors,  and  the  secretaiy  of  the  company  co-defendants  Avith 

the  company.     It  was  objected,  upon  demurrer  to  the  bill,  that  an 

officer  of  a  coi-poration  could  not  be  made  a  co-defendant  to  a  bill 

which  sought  for  discovery  only,  or,  at  any  rate,  that  individual 

members  could  not  be  joined  as  defendants  with  the  coi^poration 

at  large  ;  but  the  demurrer  was  overruled.^ 

It  may  be  observed  here,  that,  where  the  officer  of  the  corpora- 
tion from  whom  tlie  discovery  is  sought  is  a  mere  witness,  and  the 
tacts  he  is  requu-ed  to  discover  are  merely  such  as  might  be  proved 
by  him  on  his  examination,  he  ouglit  not  to  be  made  a  party. 
Thus,  where  an  officer  of  the  Bank  of  England  was  made  a  i^arty, 
for  the  purpose  of  obtaining  li\)ni  him  a  discovery  as  to  the  times 
when  the  stock  in  question  in  the  cause  had  been  transferred,  and 


but  not  if 
mere  wit- 
nesses. 


Meal,  3  P.  Wms.  310,  312;  Gibbons  v. 
Waterloo  Bridge  Company,  1  C.  P.  Coop. 
t.  Cott.  385;  Wadeer  v.  East  India  Co., 
29  Beav.  300;  7  Jur.  N.  S.  360. 

1  11  Sim.  305;  see  M'Intosh  v.  Great 
Western  Railway  Company,  2  De  C  & 
S.  75b;  Attorney-General  r.  Mercers' Co., 
9  W.  K.  83;  Attorney-(ieneral  v.  East 
Dereham  Corn  I'^.scliaiif^e,  5  W.  K.  4biJ; 
Ranger  v.  Great  Western  Uaihvav  Co.,  4 
De  G.  &  .J.  74;  5. Jur.  X.  S.  ll'J I ;' Harvey 
V.  Heckwitli,  2  II.  &  M.  429;  Pepper  v. 
Green,  ib.  478;  see  also  Moodalev  v. 
Morton,  1  Bro.  C.  C  409.  It  should  be 
observed  here,  that  Lord  Eldon,  in 
Duinnier  i'.  The  Corporation  of  Chippeu- 
liani,  14  Ves.  254,  mentioned  it  as  his 
opinion,  that  the  case  of  .Stewar.l  v  The 
ha.st  India  Company,  2  Vern.  3i;0,  in 
which  a  demurrer  to  a  bill  against  the 
tomjiaiiy  and  one  of  its  servants,  is  re- 
ported to  have  been  allnved,  \^  a  nii.sprint; 
and  that,  instead  of  stilling  tliat  the  de- 
murrer was  alloweil  wiihout  [lutting  thum 
to  an'<wer  as  to  matter  of  fraud  and  con- 
trivance, which  is  non-'Cnse,  it  should  have 
been,  that  the  demurrer  was  disallowed, 
with  liberty  to  insist  by  their  answer  that 
they  should  not  he  compelled  to  answer 
the  charg"-i  of  fraud,  &c. ;  thi^*  case,  how- 
ever, appear-)  to  be  correctly  repi)rted,  see 
M'lnto.-^li  V.  Great  Western  Hallway  Com- 
pany, 2  De  (i.  &  S.  770. 

'^  (.)lTicers  and  uicmbtTs  of  a  corporation 

may  be  made  parties  to  a  l>ill  no  far  as  tin; 

bill  seeks  for  discovery,  though  they  have 

no  individual  interest  in  the  suit,  and  no 

vol-  1.  10 


relief  can  be  had  against  them.  Wright 
V.  Dame,  1  Met.  237 ;  Story  Eq.  PI.  §  235 ; 
2  Story  Eq.  .lur.  §§  1500,  15ul ;  Cartwright 
V.  Hateley,  1  Sumner's  Ves.  293,  nute  (1); 
Hare,  83;  Le  Texier  v.  Margrave  and 
Margravine  of  Anspach,  5  Ves.  322; 
Fenton  v.  Hughes,  7  Sumner's  Ves.  287, 
Perkins's  note  («);  lirumley  v.  West- 
chester Co.  Manuf.  Co.,  1  Jolin.  Ch.  306; 
V'erniilyea  v.  Fulton  Bank,  1  I'aige,  37 ; 
Walker  v.  Halleit,  1  Ala.  (N.  S.)  379; 
Kennebec  and  Portland  U.K.  Co.  v.  Port- 
land and  Kennebec  R.R.  Co.,  54  Maine, 
173,  184;  see  Garr  v.  Bright,  1  Bar. 
Ch.  157;  1  Grant  Ch.  Pr.  28;  Masters 
V.  Hossie  Galena  Lead  Mining  Co.,  2 
Sandf  Ch.  3nl;  Mclntyre  v.  Trust^-es  of 
Union  College,  6  I'aige,  229;  Many  v. 
Beekman  Iron  Co.,  9  I'aige,  188;  Governor 
&  Co.  of  the  Copper  Mines,  5  Lond.  Jur. 
204;  Bevans  v.  Dingman's  Turnpike, 
10  Barr,  174;  McKiin  c.  Odom,  3  Bland, 
421;  United  States  of  America  v.  Wagner, 
L.  K.  2  Ch.  Ap.  587,  688;  I'rioleau  v. 
United  States  of  America,  L.  li.  2  Eq. 
007,  008.  The  reason  for  the  rela.xation  of 
the  general  rule,  that  a  mere  witness  can- 
not be  made  d"fendant  in  the  case  of  a 
corporation,  is  that  the  answer  of  a  cor- 
poration is  nut  pnt  In  under  oath,  and  that 
hence  an  answer  is  reipiired  I'roin  some 
person  or  persons  cnpuble  of  nnikinga  full 
discovery,  as  the  agonts  or  the  ollicers 
ot  a  C'lrporation.  Angell  &  Ames,  Corp. 
§070;  see  Howell  i'.  Arkmore,  1  Slock. 
(N.  J.)  92. 


14G 


PERSONS   AGAINST   MTTOM   A    SUIT   IMAY   BE   INSTITUTED. 


Cn.  IV.  M. 


Coqionition 
boiiiul  to 
make  t'ltll 
answer; 


and  for  this 
purpose  to 
canso  their 
muniments 
and  Iwoks  to 
be  searclied ; 


Coqiorations 
sole  det'end 
like  private 
individuals; 

corporations 
aggregate 
answer  under 
common  seal. 


Proceedings, 
where  person 
having  the 
common  seal 
refuses  to 
atKx  il. 


ho  (loimmvil  to  the  hill,  Sir  Jolin  Loach  V.  C.  allowed  the  de- 
iiturror,  on  the  groun<l  that  the  otHcor  was  in  that  case  merely  a 
witness.^ 

lint  although  it  is  not  an  nnnsind  ])rM{'ticc  to  make  the  clerk  or 
other  principal  officer  of  a  coi'poration  a  ]):nty  to  a  suit  against 
such  corporation,  for  the  purpose  of  elicitiiiy;  irum  him  a  discovery 
of  entries  or  orders  in  the  hooks  of  the  corj)oration,  yet,  where 
such  is  not  the  case,  it  is  still  the  duty  of  the  cor})oration,  when 
informed  by  the  bill  or  information  of  the  nature  and  extent 
of  the  claims  made  upon  it,  if  recjuired  to  put  in  an  answer,  to 
cause  diligent  examination  to  be  made  before  putting  in  the 
answer,  of  all  deeds,  ])apers,  and  muniments  in  their  ])ossession 
or  j)ower,  and  to  give  in  their  answer  all  the  information  derived 
from  such  examination ;  and  it  was  said  by  Sir  John  Leach  M.  R. 
that  if  a  corporation  pursue  an  opposite  course,  and  in  their 
answer  allege  their  ignorance  ujjon  the  subject,  and  the  informa- 
tion required  is  afterwards  obtained  from  the  documents  scheduled 
to  their  answer,  the  Court  will  infer  a  disposition  on  the  jiart  of. 
the  corporation  to  obstruct  and  defeat  the  course  of  justice,  and 
on  that  ground  will  charge  them  with  the  costs  of  the  suit.^ 

Where  a  suit  is  instituted  against  a  corporation  sole,  he  must 
appear  and  defend,  and  be  proceeded  against  in  the  same  man- 
ner as  if  he  were  a  private  individual.  But  where  corporations 
aggregate  are  sued  in  their  corporate  capacity,  they  must  appear 
by  attorney,  and  answer  under  the  common  seal  of  the  corpo- 
ration ;  ^  however,  those  of  the  corporation  who  are  charged  as 
private  individuals,  must  answer  ujion  oath. 

If  the  majority  of  the  members  of  a  corporation  are  ready  to 
put  in  their  answer,  and  the  head  or  other  person  who  has  the 
custody  of  the  common  seal  refuses  to  affix  it,  ap2:>lication  must  be 
made  to  the  Court  of  Queen's  Bench  for  a  mandamus  to  compel 
him,  and  in  the  mean  tune  the  Court  of  Chancery  will  stay  tlie 
process  against  the  corporation.* 


1  How  V.  Best,  5  Mad.  19.  A  mere  wit- 
ness ouglit  not  to  be  made  a  party  to  a 
bill,  although  the  plaintitf  may  deem  his 
answer  more  satisfactory  than  his  exam- 
ination. Stor}'  Eq.  PI.  §§  234,  519,  arid 
note;  2  Story  Eq.  Jur.  §  1499;  Wigram, 
Discovery  (Am.  ed.),  p.  165,  §  235;  Hare, 
65,  68,  73,  76 ;  Newman  v.  (Jodfrev,  2  Bro. 
C.  C.  (Perkin.s'sed.)  332;  Howelf  v.  A.'^h- 
more,  1  Stock.  (N.  J.)  82;  see  Wright  v. 
Dame,  1  Met.  237;  Post  v.  Boardman,  10 
Paige,  580;  Norton?'.  Woods,  5  Paige,  251. 

2  Attorney-Genenil  v.  The  Burgesses  of 
East  Ketford,  2  M.  &  K.  40. 

3  1  Grant  Ch.  Pr.  120;  Brumley  v. 
Westchester  Manuf  So  ietv,  1  John  Ch. 
366;    Bait.    &  Ohio    WAi.Co.v.  City  of 


Wheeling,  13  Gnitt.  40;  Angell  &  Ames, 
Corp.  §  6G5;  Fulton  Bank  v.  New  York 
and  Sharon  Canal  (Jo.,  1  Paige,  311;  Ver- 
milyea  v.  Fulton  Biink,  1  Paige,  37;  Ran 
som  V.  Stonington  Savings  Bank,  2  Beasiey 
(N.  J.),  212;  Cooper's  Eq.  PI.  325;  Story 
Eq.  PI.  §  874;  3  liolf.  Ch.  Pr.  239.  They 
may  make  and  adopt  any  sva.\  proline  vice. 
Ransom  v.  Stoniugton'  Savings  Bank, 
su/jr(i;  Mill-ilam  Foundry  v.  Hovey,  21 
Pick.  417.  The  answer  of  a  corporation 
should  be  signed  by  tlie  Presi<lent.  It  is 
usual  for  the  .Secretary  or  Cashier  to  sign 
it  also.     1  Biirb.  Ch.  Pr.  156. 

4  Kex  V.  Wyndham,  Cowp.  377;  2  Bac. 
Ab.  tit.  Corp.  (E.)  2;  Angell  &  Ames, 
Corp.  §  666. 


CORPORATIONS    AXD    JOINT-STOCK    COMPANIES. 


147 


It  may  be  here  stated,  that  by  the  7  "Will.  IV.  and  1  Vic. 
c.  73,  her  Majesty  is  enabled  to  grant  letters-patent  constituting 
companies,  and  providing  that  the  company  thereby  constituted 
shall  be  sued  by  one  of  the  j)ublic  officers  of  the  company  ap- 
pomted  for  that  pui-j^ose.-^ 

By  the  Companies  Act,  1862,  every  company  constituted  under 
that  Act  is,  upon  certificate  of  incoi-poration,  constituted  a  body 
corporate,  by  the  name  prescribed  in  the  memorandum  of  associa- 
tion ;  and  capable  fortlnvith  of  exercising  all  the  functions  of  an 
incorporated  company,  and  having  perpetual  succession  and  a  com- 
mon seal.^ 

The  process  for  compelling  the  appearance  or  ans^\-er  of  a  cor- 
poration M'ill  be  found  in  future  chapters.^ 

The  Bank  of  England  was  formerly  a  necessary  party  to  a  suit 
relating  to  any  stock  standing  in  its  books,  either  for  the  purj^ose 
of  compelling  or  authoiizing  it  to  suifer,  or  of  restraining  it  by 
injunction  from  permitting,  a  transfer  of  such  stock;  but  now,  the 
Court  has  power  to  make  an  order  to  such  effi?ct,  although  the 
Bank  is  not  made  a  i)arty ;  *  and  if  the  Bank  is  made  a  party  in 
such  a  case,  the  plaintiff  Avill  be  ordered  to  pay  the  costs  occa- 
sioned thereby.^ 

Before  the  Coiirt  will  make  an  order  on  the  Bank  in  these 
cases,  a  certificate  signed  by  their  accountant  that  the  fund  in 
question  is  standing  in  the  name  of  the  j^arty,  or  of  the  person 
of  whom  he  is  the  representative,  must  be  produced;  and  the 
Bank  is  required  to  deliver  this  certificate  to  the  solicitor  of  the 
party  ai)plying.« 

It  may  liere  be  observed,  that  where  money  in  the  public  funds, 
or  the  stock  of  any  comj^any,  is  the  subject  of  dispute  between 
tAvo  parties,  the  Bank  or  company,  if  they  desire  to  apply  to  the 
Court  of  Chancery  for  protection,  should  do  so  by  filing  a  bill  of 
interj)leader.'' 

It  is  also  to  be  observed,  that  the  Bank  of  Eughind  is  not  bound 
to  take  notice  of  any  tnist  affecting  public  stock  standing  in  their 

1  See  ante,  p.  25 

2  26&26  Vic.  c 


9,  §  18;  and  see  ante, 
p.  27.  Ah  to  llie  personal  liability  to  co.sts 
of  the  (lircctors  of  a  limited  company, 
Hm-A  with  the  company,  see  15ett.s  r.  De 
Vitre,  6  N.  K.  liio,  V.  C.  VV.;  11  Jur.  N. 
S.  "J,  and  for  form  of  order  therein,  sec 
i().  217. 

8  See  jiogi,  Chap.  VIII.  §  4.  and  Chap. 
X.  §  2. 

■•  3'J  &  40  f;eo.  III.  c.  .^C.  Whfre  the 
Bank  has  an  interest,  or  discovery  from  it 
is  sought,  it  must  be  nnide  a  f)arty,  see 
§  2;  and  see  Temph-  r.  Hank  of  l^n^jhind,  0 
Ves.  770,772;  IvIridKe  v.  Kilridj,'e,  :J  .Mad. 
3bt5;  I'erkins  f.  Bradley,  1  Hare,  21 'J,  232; 
Hanimond  v,   Neame,  1  Swanst.  36,  3b; 


Boss  V.  Shearer,  5  Mad.  458:  (Joidd  v. 
Kemp,  2  M.  &  K.  304,311;  Ghulstone  r. 
Musurua  Bey,  1  H.  &  M.  41)5;  \)  ,Iiir.  N. 
S.71. 

5  ICdridf^e  r.  Edridge,  ubi  sup. ;  Perkins 
V.  Bradley,  itbi  hiijj. 

0  3!)  &  40(ico.  in.  C.36,  §§  1,2. 

7  Birch  r.  Corbin,  1  Cox,  144.  With  re- 
spect to  the  right  of  the  Bank  of  England 
to  apply  to  a  (Jourt  of  lujuity,  to  restrain 
any  action  brought  against  it  l)y  an  execu- 
tor or  otiicr  person  havinj^  a  legal  right  to 
call  for  a  transter  of  finids,  see  Bank  of 
Knglnnd  r.  Luini,  15  Yes.  WJ,  577,  and 
the  cii-ict  flien;  cited  ;  Cochrane  r.  f)'Hrien, 
2  .Jo.  &  Lai,  380;  Desborough  v.  Harris,  5 
Dc  U.,  M.  &  G.  439;  1  Jur.  N.  S.  086. 


Cn.  IV.  §  4. 


Pro^•isions  of 
7  Will.  IV. 
and  1  Vic. 
c.  73; 

and  of  Com- 
panies Act, 
1862. 


Process 
against  a 
corporation. 

Bank  of 
England  may 
be  ordered  to, 
or  restrained 
from,  transfer 
of  stock, 
without  being 
made  a  party. 


Evidence  of 
title  of 
stockholder. 


Where  i-ight 
to  public 
funds,  or  to 
stock  of  a 
corporation, 
is  in  dispute, 
bill  of  intor- 
plfuder  may 
l)c  tiled. 
Bank  not 
lionnd  to 
notice  a  trust 
of  ]ail)lic 
stock. 


148 


PERSONS    AGAINST   WHIOM    A    SUIT    MAY    BE    INSTITUTED. 


Cn.  IV.  §  1. 


Effect  of  a 
specific 
bequest  of 
stock; 


8  &  9  Vic. 
c.  97. 


Distringas. 


l>()(iks:  nil  tlint  tlu'v  have  to  «lo  is  to  look  to  the  legal  estate;  and 
theietoii.',  if  the  ]ierson  entitled  to  the  legal  estate  applies  for  a 
tianslrr  to  hiniselti  the  liank  must  permit  the  transiev,  and  are  not 
bound  to  look  further  to  see  whether  the  stock  is  trust  stoek.^ 
Upon  this  ground,  ■where  a  bill  was  filed  against  the  Bank,  to 
comjiel  them  to  make  good  the  deficiency  in  a  sum  of  stock  which 
had  been  specifically  bequeathed  to  a  trustee,  who  was  also  the 
executor,  and  Avhich  had  been  transferred  to  the  trustee  and 
executor,  and  afterwards  sold  out  by  liim,  it  was  dismissed  as 
against  the  Bank.'-^  Upon  the  same  principle,  where  the  Bank 
tiled  a  bill  against  the  executors  of  a  will  to  restrain  their  pro- 
ceeding in  an  action  brought  by  them  against  the  Baidv,  in  conse- 
quence of  their  refusal  to  permit  a  transfer  to  the  executors  of 
stock,  part  of  the  testator's  residuary  estate,  which  had  been 
bequeathed  to  them  upon  certain  trusts,  the  injunction  was  dis- 
solved, on  the  ground  that  the  Bank  had  a  good  defence  at  law.^ 

It  may  be  further  observed,  that,  by  the  1  Geo.  I.  st.  2,  c.  19, 
§  90,  by  which  the  management  of  the  public  stocks  or  annuities 
was  first  given  to  the  Governor  and  Company  of  the  Bank  of 
England,  the  stock  created  by  that  Act  was  declared  to  be  per- 
sonal estate;  and  it  was  provided  that  any  j^erson  possessed  of 
such  stock  or  annuities  might  devise  the  same  by  will  in  writing, 
attested  by  two  or  more  credible  witnesses.  These  clauses  were 
repeated  in  all  subsequent  Acts  creating  stocks  of  this  nature,  and 
gave  rise  to  considerable  discussion  as  to  whether  the  Bank  were 
bound  to  take  notice  of  a  si:)ecific  devise  of  stock,  attested  by  two 
witnesses,  and  registered  according  to  the  provisions  of  the  Acts, 
and  whether  they  were  justified  in  resisting  a  claim  to  such  stock 
set  up  by  the  executor.*  This  doubt  is  now  removed:  for  by 
the  8  cfe  9  Vic.  c.  97,  it  is  enacted,  that  all  shares  of  })ublic  stock 
standing  in  the  name  of  any  deceased  person  may  be  trunsfei-red 
by  the  executors,  notwithstanding  any  sj^ecific  bequest  of  the  stock 
so  to  be  transferred. 

There  are  certain  means  provided  by  statute,^  by  which,  upon 
summary  application,  orders  may  be  obtained  restraining,  for  a 
limited  period,  the  transfer  of  stock  or  the  payment  of  dividends. 
For  the  practice  on  those  points,  the  reader  is  referred  to  the 
chapter  on  Orders  in  the  Nature  of  Injunctions.® 


1  See  Fisher  v.  Essex  Bank,  5  XJlraj', 
373,  .377,  378. 

■■^  Hartga  v.  Bank  of  England,  3  Yes. 
55.  58. 

3  Bank  of  England  v.  Moffatt,  3  Bro  C. 
C.  2tiO;  5  Ves.  6Gb,  and  note;  and  see 
Bank  of  England  v.  Parsons,  5  Ves.  titio. 

^  Pearson  v.  bank  of  England,  2  Bro. 


C.  C.  529;  2  Cox,  175;  Bank  of  England 
V.  Parsons,  nbi  sup. ;  Au^tin  v.  Bank  of 
England,  8  Ves.  522;  Hank  of  Englund  v. 
hunn,  15  Ves.  56'J;  Franklin  v.  Bank  of 
England,  1  Huss.  575,  582;  and  see  9  B. 
&  C.  15t);   Wms.  Exors.  p.  725. 

S  5  Vic.  c.  5,  §§  4-(J;  (^rd   XXVII. 

•5  SfiO  post,  Chap.  XXX Vll. 


i 


PERSONS    OUT   OF   THE   JURISDICTION   OF   THE    COURT. 


149 


Sectiox  v.  —  Persons  out  of  the  Jurisdiction  of  the  Court. 


Ch.  IV.  §  5. 


Where  a  suit  affects  the  rights  of  persons  out  of  the  jurisdiction,   Wliere  their 
the  Court  will  in  some  cases,  where  there  are  other  parties  con- 


eeiTiecl,  proceed  against  those  other  parties;  and  if  the  absent 
persons  are  merely  passive  objects  of  the  judgment  of  the  Court, 
or  their  rights  are  incidental  to  those  of  the  parties  before  the 
Court,  a  complete  detemiination  may  be  obtained  without  them.^ 
Thus,  in  Attorney- General  at  the  relation  of  the  University  of 
Glasgow  v.  JBaliol  College,'^  which  was  an  information  filed  to 
impeach  a  decree  made  in  1699,  on  a  former  information  ^  by  the 
Attorney-General  against  the  trustees  of  a  testator,  his  heirs-at- 
law  and  others,  to  establish  a  will  and  a  charity  created  by  it, 
alleging  that  the  decree  was  contrary  to  the  will,  and  that  the 
University  of  Glasgow  had  not  been  made  a  party  to  the  suit : 
Lord  Hardwicke  oveiTuled  the  latter  objection,  as  the  University 
of  Glasgow  was  a  corporation  out  of  the  reach  of  the  process  of 
the  Court,  Avhich  circujnstance  warranted  the  jjroceedings,  without 
making  that  body  party  to  the  suit. 


incidental  to 
those  of 
others. 


1  Ld.  Red.  31,  32;  and  see  Powell  v. 
Wright,  7  Ueav.  444,  450;  Stor\'  Eq.  PI. 
§§  78.  81  etseq  ;  Fell  v.  Brown.  2  Bro.  C. 
C.  (Perkin.s's  ed.)  276,  and  notes;  West 
r.  Kandall.  2  Mason,  190-198;  Mallow  v. 
Hinde,  12  Wheat.  19.3  ;  Russell  v.  Clarke. 
7  Cranch.  72;  Lucas  v  Bank  of  Darien,  2 
Stewart,  280;  Joy  v.  Wirtz,  1  Wash.  C.  C. 
517;  Krickson  v.  Nesmith,  46  N.  H.  371. 
The  general  rule  is  stated  in  Lawrence  v. 
Rokt'S,  63  .Maine,  110;  see  Vose  v.  I'hil- 
brook,  3  Story,  347;  Van  Reimsdyke  v. 
Kane,  1  (Jail.  371 ;  Bailey  v.  Inglee,  2  I'aige, 
278.  "  Thisgrouii'i  of  exception,"  says  Mr. 
Justice  Story,  "  is  peculiarly  applicable  to 
»uit.s  in  Kquityin  the  Courts  of  the  United 
States,  which  suits  can  be  maintained  in 
general  only  by  and  against  citizens  of  dif- 
ferent .Statf-s.  If,  tlK-r<,-f(jre,  the  rule  as  to  par- 
ties were  of  univer-^al  operation,  many  suits 
in  tho^e  courts  would  b**  incapable  of  being 
Bustained  therein,  because  all  the  proper  or 
necessarj'  fiarties  misjht  not  he  citizens  of 
different  States;  so  that  the  jurisdiction  of 
the  Court  would  be  ousted  by  any  attempt 
to  join  theni.  On  this  account  it  is  a  gen- 
eral rule  in  the  (Jourts  of  the  rnite'l  States 
to  dispense,  if  consistently  with  the  merits 
of  the  case  it  can  possibly  he  done,  with 
all  parties',  over  whom  the  tJourt  would 
not  possess  juri-dictifm."  Story  L(|.  IM. 
§  79;  West  r.  Randall,  2  Ma-on,  ^W■, 
Ru-sell  V  Clarke,  7  (Jianch,  09,  9H;  Mij- 
iigan  I-.  .Milledge,  3  Cranch,  220;  Simms  r. 
Guthrie.  9  ('ranch,  19,  29;  Kliiiend'  rf  »•. 
Tavlor,  10  Wiieat.  1.".2;  .Mallow  v.  Hinil", 
12  Wheat.  193;  Harding  v.  Ilan.ly,  11 
Wheat.  103;    Ward  v.  Arredendo,  1  I'ainc 


C.  C.  413,  414.  See  the  Act  of  Congress 
on  this  subject,  passed  Feb.  28,  1839,  c.  36, 
§  1,  by  wiiicli  an  important  alteration  has 
been  effected.  The  provi'^ions  of  it  are 
stated  in  the  note  to  Storv  Eq.  PI.  (3d  ed.) 
§79. 

But  a  decree  cannot  be  made  against  a 
defendant  person:illy  who  has  never  been 
an  inhabitant  of  the  State,  or  .served  with 
process  in  it.  Moody  v.  Gay,  15  Gray, 
457;  S[)urr  v.  Scoville,  3  Cush.  578;  see 
Eiickson  v.  Nesmith,  46  N.  IL  371,377; 
Lawrence  v.  Hokes,  53  Maine,  110. 

A  bill  alleging  that  three  of  the  four 
defendants  were  not  inhabitants  of  the 
State,  will,  on  demurrer,  be  dismissed  as 
to  them,  when  no  service  has  been  made 
on  them.  Stephenson  i:  I'avis,  56  Maine, 
73.  The  only  service  njiide  in  tliis  case 
upon  the  ]iarties  demurring,  was  an  at- 
ta<-hnient  ot'  their  real,  and  personal  prop- 
erty. See  S|)urr  v.  Scoville,  3  Cush.  678. 
Jjut  the  Court  will  not  dismiss  a  bill  on  a 
mi're  suggestion  that  certain  stockholders, 
who  were  defendants,  were  not  residents  of 
the  State,  and,  therefore,  the  C(un't  liiid  not 
jurisdiciion  as  to  them.  Wiswell  v.  Starr, 
50  Maine,  381,  384.  In  Postgate  r.  Barnes, 
9  ,)ur  N.  S.  4-56,  V.  C.  S.,  a  demurrer  to 
the  h\]]  of  a  married  woman  to  enforce  her 
ecpiilv  to  a  settlement,  on  the  ground  that 
her  )iu-.liand  was  only  made  a  del'end- 
ant  when  he  should  conu;  within  the  juris- 
diciion, was  ovi'rruled:  and  see  .lackson 
V.  Norton,  4  .Inr.  N.  S.  1067;  7  W.  R.  4, 
M.  R. 

■■i  Dec.  11,  1744;  Ld    Red.  32,  n.  («). 

8  Reported  in  9  Mod.  407. 


150 


PERSONS   AGAINST   WnO:^I    A    SUIT   MAY   BE    INSTITUTED. 


One  factor  or 
one  exoriitor 
hen>.  tlio 
other  abroad. 


Decrees 
made,  with- 
out prejudice 
to  rights  of 
absent 
parties. 


In  cases  of 
interpleader. 


Ami  so,  wheiv  a  liill  was  lilcd  lor  llio  rocovury  oi"  ;i  joint  debt 
af>aiiist  one  of  two  partners,  the  other  behig  out  of  the  khii2;dom, 
the  question  before  the  Court  was :  whether  the  defendant  sliouUl 
]niy  the  wliole  or  only  a  moiety  of  the  debt ;  and  Lord  Ilardwieke 
was  of  opinion  that  he  outjlit  to  ])ay  the  wdiole.^  Upon  the  same 
prineiple,  a  bill  inay  be  brought  against  one  factor  without  his 
companion,  if  such  companion  be  beyond  sea;^  and  where  there 
were  two  executors,  one  of  wdiom  was  beyond  sea,  and  a  bill  was 
filed  by  a  residuary  legatee  against  the  other,  to  have  an  account 
of  his  own  receijits  and  ])ayinents:  the  Court,  upon  an  objection 
being  taken  at  the  hearing,  on  the  grt)und  of  the  absence  of  the 
co-executor,  allowed  the  cause  to  go  on.^ 

In  his  treatise  on  pleading.  Lord  Redesdale  says,  "  Avhen  a  per- 
son who  ought  to  be  a  party  is  out  of  the  jurisdiction  of  the  Court, 
that  fact  being  stated  in  the  bill,  and  admitted  by  the  defendants, 
or  proved  at  the  hearing,  is,  in  most  cases,  a  sufficient  reason  for 
not  bringing  him  before  the  Court ;  and  the  Court  will  proceed, 
without  him,  against  the  other  parties,  as  far  as  circumstances  \vill 
])ermit ; "  *  and  oii  this  prineiple,  the  Court  has  fiequently  made 
decrees  without  prejudice  to  the  rights  (if  any)  of  absent  j^arties, 
or  reserving  all  questions  in  which  they  were  interested,  and 
determining  only  such  as  did  not  afiect  them.^ 

In  bills  of  interpleader,  also,  a  plaintiff  may  proceed  with  his 
suit  and  obtain  an  injunction  against  a  party  resident  in  this  coun- 
try, although  the  other  parties  claiming  the  proj^erty  are  out  of 
the  jurisdiction.^  In  such  cases,  however,  the  plaintiff  is  bound  to 
use  prompt  diligence  to  get  the  parties  who  are  absent  to  come  in 
and  intei'plead  with  those  who  are  present.  If  he  does  not  suc- 
ceed in  doing  so  within  a  reasonable  time,  the  consequence  is,  that 
the  i^arty  within  the  jurisdiction  must  have  that  which  is  rejjre- 


1  Darwentr.  Walton,  2  Atk.510;  Erick- 
son  V.  Nesmith,  46  N.  H.  371;  Story  Kq. 
PI.  §  82.  This  rule,  that  the  Court  can 
proceed  to  a  decree  against  those  parties, 
wlio  are  within  the  jurisdiction,  must  be 
taken  with  the  qualification  that  it  can  be 
done  without  manliest  injustice  to  tlie  ab- 
sent partner.  Story  Eq.  PI.  §§78,  82;  Mil- 
ligan  V.  Milledge,  .3  Cranch,  220;  Towle  v. 
Pierce,  12  ^let.  320;  Lawrence  v.  Kokes, 
53  Maine,  110,  116. 

A  bill  .seeking  an  adjustment  of  the  ac- 
counts between  the  part-ownersof  a  vessel, 
some  of  whom  reside  without  the  jurisdic- 
tion of  the  Court,  cannot  be  sustained,  un- 
less such  non-residents  are  summoned  to 
answer,  or  it  apjtears  from  the  allegations 
in  the  bill  that  not  finly  their  interests 
will  not  be  prejudiced  by  the  decree,  but 
also  that  they  were  not  necps'ary  to  the 
just  ascertainment  of  the  merits  of  the 
case.  Mudgett  v.  Gajrer,  .52  Maine,  541; 
Fuller  V.  Benjamin,  23  Maine,  255.    It  is 


not  enough  for  the  bill  to  allege  that  "  the 
plaintiff  does  not  claim  there  is  any  thing 
due  to  him  from  said  non-residents ;  or 
that  he  does  not  seek  thereby  to  recover 
anj'  thing  from  them."  "Mudgett  v. 
Giiger,  suprn. 

2  Cowslad  V.  Cely,  Prec.  Ch.  83. 

8  Ibid. 

*  Ld.  Red.  164;  see  also  Smith  v.  Hi- 
bernian Mine  Company,  1  Sch.  &  Lef. 
238,  240;  P.ogers  v.  Linton,  IJuiib.  200; 
Walley  v.  Walley,  1  Yern.  487:  Duxbury 
V.  Isherwood,  12  W.  K.  821,  V.  C.  W.; 
Erickson  v.  Nesmith,  46  N.  H.  371,  376; 
Lawrence  v.  Kokes,  53  Maine,  110. 

6  Willats  V.  Busby,  5  Beav.  193,  200; 
Powell  V.  Wright,  7  Meav.  444,  450 ;  Mor- 
ley  »;.  Kennoldson,  2  Hare,  570,  585;  7.Jur. 
938;  Mores  v.  Mores,  6  Hare,  125,  127, 
135;  12  Jur.  620;  see  Moody  v.  Gay, 
15  Gray,  457. 

6  Stevenson  v.  Anderson,  2  Ves.  &  B. 
407,  411. 


PERSONS    OUT    OF    THE    JURISDICTION    OF    THE    COURT. 


151 


sented  to  be  the  subject  of  eompetitiori,  and  the  phiintiif  must  be  Ch.  IV.  §5. 
indemnified  against  any  proceeding  being  afterwards  taken  on  the 
part  of  those  who  are  out  of  the  jurisdiction.^  For  this  purpose, 
"  if  the  plaintifi"  can  show  that  he  has  used  all  due  diligence  to 
bring  persons  out  of  the  jurisdiction  to  contend  with  those  who 
are  within  it,  and  they  will  not  come,  the  Com*t,  upon  that  default, 
and  theu"  so  abstaining  from  giving  him  an  opportunity  of  re- 
lieving himself,  would,  if  they  afterwards  came  here  and  brought 
an  action,  order  service  on  their  attorney  to  be  good  service,  and 
enjoin  that  action  for  ever :  not  permitting  those  who  refused  the 
plaintifi"  that  justice,  to  commit  that  injustice  against  him."  ^ 
Upon  the  same  ground  it  has  been  determined,  that  where  a  party 
to  a  bill  of  inteiiileader,  who  has  been  served,  will  not  appear,  and 
stands  out  all  the  process  of  contempt,  the  bill  may  be  taken  pro 
confesso  against  him,  and  he  will  be  decreed  to  interplead  with 
the  other  defendants.^ 

Where,  however,  the  person  who  is  out  of  the  jurisdiction  is  one 
whose  interests  are  princi2)ally  afiected  by  the  bill,  the  Court  can- 
not proceed  in  his  absence,  even  though  the  i)arties  having  tlie 
legal  estate  are  before  the  Court ;  *  thus,  where  a  judgment  creditor, 
who  had  sued  out  an  elegit  upon  his  judgment,  filed  a  bill  for 
equitable  execution  against  real  estates,  which  were  vested  in 
trustees  upon  certain  trusts,  the  Court  would  not  proceed  with  the 
cause,  because  the  equitable  tenant  for  life,  subject  to  the  trusts, 
was  abroad.*  Upon  the  same  principle  it  has  been  held,  that  bail 
cannot  maintain  an  injunction  against  a  creditor,  who  has  recovered 
a  verdict,  where  tlie  principal  debtor  is  out  of  the  jurisdiction.^  In 
a  case  where  a  contract  for  the  sale  of  an  estate  in  the  West  Indies 
bad  been  entered  into  by  a  person  who  resided  there,  and  had  got 
into  possession  without  paying  the  purchase-money,  and  a  suit  was 
instituted  in  this  country  by  the  vendor  against  the  consignees 
aitj)ointed  by  the  purcliaser.  Lord  Lyndliurst  refused  to  entertain 
a  motion  for  a  receiver  of  the  proceeds  of  the  consignments,  on 
the  ground  that  the  purchaser,  wlio  was  the  principal  defendant, 
was  aljioad,  and  had  never  been  served  with  a  sub2yoe)ia!' 


Where  their 
interests 
priiici]ially 
afteeted,  the 
Court  cannot 
proceed  in 
their  absence. 


1  Stevenson  v.  Anderson,  2  Ves.  &  B. 
407,  411. 

2  Per  Lord  Eldon,  2  Ves.  &  B.  412;  see 
also  MartiiiiiiH  r.  Ilelmuth,  G.  (,'oop.  245, 
24*^;  rejKirtcd  also  in  some  copies  ot  2  Ves. 
&  B.  412  n.;  Kast  and  West  India  Dock 
Company  »•.  Littledaie,  7  Ilarc,  57. 

8  Fairhrother  r.  I'ratfent,  Dan.  Exc. 
64;  and  the  decr<-e  Uj.  C!*,  n.  (r).  Win^re 
the  rii/hts  ot  a  defendant  in  Kciiiity,  wiio 
resides  out  of  the  State  and  has  had  notice 
of  the  suit,  but  does  not  appearand  answer, 
will  not  l)e  j)rc'judiccil  by  tlie  decree,  the 
bill  may  be  taken  /yr«  nmfifgso  as  to  liim. 
Adams  v.  Stevens,  49  Maine,  362. 


*  Story  Eq.  PI.  §  61;  Fell  v.  Brown,  2 
Bro.  C.  C.  (Perkins's  ed.)  278,  279,  notes; 
Joy  V.  Wirtz,  1  Wash.  C.  C  517;  Russell 
V.  Clarke,  7  Crancli,  72;  Mallow  "•  Hinde. 
12  Wheat.  193;  Lawrence  ti.  Kokcs,  53 
MainQ,  110,  113;  Spurr  v.  Scoville,  3 
Cush.  578. 

6  lirowne  v.  Blount.  2  H.  &  M.  83;  and 
See  Kirwan  v.  Daniel,  7  Ilarc,  347;  M'Cal- 
niont  V.  Hankin,  8  Han;,  1;  14  Jur.  475; 
Anderson  v.  Stather,  2  Coll.  2()!». 

•>  Koverav  v.  Gravson,  3  Swanst.  145,  n. 

7  Strattoii  1'.  Davidson,  1  i:.  &  M.  484. 


IT)  2 


TERSONS    AGAINST    WirO:\I    A    RUIT    MAT    BE    INSTITUTED. 


Cm.  IV.  §5. 

ReooiviT 
ai>]H>intO(I  ill 
al>si'iu'o  oi' 
mortira-or. 


In  what  cases 
made  parties. 
If  made  par- 
tics,  the  fact 
of  tiicir  hving 
out  of  juris- 
diction must 
be  proved, 
unless  tliey 
appear. 
If  proof  de- 
fective, cause 
generally 
ordered  to 
stand  over 
till  evidence 
supplied ; 
or  inquiry 
directed. 

LfCave  to 
serve  bill  on 
defendant 
cominir  with- 
in juri>di<tion 
after  decree, 
refu-sed. 


It  li:is  Wvu  lu'ld,  that  :t  roooivor  of  a  iii(>rt<ijne;c(l  estate  maybe 
npiioiMtod,  iiolwithstaiidiiiij;  the  absenee  of  the  inortgaijor.  Tims, 
in  tlie  ease  of  Ta/i/idJ  v.  Irrifie,^  an  apiilieation  i'or  a  receiver  had 
hvvu  n\;iile  to  Sir  John  Leach  V.  C.  by  the  grantee  of  an  annuity, 
which  was  secured  by  Jin  equitable  charge  upon  an  estate;  and 
thouuh  the  grantor  had  gone  abroad,  and  had  not  appeared  to  the 
suit,  his  Honor  refused  the  a))])lication,  on  the  ground  that  the 
Court  had  not  jurisdiction  to  deprive  a  man,  who  was  not  present, 
of  the  possession  of  liis  estate  ;  but  i;pon  the  motion  being  renewed 
before  Lord  Eldon,  he  made  the  order  for  a  receiver,  but  guarding 
it,  however,  in  such  a  Avay  as  not  to  prevent  any  ])erson  having  a 
better  title  to  the  ])ossession  of  the  estate,  from  ousting  him  if 
they  ])leased.  His  Lordship  observed,  that  he  did  not  see  why  the 
rights  of  the  equitable  mortgagee  were  to  be  taken  away,  by  the 
circmnstance  that  the  mortgagor  had  not  entered  an  a])pearance, 
and  could  not  be  com})elled  to  do  so  ;  ^  and  that  a  second  mortgagee 
might  be  delayed  to  all  eternity,  if  the  residence  of  the  mortgagor 
out  of  the  jurisdiction  were  to  liave  the  effect  wliich  the  Vice- 
Chancellor  had  given  it. 

It  is  usual,  in  cases  where  any  of  the  persons  who,  if  resident  in 
this  country,  would  be  necessary  parties  to  a  suit,  are  abroad,  to 
make  such  persons  defendants  to  the  bill,  stating  the  fact  of  their 
being  abroad  :  which  ftict,  unless  they  appear,  must  be  proved  at 
the  hearing ;  ^  and,  notwithstanding  the  observation  of  Lord 
Redesdale  cited  above,  it  seems  that  the  admission  of  the  parties 
before  the  Court  is  not  evidence  on  which  the  Court  will  act.* 
When  the  jiroof  of  this  fact  at  the  hearing  is  not  such  as  to  satisfy 
the  Court,  the  usual  practice  is  to  direct  the  cause  to  stand  over 
for  the  j)ur|:>ose  of  sup])lying  the  proper  evidence.^  Li  some  cases, 
liowever,  if  there  are  }n'eliuiinary  inquii-ies  or  accounts  to  be  taken, 
they  have  been  directed  to  be  proceeded  with  in  the  mean  time  ; " 
and  in  othei's,  an  inquiry  as  to  the  fact  has  been  directed.''  In 
P enfold  V.  Kelly ^  Sir  R.  T.  Kindersley  V.  C.  refused  an  apj)lication 


1  2  Huss.  149,  151;  see  also  Coward  v. 
Chad  wick,  ib.  634,  and  150  n.;  Dowling 
V.  Hudson,  14  l?eav.  423,  and  cases  col- 
lected in  the  note  thereto. 

2  See  Fell  v.  Brown,  2  Bro.  C.  C  (Per- 
kins's ed.)  278,  279,  and  notes. 

3  Moodie  r.  Hanni^ter,  1  Drew.  514;  see 
Erickson  /•.  Nesmith,  40  N.  II.  371.  The 
party  should  not  be  named  as  a  defen'hitit 
"  wiien  he  shall  come  within  the  jurisdic- 
tion," but  Hs  bein^c  "out  of  the  jurisdic- 
tion:" sep  .lackson  r.  X<rton,  4  Jur.  N. 
S.  1067;  7  W.  H.  4,  .M.  B. ;  Storv  Eq.  Pi.* 
§  80;  Munor  v.  I)e  Tartel,  1  Beav.  109; 
Bn'okf-  (•  Hurt,  1  Beav.  109;  I'ingree  v. 
Coftin,  12  tirav,  288,  303,  304;  Po>^t?ate  v. 
Barnes,  9  .Jur."  N.  S.  456;  11  W.  K.  456, 
V.  C.  S. ;  see,  however,  Merriman  v. 
Goodman,  1  W.  N.  46,  M.  R 


*  Wilkinson  v.  Beal,  4  Miid.  408  ; 
Hughes  V.  Eades,  1  Hare,  486,  488;  6  .lur. 
255;  Eggiiitun  v.  Burton,  1  Hare,  488  n.; 
M'Calmont  v.  Kankin,  8  Hare,  1;  14  Jur. 
475. 

^  Egginton  v.  Burton,  1  Hare,  488  n.; 
Smith  V.  Edwards,  16  .lur.  1041,  V.  C.  S. 
As  to  necessary  evitUnu'e,  where  there  is 
del'iy  between  the  making  and  drawing 
up  of  the  order,  see  Anon.,  9  L.  T.  N.  S. 
674,  M.  K. 

6  Butler  V.  Borton,  5  Mad.  40,  42; 
Hughes  V.  Eadi'S,  1  Hare,  486;  6  .Jur.  255. 

'  Mores  r.  Mores,  6  Hare,  136;  12  .Jur. 
620;  Elides  v.  Harris,  1  Y.  h  C.  C.  230, 
234;  but  see  Dibbs  v.  Goren,  1  Beav. 
457. 

8  12  W.  K.  286,  and  see  Ord.  X.  11,  18. 


PERSONS    OUT    OF    THE    JUETSDICTION    OF    THE    COURT. 


153 


for  leave  to  serve  a  defendant  coming  within  the  jurisdiction  after 
decree,  and  against  whom  no  specific  relief  was  prayed,  with  a  copy 
of  the  bill. 

In  Capel  v.  Butler^  where  a  party  who  was  named  as  a  defend- 
ant, but  had  never  been  served,  appeared  by  counsel  at  the  hearmg, 
and  consented  to  be  bound  by  the  decree,  the  defect  arising  fi'om 
his  not  having  been  served  was  held  to  be  cured. ^ 

In  some  cases,  where  a  defendant  has  been  abroad  during  the 
proceedings  in  a  cause,  he  has  been  allowed  to  come  in  after  a 
decree  has  been  pronounced,  and  to  baA^e  the  benefit  of  it,  without 
the  process  of  filing  a  supplemental  bill.  Thus,  in  Banister  v. 
Way^  after  a  decree,  pronounced  in  a  suit  by  a  residuary  legatee, 
establishing  a  will,  and  directing  the  necessary  accounts,  others  of 
the  residuary  legatees,  who  were  abroad,  applied  to.  have  the 
benefit  of  the  decree,  submitting  to  be  bound  by  it ;  and  an  order 
was  made  by  Lord  Thurlow  (they  submitting  to  the  decree)  that 
they  should  be  at  liberty  to  enter  their  appearance,  and  should 
have  the  like  benefit  of  the  decree  as  if  they  had  jmt  in  an  answer, 
and  had  appeared  at  the  hearing  of  the  cause.  A  similar  order 
was  made  by  Lord  Lyndhurst,  after  a  cause  had  been  heard  upon 
further  directions.* 

An  order  for  leave  for  a  defendant  to  come  in,  after  decree,  may 
be  obtained  by  petition  of  course,  if  the  plaintiff  will  consent 
thereto.  If  he  will  not  consent,  notice  of  motion,  or  a  summons, 
must  be  served  on  him.^  The  petition,  notice  of  motion,  or  sum- 
mons, usually  asks  that  the  defendant,  on  submitting  to  be  bound 
by  the  decree  and  proceedings  already  had,  may  be  at  liberty  to 
enter  an  appearance  to  the  bill,  and  may  have  the  like  benefit  of 
the  decree,  and  may  be  at  liberty  to  attend  the  subsequent  pro- 
ceedings, as  if  he  had  appeared  at  the  hearing.  A  copy  of  the 
or<ler,  when  ])assed  and  entered,  sliould  be  served  on  the  solicitors 
of  the  other  defendants,  and  on  the  ])laintiff''s  solicitor  when  the 
oi-der  is  made  on  petition.  On  production  of  the  order  to  the 
Record  and  Writ  Clerk,  an  appearance  for  the  defendant  ^  raay  be 
entered  in  the  usual  way ;  and  notice  thereof  must  be  given,  on 
the  same  day, to  tlie  ])laiiitirt"'s  solicitor;  ^  and  the  cause  thenceforth 
]>roceeds  against  sucli  (U'tendant  in  tlic  ordinary  manner. 

In  tlic  case  of  intiuils,  liowcver,  the  Court  miist  be  satisfied,  by 
iii(|iiiry  or  otlierwisc,  tliat  it  is  for  their  benefit  to  adopt  tlie  pro- 
ceed in  i^s.'' 


Ch.  IV.  §  5. 


Defect  cured 
if  defendant 
appear  volun- 
tarily at  the 
hearing,  and 
coiij^ent  to  be 
bound. 
Defendant 
allowed  to 
come  in  after 
decree : 


>  2  S.  &  S.  4.17,  462;  and  see  Sapte  v. 
Ward.  1  Coll.  24. 

■■*  For  form  of  introductory  part  of  de- 
cree, see  Seton,  3,  4;  and  1  Coll.  25. 

8  2  Dick.  0i"6. 

4  Whitr  V.  Mall,  1  II.  &  M.  3.-52;  and 
see  rrendiTKast  v.  Lushin^ton,  U  \\n\i\ 
177;  Potts  V.  Britton,  M.  K.  in  Chanil).,22 
Dec,  18U4. 


Order  to  come 
in:  how 
obtained. 


In  case  of 
inl'auts. 


O  Uraitliwaite's  I'r.  323.  For  form  of 
order,  see  Seton,  12.50;  and  for  form*  of 
jietilion,  notice  of  motion,  and  summons, 
see  Vol    III. 

•>  I''(ir  forms  <>{  j>r(Bcipe  and  notice,  see 
Vol.  III. 

~  ( 'opley  r  Smitli.son,  6  De  (i.  Si  S.  683; 
Baillio  V.  Jackson,  10  Sim.  107. 


154 


PERSONS   AGAINST   WHOM   A    SUIT   MAT   BE    INSTITUTED. 


Cu.  lY.  §  r.. 

^ Y ■ 

Dofondiiul 
statcil  ill  Iho 
bill  to  bo 
abnuxl,  is  not 
onliiiarily 
consitlcroil  a 
party  till 
sen'ed. 
Court  now 
can  direct 
service  out  . 
of  the 
jurisdiction. 


"When  ser\-ice 

abroad 

necessarj'. 


WIioiv  a  (li't'oiKl.uit  is  stated  to  be  abroad,  lie  is  not  considered 
a  jiarty  to  tbe  suit,  at  least  not  till  be  bas  been  served  witli  tbe 
bill,  for  tbe  determination  of  any  i)oint  of  practice  arising  between 
tbe  plaintitf  and  tbe  otber  defendants ;  tbercfore,  an  order  to  amend 
cannot  be  obtained,  after  tbe  usual  time,  on  tbe  iiTound  tbat  a  de- 
fendant abroad  bas  not  answered.' 

Under  tbe  jn'esent  ]iractice  of  tbe  Court,  boAvever,  sucb  questions 
as  we  liave  been  considering,  witb  reference  to  defendants  out  of 
tbe  jurisdiction,  will  be  of  comparatively  rare  occun-ence  ;  for  the 
Court  can  now,  in  many  cases,  direct  service  on  persons  out  of  tbe 
jurisdiction;-  and  can  also,  when  tbe  suit  is  defective  for  want  of 
parties,  and  tbe  defendant  bas  not  taken  tbe  objection  by  plea  or 
answer,  make  a  decree,  if  it  shall  think  fit,  saving  the  rights  of 
absent  parties.^ 

And  it  may  bei'e  be  observed  that,  as  a  general  rule,  persons  are 
not  now  named  j>arties  to  a  suit  iinless  direct  relief  is  sought 
against  them  ;  and  thcrefoi'e,  if  they  happen  to  be  out  of  the  juris- 
diction, it  will  in  general,  on  the  authority  of  Browne  v.  Blouyit^ 
and  the  other  cases  before  referred  to,  be  necessary  to  serve  them. 


Defendants 
allowed  to 
defend 
in  forma 
pauperis. 


Section  VI.  —  Paupers. 

Although  the  11  Hen.  VII.  c.  12,  before  refen-ed  to  as  that  under 
"which  the  practice  of  admitting  parties  to  sue  in  forma  pauperis 
originated,^  does  not  extend  to  defendants,  and  consequently  a 
defendant  in  an  action  at  law  is  never  allowed  to  defend  it  as  a 
pauper,*'  yet  a  greater  degree  of  liberality  is  practised  in  Courts  of 
Equity  ;  and  a  defendant  who  is  in  a  state  of  poverty,  and,  as  such, 
incapable  of  defending  a  suit,  may,  as  well  as  a  plaintiif,  obtain  an 
order  to  defend  in  forma  pauperis.,  upon  making  the  same  affidavit 
of  poverty  as  tbat  required  to  be  made  by  a  plaintiff.'^  Indeed, 
originally,  the  right  of  admission  m  forma  pauperis  ap]iears  to 
have  been  confined  to  defendants.  By  Lord  Bacon's  orders  it  is 
said,  that  "  any  man  shall  be  admitted  to  defend  bi  forind  ptauperis 


1  King  of  Spain  v.  Hullett,  3  Sim.  338. 

2  2  &  3  Will.  IV.  c.  33;  4  &  5  Will. 
IV.  c.  82.  Ord.  X.  7;  see  poit,  Chap. 
VIII.  §  1. 

3  Ord.  XXIII.  11 ;  Maybeny  v.  Brook- 
ing, 7  De  G.,  M.  &  G.  673;  2  Jur.  N.  S. 
76. 

4  2  R.  &  M.  83,  ante,,  p.  151. 
6  Ante,  p.  38. 

6  Chitty's  Arch    1277. 

7  McDonough  v.  0' Flaherty,  1  Beat.  54. 
In  New  .lersey  tlie  privilef,'<?  of  defending 
in  jwma  pauperis  is  granted  in  a  proper 


case,  although  the  Act  of  Assembly  ex- 
tends in  terms  only  to  plaintiffs.  Pickle  v. 
Pickle,  Halst.  N.  .1.  Dig.  177.  It  seems  to 
be  doubtful,  in  New  York,  whether,  in 
any  case,  a  p;irty  can  defend  in  forma 
pauperis.  The  doubt  grows  out  of  the 
peculiar  phraseology  of  the  Statute  in  that 
State.     Hrowii  /-.  Story,  1  Paige,  588. 

A  party  will  not  be  deprived  of  the 
privilege  of  defending  himself  in  forma 
pauperis  on  account  of  his  misconduct. 
Muri>hy  i'.  Oldis,  1  Ilogan,  219. 


PAUPERS. 


155 


upon  oath  ;  but  for  plaintiffs,  they  are  ordinarily  to  be  referred  to 
the  Court  of  Requests,  or  to  the  provincial  coxinsels,  if  the  ease 
arise  in  the  jurisdictions,  or  to  some  gentlemen  in  the  country, 
except  it  be  i-n  some  special  cases  of  commiseration  or  potency  of 
the  adverse  party."  -^ 

It  has  been  before  stated,  that  no  person  suing  in  a  represent- 
ative character  is  allowed  the  privilege  of  proceeding  in  forma 
jjaiijyeris.  The  same  rule  applies  to  defendants  sued  in  a  represent- 
ative character,  even  in  cases  where  they  have  received  no  assets 
of  the  estate  of  the  testator  whom  they  represent.^ 

The  solicitor  to  the  Suitors'  Fund,  or  other  officer  appointed  by 
the  Lord  Chancellor,  is  to  visit  Whitecross  Street  Prison  ^  quarterly, 
examine  the  prisoners  confined  for  contempt,  and  report  his  opinion 
on  their  cases ;  and  the  Lord  Chancellor  may  thereupon  assign  a 
solicitor  to  defend  the  prisoner  in  forma  pauperis.  A  like  assign- 
ment may  also  be  made,  in  the  case  of  persons  confined  for  con- 
tempt in  other  prisons,  upon  the  jailer's  report,  and  after 
investigation  by  the  solicitor  to  the  Suitors'  Fund.*  The  assign- 
ment is  made  without  an  application  to  the  Court.^ 

The  order  admitting  a  party  to  sue  or  defend  in  forma  pauperis, 
has  not  the  effect  of  releasing  him  from  costs  ordered  to  be  paid 
jtrior  to  his  admission,  but  tlie  payment  of  such  costs  may  be  en- 
forced in  the  usual  manner ;  it  may,  however,  be  doubtful  whether 
the  admission  may  not  have  a  retrospective  effect  upon  costs 
incurred  before  the  date  of  his  admission,  but  concerning  which 
no  order  for  taxation  and  payment  has  been  made.^  Where  a 
defendant  had  been  committed  for  not  answering,  and  had  subse- 
quently olitained  permission  to  defend  in  forma  jxmperis,  and 
thereui)on  had  put  in  his  answer.  Sir.  J.  L,  Knight  Bruce  V.  C. 
ordered  him  to  be  discharged,  without  payment  of  the  costs  of  the 
contemjtt:  considering  the  Court  to  have  power  to  make  such  an 
order,  either  under  its  general  authority  independent  of  the 
11  Geo.  IV.  &  1  Will.  IV.  c.  36,  or  under  that  statute  combined 
with  its  general  authority.''  It  ajtpears  that  wliere  the  plain- 
tiff flismisses  his  bill  against  a  paujter  defendant,  the  practice  is 
to  allow  the  defendant  dives  costs.® 


Ch.  IV.  §  6. 


Privilege  does 
not  extend 
to  persons 
defending  in 
a  represent- 
ative char- 
acter. 

Statutory 
pro\'ision  as 
to  poor 
prisoners. 


Admission 
does  not 
release  pauper 
from  costs 
previously 
ordered  to 
be  paid. 


Costs  of 
pauper  de- 
fendant, on 
dismissal  of 
bill. 


1  Ik-ames'8  Ord.  44  :  Siind.  Ord.  122. 
Tlii.s  order  is  abrogated  by  the  Cons.  Ord. ; 
but  see  ib.  I'reb  <Jrd.  r.  5;  see  also  Lord 
Chireiidon's  OrdiTS,  Heames,  215-218  : 
Sand.  Ord.  312;  now  Cons.  Ord.  VII.  9- 
11. 

2  Oldfield  V.  Cobbett,  1  Phil.  613;  ante, 
p.  88. 

3  Substifufed  by  2.")  &  26  Vic.  c.  104,  for 
the  (iiicen's  prisnn. 

*  2'4  k  24  Vic  c.  149,  §§  2,  5;  and  see 
§§  3,  4.  6,  and  /<"«'.  Chap.  -X.  §  2. 

''  Layton  r.  Mortiniore,  2  De  G.,  F.  &  J. 
863. 


8  Davenport  v.  Davenport,  1  riiil.  124; 
see,  however,  I'rince  Albert  r.  Strange,  2 
De  G.  &  S.  052,  718;  13  .lur.  507,  wiiere  a 
defendant,  liaving  been  adiniUe<l  to  defend 
in  tiie  course  of  the  cause,  was  onk-red,  at 
tlie  hearinp,  to  pay  tlie  piaintiirs  costs  up 
to  tlie  time  of  sucli  admission. 

7  I'.cnmUt  r.  Cliudhngh,  2  Y.  &  C.  C.  C 
164;  see,  liowever,  Snowball  v.  l)i.\on,  2 
De  G.  &  S.  !t;  an<l  Dew  v.  Clark,  16  Jur. 
1,  L.  C.;  3  M'N.  &  G.  .3.57. 

8  Ruborv  V.  Morris.  1  M'N.  &  G.  413: 
16  Shn.  312,  433;  12  .lur.  nx[>.  i;nless  oth- 
erwise directed,  costs  ordered  to  be  paid 


156 


PEKSONS    AGAINST    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


Ch.  IV.  §  T. 


DotVnilant 
not  iulinitto 
if  in  iHis.-;es- 
sion  of 
property  in 
aispufe. 

How  ad- 
mitted. 


T(i  entitle  n  ]):u1y  to  dofond  as  a  ])an|U'r,  lie  iiuist  make  an 
alTidavit  similar  to  that  required  i'roiu  a  ])laintill'a]>|>lyinj;"  to  sue  in 
that  eharaeter;  and  it  seems  that  if  he  is  in  jiossessiou  of  the 
pn)i)erty  in  dispute,  he  eannot  be  admitted,  or,  if  admitted,  he 
may,  upon  the  faet  being  al'terwards  shown  to  the  Court,  be  dis- 
pau]»ered.^  In  this  and  in  most  other  res])eets,  the  rules  laid  down 
with  reo-ard  to  }tersons  suing  in  forma  pauper i.'^,'^  are  api)licable  to 
persons  defending  in  tliat  cliaracter :  the  only  diiference  being  in 
the  fonn  of  application  for  admission ;  for  the  petition,  in  the  case 
of  a  defendant,  is  much  sliorter  than  in  the  case  of  a  plaintiff,  and 
is  not  required  to  contain  any  statement  of  the  case,  or  to  be  accom- 
panied by  any  certificate  of  counsel.^ 


Section  VII.  —  Persons  outlawed,  attainted,  or  convicted. 


In  vrhat  cases 
they  may  be 
defendants. 


It  is  said  that  all  persons  disabled  by  haw  from  instituting  or 
maintaining  a  suit  may,  notwithstanding,  be  made  defendants  in  a 
Court  of  Law,  and  cannot  plead  their  own  disabilities ;  *  and  it  is 
presumed  that  this  rule  would  also  be  adopted  in  Courts  of  Equity, 
where  the  suit  seeks  to  establish  a  2"»ecuniary  demand  against  the 
party;  where,  however,  the  proceeding  is  i?i  rem,  and  a  person 
under  any  of  the  disabilities  alluded  to  is  interested  in  the  subject 
of  the  suit,  then  it  would  seem,  that  as  the  interest  of  the  party  is 
entirely  vested  in  the  Crown,  the  Attorney-General  would  be  the 
proper  defendant.^  Whether  in  such  case,  the  party  himself  should 
be  joined,  is  a  point  wdiich  does  not  appear  to  have  been  deter- 
mined ;  but  it  is  submitted  that  the  rule,  that  no  person  can  be 
made  a  party  to  a  suit  against  whom  no  relief  can  be  prayed,  will 
apply  to  this  case,  as  well  as  to  that  of  bankrupts. 


to  a  party  suin";  or  defending  in  fm-md 
pauperis,  are  to  be  taxed,  as  dives  costs, 
Ord.  XL.  5. 

1  Si)encer  v.  Brj'ant,  11  Ves.  49;  see 
also  VVvatt's  P.  R.  321. 

2  Ante,  pp.  41,  42. 

3  See  Ord.  VII.  9, 10, 11 ;  XL.  5.  Regu- 
lation to  Ord.  IV.  2.  The  defendant  need 
not  enter  an  appearance  before  apph-ing 
for  the  order,  Hraithwaite's  I'r  503.  An 
application  in  behalf  of  an  infant  defend- 
ant for  leave  to  defend,  in  forma  pau- 
peris, will  not  be  entertaine'l  before  the 
appointment  of  a  guardian  nil  litem.  Mat- 
ter of  Hyrne,  1  Eilw.  Ch.  41.  For  forms 
of  petition  and  affidavit,  see  Vol.  111. 

*  Treatise  on  Star  Chamber,  part  3,  §  6 
(2  Collect.  Jurid.  140).     It  is  said  in  the 


above  Treatise,  that  persons  attainted  of 
treason  or  felony  are  excepted  out  of  ttiis 
rule;  but  it  has  been  decided,  in  many 
cases,  tliat  a  defendant  c;innot  plead  his 
own  attainder  to  an  action  brought  against 
him  for  debt  or  trespass.  Uanj'ster  v.  Trus- 
sell,  Cro.  Eliz.  516;  Coke's  ■■l<:ntries,  246; 
see  also  Ward  and  PrestiiH's  cases,  in  1 
Leon,  329;  and  Vin.  Ab.  Attainder  (B.)8. 
5  See  Balch  v.  Wastiill,  1  P.  Wins.  445; 

Havward  v.  Frv,  ib.  446 ;  I5romley,  2 

P.  Wms.  269,  270;  Rex  v.  Fowler,  Bunb. 
38;  Cuddon  v.  Hubert,  7  Sim.  485;  and  see 
Attornej'-tieneral  v.  Rickards,  8  Beav,  380; 
Goldsmith  V.  Hu-sell,  5  De  G.,  M.  &  G.  547 ; 
Bromley  v.  Smith,  26  Beav.  044;  Hancock 
V.  The  Attornej--General,  10  Jur.  N.  S. 
557;  12  W.  R.  569,  V.  C  K. 


BANKRUPTS.  157 


Cn.  IV.  §  8. 
Section  VIII.  —  Banhrupts.  ' y ' 

It  is  a  general  rule  of  Courts  of  Equity,  that  no  person  can  be  Not  made 
made  a  party  to  a  suit  against  whom  no  relief  can  be  prayed ;  ^  bnrpraying  ° 
and  it  follows,  as  a  consequence  of  this  rule,  that  no  person  whose   relief. 
interest  in  the  subject-matter  of  the  suit  has  been  vested  by  act 
of  law  in  another,  ought  to  be  made  a  defendant.    Consequently,  it 
has  been  held,  that  bankrupts  and  insolvent  debtors,  whose  in- 
terests, whether  legal  or  equitable,  in  the  proj^erty,  must  have 
devolved  upon  their  assignees,  cannot  be  made  parties  to  suits 
relative  to  any  property  which  is  affected  by  the  bankruptcy  or 
insolvency."^ 

Upon  this  principle,  a  demurrer  put  in  by  a  bankrupt,  who  was  Bankrupt,  if 
joined  as  a  co-defendant  with  his  assignees,  in  a  bill  to  enforce  the  fen^anTwUh 
specific  performance  of  an  agreement  entered  into  by  him  pre-  assignees, 
viously  to  his  bankruptcy,  Mas  allowed.^  "^'^-^    ^^^' 

It  is  said  by  Lord  Redesdale  that,  although  a  bankrupt  made  a  wiiether  he 
party  to  a  bill  touching  his  estate  may  demur  to  the  relief,  all  his  "^'^y.to  ^^^ 
interest  being  transferred  to  his  assignees,  yet  it  has  been  generally  discovery; 
understood,  that  if  any  discovery  is  sought  of  his  acts  before  he 
became  a  bankrujot,  he  must  answer  to  that  part  of  the  bill  for  the 
sake  of  the  discovery,  and  to  assist  the  plaintiff  in  obtaining  j^roof, 
though  his  answer  cannot  be  read  against  his  assignee ;  otherwise, 
the  bankruj>tcy  might  entirely  defeat  the  ends  of  justice.*     This   s.tmbU,  he 
oi»iiiion  has  given  rise  to  much  discussion,  and  is  made  the  subject   '"'^y- 
of  an  elal)orate  judgment  by  Sir  Thomas  Plumer  V,  C.  in  the  case 
of  W hitworth  v.  JJavis^^  in  the  course  of  which  he  observes  that 
"  the  case  of  Fenton  v.  Hughes^  lays  down  a  broad  principle,  viz.^ 
that  a  person  who  has  no  interest,  and  is  a  mere  witness  against 
whom  there  could  be  no  relief,  ought  not  to  be  a  party;    a  bank- 
rupt stands   in   that   situation :    a  competent  witness,  having  no 
interest,  against  whom,  therefore,  no  relief  can  be  had  at  tlie  hear- 
ing; he  falls  precisely  within  that  general  rule."''    He,  however, 
all<j\ve<l  the  demurrer  in  tlie  case  before  him,  without  determining 
tlie  general  question. 

1  Story  K().  I'l.  §  2:31,  and  cnse.s  cited  in  ^  Wliiuvorth  v.  Davis,  1  Ves.  &  B.  545; 
notes;  Todd  t.  Stewart,  6  J.  J.  Alnrsli.  soe  also  (irilHii  v.  Archer,  2  Anst.  478; 
432.  J.lovd  \).  Lander,  5  Mad.  2S2,  2SB;  Collet 

2  VVIiitworth  V.  Davis,  1  Ves.  &  B.  545,  v.  \V.<liaston,  3  Bio.  C.  C.  228. 

547;  DeGoli-  v.  Ward,  3  P.  VVms.  311,  n. ;  4  i^d.  \\^,^\,  nji;  Fopping  y.  Van  I'elt,  1 

Collins  /t.  hhirlev,  1  U.  &  M.  638;  .hid;;-  Hod'.  Cli.  I'r.  545. 

nicnt  of  I^ord  Cotteidiani  in    Kocliloit  ».  ^1  Ves.  &  IJ.  545. 

Ba'tersl.y,  2  II.  1>.  Ca.  408;  and  si-e  Davis  •"•  7    Ves.    287;    sec   also   Le  Texier  v. 

i;  Siicll,  2ft  r.uav.  321 ;  Storv  Iv).  I'l.  §  233  Margravine    of   Anspach,    15    Ves.    159, 

and  note;  De  Wolf  u.  Jolm.soti,  10  Wlie;it.  100. 

384.     Counsel  lor  an  insolvent  api)''anng  7  1   Ves  &  B.  549,  550;  see  (iill)ert  v. 

separately  Ironi  his  assignees  not,  licurd.  Lewis,  1  De  G  ,  .J  «fe  S.  38;  2  J.  &  11.  452; 

Ldmuiids  v.  Waugli,  1  W.  N.  7,  V.  C  K.  U  Jur.  N.  S.  187,  Story  K(|.  IM.  §  223,  u. 


158 


PERSONS    AGAINST   WHOM    A    SUIT   MAY   BE    INSTITUTED. 


On.  IV.  §  S. 


When  lio  may 
plciul  tllf 
oankniinoy. 


If  relief  prny- 
eil,  bankrupt 
may  deimir, 
both  to  dis- 
eoven-  aud 
relief; 

Unless  fraud 
is  charged. 


Bankruptcj- 
of  defendant 
no  abate- 
ment. 

Dismissal  of 
bill  bv  plain- 
tiff after 
defendant's 
bankruptcy. 


When  llio  bankriiplcy  of  a  Jetoiulant  does  not  nj)pcar  on  the 
faco  of  the  bill,  or  has  occurreil  subsc(piently  to  the  tiling  of  the 
bill,  but  before  the  expiration  of  the  time  for  putting  in  his  an- 
swer, the  ilefenilant  may  take  the  objection  by  way  of  plea.^  He 
may  also  plead  the  bankruptcy  of  a  co-defendant,  even  where  it 
took  place  aller  the  filing  of  the  bill.^ 

A  bankrupt  can  be  made  a  party  to  a  bill  for  the  mere  purpose 
of  discovery  and  injunction;"  but  there  is  no  doubt  that  if  he  is 
made  a  party  for  the  jjurpose  of  obtaining  relief  against  lam,  he 
may  demur  to  the  bill,  and  that  in  such  case  his  demurrer  will  pro- 
tect him  from  the  discovery  as  well  as  the  relief;  where,  however, 
fraud  or  collusion  is  charged  between  the  bankru])t  and  his  as- 
signees, the  bankrupt  may  be  made  a  party,  and  he  cannot  demur, 
although  relief  be  prayed  against  him.  Thus,  where  a  creditor, 
having  obtained  execution  against  the  effects  of  his  debtor,  filed  a 
bill  against  the  debtor,  against  whom  a  commission  of  bankrupt 
had  issued,  and  the  persons  clahning  as  assignees  un<ler  the  com- 
mission, charging  that  the  commission  was  a  contrivance  to  defeat 
the  plaintiff's  execution,  and  that  the  debtor  having,  by  j^ermission 
of  the  plaintiff,  possessed  part  of  the  goods  taken  in  execution  for 
the  purpose  of  sale,  instead  of  paying  the  produce  to  the  plaintiff 
had  paid  it  to  his  assignees :  a  demurrer  by  the  alleged  baukrujjt, 
because  he  had  no  interest,  and  might  be  examined  as  a  witness, 
was  overruled.*  Upon  the  same  principle,  where  a  man  had  been 
fraudulently  induced  by  the  drawer  to  accei:)t  bills  of  exchange 
without  consideration,  and  the  drawer  afterwards  indorsed  them 
to  others :  ujion  a  bill  filed  against  the  holder  and  drawer  of  the 
bills  of  exchange,  for  a  delivery  up  of  the  bills,  and  an  injunction, 
the  drawer  pleaded  his  bankruptcy,  which  took  place  after  the  bill 
filed,  in  bar  to  the  bill ;  but  Sir  Lancelot  Shadwell  V.  C.  over- 
ruled the  plea." 

Where  a  defendant  becomes  bankrupt  after  the  commencement 
of  the  suit,  the  bankruptcy  is  no  abatement,  and  the  j^laintiff  has 
his  choice,  either  to  dismiss  the  bill  and  go  in  under  the  bank- 
ru2>tcy,  or  to  go  on  with  the  suit,  making  tlie  assignees  parties.*' 
It  seems  that  in  Knox  v.  lirov})i~'  L(^rd  Thurlow  2)ennitted  the 
plaintiff  to  dismiss  his  own  bill  without  costs,  because  it  was  by  the 


1  Turner  r.  Robinson,  1  S.  &S.  3;  Lane 
V.  Smitli,  14  JJeav.  4'J;  Jones  v.  13inns,  10 
Jur.  N.  S.  ll'J,  12  W.  ii.  a-29,  M.  K.;  33 
Beav.  362 ;  and  see  Campbell  v.  Joyce,  L. 
K.  2  Eq.  377,  V.C.  W. 

2  Sergrove  v.  Mayhew,  2  M'N.  &  G. 
97. 

3  Plea  of  defendant's  bankruptcy  over- 
ruled; he  being  the  nisinaf^er,  secretary, 
and  a  member  of  the  conmiittee  of  an 
asijOciatioD ;   and  discovery  was  required 


from  him  in  order  to  obtain  contribution 
from  the  members  Pepjjer  v.  Henzell,  2 
11.  &i  M.  4t;6;  11  .Jur.  M.  S.  840. 

•*  King  V.  Martin,  2  Ves.  J.  641,  cited 
Ld.  Red.  162;  but  see  Gilbert  v.  Lewis,  1 
De  G.,  J.  &  tj.  38;  2  J.  &  H.  462;  y  Jur. 
N.  S.  187. 

5  Mackworth  v.  Marshall,  3  Sim.  868. 

0  Monteith  v.  Tayhjr,  9  Ves.  615. 

7  2  Bro.  C.  C.  186. 


BANKRUPTS. 


159 


act  of  the  defendant  himself  that  the  object  of  the  suit  was  gone. 
In  a  subsequent  case,  however,  of  Rutherford  v.  Miller^  the  Court 
of  Exchequer  refused  to  make  such  an  order  without  costs ;  and  in 
Monteith  v.  Taylor,^  where  a  motion  was  made  on  behalf  of  the 
defendant,  who  had  become  bankrupt,  to  dismiss  the  plaintiiF's  bill 
with  costs,  for  want  of  prosecution,  Lord  Eldon,  although  he  at 
first  entertained  a  doubt  whether  he  could  make  such  an  order  with 
costs,  afterwards  expressed  an  opinion  against  the  plaintiff  upon 
that  point,  upon  which  the  plaintiff  submitted  to  give  the  usual 
imdevtaking  to  speed  the  cause ;  and  in  the  case  of  JBlackmore  v. 
iSmit/i,^  Lord  Cottenham,  after  referring  to  the  order  made  in  the 
last-mentioned  case,  in  the  Registrars'  book,  held,  that  if  the  bill 
were  dismissed  it  must  be  with  costs. 

It  appears  from  the  two  cases  last  referred  to,  that  a  defendant 
may,  notwithstanding  he  has  become  bankrupt,  move  to  dismiss 
the  plaintiff's  bill  for  want  of  prosecution ;  and  it  is  the  practice, 
on  such  a  motion,  to  dismiss  the  bill  with  costs.* 

After  what  has  been  said,  it  is  scarcely  necessary  to  observe, 
that  where  a  party  who  is  a  defendant  to  a  suit  becomes  bankrupt, 
it  will  be  necessary  for  the  jilaintiff,  if  he  proceeds  with  the  suit, 
to  bring  the  assignees  before  the  Court  by  amendment  or  a  supple- 
mental order ;  ^  and  it  has  been  decided,  that  where  the  assignee 
of  a  bankrupt  has  been  already  before  the  Court  as  a  defendant, 
and  such  assignee  die  or  is  removed,  and  a  new  assignee  is  ap- 
pointed in  his  stead,  the  suit  abates,  and  an  order  to  carry  on  the 
l)roceedings  against  such  new  assignee  must  be  obtained  in  like 
manner  as  against  the  original  assignee.® 

Where  a  bill  has  been  filed  against  a  defendant  who  afterwards 
became  l>ankruj)t,  and  a  suitplemental  bill  was  in  consequence  filed 
against  liis  assignees,  the  evidence  taken  in  the  original  cause  pre- 
viously to  the  bankruptcy  was  allowed  to  be  read  at  the  hearing 


Ch.  IV.  §  8. 


1  2  Anst.  458. 

2  9  Ve.s.  61.5. 

8  1  .M'N.  &  G.  80. 

*  lilHcktnore  v.  Smith,  ubi  sup. ;  see 
also  Hob.-on  v.  Earl  of  Devon,  -i  rfm.  & 
G.  227;  Levi  f.  Heritage,  20  IJeav.  .000, 
wiiicli  were  edses  of  insolvent  debtors; 
overruling  Blan>liar(l  c.  Urew,  lo  iSim. 
240;  sec,  liowt-ver,  Kfinljall  r.  WaUluck, 
1  Sni.  &  G.  A|)(>.  27;  l^  .Jur.  0!*. 

<;  V,  Ik  16  Vic.  c.  «6,  §§  .52,  53;  Lash  v. 
Miller,  4  iJe  G.,  .M.  &  G.  b41 ;  1  .Jur.  N.  S. 
4."»7;  Storm  v.  I>aveiijiort,  1  Sandf.  Ch. 
Vii>\  Storv  Kfi.  I'l.  §  .'{42,  and  note;  Sedg- 
wick V.  Cleviland,  7  I'aige,  2'.J0.  ]t  is  to 
lie  borne  in  tnind,  that  there  is  a  dillurence 
in  referunee  t"  tliis  point  between  cases  of 
voluntary  alienation,  and  cases  ol  invol- 
untary alienation,  as  by  insolvency  or 
biinkruptcy  ol  the  defendant.  Story  Efi. 
I'l.  §§  342,  351,  bl  stq.     This  distinction  is 


fully  discussed  in  Sedg^vick  v.  Cleveland, 
7  Paige,  290-292;  see  also  note  to  Story 
Eq.  1*1.  §  342.  After  the  assignees  have 
been  made  parties,  the  bankrupt  appears 
to  be  treated  as  out  of  the  suit;  see  Kob- 
ertson  v.  Soutligate,  5  Hare,  223;  Stahl- 
schniidt  V.  Lett,  ib.  595;  and  see  Seton, 
1166.  For  forms  of  supplemental  order, 
see  Seton,  1165,  Nos.  5,  6;  nnd  tor  forms 
of  motion  paper  and  petitiwu,  see  Vol. 
IIL;  and  see  anlt,  p.  64. 

•i  Gordon  v.  .lesson,  16  Beav.  440.  The 
157tli  section  of  the  Bankrupt  Act,  12  &  13 
Vic.  c.  106,  referred  to  <nitv,  p.  65,  applies 
only,  it  would  seem,  lo  pl:iliiti(is;  see 
Gordon  v.  Jesson,  ubi  sup. ;  and  see  Hain- 
brigge  v.  lilair,  Younge,  386;  Mendliam 
V.  Kobinson,  1  M.  &  K.  217;  Miin  r.  i{ick- 
etts,  7  Beav.  484;  1  I'liil.  617;  (<leci«led 
on  similar  clause  in  lormer  Bankrupt  Act), 
and  cases  there  cited. 


Bankrupt 
may  move  to 
dismiss  for 
want  of  prose- 
cution. 

Assignees  are 
brought  be- 
fore the  Court 
by  supple- 
mental 
proceeding. 
Death  or 
removal  of 
assignee : 
Order  to  carry 
on  against 
successor 
must  be 
obtained. 

Evidence 
taken  in 
original  cause 
before  the 
adjudication 
may  be  read 
against 
assignees. 


160 


TEKSOXS    AGAINST    WHOM    A    SUIT    JMAY    15E    INSTITUTED. 


Cii.  IV.  5!1. 


Creditor  of  in- 
solvent niiffht 
fiie  executor 
of  assiifnee, 
where  no 
successor 
appointed. 

Costs  of 
assijjnees  in 
foreclosure 
suits. 


aixainst  the  Jissigiiees ;  but  wIuto  it  a])])eafCMl  that  some  of  the 
Avitiiesses  in  the  cause  had  been  examined  after  the  commission 
issued,  and  befbiv  the  stipjilemental  cause  was  at  issue,  an  objec- 
tion to  reading  their  dei)t)sitioiis  was  allowed  ;  but  the  objection 
was  overruled  in  so  far  as  it  extended  to  the  witnesses  who  had 
been  previously  examined.^ 

It  has  been  held  that,  on  the  death  of  the  assignee  of  an 
insolvent's  estate,  where  no  new  assignee  has  been  appointed,  a 
party  having  a  demand  against  the  insolvent,  but  not  having 
proved  under  the  insolvency,  may  sue  the  executors  of  the  de- 
ceased assignee.'^ 

It  may  here  be  observed  that,  after  some  difference  of  opinion 
u2)on  the  subject,  it  has  been  determined,  that  in  foreclosure  suits, 
where  assignees  are  made  parties  as  defendants,  in  respect  of 
the  equity  of  redemption,  they  are  not  entitled  to  their  costs  from 
the  plaintiff,  even  though  they  may  have  received  no  assets  of  the 
bankrupt  wherewith  to  pay  them.^ 


Section  IX. — Infants. 


May  be 
defendants. 


Not  usually 
described  as 
infants  in  bill. 

Defend  by 
guardian. 


Infants  as  "well  as  adults  may,  as  we  have  seen,*  be  made  defend- 
ants to  suits  in  Equity ;  and,  in  such  cases,  it  is  not  necessary  that 
any  other  person  should  be  joined  with  them  in  the  bill ;  nor  is  it 
usual  for  the  plaintiff  to  describe  them  as  infants  in  his  bill,  unless 
any  question  in  the  suit  turns  upon  the  fact  of  their  infancy. 

Although  it  is  not  necessary  that,  in  bringing  a  bill  against  in- 
fants, the  plaintiff,  as  in  the  case  of  married  women,  should  join 
any  other  person  Avith  them,  yet  they  ai*e  not  permitted,  on  ac- 
count of  their  supposed  want  of  capacity,  to  defend  themselves ; 
and  therefore,  where  a  defendant  to  a  suit,  or  the  respondent  to  a 
petition,®  is  an  infant,  the  Court  will  appoint  a  proper  person,  who 
ought  not  to  be  a  mere  volunteer,^  to  put  in  his  defence  for  him, 
anil  generally  to  act  on  his  behalf  in  the  conduct  and  management 
of  the  case.'  The  person  so  appointed  is  called  "the  guardian 
of  the  infant ; "  and  is  generally  styled  "  the  guardian  ad  litem^'' 


1  Hitcbens  v.  Congreve,  4  Sim.  420. 

2  I'ulctierr.  Howell,  11  Sim.  100;  and 
see  an<e,  p.  tJ2. 

a  AppleiA'  /•.  Duke,  1  Phil.  272;  Clarke 
V.  Wiluiot,' i'i.  27ij;  Ford  e.  Wliiie,  Iti 
Beav.  \'iM,  and  cases  there  cited;  and  see 
FopJ  f.  Ohesterlield,  16  I'eav.  516;  and 
see  also/>io«/.  Chap.  XVI.,  Diidaimtrs. 

4  Anit,  p.  130. 

5  lU  bnrringtiin,  27  Beav.  272;  Rt 
Ward,  2  Gitf.  122;  6  Jur.  N.  S.  441;  lit 


Duke  of  Cleveland's  Harte  Estates,  1  Dr. 
&  Sm.  -16. 

«  l-'oster  V.  Cautley,  10  Hare,  App.  24 ; 
17  .Jur.  370.  It  is  usual  to  appoint  the 
nearest  relative  of  an  infant  defen<lant 
as  his  guardian  ad  litem.  Hank  of  United 
Suites  V.  Kitche,  8  I'eters,  128. 

'  A  decree  against  an  adult  defendant, 
as  if  an  infiint,  was  held  not  to  bind  him. 
Snow  V.  Hole,  15  Sm.  161;  Green  v.  Bad- 
ley,  7  Beav.  271. 


INFANTS. 


161 


to  distinguish  him  from  the  guardian  of  the  j^erson  or  of  the 
estate.^ 

Formerly  it  was  usual,  upon  the  appointment  of  a  guardian  ad' 
litem,  for  the  infant  to  appear  personally  in  Court.-  This  is  no 
longer  necessary ;  ^  but  the  order  may  be  obtained  upon  motion 
of  course,  or  upon  petition  of  course,  presented  at  the  Rolls  in  the 
name  of  the  infant ;  the  application  being  supported  by  an  affidavit 
of  the  infiint's  solicitor,  that  the  proposed  guardian  has  no  interest 
in  the  matters  in  question  in  the  suit,  adverse  to  that  of  the  infant ; 
and  it  must  also  be  proved  by  the  same  affidavit,  or  by  that  of 
some  other  person,  if  tlie  solicitor  is  not  sufficiently  acquainted 
with  the  proposed  guardian,  that  he  is  a  fit  and  proper  person  to 
be  appointed.*  A  co-defendant  may  be  appointed,  if  he  has  no 
adverse  interest ;  ^  but  the  ])laintift',  a  married  woman,  or  a  person 
out  of  the  jurisdiction,*^  cannot  be  appointed. 


Ch.  IV.  §  9. 


Who  ineli- 
gible to  be 
guardian. 


1  In  a  suit  asrainst  an  infant,  process 
should  be  served  upon  him,  and  a  guar- 
dian (id  litem  appointed  by  the  Court. 
Carrington  r.  Brents,  1  McLean,  17;  Wal- 
ren  r.  Hallett,  1  Ala.  .379;  Graham  r.  Sub- 
lett,  6  .T.  .J.  Marsh.  45. 

In  New  York,  the  appearance  of  an 
infant  is  entered  by  his  guardian  ad  litem, 
who  is  appointed  by  the  Court  on  petition 
for  that  purpose.  1  liarb.  Ch.  Pr.  83. 
See  Knickerbocker  v.  De  Freest,  2  Paige, 
304;'  Grant  r.  Van  Schoonhoven,  9  Paige, 
250;  Story  Kq.  PI.  §  70;  Banta  v.  Cal- 
hoon,  2  A.  K.  Mar.'^h.  1G7;  Cato  v.  Kasly, 
2  Stewart,  214.  In  Alabama,  it  is  essential 
to  the  action  of  a  guardian  ad  litem  that 
there  should  be  a  decree  of  the  Court 
appointing  him  such  gunrdian.  Darring- 
ton  V.  Borland,  .3  Portor,  10. 

Infants  above  the  age  of  fourteen  years 
should  be  consulted  in  the  appointment 
of  a  guardian  iid  litem,  if  that  course 
would  not  be  altemled  with  too  much 
trouble  or  expense.  Walrtn  r.  Hallett,  1 
Ala.  379.  Courts  may  appoint  guardians 
ad  litem  to  non-resident  intpnts.  Walren 
V.  Hallett,  1  Ala.  379;  (Jraliam  v.  Sublett, 
C  .1.  .1.  Marsh.  45;  Smith  v.  Palmer,  3 
Beav.  10.  And  they  may  provide  rea- 
sonable com|)eu^ation  for  such  guardians. 
Walren  r.  Hallett,  1  Ala.  379;  Graham  v. 
Sublett,  0  .J.  .1.  Marsh.  45;  see  Gott  v. 
Cook,  7  Paige,  523.  It  is  error  to  enter  a 
decree  against  Infant  defcndnnts  without 
a'<signiiig  tli«m  a  guardian  ad  litem.  Rob- 
erts I!.  Stanton,  2  Munf.  129;  Irons  v. 
Crist,  3  A.  K.  .Marsh.  143;  St  Clair  v. 
Smith,  3  Ham.  303:  Crockett  v.  Drew,  5 
Gra3',  309;  Swan  v.  Hortoii,  14  Griiy,  179; 
J'lwmg  V.  Iliglibee,  7  Ham.  198;  see 
harby  v.  IJicbardsoii,  3  .1.  .1.  Mar-h.  544; 
Bcverh'y  v.  .Miller,  G  Munf  99;  Cravens 
f.  Dyerj'  1  Litt.  1.53;  Shields  v.  Bryant,  3 
I'ibb,  525.  The  guardian  must  have 
arcc[itcd  the  appointment,  and  that  (act 
slioulcl  appear  of  record.  Daniel  v.  Ilan- 
nngan,  5  .1.  J.  Marsh.  49. 
VOI-.    I. 


Where  infant  defendants  had  not  been 
served  with  process,  but  upon  inspection 
of  the  record  it  appeared,  that,  upon 
their  motion,  a  guardinn  ud  litem  had 
been  appointed,  who  ))roceeded  in  the 
cause,  the  Court  hold,  that  a  decree 
against  the  infants  was  not  void,  and 
therefore  could  not  be  impeached  in  a  col- 
lateral suit.  Day  v.  Kerr,  7  Missou.  426. 
It  is  not  necessar}'  to  serve  a  copy  of 
a  bill  in  Kiiuity,  on  a  guinliau  ad  litem, 
after  his  app/intment.  Jones  v.  Drake, 
2  Ilayw.  237. 

The  Court  will  not  appoint  a  person 
guardian  ad  litem  for  an  infant  defend- 
ant, on  the  nomination  of  the  plaintiif. 
Knickerbocker  t'.  De  Freest,  2  Paige,  304. 
An  infant  defendant  at  law  must  appear 
1>3- gu:irilian;  he  cannot  appear  or  plead 
by  attorney.  Knapp  v.  Crosby,  1  i^Iass. 
479;  .Miles"  i\  Boyden,  3  Pick.  2*13;  Alder- 
man V.  Tirrell,  8  .John.  418;  Bedell  v. 
Lewis,  4  J.  J.  Marsh.  502;  JellVie  v. 
Kobideaux,  3  Mis.  33;  Clark  v.  Turner,  1 
Root,  200;  Comstock  v.  Carr,  G  Wend. 
520. 

-  Crabbe  v.  Moubcry,  5  De  G.  &  S., 
347 ;  Bcnison  v.  Wortley,  ib.  648. 

3  See  Drant  v.  Vause.  2  Y.  &,  C.  C.  C 
524;  7  Jur.  637,  L.  C:  Fgremoiit  v.  F.gre- 
mont,  2  De  (}.,  M  &  G.  730;  17  ,Jur. 
55;  Foster  i;.  Cautlev,  10  Hare  App.  24; 
17  .Jur.  370;  Storr  v.  Pannell,  1  \V.  K. 
209,  V.  C.  S. 

■•  Braithwaite's  Pr.  40,  47.  For  form  of 
order,  see  Scton,  1250;  and  for  forms  of 
molinn  ])ai)or,  petition,  and  nliidavit,  see 
Vol.  III.  Where  the  inl'aiit  is  a  respon- 
dent to  a  petition,  the  application  must  be 
supported  by  an  afliilavil  tli:it  the  petition 
has  been  serve!  on  the  infant.  lie.  Willau, 
9  W.  R.  689,  n. 

c  See  Horifpld  v.  Grant,  H  W.  R.  275, 
iM.  H.;  Xewmiin  v.  Selfe,  ilj.  764,  M.  K  ; 
AnoM.,  9  Hare  A|ip.  27. 

c  Anon.,  18  Jur.  770,  V.  C.  W. 


11 


1G2 


TEKSONS   AGAINST   AVIIOM   A    SUIT   aiAY    ]$10    INSTITUTED. 


Cii.  IV.  $  0. 


Apponrance 
shouUl  lio 
first  onteivil. 

Appliration, 
how  niiuk": 
at  the 
hjstance  of 
phuutitV. 


Evidence  in 
support. 


Who 
appointed. 

Where  infant 
out  of  tlie 
jurisdiction. 


An  :ti)]K':irniu'0  for  tlio  inlhnt  sliould  bo  ontorccl  at  the  Record 
ami  Writ  Clerks' Otlic'i',  belorc  the  a])]»li('ali«)ii  is  made;  hut  no 
other  step  in  the  suit,  on  belialf  of  the  infant,  will  be  regular,  till 
a  guanliau  ad  litem  has  been  a])}H)inted.^ 

If  no  apjilieation  for  the  aj)})ointnient  of  a  guardian  is  made  on 
behalf  of  the  infant,  tlie  ])hiintiff  may,  if  default  is  nuule  by  the 
infant  in  appearing  or  answering,-  a])])ly  to  the  Court  that  a  solici- 
tor may  be  appointed  his  guardian.  The  application  is  made  by 
motion,  of  which  notice^  must  be  served  upon  or  left  at  the 
dwelling-house  of  the  person  with  whom,  or  under  whose  care,  the 
infant  Avas  at  the  time  of  serving  the  bill,''  and  if  such  person  is 
not  the  lather,  or  guardian,  notice  must  also  be  served  upon  the 
father  or  guardian.  Where  the  infant's  father  was  dead,  service 
of  the  notice  at  the  liouse  of  the  infant's  mother  and  step-father 
Avas  lield  sufficient ;  '^  and  Avhere  the  i)laintiff  Avas  unable  to  dis- 
coA'er  Avhere  the  parents  lived,  service  Avas  deemed  sufficient  on 
the  head  of  a  college,  of  Avhich  the  infant  Avas  an  under-graduate.*' 
If,  hoAv^CA'er,  an  appearance  has  been  entered  for  the  infant,  service 
upon  the  solicitor  is  sufficient.''  Upon  the  motion,  the  Court 
must  be  satisfied  that  the  bill  has  been  duly  served,  and  that  the 
notice  of  the  application  Avas  served  after  the  exj)iration  of  the 
time  allowed  for  api)earing  or  answering,  and  at  least  six  clear 
days  before  the  day  in  such  notice  named  for  hearing  the  apjdica- 
tion ;  ^  but  the  Court,  on  hearing  the  a])j)lication,  may  dispense 
AA^th  service  on  the  father  or  guardian.^  The  solicitor  to  the 
Suitors'  Fee  Fund  is  the  person  usually  appointed. ^° 

If  the  infant  is  out  of  the  jurisdiction,  the  same  course  must  be 
folloAved ;  ^^  but  Avhere  he  had  no  substantial  interest,  and  had  been 
served  Avitli  the  bill,  the  Court  dispensed  Avith  service  of  notice 
of  the  application.-"- 


1  Lushington  v.  Scwcll,  6  Mad.  28.  An 
appearance  by  the  plaintiff  for  an  infant 
defendant  is  irregular,  and  of  no  valitlity, 
Ord.  X.  5;  Leese  v.  Knigiit,  8  Jnr.  N.  S. 
1006;  10  W.  H.  711,  V.  (J.  K. 

'-  If  no  answer  is  required  from  the 
infant  (;is  is  usually  the  practice),  and  no 
voluntary  answer  is  put  in,  the  defendant 
is  considered,  alter  the  expiration  of  the 
time  for  answering  voluntarily,  to  be  in 
default.  Beutlcy  v.  Robinson,  9  Hare 
Ai)p.  76.  / 

3  For  form  of  notice  of  motion,  sec  Vol. 
III. 

4  Taylor  v.  Ansley,  9  Jur.  1055,  V.  C. 
K.  B. ;  Christie  I'.  Cameron,  2  .Tur.  N.  S. 
635,  V.  C.  W. ;  and  see  Ord.  VII.  3. 

5  Hitch  V.  Wells,  8  Beav.  576. 
o  Christie  v.  Cameron,  vJn  svp. 

"!  Cookson  V.  Lee,  15  Sm.  302;  Bentley 
V.  Robinson,  9  Hare  App.  76. 

8  For  form  of  athdavit  in  support  of 
motion,  see  Vol.  III. 


9  Ord.  VII.  3 ;  see  Leese  v.  Knight,  8 
Jur.  N.  S.  1006;  10  W.  R.  711,  V.  (J.  K. 
For  form  of  order,  sej  Seton,  1251. 

1"  Thomas  v.  Thomas,  7  Beav.  47; 
Shejiptrd  V.  Harris,  10  Jur.  24,  V.  C.  K. 
]!.  \Vliere  he  is  appointed,  the  Court 
jirovides  for  his  costs,  Ord.  XL.  4;  usually 
directing  the  ])laintiff  to  pay  them,  and 
add  them  to  his  own.  Harris  v.  Ilaniljn, 
3  I)e  O.  &  S.  470;  14  Jur.  55;  Fraser  v. 
Thompson.  1  Giff.  337;  4  Dc  G.  &  J.  659; 
but  where  there  is  property  of  the  infunt's 
with  which  the  Court  can  deal,  it  will,  it 
seems,  direct  the  costs  to  be  paid  out  of  it. 
Robinson  v.  Aston,  9  Jur.  224,  V.  C.  K.  B. 

11  O'Brien  v.  Maitland,  10  W.  R.  275, 
L.  C. 

12  Lambert  v.  Turner,  10  W.  R.  335, 
V.  C.  K  ;  Turner  v.  Sowden,  10  Jur.  N. 
S.  1122;  13  W.  K.  66,  V.  C.  K. ;  2  Dr.  & 
Sm.  265,  nom.  Turner  v.  Snowdon. 


INFANTS. 


163 


If  the  guardian  dies  pending  the  suit,  a  new  guardian  must  be 
appointed  in  his  jilace ;  this  is  done  in  the  same  manner  as  the 
original  guardian  was  appointed,  and  upon  similar  evidence.^  All 
orders  appointing  guardians  must  be  left  at  the  Record  and  Writ 
Clerks'  Office  for  eutry.^ 

Where  the  infant  is  a  married  woman,  it  is  nevertheless  neces- 
sary that  she  should  defend  by  her  guardian :  though  it  appears 
to  be  the  i^ractice  to  apj^oint  her  husband  to  be  her  guardian 
where  he  is  a  defendant  Avith  her,  and  they  intend  to  defend 
jointly."^ 

The  duty  of  the  guardian  is  to  put  in  the  j^roper  defence  for  the 
infant ;  and  it  seems  that  he  is  responsible  for  the  j^ropriety  and  con- 
duct of  such  defence ;  *  and  if  he  puts  in  an  answer  which  is  scan- 
dalous or  impertinent,  he  is  liable  for  the  costs  of  it.  Sometimes 
the  guardian  is  ordered  or  decreed  to  perform  a  duty  on  behalf 
of  the  infant :  his  refusal  or  neglect  to  do  which  will  subject  him 
to  the  censure  of  the  Court.^ 

If  the  guardian  of  an  infant  defendant,  or  the  next  friend  of  an 
infant  plaintiff,  does  not  do  his  duty,  or  other  sufficient  ground  be 
made  out,  the  Court  will  remove  him.^  It  was  said  by  Sir  John 
Leach  V.  C.,''  that  infants  are  as  much  bound  by  the  conduct  of 
their  solicitor,  as  adults ;  thus,  an  issue  devisavit  vel  non  may,  it 
seems,  be  Avaived  on  the  part  of  the  infant.^  And  so,  although 
the  Court  usually  aWII  not,  where  infants  are  concerned,  make  a 
decree  by  consent,  without  an  inquiry  whether  it  is  for  their  bene- 
fit,^ yet  when  once  a  decree  has  been  pronounced  without  that 

1  Ante,  pp.  IGO,  ICl. 

2  liraithwiiite's  IV.  47. 

3  Coliiian  I'.  Nortlicotc,  2  Hare,  147;  7 
Jur.  528,  ami  cases  tlicre  referred  to. 

■*  Knickerbocker  v.  l)e  Freest,  2  Piiige, 
304.  It  is  tiie  .ipeciiil  duty  of  the  guardian 
adlilem  to  submit  to  tiie  Court,  for  its  con- 
sideration and  decision,  everj'  question 
jnvolvinj;  the  ri^ht-s  of  the  infant  iif}'ect<'d 
by  the  suit.  lOid. ;  Dow  v.  .Jewell,  21  N.  II. 
4(!6,  487,  and  to  make  a  vij^oniu-i  defence 
of  the  interests  of  the  infant.  Sconce  i'. 
Whitney,  12  III.  L^O;  Eno.s  v.  Capps,  12 
III.  2h').  If  the  guardian  ml  litem  neg- 
lects his  duty  to  tli<3  infant,  whereby  such 
infant  sustains  an  injiiry,  tlie  guardian 
will  not  only  be  puni-hed  for  his  neglect, 
but  he  will  also  be  liable  to  the  infant  for 
all  the  daniMgea  he  may  have  .sustained 
thereby.  Knickerbocker  v.  Do  Freest, 
tuftra. 

Where  a  i>crson  consents  to  act  as 
puardi.in  ad  litem,  he  must  put  in  a  pleiid- 
mg;  and  is  not  to  stoji  the  plaiiitilf  by 
■neglecting  it,  nn'rely  because  he  thinks 
his  wnnis  are  im[iro|)er  or  nnncces-a- 
ry  parties.  I'iirnicrs'  l.oan  and  Trust  Co. 
t;.  lieed.  3  Kdw.  (Jli.  414.  The  inf^int's 
answer  is  generally  confmfd  to  a  mere 
Bubmission  of  his  rights  and  interests  in 


Ch.  IV.  §  9. 

^- Y ^■ 

On  death  of 
guardian 
pendente  lite, 
new  guardian 
must  be 
appointed. 
Wliere  infant 
a  married 
woman. 


Guardian's 
duty. 


Guardian 
may  be 
removed  for 
neglect. 
Infants  bound 
by  acts  of 
guardian. 


the  matters  in  question,  to  the  care  and 
protection  of  the  Court.  The  answer  in 
such  cases  generally  is,  that  the  infant 
knows  nothing  of  tlie  mutter,  and  there- 
fore neither  admits  nor  denies  the  charsies, 
but  leaves  the  plaintilf  to  jirove  them  as 
he  sliall  be  advised,  and  throws  himself 
upon  the  protection  of  the  Court.  Dow 
V.  .Fewell,  21  N.  H.  487,  per  Gilchrist  U.  J. 

fi  Hinde,  241.  Except  in  case  of  gross 
miscou<luct,  a  guardian  nd  litem  will  not 
be  ordered  to  pny  the  costs  of  a  suit  which 
he  Inis  defended  unsuccessfuHv.  ]\I(irgaii 
V.  Morgan,  11  .Jur.  N.  S.  23.3,  V.  C  K., 

n  liussell  v.  Shar[)e,  1  ■).  &  W.  482. 
The  application  for  this  i)urposc  may  be 
made  by  summons;  for  forms,  see  Vol. 
111. ;  and  see  ante,  ])   71. 

7  Tillotson  V.  Ilargrave,  3  .Mad.  494; 
see  Morrison  v.  Morrison,  4  M.  &  C.  21G, 
220. 

8  Levy  V.  Lew,  3  Mad.  245. 

0  Dow  V.  .Jewell,  21  N.  II.  48G,  487; 
Mills  V.  Denni.s,  3  .lohn.  Ch.  3G8;  Mondcy 
r.  Mon.ky,  1  V.  &  15.  223.  Neither  a 
default  nor  a  decree  jiro  coiififso  can  bo 
taken  agiiiist  an  infant.  Knos  i\  Capps, 
12  111.  2;)"j.  A  decree,  cannot  be  entered 
against  an  infant  without  |)roof  to  sustain 
the  case.    Hamilton  v.  Gilmau,  12  lU.  260. 


1()4 


PEKSONS   AGAINST   WII0:M    A   SUIT   MAY   BE    INSTITUTED. 


I'll.  IV.  §!V 


Infant  bound 
by  decree; 
unless  in 
ciises  of  fraud, 
collusion,  or 
error. 


How  decree 
impeached  in 
such  case. 


What  is  error 
in  a  decree 
against 
infant. 


Parol  demur- 
ring at  Law ; 


]irovions  step,  if  is  roiisidored  as  of  the  same  authority  as  if  such 
ail  inquiry  had  Ihhii  dirtH^tod,  and  a  certificate  tliereujiou  uiado  tliat 
it  Would  be  for  (lieir  benefit.  Tn  the  same  inajiner,  an  order  for 
niaintenanee,  thouuli  usually  made  after  an  incjuiry,  if  made  Avitli- 
out  woidd  be  equally  binding.^  By  a  i-ecent  order,^  it  is  provided 
that  any  consent  by  the  guardian  to  any  mode  of  taking  evidence 
or  other  procedure,  shall,  if  given  with  the  sanction  of  the  Court 
or  Judge  in  Chambers,  have  the  same  effect  as  if  the  infant  were 
not  under  disability,  and  had  given  such  consent. 

An  infant  defendant  is  as  nnich  bound  by  a  decree  in  Equity  as 
a  ])erson  of  full  age ;  therefore,  if  there  be  an  al)solute  decree 
made  against  a  defendant  who  is  under  age,  ho  will  not  be  per- 
mitted to  dispute  it,  unless  upon  the  same  grounds  as  an  adult 
might  have  disinited  it ;  such  as  fraud,  collusion,  or  error. 

To  impeach  a  decree  on  the  ground  of  fraud  or  collusion,  the 
infant  may  proceed,  either  by  a  bill  of  review^,  or  supplemental 
bill  in  the  nature  of  a  bill  of  review;  or  he  may  so  proceed  by 
original  bill.  He  may  also  impeach  a  decree,  on  the  ground  of 
error,  by  original  bill ;  and  he  is  not  obliged,  for  that  purpose,  to 
wait  till  he  has  attained  twenty-one.^ 

Among  the  errors  that  have  been  allowed  as  sufficient  grounds 
on  Avhich  to  imj^each  a  decree  against  an  infant,  is  the  circum- 
stance that,  in  a  suit  for  the  administration  of  assets  against  an 
infant  heir,  a  sale  of  the  real  estate  has  been  decreed  before  a 
sufficient  account  has  been  taken  of  the  pei-sonal  estate.*  And  so,  if 
an  account  were  to  be  directed  against  an  infant  in  res])ect  of  his 
receipts  and  payments  during  his  minority,  such  a  direction  would 
be  eiToneous.*^  Another  ground  of  error  for  which  a  decree  against 
an  infant  may  be  impeached  is,  that  it  does  not  give  the  infant  a 
day  after  his  coming  of  age  to  shoAV  cause  against  it,  in  cases 
where  he  is  entitled  to  such  indulgence.® 

It  was  an  estivblished  rule  at  Common  Law,  that  in  all  actions 
for  debt  against  infant  heii'S  by  specialty  creditors  of  their  an- 
cestors, either  party  was  entitled  to  pray  that  the  parol  might 
demur;  that  is,  that  the  proceedings  might  be  stayed  vnitil  the 
heir  had  attained  his  full  ao-e.'     This  rule  was  the  foundation  of  a 


1  Wall  V.  Bushby,  1  Bro.  C.  C.  484,  488; 
per  Gilchrist  C.  f.  in  Dow  v.  Jewell,  21 
N.  II.  4S7;  and  .sec  Brook  v.  Mostvn,  10 
Jur.  N.  S  554,  M.  li. ;  ib.  1114;  1.3  "W.  R. 
115,  L.  J.J.,  .3.3  Beav.  457;  2  De  G.  &  S. 
373,  417;  as  to  compromises  with  the 
Court's  sanction,  where  infants  are  in- 
terested. 

^  Ord.  5  Feb.,  1861,  r.  24.  For  fonn  of 
summons  to  obtain  the  Judge's  sanction, 
see  Vol.  III. 


8  Richmond  v.  Tayleur,  1  P.  Wms.  737 ; 
Brook  V.  Mostvn,  nbi  sup. 

4  Bennett  i'."Hamill,  2  Sch.  &  Lef.  566. 

^  Ilindmarsh  v.  Soutligate,  3  Russ.  324, 
327;  see  Stott  v.  Meanock,  10  W.  R.  605, 
bis,  L.  JJ. 

6  Bennett  v.  Ilamill,  ubi  sup. ;  2  Kent 
(11th  e<l.),  245,  246. 

1  3  Bla.  Com.  300;  Plasket  v.  Beebv,  4 
East,  485;  Com.  Dig.  Enfant,  (U)  Z\  ib. 
Pleas,  2  (E)  3. 


INFANTS. 


165 


similar  practice  in  Equity  in  like  cases ;  ^  so  that,  when  any  suit 
was  instituted,  either  by  a  specialty  creditor  or  by  a  simple  con- 
tract creditor,  the  equity  of  which  depended  upon  the  legal  liability 
of  the  heir  to  pay  out  of  descended  assets  the  specialty  debts  of 
his  ancestor,  no  relief  could  be  obtained  against  the  heir  during 
Ms  minority,  but  the  decree  contained  a  direction  for  liberty  to 
apply  when  the  heir  shoiild  have  atttained  his  full  age ;  accom- 
panied, in  the  case  of  a  suit  by  a  simple  contract  creditor,  with  a 
declaration  of  the  right  to  have  the  assets  marshalled.  Courts  of 
Equity  did  not,  however,  confine  this  species  of  protection  to. 
cases  precisely  similar  to  those  in  which  the  parol  could  demur  at 
Law ;  but,  by  a  kind  of  analogy,  they  adopted  a  second  rule,  by 
which,  in  cases  of  foreclosure  and  partition,  and  in  all  cases  in 
which  the  real  estates  of  an  infant  were  to  be  sold  or  conveyed 
under  a  decree  of  the  Court,  and  consequently  the  execution  of 
the  conveyance  was  necessarily  deferred,  the  infant  had  an  oj^por- 
tunity,  after  attaining  twenty-one,  to  show  cause  against  the 
decree.'^  For  this  purpose,  a  provision  was  inserted  in  the  decree, 
giving  the  infant  a  day  to  show  cause  against  it  within  a  certain 
time  after  he  came  of  age.^  The  Avords  of  the  decree  in  such  cases 
were  as  follow :  "  And  this  decree  is  to  be  binding  on  the  defend- 
ant, the  infant,  unless  he,  on  being  served,  after  he  shall  have 
attained  his  age  of  twenty-one  years,  with  subpoena  to  show  cause 
against  this  decree,  shall,  within  six  months  fi-om  the  service  of 
such  fii(b2)ce7ia,  show  unto  this  Court  good  cause  to  the  contrary."  * 
Tlu^  insertion  of  this  clause  in  a  decree  for  a  conveyance  by  an 
infant  of  liis  estate,  was  so  strictly  insisted  upon  in  all  cases,  that 
the  omission  of  it  has  been  considered  as  an  error  in  the  decree.^ 

By  the  11  Geo.  IV.  &  1  Will.  IV.  c.  47,  the  rule  as  to  the 
parol  demurring  was  abolished,  and  the  cases  in  which  the  clause 
giving  the  infmt  a  day  to  show  cause  ought  to  be  introduced, 
were  materially  lessened  in  number ; '''  for  by  the  10th  section  of 
that  statute,  it  is  enacted,  that  from  and  after  the  passing  of  the 


Cn.  IV.  §  9. 


Rule  adopted 
in  Equity; 


1  Chaplin  r.  Chnplin,  3  P.  Wins.  3GS; 
Uchniere  v.  Hrasicr,  2  J.  &  W.  2.S7,  2'jO  ; 
Scnrtli  V.  CoUon,  Ca.  t.  Talb.  198. 

2  See  I'rice  v.  Carver,  3  M.  &  C.  162, 
103. 

3  Sec  Iliirris  v.  Youman,  1  Ilofl".  Ch. 
178;  Wilkinson  v.  Oliver.  4  Hen.  &  M. 
46);  Siiicllx  r.  Hrvnnt,  3  Bihl),  o25 ; 
Dow  f.  .F.w.ij,  21  N.'II.  470;  And.  r.soii  r. 
Irvine,  11  15.  Mon.  .'Ml;  Cole  >'.  Miller,  32 
Mis«.  (3  fieo. )  89.  Where  ii  decree  ajjainst 
an  infant  defendant  permits  him  to  show 
Ciu.sc  witliJn  a  certain  time  alter  ho  comes 
of  aye,  why  the  decree  .should  not  he  en- 
forced, lie  eani  ot  a'^.Miiil  the  decree  in  anj' 
miinner  he  may  choo'-e,  williont  ref^ard  to 
the  cnrse  of  [ir.icfice  pnr.><nec|  by  iidult 
defendants,   but   he    mubt  ajjply   to   ttie 


Coin-t  for  leave  and  direction.  Field  v. 
Widiamson,  4  Sandf.  Ch.  013. 

^  Seton,  086,  No.  2;  see  Dow  v.  Jewell, 
21  N.  II.  491. 

5  Richmond  v.  Tayleur,  1  P.  Wms.  737. 
An  iibsdliite  decree  apaiiist  an  infant, 
without  givinp  him  day  after  he  comes 
of  ape  to  show  cause  a;.;Minst  it,  will  be 
reversed.  Heeler  v.  Hullitt,  4  Hihb,  11; 
I'assniore  r.  Moore,  1  J.  .1.  Marsh.  Ml; 
Jones  V.  Adair,  4  .1.  J.  Marsh.  220; 
Arnold  r.  Voorhics,  4  J.J.  Marsh,  607; 
Searey  r.  Morgan,  4  Hibb.  90;  Wright  v. 
Miller,  4  IJarb.  (S.  C.)  COO;  Coflin.t). 
Ilealli,  0  Met.  70. 

'i  See  2  Macpherson  (Lond.  ed.  1842), 
300,  301,  411. 


and  extended 
to  analogous 
cases. 


Day  given 
infant  to  show 


Parol  demur- 
rer abolished. 


100 


VERSONS    AGAINST   V>UOM   A    SUIT   MAY   BE    INSTITUTED. 


Cii.  IV.  §0. 


^Vhere  day 
still  given  to 
show  cause. 


Effect  of 
Trustee  Act, 
1850,  §  30,  in 
cases  where 
conveyance 
required  from 
infant. 


In  a  partition 
suit. 


AiM,  where  ;iny  lU'tidii,  suit,  or  otlu'r  proert'diiio-  lor  (lie  ])nyinciit 
of  Jobts,  or  any  ollu'r  purpose,  sIimII  be  coiuiiieuced  or  j)rosecute(l 
l)y  or  ngninst  any  inihnt  under  (lie  age  of  twenty-one  years,  cither 
idone  or  together  wi(h  any  o(her  ])erson  or  jiersons,  the  parol  shall 
not  (K'niur;  but  sueh  action,  suit,  or  otlier  })roceo(ling  slmll  be 
}n"oseeuted  and  carried  on  in  the  same  manner,  and  as  effectually, 
as  any  action  or  suit  could  before  the  passing  of  the  Act  be  carried 
on  or  prosecuted  against  any  infant,  where,  according  to  law,  the 
parol  did  not  denmr;  and  by  the  11th  section,  the  Court  was 
enabled,  in  suits  for  the  payment  of  the  debts  of  a  deceased  per- 
son, to  comj)el  an  infant  to  convey.^ 

One  effect  of  this  power  was,  that  in  decrees  for  the  sale  of 
estates  for  the  payment  of  debts,  the  jirovision,  giving  the  infant 
a  day  to  sIioav  cause,  Avas  omitted.  It  appears,  however,  that 
although  the  power  given  by  the  statute  was,  as  to  these  particular 
suits  iov  the  payment  of  debts,  considered  a  sufficient  reason  for 
omitting  the  clause  in  question,  yet,  in  all  other  decrees,  where  a 
conA'cyance  was  required  from  an  infant,  the  law  remained  as 
before ;  and  the  practice  of  giving  the  infant  a  day  to  show  cause, 
therefore,  remained  the  same.^ 

It  seems  to  have  been  intended  by  the  30th  section  of  the 
Trustee  Act,  1850,^  to  obviate  the  necessity  of  inserting  in  such 
decrees  the  clause  giving  the  infant  a  day  to  show  cause ;  *  that 
section  extends  to  all  cases  where  a  decree  for  the  conveyance 
of  lands  may  be  made  by  a  Court  of  Equity ;  and  with  respect 
to  all  such  cases,  it  enables  the  Court  to  carry  its  decrees  into 
effect,  by  orders  vesting  the  estates  and  interests  of  inflmts  and 
other  persons  under  legal  disabilities,  in  the  persons  to  Avliom  the 
conveyance  is  to  be  made.  Accordingly,  in  the  case  of  Boxcra  v. 
Wright^^  which  was  a  partition  suit.  Sir  J.  L.  Knight  Bruce  V.  C. 
made  an  order,  declaring  that,  after  the  partition  should  have 
been  made,  an  infant  defendant  would  be  a  trustee  within  the 
Trustee  Act  as  to  the  other  parties.  The  effect  of  such  an  order 
is,  that  the  aggregate  estate  may  be  vested  according  to  the  par- 
tition sanctioned  by  the  Court,  instead  of  postponing  the  con- 
veyances until  the  infant  shall  have  attained  twenty-one,  and 
shall  have  had  opportunity  of  shoAving  cause  against  the  decree. 
And  it  is  i^resumed  that,  in  all  cases  Avhere  a  conveyance  is  re- 


1  Brook  V.  Smitli,  2  R.  &  M.  7-3 ;  and 
the  infant  may  be  attached.  Thomas  v. 
Gwvnne,  8  Beav.  312. 

2"Price  r.  Carver,  3  M.  &  C.  157,  163; 
and  .fee  Scholefieid  v.  Heafield,  7  Sim. 
669;  Ball  v.  Harris,  8  Sim.  498;  1  Jur. 
706;  Afld.  4  M.  &  C.  264;  3  .lur.  140; 
Hutton  V.  Mayne,  3  .lo.  &  Lat.  580 ;  Jones 
V.  Harris,  3  Ir.  Eq.  65. 


3  13  &  14  Vic.  c.  60. 

*  Headlam's  Trustee  Acts,  p.  59. 

5  4  De  G.  &  S.  265;  15  ,Jur.  981;  see 
also  Sheplierd  v.  Churchill,  25  Beav.  21; 
Re  Bloomar,  2  De  G.  &  J.  88;  Singleton 
V.  Hopkins,  1  ,Tur.  N.  S.  1199,  V.  C.  S.; 
see,  however,  Hancock  v.  Hancock,  Seton, 
577,  822. 


INFANTS. 


167 


quired  from  an  infant,  the  section  above  referred  to  will  apply,    Cn.  IV.  §  9. 
and  it  will  no  longer  be  necessary  to  insert  in   the  decree  the    '-— >        ' 
direction,  giving  the  infant  a  day  to  show  cause  after  he  shall  have 
attained  twenty-one. 

Besides  the  cases  in  which  a  conveyance  was  required  from  an  Day  to  show 
infant,  there  was  one  case  in  which  the  decree  was  not  made  g-",'°ty%e- 
absolute  against  hun  until  he  had  attained  twenty-one,  namely,   ereeonalegal 
the  case  of  a  legal  foreclosure ;  ^  and  it  appears  that,  m  this  case, 
it  is  still  necessary  to  insert  in  the  decree  a  clause  allowing  the 
infant  (six  months  after  he  comes  of  age)  to  show  cause  against 
the  decree.2     It  is  to  be  observed,  however,  that,  in  cases  of  fore- 
closure, the  only  cause  which  can  be  shown  by  the  defendant  is 
error  in  the  decree ;  and  it  has  been  held,  that  he  may  not  imravel 
the  account,  nor  is  he  so  much  as  entitled  to  redeem  the  mortgage 
by  paying  what  is  due.^ 

The  clause  giving  the  infant  a  day  to  show  cause   against  a  And  by  the 
decree  of  foreclosure  after  attaining  twenty-one,  must  be  inserted  foj^edo^ure 
in  the  order  for  making  the  decree  absolute,  as  well  as  in  the  absolute. 
original  decree;    and  in    Williamson  v.    Gordon*  an  order  was 
made,  iipon  motion,  for  varying  a  decree,  in  which  tlie  clause  had 
been  omitted,  by  directing  its  insertion. 

It  was  said  by  the  Court  in  Booth  v.  Eich^°  that  where  there  is   Where  sale 
an  infant  defendant  to  a  bill  of  foreclosure,  the  proper  way  is  to   instead  of 
decree  the  lands  to  be  sold  to  pay  the  debt,  and  that  such  a  sale  foreclosure, 
would  bind  the  infont ;  but  in  Gooclier  v.  Ashton^^  Sir  William 
Grant  M.  R.  said  that  the  modern  practice  w^as  to  foreclose  infants, 
and   refused  to  refer  it  to  the  Master  to  inquire  whether  a  sale 
would  be  for  the  benefit  of  tlie  infant.     In  a  subsequent  case,  how- 
ever. Lord  ]ildon  said,^  it  would  be  too  much  to  let  an  infant  be 
foreclosed  when,  if  the  mortgagee  would  consent  to  a  sale,  a  sur- 

1  Booth  r.  Rich.  IVern.  295;  William-  suhpcena.  2  Kent  (11th  ed.),  245;  Jackson 
son  v.  Gordon,  19  Ve?.  114;  Anon.,  Mos.  v.  Tunier,  5  Leigh,  119;  Mills  r.  Dennis, 
60;  Ht;nnctt  i'.  Kdwanls,  2  Vern.  392;  3  .lolin.  Ch.  367;  Dow  v.  Jewell,  21  N. 
Price  V.  Carver.  3  M.  &  C.  ICl.  H.  470,  491.      Unless  the  rule  is  dispensed 

2  Newbury  v.  Marten,  15  Jur.  166,  V.  with  by  Statute  rcguhitions  in  specilic 
C.  Ld.  C;  Yates  v.  Crewe,  Seton,  685;  instances,  as  in  partition  and  torcclosiire, 
and  see  ib.  689;  but  see  Fisher  on  Mort-  it  is  the  rule  in  New  York,  that  an  infant 
gages,  C31.  is  to  have  six  months  after  coming  of  age, 

3  .Mallack  v.  Galton.  3  P.  Wms.  352;  to  sliow  cause  asainst  a  d<"cree.  This 
Lyne  v.  Willis,  ih.  n.  [H] ;  Hishop  of  Win-  must  be  done  whenever  the  inheritance  is 
Chester  i;.  Bcavor,  3  Ves.  314,  317.  This,  bound.  The  right  of  the  pnml  to_ demur 
however,  must  not  be  understood  as  is  abolished  by  SMtiite  in  New  York,  in 
applying  to  cases  where  the  decree  has  all  cases  of  descent  anil  devise.  Harris 
been"  obtained  by  fiaud,  or  where  the  v.  Youman,  1  lIofT.  Ch.  178;  see  Field  v. 
infant  claims  bv  a  title  paramount  to  the  Williamson,  4  Sandf.  Ch.  013.  But  the 
mortgage;  see "/««',  172.  In  decrees  of  rule  giving  an  infant  a  day  after  his 
foreclosure  against  an  infant,  there  is,  coming  of  age  is  still  in  force.  ColHn  v. 
according  to  the  old  and  settled  rule  of  Heath,  6  Met.  81. 

practice  in  Chancer}',  a  day  given  when  *  19  Ves.  114. 

ne  conies  of  aire,  usually  six   months,  to  ^  1  Vern.  295. 

show  cause  against  the  decree,  and  make  0  18  Ves.  84. 

a  better  defence,  and  he  is  entitled  to  be  7  Moudey  v.  Mondoy,  1  Ves.  &  B.  223. 

called  in  for  that  purpose  by  jirocess  of 


168 


TEESONS   AGAINST   ■\VTIOiM    A    SUIT   ]\IAY    HE    INSTITUTED. 


Cm.  IV.  §11. 


Absolute 
decree  of 
foreclosure  at 
licarinf!:, 
where  secu- 
rity deficient. 

Court  cannot, 
imder  ordi- 
nary juris- 
diction, sell 
infant's 
estate,  merely 
forhisbenefit. 


])liis  iiiiulit  bo  cfot  of  ])C'rliM]>s  4000/.,  coiisidcri'd  :is  rrul  estntc  for 
till'  hriulit  of  llu'  iiilhnt.  His  Lonlsliip  ;uH'or(liii<;ly  made  :i  docrco, 
h\  wliirli  i(  was  rctrnrd  to  tlie  JMastor,  to  inquire  and  I'cport 
wlu'thor  it  would  bo  ibr  tlie  boncHt  of  tlio  infant  lliat  tlio  oslatc 
should  be  sold.  In  that  ease,  the  reference  was  to  be  made  only 
in  case  the  niortgagoQ  consented ;  and  the  same  ai)pears  to  liavo  been 
the  order  iit  J^tce  v.  Dfarsden ;  ^  but  in  W<i/>X'hani  v.  Xome,  and 
Ilamond  v.  .Bradley^-  like  decrees  a])poar  to  have  been  made,  with- 
out its  being  stated  that  tliey  were  made  by  consent,  or  even  that 
a  sale  was  prayed.  It  is  to  be  observed,  also,  that  in  those  cases, 
as  well  as  in  Pace  v.  Marsden.,  the  decree  was  made  for  a  sale, 
without  a  ])rcvious  rofoi'once  to  inquire  Avhether  it  would  be  for 
the  benefit  of  the  infant.  In  Pace  v.  Maraden.,  however,  it  seems 
that  a  sale  was  prayed  by  the  bill.  In  Price  v.  Carver^  Lord 
Cottenham  seems  to  have  suggested,  that  a  decree  for  sale  Avas  the 
proper  course,  as  against  an  infant  defendant ;  and  in  the  event  of 
such  a  decree,  it  would  ajipear  that  no  day  to  show  cause  is  given.* 
Now,  however,  in  all  foreclosure  suits,  the  Court  is  empowered,  if 
it  thinks  fit,  to  direct  a  sale,  instead  of  a  foreclosure  ;  ^  and  where 
it  is  for  the  benefit  of  the  infant,  it  is  the  practice  to  do  so.®  Where 
the  value  of  the  mortgaged  property  was  clearly  less  than  the 
amount  due  to  the  mortgagee,  the  Court,  at  the  hearing,  made  an 
absolute  decree  for  foreclosure  against  an  infant  defendant,  upon 
the  plaintiff's  paying  the  infant's  costs.' 

Mere  irregularities  and  errors  in  the  proceedings  of  the  Court 
will  not  invalidate  a  sale,  or  prevent  a  good  title  from  being  made 
under  a  decree  ;  *  it  seems,  however,  that  if  there  is  a  material 
error  in  substance,  as  well  as  in  words  and  form,  a  purchaser  may 
object  to  the  title,  and  the  Court  will  discharge  him  from  his  con- 
tract. Thus,  in  the  case  of  Calvert  v.  Godfrey^  where  a  sale  of  an 
infant's  estate  was  ordered,  merely  because;  it  was  beneficial  to  the 
infant,  and  without  there  being  any  person  who  had  a  right  to  call 


1  Seton,  275,  1st  ed. 

2  Md. 

3  3  M.  &  C.  157,  IGl. 

4  Scholelield  v.  Heafield,  7  Sim.  669;  8 
Sim.  470;  Davis  v.  Dowding,  2  Keen,  245. 

5  15  &  IG  Vic.  c.  86,  §  48;  and  see 
Hurst  r-.  Hurst,  16  Beav.  372;  Powell  v. 
Robins,  7  Sumner's  Ves.  211,  note(l),  and 
cases  cited;  Harris  v.  Harris,  6  (iill  &  .1. 
Ill;  Davis  v.  Dowling,  2  Keen,  245; 
Garland  »,-.  Living,  1  IJaiid.  396;  Coger  r\ 
Coger,  2  Dana,  270,  in  reference  to  the 
circumstances  under  which  Courts  will 
decree  a  sale  of  the  lands  descended  to 
infants.  In  Slills  v.  Dennis,  3  .John.  Ch. 
367,  which  was  a  liili  for  foreclosure  of  a 
mortgage,  Mr.  Chancellor  Kent  observed, 
"  Tiie  practice  witli  us  has  been  to  sell, 
and  not  to  foreclose,  as  well  where  infnnts, 
as  where  adults  are  concerned.     I  think 


this  course  must  generally  be  most  bene- 
ficial to  the  infants  as  well  as  to  the  cred- 
itors; and  there  can  be  no  doubt  of  the 
authority  of  the  Court  to  pursue  it."  In 
case  of  a  decree  i'or  the  sale  of  the  mort- 
gaged premises,  tlie  decree,  it  is  under- 
stood, will  bind  tlie  infant.  Mills  «. 
Dennis,  3  John.  Ch.  367,  369;  2  Kent  (11th 
ed.),  245. 

<'  Jlears  v.  Rest,  10  Hare,  App.  61;  SifT- 
kin  r.  Davis,  Kay,  App.  21. 

7  Cro.xon  v.  Lever,  10  Jur.  N.  S.  87; 
12  W.  K.  2S7,  M.  IJ.,  following  Billson  v. 
Scott,  Seton,  686,  V.  C  W. 

8  Calvert  v.  Gndfrev,  6  Beav.  97,  107; 
Baker  v.  Sowter,  10  Beav.  343,  348. 

9  6  Beav.  97,  109.  Now,  however,  the 
Court  has  statutory  power  to  sell  infants' 
settled  estates;  see  poiL  Chap.  XLV.  §  6. 


INFANTS. 


169 


upon  the  Court  to  sell  the  estate  for  the  satisfaction  of  a  claim  or 
debt,  Lord  Langdale  M.  R.,  considering  that  such  an  order  was  not 
witliin  the  jurisdiction  of  the  Court,  allowed  an  objection  to  the 
title,  made  in  consequence  of  the  irregularity  of  the  decree. 

Where  an  answer  is  put/  in  on  behalf  of  an  infant,  it  is  put  in 
upon  the  oath  of  the  person  appointed  his  guardian ;  ^  but  the  infimt 
is  not  bound  by  such  answer,  and  it  cannot  be  read  against  him :  - 
the  true  reason  of  which  is,  because  in  reality  it  is  not  the  answer 
of  the  infant,  but  of  the  guardian,  who  is  the  person  sworn,  and 
not  the  inf  lut ;  and  the  infant  may  know  nothing  of  the  contents 
of  the  answer  jiut  in  for  him,  or  may  be  of  such  tender  years  as 
not  to  be  able  to  judge  of  it.*^  This  being  the  case,  it  would  be 
useless,  and  occasion  imnecessary  expense,  to  call  upon  an  infimt 
to  put  in  a  full  ans-^-er  to  the  plaintifl"'s  bill ;  *  and  it  is,  therefore, 
held,  that  exceptions  will  not  lie  in  the  answer  of  an  infant,  for 
insufficiency.^ 

It  is  not  now  the  practice  to  require  any  answer  from  an  infant. 
Formerly,  when  an  ansAver  from  every  defendant  Avas  necessary, 
an  infant's  answer  Avas  generally  confined  to  a  mere  submission  of 
liis  rights  and  interests  in  the  matters  in  question  in  the  cause  to 
the  care  and  protection  of  the  Court ; "  the  infant  might,  however, 
state  in  liis  answer  any  thing  which  he  meant  to  prove  by  Avay  of 
defence ; ''  and  he  may  noAV  file  a  voluntary  answer  for  this  pur- 
pose,* Avhenever  it  is  for  his  benefit  so  to  do,  as  in  many  cases  it 
may  be ;  ^  but  whateA^er  admissions  there  may  be  in  the  ansAver, 
or  Avliatever  points  may  be  tendered  thereby  in  issue,  it  a])pears 


Cir.  IV.  §  9. 


Answer  of 
iufaut ; 


1  Ld.  Red.  314.  The  order  appointing 
the  f^iiurdian  must  be  produced  to  the 
jier=oii  before  whom  tlie  answer  is  sworn, 
Ord.  VII.  4.  Wiiere  a  guardian  ad  UUiii 
lias  been  appointed,  an  order  maj'  be 
obtain''d,  on  a  petition  of  course,  by  the 
phiiiititf,  to  lib;  an  infant's  answer  witiiout 
oath,  or  without  oatii  or  signature  of  his 
guardian.  For  form  of  petition,  see  Vol. 
III. 

-  2  Kent  (llth  od.),  24.5;  Leggett  v. 
Scllon,  :5  I'aig'-,  84;  .James  v.  .James,  4 
I'aise,  ll'i;  .Stephenson  i'.  Ste|)l)enson,  0 
I'aigf,  3-5.'{;  lingers  /'.  ('ruser,  7  .John.  M\  ; 
Hulklev  I'.  Van  Wvck,  5  I'aii.'e,  636; 
.Stewart  r.  Duvall,  7  (iill  &  .1.  180;  l$ank 
of  Alexamlria  >'.  Patfon,  1  Rol).  (Va.) 
&0();  ('rain  v.  Parker.  1  Carter  (Ind.),  74. 
It  i<  the  dutv  of  the  Court  to  see,  tiiat  the 
rij^hts  of  an  infant  are  not  prejudiced  or 
aliatidoned  by  llie  aii'^wer  of  his  guardian. 
Harret  v.  Oh\er,  7  (iiil  &  .J.  I'Jl.  An  in- 
fant is  not  boun<l  b}'  a  guardian's  waiver 
of  service  of  process.  liobbins  v.  Hobbins, 
2  Carter,  74;  Lenox  v.  Netrebe,  1  Hemp. 
201. 

The  answer  of  an  infant  by  his  guardian 
ad  litem,  is   not    evidence   in   bis   favor, 


although  it  is  responsive  to  the  bill,  and 
sworn  to  by  the  guardian  ad  liltm.  liulk- 
ley  V.  Van  Wyck,  5  Paige,  530;  Stephen- 
son V.  Stephenson,  G  l^iige,  353.  A 
plaintiir  cannot  in  any  form  of  jjlcading 
compel  an  infant  to  become  a  witness 
against  liimself.  Bulklcy  v.  Van  Wyck, 
nbi  siiprn. 

<*  WrottPsley  v.  Bendish,  3  P.  Wms. 
230;  see  Hough  t>.  Dovle,  8  Blackf.  300; 
Hough  V.  Canby,  8  IMM'ckf.  301. 

4  Strudwick  r.  I'argiter,  Hunb.  338. 

O  Copeland  r.  Wheeler,  4  IJro.  C.  C. 
256;  Lucas  v.  Lucas,  13  Ves.  274;  T>d. 
Red.  315;  Loggett  v.  Selion,  3  Paige,  84; 
Hulklev  V.  Van  Wvck,  5  Paige,  530. 

«  Mills  r.  Dennis,  3, John.  Ch.  307,  308; 
Dow  v.  .Jewell,  21  N.  II.  470,  480,  487. 

"i  Per  Iticliards,  C.  P.,  in  Attorney- 
General  r.  Laniliirth,  5  Pri.  3118. 

«  For  form;d  parts  of  an  infant's  An- 
swer, see  Vol.  III. 

"  Lane  )'.  Ilardwicke,  9  Beav.  MR.  ( )r(l. 
XIII.  1,  empowering  the  jilaintin'to  tile  a 
traversing  note  in  default  of  answer,  does 
not,  it  seeiUM,  apply  to  iin  infant  defendant. 
Emery  v.  Newson,  10  Sim.  504. 


Cannot  be 
excepted  to ; 


Not  now 
required ; 

Form  of 
answer,  ac- 
cording to 
late  practice. 


Voluntary 
answer  under 
present 
practice. 

Plaintilf  must 
])rovc  his 
case,  notwith- 
standing 
answer. 


170 


PERSONS   AGAINST   ■WIIO:^    A    SUIT   IMAY   BE    INSTITUTED. 


('II.  IV.  5  ;>. 


Infant,  dis- 
sjitislii'il  wiili 
answer,  iiiiiy 

lilo  lUlotluT 

Oil  I'oniiiii;  of 
ai;e ; 


l)iit  shoiilil 
do  so  as  early 
as  possililo 
tlioroaftor. 

Admissions 
cannot  be 
made  on  part 
of  Infant. 


Necessary 
facts  must  be 
proved 
a/caiust  him. 


Execution  of 
will  must  be 
proved, where 
heir  an  infant. 


that  tlu'  |>l:iintiir  is  not  in  any  iU'htoo  oxtmcratcMl  (roni  liis  diity 
in  ]trt)vinu,',  as  ai;"ainst  tlio  intant,  (lie  wliole  casi>  upon  whicli  lie 
relics.^ 

A\'lu'ro  an  answer  lias  boen  ])ut  in  by  a  o-uanlian  on  bohalf  of  an 
intant  (kiondant,  anil  the  inliint  (,'onios  of  ago,  and  is  dissatisfied 
with  the  del'enee  ])ut  in  by  his  guardian,  he  may  apply  to  the  Court 
for  leave  to  amend  his  answer,  or  to  i>ut  in  sinew  one;-  and  it 
seems  that  this  privilege  a))])lies  as  well  after  a  deeree  has  been 
made  as  before.*^ 

An  infant,  however,  wishing  to  make  a  new  defeTice,  must  apply 
to  the  Court  as  early  as  possible  after  attaining  twenty-one  ;  for  if 
he  is  guilty  of  any  laches,  his  application  Avill  be  refused.'* 

The  same  reasons  w'hich  prevent  an  infant  from  being  bound  by 
his  answer,  operate  to  prevent  his  being  bound  by  admissions  in 
any  other  stage  of  proceeding,  unless  indeed  sucli  admissions  are 
for  his  benefit.  Thus,  it  Avas  held  that,  Avhere  an  infant  is  con- 
cerned, no  case  could  be  stated  by  the  Court  of  Chancery  for  the 
opinion  of  a  Court  of  Law  :  because  an  infant  Avould  not  be  bound 
by  the  admissions  in  such  case.^  Upon  the  same  principle  it  has 
been  held,  that  an  infant  is  not  bound  by  a  recital  in  a  deed  exe- 
cuted during  infancy.*' 

The  consequence  of  this  rule  is,  that  Avhere  there  are  infant 
defendants,  and  it  is  necessary,  in  order  to  entitle  the  plaintift'  to 
the  relief  he  prays,  that  certain  facts  should  be  before  the  Court, 
such  facts,  although  they  might  be  the  subject  of  admission  on  the 
part  of  adults,  must  be  proved  against  the  inf  mts.''     For  the  same 


1  Ilnlden  r.  Ilearn,  1  Beav.  445,  455 ;  3 
.Jur.  428;  Mills  v.  Dennis,  3  John.  Ch. 
367,308;  2  Kent  (11th  ed.),  245;  Winston 
V.  Campbell,  4  Hen.  &  M.  477;  Massie  v. 
Donaldson,  8  Oliio,  377. 

-  Stephenson  v.  Stephenson,  6  Paige, 
353;  .lames  r.  James,  4  Paige,  115.  An 
infant  defendant  does  not  lose  his  right  to 
ot)ject  to  the  jurisdiction  of  the  Court  at 
tlie  hearing,  upon  the  ground  that  the 
remedy  is  at  Law,  although  his  guardian 
ad  litem  has  omitted  to  raise  such  objec- 
tion in  his  answer.  Bowers  v.  Smith,  10 
Paige,  193. 

Where  the  infant  under  leave  does 
amend  his  answer,  or  puts  in  a  new  one, 
on  coining  of  age,  the  ])laintiff  may  amend 
his  bill,  an'l  inav  waive  an  answer  under 
oath  by  the  infant  so  coming  of  age. 
Stephenson  v.  Stephenson,  C  I'aige,  353. 

3  Kelsallf.  Kelsall,  2  M.  &  K.  409,  416; 
Snow  V.  Hole,  15  Sim.  161;  10  Jur.  347; 
Codrington  v.  Johnstone,  cited  1  Smith 
Pr.  275;  Seton,  685. 

*  Bennet  v.  Leigh,  1  Dick.  89.  In  the 
ca'e  of  Bennet  v.  Lee,  2  Atk.  487,  and 
529,  referred  to  in  the  margin  of  1  Dick. 
89  as  S.  C  ,  the  application  was  made 
during  the  infancy,  see  post,  174;  and  see 


Cecil  V.  Lord  Salisbury,  2  Vern.  224; 
Mason  v.  Debow,  2  Havw.  178;  Morris 
V.  Morris,  11  Jur.  260,  V."C.  K.  B.;  Mony- 
pennv  v.  Dering,  4  De  G.  &  J.  175;  5 
Jur.  N.  S.  661. 

"  Hawkins  v.  Luscombe,  2  Swanst.  392; 
but  it  -was  done  in  Walsh  v.  Trevannion, 
10  Sim.  178;   12  Jur.   547. 

«  Milner  v.  Lord  Ilarewood,  18  Ves. 
274. 

7  Wilkinson  v.  Beal,  4  Mad.  408;  see 
also  Quantcick  v.  Biillen.  5  Jlad.  81,  where 
the  Court  refused  to  allow  evidence,  taken 
before  the  infants  were  made  parties,  to 
be  read  against  them;  but  see  Baillie 
V.  Jackson,  10  Sim.  167,  as  to  accounts; 
and  see  Jebb  v.  TugwcU,  20  Beav.  401. 
In  Mills  V.  Dennis,  3  John.  Ch.  367,  which 
was  a  suit  for  foreclosure,  it  was  held,  that 
there  could  be  no  valid  decree  against  an 
infant,  by  default,  nor  on  his  answer  by 
guardian;  but  the  ])laintifrinust  prove  his 
demand  in  (Jourt,  or  before  a  nia--ter,  and 
the  infant  will  have  a  da}'  in  Cimrt,  alter 
he  comes  of  age,  to  show  error  in  the 
decree.  See  Massie  r.  Donaldson,  8  Ohio, 
377;  Walton  «.  Coulson,  1  McLean,  125; 
Chalfant  v.  Monroe,  3  Dana,  35;  Dow  u. 
Jewell,  21  N.  H.  486,  487. 


INFANTS. 


171 


reason,  "nhere  a  "Rill  relating  to  real  estate  is  to  be  established  in 
Chancery,  and  the  heii--at-law  is  an  infant,  it  is  always  necessary 
to  establisli  the  due  execution  of  the  will  by  the  examination  of 
witnesses. 

From  the  report  of  the  cases  of  Cartioright  v.  Cartioright,  and 
Sleeman  v.  Sleeman^  in  Mr.  Dickens's  Reports,^  it  seems  to  have 
been  held,  that  where  the  heir-at-law  in  an  original  suit,  being 
adult,  had  by  his  answer  admitted  the  due  execution  of  the  will, 
but  died  before  the  cause  was  brought  to  a  hearing,  leaving  an 
infant  heir,  who  was  brought  before  the  Court  by  revivor,  the  will 
must  be  proved  per  testes  against  the  infant  heir.  But  in  Livesey 
V.  Livesey^-  Sir  John  Leach  M.  R.  held,  that  the  circumstance  of 
the  first  heir  having  admitted  the  will,  rendered  it  unnecessary  to 
prove  it  against  the  infant ;  and  in  a  subsequent  case,^  Sir  Lancelot 
Shadwell  V.  C.  expressed  himself  to  be  of  the  same  opinion  as  the 
Master  of  the  Rolls,  and  said  that  he  had  referred  to  the  entries  of 
the  cases  of  Sleeman  v.  Sleeman,  and  Carticright  v.  Cartwriyht,  in 
the  Registrars'  book  ;  and  that  with  respect  to  the  former,  no  such 
thing  as  is  mentioned  by  the  reporter  appears  to  have  taken  place, 
but  the  original  heir  having  admitted  the  will,  the  Coiirt  estab- 
lislied  it ;  and  Avith  respect  to  the  latter,  all  that  was  stated  was, 
that  on  hearing  the  will  and  proofs  read  (not  saying  what  proofs), 
the  Court  declared  that  the  will  ought  to  be  established.* 

Where  an  infant  has  a  day  given  him  by  the  decree,  to  show 
cause  against  it,  the  process  served  upon  him  at  his  coming  of  age 
is  a  writ  oi  suhpwna,  which  is  a  judicial  writ,^ 

The  sulqycena  will  be  sealed  upon  its  mere  presentation,  and 
without  production  of  the  decree  or  order  referred  to  in  it ;  and 
need  not  be  served  personally."  It  is  served  by  delivering  a  copy 
tliereof,  and  of  the  indorsement,  to  the  late  infant  personally,  or  to 
his  servant,  or  some  member  of  his  family,''  at  his  dwelling-house, 
or  usual  jtlace  of  abode,  and  at  the  same  time  producing  the  origi- 
nal suhjxena.^  If  service  cannot  be  thus  effected,  an  application 
may  be  made  to  the  Court,  by  ex  parte  motion,'^  supj)orted  by  affi- 
davit, to  direct  some  other  moile  of  service.^"  If  the  order  be  made, 
a  copy  of  it  must  be  served  witli  tin;  suhjxena,  in  the  manner  pre- 
scribed by  the  order. 


Cn.  IV.  §  9. 


Infant  heir 
bound  by- 
admission  of 
his  ancestor. 


Subpana  to 
show  cause 
af^ainst 
decree ; 

How  sealed ; 

• 

and  sen-ed. 


Substituted 
service. 


1  2  Dick.  545,  7R7. 

2  Cited  4  .Sim.   1.32. 

8  Lock  r.  Foole,  4  .Sim.  132. 

*  .Sci'  al-o  Ilobiiison  r.  Cuoper,  4  Sim. 
131.  Such  11  statement  liy  an  ancestor 
plniiitiir,  in  a  liili.  is  an  admission  biiidinj^ 
on  hi"  infiint  heir,  llollings  r.  Kirkljy,  15 
Sim.  183. 

1  2  Kent  (lHh  cd  ),  245,  and  note;  Dnw 
r.  .Jewell.  21  X.  II.  4^1.  l-or  form  «t' 
writ,  .see  Urd.  Sclied.  E.  6;  and  Vol.  111.; 


for  forms  of pracipe  and  indorsement,  see 

Vol.  iir. 

c  I',r:iithwaitp.'8  Pr.  266,  267. 

"  Such  menil)er  should  be  an  inmate  of 
the  house.  Kdgson  v.  Edgson,  3  De  G.  & 
S.  C2!». 

»  .See  Ord.  X.  1;  XXVIII.  6. 

'•>  For  form  of  motion  pnper,  sec   Vol. 

in. 

1"  See  Ord.  X.  2;  Elcock  r.  Giegg,  2 
Dick.  7i;4. 


172 


PEHSONS    AGAINST    WHOM    A    SUIT    MAY    BE    INSTITUTED. 


I'll.  IV.  V.t. 


Duration  of 
subficena. 

How  (loCR'O 

inadi' 
abstiluto. 


Wliat  cause 
may  bo  shown 
agjiinst  de- 
cree :  in  oases 
of  foreclosure. 


Where 
infant's  title 
parainouut 
themortffaffc. 


Tho  service  of  tlie  {Hfbjxvna  will  bo  of  no  viilidity,  if  not  made 
Avithin  Iwolvo  Moolis  aitor  the  tente  of  the  writ.^ 

It",  alter  ser\  iee  of  the  ,^i(/tj)mna  to  show  cause,  the  ]iarty  docs 
not  ai)i)ear  within  the  time  limited,  the  decree  will  be  made  abso- 
lute, without  cnterinu;  an  a|)iK'arance  for  him,"  upon  an  ex  parte 
motion,  su)i|>orted  by  an  affuhivit  ol"  service  of  the  subpoena,  evidence 
that  the  infant  is  of  aL;e,  and  the  Registrar's  certiiicate  of  no  cause 
shown.^ 

It  is  said  above,*  that  in  cases  of  foreclosure,  the  only  cause 
which  can  be  shown  by  an  infant  after  attaining  twenty-one, 
against  making  the  decree  absolute,  is  error  in  the  decree,  and  that 
he  will  not  be  permitted  to  unravel  the  account,  nor  even  to 
redeem  the  mortgage  on  paying  what  is  due.  This  strictness, 
however,  must  not  be  understood  as  applying  to  cases  in  which 
fraud  or  collusion  has  been  made  use  of  in  obtaining  the  decree.'^ 
Neither,  it  is  apprehended,  will  the  above  rule  apply  to  cases  where 
the  title  claimed  by  the  infant  is  paramount  the  mortgage.  Thus, 
in  a  case  where  :m  estate  had  been  conveyed  to  the  great-uncle  and 
grandfather  of  the  infant,  as  joint-tenants  in  fee,  and  upon  the 
death  of  the  great-uncle,  the  grandfather,  being  the  survivor,  had 
mortgaged  the  estate,  and  died,  leaving  the  infant  his  heir-at-law  : 
upon  a  bill  filed  by  the  mortgagee  against  the  infant  to  foreclose, 
the  infant  stated  in  his  answer  that  the  estate  had  been  purchased 
and  paid  for  by  his  great-uncle,  who  devised  the  same  to  his  grand- 
fother  for  life,  with  remainder  to  his  heirs  in  tail,  and  so  claimed 
the  estate  as  heir  in  tail  by  a  title  paramount  the  mortgage  ;  but 
the  Court  decreed  an  account,  and  that  the  defendant  should  re- 
deem or  be  foreclosed,  unless  he  showed  cause  within  six  months 
after  he  came  of  age,  on  the  ground  that  the  grandfather  being  by 
the  deed  joint-tenant  in  fee  with  his  brother,  whom  he  survived, 
must  have  appeared  to  the  mortgagee  to  have  a  good  title.  The 
inf  mt,  however,  when  he  came  of  age,  upon  being  served  with  a 
suhprena  to  show  cause,  moved  for  leave  to  amend  his  defence,  by 
putting  in  a  new  answer,  and  swore  that  he  believed  he  could 
prove  that  the  mortgagee  had  notice  of  the  trust  for  his  great- 
uncle  at  the  time  he  lent  the  money,  which  was  a  point  not  insisted 
upon  in  his  former  answer;  and  the  Court  made  the  order.®  The 
reason  of  this  distinction  between  the  case  of  a  claim  by  the  infant 
paramount  the  mortgage,  and  that  of  a  claim  subject  to  the  mort- 
gage, is  obvious  ;  for  in  the  latter  case,  it  will  be  presumed  that  the 
Court  would  not  have  made  the  decree  had  it  not  been  satisfied 


1  Ord.  XXVIir.  9. 

-  Gilb.  For.  Rom.  160;  Wharam  v. 
Brouf^hton,  1  Ves.  S.  185. 

3  bee  Seton,  685;  Hinde,  436,  440.  Tor 
forms  of  orders  absolute,  see  Seton,  685, 


689;    and  for  forms  of  motion  paper  and 
afiidavit,  see  Vol.  III. 

4  Antt,  p.  167. 

G  Lov.l  f  M;insel,  2  P.  Wms.  73. 

6  Anon.,  Mos.  60. 


INFANTS. 


173 


that  the  mortgage  was  properly  executed,  and,  therefore,  it  would 
not  be  reasonable  to  allow  a  party,  clamimg  siibject  to  that  deed, 
to  disturb  the  title  which  the  mortgagee  had  acquired  under  it ; 
but  in  the  former  case,  the  mortgage  may  have  been  jH'operly 
executed,  and  the  account  taken  under  it  may  have  been  perfectly 
correct,  and  yet  the  mortgagor  may  not  have  had  a  title  to  make 
the  mortgage :  in  which  case,  it  would  not  be  just  to  preclude  the 
infant  from  an  opportunity  of  establishing  a  case  which,  from  the 
circumstance  of  its  not  having  been  insisted  upon  in  the  infant's 
answer,  was  not  properly  submitted  to  the  decision  of  the  Court  at 
the  time  the  decree  was  pronounced. 

In  ordinary  cases,  where  an  infmt  has  a  day  given  him  to  show 
cause  against  making  a  decree  absolute,  he  may  either  im])caeh  the 
decree  on  the  ground  of  fraud  or  collusion  between  the  plaintiff" 
and  his  guardian,  or  he  may  show  error  in  the  decree.  He  may 
also  show  that  he  had  grounds  of  defence  which  were  not  before 
the  Court,  or  were  not  insisted  u})on  at  the  hearing,  or  that  new 
matter  has  subsequently  been  discovered,  upon  which  the  decree 
may  be  shown  to  be  -yrVTong.^ 

If  the  late  infant  seeks  to  controvert  the  decree  on  the  ground 
of  fraud  or  collusion,  he  is  not  bound  to  proceed  by  way  of  rehear- 
ing or  by  bill  of  review,  but  he  may  impeach  the  former  decree  by 
an  original  1)111,  in  which  it  will  be  enough  for  him  to  say,  that  the 
decree  was  obtained  by  fi-aud  or  collusion ;  he  may  in  like  manner 
impeach  the  decree  by  original  bill,  even  though  his  ground  of 
complaint  against  it  is  confined  to  en'or.'^  In  such  cases,  it  is  not 
necessary  for  the  inflmt  to  Avait  till  he  comes  of  age  before  he 
seeks  redress,  but  application  for  that  pui-pose  may  be  made  at  any 
time.^ 

If  the  late  infant  seeks  to  impeach  the  decree,  by  showing  that 
he  liad  grounds  of  defence  Avhich  were  either  not  before  the  Court, 
01"  not  insisted  upon  at  the  original  hearing,  he  might,  under  the 
old  practice,  apj^ly  to  the  Court,  either  by  motion  or  petition,  for 
leave  to  i)Ut  in  a  new  answer ;  an<l  it  seems  that  such  aj)plication 
might  be  made  ex  parte,  and  was  a  matter  of  course;''  but  under 


Cii.  IV.  §  9. 


1  An  infant  may  impench  a  decree 
a^ninst  him  by  an  original  bill  for  relief, 
a.s  well  as  In'  a  bill  of  review  or  peti- 
tion for  a  rehearing.  Loyd  v.  Mulone,  23 
111.  43. 

-  I'.ichmond  i'.  Tayleur,  1  P.  Wms.  737 ; 
f'arew  v.  .Johnston.  2  Sch.  &  Lef.  292; 
Brook  I'.  Mostyn,  10  .Jur.  N.  S.654,  M.  K. ; 
ih.  1114;  13  W.  1{.  lir,,  L.  J.J.;  13  IJcav. 
4.->7;  2  Dc  <;.,  J.  &  S.  373,  417.  In  the 
rase  of  (;riis.s  fraud  or  collusion  used  in 
obtaining  n  decree,  the  Court  will  enter- 
tain an  original  bill  for  the  purpose  of 
im|)cachlng  it,  even  though  the  party 
complaining   was   not    an   infant    at   the 


time  of  the  decree  pronounced;  see  Loyd 
V.  Mansel,  2  V.  Wms.  73;  .Sheldon  v. 
Forte.scne,  3  P.  Wms.  111.  In  general, 
however,  where  no  fraud  is  allefred,  the 
proceedings  to  set  aside  a  decree,  if  it  has 
been  signed  and  enrolled,  must  be  by  bdl 
of  review,  or,  if  not  signed  and  enrolled, 
by  suppleuK-ntal  bill  in  the  nature  of  a 
bill  of  review.  Wortley  v.  Hirkhead,  3 
Atk.  800,  811;  Galley  v.  Baker,  Ca.  t. 
Talb.  201. 

«  Richmond  v.  Tayleur,  1  P.  Wms.  737; 
Carew  r.  .Johnston,  2  Sell.  &  Lef.  21>2. 

■•  Fountain  v.  (Jaine,  1  P.  Wtns.  504; 
Napier  v.  Lady  Ellingham,   2    P.  Wms. 


Grounds  on 
which  decree 
impeachable. 


How  cause 
may  be 
shown : 
For  fraud  or 
collusion ; 


Error. 

Infant  need 
not  wait  till 
of  age. 


How  applica- 
tion for  leave 
to  set  up  a 
new  defence 
made. 


174 


TEKSONS    AGAINST    AVllOM    A    SUIT    MAY    BE    INSTITUTED. 


Cii.  IV.  ^'.1. 


Wlion.'  iTos 
biU. 


Billof  (liscov- 
erv  iu  aid. 


Enlarging 
time  to  show 
cause. 


New  bill  only 
lies  where 
fraud,  collu- 
sion, or  en-or. 


Infant  must, 
in  general, 
wait  till  of 
age. 


the  ])ri'sc'iit  |ir:u'tico  (unless  ;m  ;ins\vcr  li:is  \)vvn  \mt  in,  or  it  is 
tliouiilit  (k'sirablo  to  ])ut  one  in,  on  bi'liiilfof  tlie  inihnt),  it  is  con- 
(.•(.'ivod  the  form  ol'the  motion  or  petition  will  be,  for  leave  to  make 
a  new  clcfenee. 

Althouoh  it  was  a  matter  of  course,  that  an  infant  defendant  to 
a  suit,  who  had  had  a  day  given  lam  to  show  eaiise  against  the 
decree  after  attaining  tAventy-one,  miglit  have  leave  to  put  in  a 
new  answer,  yet,  if  he  w'as  plaintift*  in  a  cross-bill,  and  that  suit  or 
any  i>art  of  it  had  been  dismissed,  he  was  not  alloAved  to  amend 
his  cross-bill,  or  to  file  a  new  one  for  the  same  matter.^  He  might, 
liOAvever,  file  a  bill  of  discovery  in  aid  of  the  case  intended  to  be 
made  by  his  answer;  and  it  seems  that  if  he  did  so,  the  time  of  six 
months  allowed  by  the  course  of  the  Court  for  a  defendant  to  show 
cause  why  a  decree  should  not  be  made  absolute  after  he  comes  of 
age,  was  not  so  sacred  but  that  in  particular  cases,  and  whei-e  the 
matter  was  of  consequence,  the  Court  might  enlarge  it ;  and,  there- 
fore, in  the  case  of  T'refusis  v.  Cotton,'^  Avhere  a  defendant,  on 
attaining  twenty-one,  and  being  served  Av^ith  a  suhpcena  to  show 
cause  against  a  decree,  filed  a  bill  against  the  plaintiffs  in  the 
original  suit  for  discovery,  and  applied  to  the  Court  to  have  the 
time  for  showing  cause  eidarged  till  the  defendants  to  the  bill  of 
discovery  had  put  in  their  ansAver,  Lord  King  made  an  order,  en- 
larging the  time  for  three  months  after  tlie  six  months  Avere  ex])ired  ; 
and  on  that  time  being  out,  and  the  defendants  not  having  i»ut  in 
a  full  answer,  the  time  Avas  tAvice  enlarged  upon  motion  quoiisque? 
It  seems,  however,  from  a  subsequent  notice  of  the  same  case,*  that 
an  infant,  after  he  attains  tAventy-one,  cannot  controvert  the  original 
decree  by  a  ncAV  bill  jiraying  relief,  unless  for  fraud  or  collusion,  or 
for  error; 5  and  that  if  he  does  so,  the  original  decree  may  be 
pleaded  in  bar  to  such  ncAV  bill. 

Although,  where  a  day  is  given  to  an  infant  to  shoAV  cause 
against  a  decree,  he  need  not,  as  Ave  have  seen,^  stay  till  that  time, 
befoi'c  he  seeks  to  impeach  it  on  the  ground  of  fraud,  collusion,  or 
error,"  yet,  if  he  proceeds  on  the  groimd  that  he  is  dissatisfied  Avith 
the  defence  AA'hich  has  been  made,  and  Avishes  to  make  a  ncAV 
defence,  he  must,  in  general,  Avait  till  he  has  attained  tAventy-one 
before  he  applies:  because,  if  he  should  apjily  before,  and  there 
should  be  a  decree  against  him  upon  the  second  hearing,  he  may 
Avitli  as  much  reason  make  similar  aj^plications,  and  so  occasion 


401,  Affd.  4  Bro.  P.  C.  ed.  Toml.  .340;  Ben- 
net  V.  Lee,  2  Atk.  .''j2'J,  531;  Kelsall  v. 
Kelsall,  2  M.  &  K.  409,  in  wiiich  the  cases 
are  reviewed. 

1  Sir  J.  Napier  v.  Lady  Effingham  How- 
ard, cited  Mos.  67,  C8. 

2  Mos.  203. 

3  For  forms  of  petition  to  enlarge  the 


time  for  showing  cause,  see  2  Ncwl.  214; 
Ilinde,  572. 

4  Mos.  .308. 

6  llichmoiid  V.  Tayleur,  1  P.  Wms.  737; 
see  Lovd  c.  Malone,  23  111.  43;  Kcgla  v. 
Martini'  10  Cal.  463, 

6  yl«te,  p.  173. 

7  Kichmond  v.  Tayleur,  1  P.  Wms.  737. 


IDIOTS,  LUNATICS,  AND    PERSONS    OF    WEAK   MIND. 


175 


infinite  vexation.  This  was  tlie  opinion  originally  exijressecl  by 
Lord  Hardwicke,  in  the  case  of  Bennet  v.  Lee;'^  though  he  after- 
wards held,  in  the  same  case,  that  as  the  facts  upon  which  the 
infant  wished  to  rest  his  new  defence  were  of  long  standing,  and 
the  witnesses  were  consequently  very  old,  and  might  die  before 
he  came  of  age,  the  inflmt  might  put  in  a  better  answer.^  And  so 
in  Savage  v.  Carrol,^  leave  was  given  to  the  infont  defendant,  upon 
the  same  grounds,  to  put  in  an  amended  answer  before  attaining 
twenty-one ;  but  it  was  subsequently  held  in  the  same  case,*  that 
where  an  infant,  before  attaining  twenty-one,  obtains  leave  to  put 
in  a  new  answer,  he  will  thenceforth  be  considered  as  plaintiff;  and 
as  such  will  be  bound  by  the  decree.^ 

Where  an  infont  defendant  on  coming  of  age,  having  obtained 
leave  to  put  in  a  new  answer,  did  so  accordingly,  he  might  show 
that  foct  for  cause  why  the  decree  should  not  be  made  absolute, 
and  tlie  jdaintiff  was  ol>ligcd  to  proceed  upon  the  answer  accord- 
ing to  the  rules  of  the  Court  in  other  cases.*^ 

The  consequence  of  an  infant  putting  in  a  new  answer  was, 
that,  if  it  was  replied  to,  he  might  examine  witnesses  anew  to 
pro^•c  his  defence:  which  might  be  different  from  what  it  was 
before." 


Cii.  IV.  §  10. 
' Y -^ 


A  new  an-' 
swer,  good 
cause  against 
making  de- 
cree absolute. 


Consequence 
of  a  new 
answer. 


Section  X.  —  Idiots,  Lunatics,  and 2J<^rsons  of  loeah  mind. 

An  idiot  or  a  lunatic  may,  as  wc  have  seen,^  be  made  a  defend-  Lunatics,  so 
ant  to  a  suit,  but  then,  Avhere  he  has  been  found  of  unsound  mind  j^,)|"-i,itiOT, 
In-  inciuisition,  he  must  defend  by  the  committee  of  his  estate,  who,  ddind  iiy 

"'  '.  -,.1  •  -\        ^  •  •  comuuttecs, 

as  well  as  the  idiot  or  lunatic  whose  estate  is  under  his  care,  is  a 
necessary  party  to  a  suit  respecting  that  estate.^      No  order  is  whonmstbe 
re(|uired  in  the  suit  to  entitle  tlie  committee  to  defend;  but  the  1''^'^"'^' 
committee  must  obtain  the  sanction  of  the  Lord  Chancellor  or 
Lords  Justices  in  the  lunacy,  before  defending,  in  the  same  man- 
ner as  before  instituting  a  suit.^" 


1  2  Atk.  487. 

2  Ih.  532. 

3  1  Hall.  &  B.  548. 
••  'Z  \;.A\.  Si  H.  244. 

■•  In  iiroceedinf^s  by  an  infant,  on  criming 
of  age,  to  set  (iside  a  decree,  wliicli  lias 
been  rendered  against  liim  while  umler 
age,  he  should  give  notice  to  the  other 
panic-,  to  the  decree.  Kuby  w.  Strother, 
11  Mis.  417. 

•■•  Oiftoii  V.  Trcfuxis,  Mos.  313. 

7  Napier  v.  Lord  KOingliain,  2  1'.  Wins. 
401,  403;  and  see  Codringlon  r.  .Iolinf.t<)iie, 
Scton.  G85;  Kelsall  r.  Keliall,  2  M.  &  K. 
40SI,  416. 

8  Ante,  p.  130. 


'■>  Ld.  Red.  30,  104;  Story  Kq.  PI.  §  70; 
Harrison  r.  Kowaii,  4  Wash.  C.  C.  202. 
In  IJraslier  /;.  Van  Corilnndt,  2  .John.  Gli. 
242,  245,  it  wns  held  not  necessary,  in  New 
York,  to  make  the  lunatic  himself  a  party 
defendant  to  a  bill  fur  |)aynient  of  his 
debts,  but  hi-i  committee  only,  where  he 
had  a  connniltee.  So  in  'J'eal  i'.  Wood- 
worth,  3  Paige,  470.  See  Uerry  v.  Rogers, 
2  1$.  iMon.  308.  But  in  a  suit  where  there 
are  conflicting  interests  between  a  lunatic 
and  his  couiniittce,  which  must  be  settled 
in  the  cause,  both  should  be  iiiMde  parties. 
Teal  V.  Woodworth,  3  I'aige,  470. 

10  AnU,  p.  85. 


17G 


PERSONS   AGAINST   WIIOJI   A    SUIT   MAY   BE    INSTITUTED. 


Cii.  IV.  §  10. 


luit  dotViul 
by  fjuanliaii, 
wluTt"  no 
coniinitt 
he  has  ad- 
verse interest 


or 


Wiero  eom- 
mittee  dies, 
oriler  to  earn- 
on  in  name 
of  new  eoni- 
mittec. 


Lunatics,  not 
so  found,  and 
persons  of 
weak  intel- 
lect, defend 
yuardian. 
How 
appointed. 

Evidence  in 
support  of 
application ; 

Wlio  ineli- 
pble  to  be 
by  guardians. 


New  appoint- 
ment: how 
made. 


l^sunlly  the  lunatic  inid  his  (•(uniuillre  iiiakc  a  joint  (lofeiico  to 
tlio  suit ;  Imt  it"  it  haj)i)ens  tliat  an  idiot  or  a  lunatic  has  no  com- 
ntittoo,  or  the  coniinittoe  is  ])laintitt",  or  lias  an  atlvcrse  interest,  an 
order  should  be  obtained,  on  motion  or  |K'tilion  of  course,  suj)- 
ported  by  affidavit,^  a])i)oint.ing-  a  guardian  to  tlefend  the  suit ; '■^ 
and  it  is  the  same  where  he  is  respondent  to  a  i)etition.'' 

Where,  alter  decree,  the  connnittee  died,  and  a  new  one  was 
appointed,  an  oriler  was  made,  on  motion,  that  in  all  subsequent 
l>roeeedings  tlie  name  of  the  new  committee  sliould  be  substituted 
for  that  of  the  former;*  where  no  decree  had  been  made,  such  an 
order  Avas  refused ;  ^  now,  however,  in  both  these  cases,  an  order 
to  carry  on  and  prosecute  tlie  suit  may  be  obtained,  on  motion  or 
petition  of  course."  Lunatics  not  so  fouiul  by  incpiisition,''  and 
persons  of  Aveak  intellect,  or  Avho  are  by  age  or  infirmity  reduced 
to  a  second  infancy,®  must  defend  by  guardian :  who  Avill  be  ap- 
})ointed  on  an  a})plication  by  motion,  or  petition  of  course,  in  the 
name  of  the  j^erson  of  unsound  mind ;  ^  and  it  is  the  same  in  the 
case  of  a  i)etition  Avhere  no  suit  has  been  instituted.^'^  The  appli- 
cation must  be  supported  by  affidavits  proving  the  mental  in- 
capacity of  the  defendant,"  the  fitness  of  the  proposed  guardian, 
and  that  he  has  no  adA'crse  interest.-'"  A  co-defendant  may  be 
appointed,  if  he  has  no  adverse  interest ;  ^^  but  not  the  plaintiff, 
nor  a  married  woman,  nor  a  person  resident  out  of  the  jurisdic- 
tion.i* 

If  the  guardian  dies,  it  appears  that  similar  evidence  of  mental 
incapacity  is  necessary,  in  supjjort  of  the  application  for  the 
appointment  of  a  new  guardian,  to  that  required  on  the  original 
application.^^  The  death  of  the  guardian,  and  fitness  of  the  per- 
son proposed  in  his  place,  must  also  be  proved.  The  a2)plication 
should  be  made  by  motion,^*'  or  by  summons.^^ 


1  For  forms  of  motion  paper,  petition, 
and  afTuiavit,  see  Vol.  III. 

2  Ld.  Red.  104;  Snell  v.  Hyat,  1  Dick. 
287;  Ladv  Hartland  v.  Atclierlev,  7  Beav. 
5.3;  AVort'h  r.  M'Kenzie,  3  M'N.  &  G.  363; 
Snook  r.  AVatts,  Seton,  1251 ;  New  v.  New, 
6  I'aige,  237;  Hewitt's  case,  3  Bland,  184; 
Post  r.  Matkall,  3  Bland,  486.  For  form 
of  order,  sec  Seton,  1251. 

3  See  Jie  Greaves,  2  W.  R.  365;  2  Eq. 
Rep.  C16,  L.  C.  &  L.  JJ. 

4  Lvon  r.  Mercer,  1  S.  &  S.  356;  Bryan 
V.  Twigg,  3  Kq.  Rep.  62;  3  W.  R.  42,  V. 
C.K. 

5  Rudd  V.  Spearc,  3  De  G.  &  S.  374. 

6  15  &  16  A'ic.  c.  86,  §  52:  Seton,  1166, 
1170;  and  see  pnst,  Chap.  XXXIII.,  Jie- 
tiror  and  Supplement. 

7  Ld.  lif-d.  104;  and  see  Bonfield  v. 
Grant,  11  AV.  R.  275,  lAI.  R. 

"  Ld.  Red.    103;   and  see  Newman   v. 


Selfe,  11  W.  R.  764,  IL  R. ;  but  see  Steel 
V.  Cobb,  ib.  298,  M.  R. 

'•*  For  forms  of  motion  paper  and  peti- 
tion, see  A'ol.  III. 

10  lie  Greaves,  2  AV.  R.  355;  2  Eq.  Rep. 
516,  L.  C.  cSi  L.  JJ. 

»  Simmons  v.  Hates,  20  L.  T.  272. 

12  I'iddoeke  v.  Smith,  9  Hare,  395;  11 
Jur.  1120;  atid  see  Foster  v.  Cautky,  10 
Hare  App.  24;  17  Jur.  870.  For  form  of 
atiidavits,  .see  \'ol.  III. 

i'^  liontield  V.  Grant,  11  AV.  R.  275,  M. 
R. ;  Newman  v.  Selfe,  ib.  764,  M.  R. 

I'l  Lady  Hartland  v.  Atcherley,  7  Beav. 
53. 

15  See  Ncedham  v.  Smith,  6  Beav.  130. 

10  JbiJ. 

17  According  to  the  present  practice,  the 
order  ma}'  al.'-o  be  obtained  on  petition  of 
course  at  the  Rolls.  For  forms  of  motion 
paDer,  petition,  summons,  and  allidavit, 
see  Vol.  III. 


IDIOTS,  LUNATICS,  AND   PERSONS   OF   WEAK   MIND. 


177 


Where  an  application  for  the  appointment  of  a  guardian  is 
intended  to  be  made  by,  or  on  behalf  of,  a  defendant  of  unsound 
mind,  or  weak  intellect,  an  appearance  should,  in  the  first  place, 
be  entered  for  him  at  the  Record  and  Writ  Clerks'  office ;  but  no 
subsequent  step  can  be  taken  on  his  behalf,  till  the  order  for  a 
guardian  has  been  obtained.^  If  such  order  be  not  obtained  on 
his  behalf,  the  plaintiff  must  apply  for  the  order ;  and  in  this  case, 
an  appearance  for  the  defendant  is  not  necessary :  the  entry  of  an 
appearance  on  his  behalf  by  the  plaintiff  being  irregular.^ 

Where  a  guardian  is  apjjointed  at  the  instance  of  the  plaintiff, 
it  is  usual  to  appoint  the  solicitor  to  the  Suitors'  Fee  Fund.^ 

Where  the  plaintiff  aj^plies,  he  must  do  so  by  motion,  notice  of 
which  must  be  served  upon  or  left  at  the  dweUing-house  of  the 
person  with  whom,  or  under  whose  care,  the  defendant  was  living 
at  the  time  of  serving  the  bilV  oi'j  where  an  apj^earance  has  been 
entered  for  him,  upon  the  solicitor  who  entered  it.^  And  upon 
the  motion,  the  Court  must  be  satisfied  that  the  bill  has  been  duly 
served,®  and  that  the  notice  of  the  application  was  served  after  the 
expiration  of  the  time  allowed  for  appearing  or  answering,  and  at 
least  six  clear  days  before  the  day  in  such  notice  named  for  hear- 
ing the  application.'' 

The  order  is  made  under  tlic  jurisdiction  in  Chanceiy,  and  not 
in  Lunacy ;  ^  and  if  the  fact  of  the  infirmity  is  disputed,  or  the 
order  has  been  irregularly  obtained  by  the  defendant,  the  plaintiff 
may  move,  on  notice  to  the  defendant,  to  discliarge  the  order ; 
and,  if  necessary,  the  Court  will  direct  an  inquiry  whether  the 
defendant  is  competent  or  not.^ 

The  defendant,  on  his  recovery,  must  apply  by  motion,  on  notice 
to  the  plaintiff  and  to  the  guardian,^*^  that  the  order  assio-nino-  the 
guardian  may  be  discharged."  Wliere  he  liad  delayed  applying, 
he  had   to   i)ay  his  guardian's   costs,  although  the   motion   was 


Ch.  IV.  §  10. 


Appearance 
by  defeudant. 
a  necessarj' 
preliminary 
to  application 
by  him. 
If  no  applica- 
tion on  behalf 
of  defendant 
to  appoint 
guardian, 
plaintiff  must 
apply; 
and  solicitor 
to  Suitors' 
Fimd  then 
usually 
appointed. 

HoTv  appli- 
cation made 
by  plaintiff, 
and  necessarj' 
evidence. 


Jurisdiction 
to  make  the 
order. 

Application 
by  plaintiff  to 
discharge 
order. 

Incpiiry  as  to 
competency. 

Application 
by  defendant 
to  discharge 
order. 


1  Sec  Lushington  v.  Sewell,  G  Mad.  28. 

2  Ord.  X.  5;  Leese  v.  Knight.  8  Jur. 
N.  S.  lOOG;  10  W.  n.  711,  V.  C.  K. 

8  Ord.  VH.  .'{;  M'Keverakin  i'.  Cort,  7 
Beav.  347;  liiddulph  t'.  Lord  Camoys,  9 
Bcav.  548;  10  Jur.  4Sj.  If  there  is  any 
friend  of  the  defendant  who  is  a  fit  person, 
he  will  be  appointed,  in  preference  to  the 
solicitor  to  the  Suitors'  Fee  Fund;  I/jid. ; 
Moore  v.  I'latel,  7  Ueav.  583;  and  sec 
Charlton  f.  West,  3  Dc  G.,  F.  &  J.  15G ;  7 
Jur.  N.  S.  G14;  Bonfield  v.  Grant,  11  W. 
R.  275,  M.  It. 

*  Ord.  VII.  3. 

6  Cookson  V.  Lee,  15  Sim.  302;  Bentley 
V.  Robinson,  !J  Hare  App.  70.  These  were 
cases  of  infants,  but  doubtless  apply  to  the 
case  of  persons  of  unsound  mind. 

6  The  defenflant  should,  it  seems,  bo 
served  personally.    Morgan  v.  Jones, 


W.  II.  381,  V.  C.  W.  ;  Anon.,  2  Jur.  N.  S. 
324,  V.  C.  W. 

7  Ord.  Vir.  3.  For  forms  of  notice  of 
motion  and  atrulavif,  see  Vol.  III.;  and 
for  form  of  order,  see  Seton.  1251.  The 
Court  will  provide  for  the  costs  of  the  soli- 
citor to  the  Suitors'  Fee  Fund  where  he  is 
appointed  guardian;  usually  by  directing 
the  plaintifTto  pay  them,  an'l  add  them  to 
his  own;  see  Ord.  XL.  4;  and  Harris  v. 
Ilamlyn,  3  De  G.  &  S.  470;  14  Jur.  55; 
Frasef  r.  Thompson,  4  De  (i.  &  J.  G59;  1 
Giir.337;  5  Jur.  N.  S.  009;  and  see  Robin- 
son r.  Aston,  9  Jur.  224,  V.  C.  K.  15. 

8  I'idcocke  v.  Boultbec,  2  Dc  G.,  M.  & 
G.  898. 

«  Lee  r.  Ryder,  6  Mad.  294 ;  Seton,  1251. 
1"  For  form  of  notice  of  motion,  see  Vol. 

in. 

"  See  Frampton  v.  Webb,  11  W.  R. 
lOlS,  V.  c.  w. 


178 


TEKSONS   AGAINST   WHOM    A    SUIT   MAY    BE    INSTITUTED. 


Fonn  of 
nnswiT. 


Cu.  IV.  §10.  gr;ui(i'(I,  but  Ii:ul  lilirrly  to  add  llieiii  to  his  own  costs  in  the 
suit.' 

Tlio  answer  of  an  idiot  or  lunatic  is  expressed  to  be  niadc  by 
his  eoniniittec  as  his  guardian,  or  by  the  person  appointed  Ids 
guardian  by  the  Court  to  defend  the  suit.-  It  was  liehl  in  the 
case  of  J-cving  v.  Cavcrli/,^  tliat  the  ansAver  of  a  superannuated 
defendant,  ])ut  in  by  his  guardian,  may  be  read  against  him  ;  but 
this  projiosition  appears  to  have  been  doubted  :  and  it  is  conceived 
that,  shouhl  the  j^oint  now  arise,  it  would,  be  decided  otherwise.^ 

Where  the  infirmity  is  the  result  of  bad  health,  the  practice 
is  to  allow  time  to  file  the  answer,  and  not  to  put  it  in  by 
guardian.^ 

The  committee  or  guardian  of  a  person  of  unsound  mind, 
whether  so  found  by  inquisition  or  not,  before  he  consents  to  any 
departure  from  the  ordinary  course  of  taking  evidence  or  other 
procedure  in  the  suit,  should  first  obtain  the  sanction  of  the  Court, 
or  of  the  Judge  in  Cliambcrs ;  and  the  committee  should  also 
obtain  that  of  the  Lord  Chancellor  or  Loixls  Justices  sitting  in 
Lunacy." 

All  orders  appointing  guardians  should  be  left  at  the  Record 
and  Writ  Clerks'  office  for  entry.'' 


Where  de- 
fendant is 
umible  to 
answer,  from 
bad  health, 
further  time 
allowed. 

Sanction  of 
Court  neces- 
sarj'  to  any 
departure 
from  ordinary- 
practice,  by 
committee  or 
guardian. 

Order  for 
appointment 
ot'  guardian 
to  be  entered 
at  Kecord  and 
Writ  Oflice. 


Section  XL  —  3farried  Women. 


Wife  cannot 
defend  with- 
out husband ; 
unless  he  is 
an  exile,  or 
judicially 
separated;  or 
she  iias  ob- 
tained a  pro- 
tection order; 


It  is  a  rule  both  of  Law  and  of  Equity,  that  where  a  suit  is 
instituted  against  a  married  woman,  her  husband  must  also  be  a 
party,^  imless  he  is  an  exile,  or  has  abjured  the  realm,^  or  there 
has  been  a  judicial  separation,  or  the  wife  has  obtained  a  protec- 


1  See  Frampfon  v.  Webb,  11  W.  R.  1018, 

V.  c.  w. 

-  Ld.  Ked.  315.  The  answer  of  an  idiot 
or  lunatic  is  similar  to  that  of  an  infont, 
and  should  be  sworn  to  by  his  committee, 
in  the  same  manner  as  the  answer  of  an 
infant  is  verified  by  his  guardian  ad  litem. 
1  Barb.  Ch.  Pr.  154;  see  Rothwell  v. 
Benshal!,  1  Bland,  373;  Coupous  r.  Kauff- 
man,  3  Edw.  Cli.  311.  For  the  formal 
parts  of  such  answer,  see  Vol.  III.  As  to 
the  answers  of  imbecile  prisoners  confined 
for  contempt,  see  11  G.  IV.  &  1  W.  IV. 
c.  36,  §  15,  r.  9,  and  post,  Chap.  X.  §  2. 

3  Prcc.  Ch.  229. 

4  Micklethwaitei'.  Atkinson,  1  Coll.  173; 
Percival  r.  Caney,  4  De  G.  &  S.  610,  some- 
what fuller  reported  on  this  point,  14  .Inr. 
1062;  S.C  noiii.  Stanton  v.  Percival,  3  W. 
K.  391;  24  L.  .J.  Ch.  309,  H.  L.  A  female 
defendant,  above  sixty  years  of  age,  who 
had  been  deaf  and  dumb  from  her  infancy, 
was  admitted  to  appear  and  defend  by 


guardian.    Markle  v.  Markle,  4  John.  Ch. 
168;  seeManleverert'.  Warren,  2  .Fones,  47. 

5  Willyams  v.  Hodge,  1  Jl'N.  &  G.  516; 
and  see  Patrick  v.  Andrews,  22  L.  ,J.  Ch. 
240,  M.  R.;  Steel  v.  Cobb,  11  AV.  R.  298, 
M.  R. ;  Newman  v.  Selfe,  ib.  764,  M.  R. 

c  Ord.  5  Feb.  1861,  r.  24.      For  form  of 
ummons,  see  Vol.  III. 

■^  liraitliwaite's  Pr.  47. 

8  Holmes  v.  Penney,  3  K.  &  .J.  90 ;  3  Jur. 
N.  S.  80;  see  2  Story  Eq,  Jur.  §  1368; 
Story  T2q.  PI  §  71;  Williams  r.  Coward, 
1  Grant  (Pcnn.),  21 ;  Hamlin  v.  IMdge,  24 
Maine,  145;  .McDerniott  v.  French,  2  Mc- 
Carter(N.  J.),  78;  Culvert,  Parties,  269 
and  notwithstanding  he  is  a  bankrupt 
Beales  v.  Spencer,  2  Y.  &  C.  C  C.  651 
8  Jur.  236. 

'■>  Ld.  Red.  30,  105;  or  is  transported 
under  a  criminal  sentence.  Story  Eq.  PL 
§  71;  Calvert  on  Parties,  414;  Broom's 
Com.  584,  and  cases  cited,  ib.n.  (6.) 


MARRIED   "SVOilEN". 


179 


tion  order  under  the  Divorce  Acts :  ^  in  wliich  cases,  the  wife  is 
considered  in  all  respects  as  a  feme  soie^"  and  may  be  made  a 
defendant,  without  her  husband  being  joined;^  which,  it  seems, 
she  also  may,  if  her  husband  is  an  alien  enemy.*  It  appears  also, 
that  in  certain  cases  a  husband  may,  in  Equity,  make  his  wife  a 
defendant^  thus,  where  she  has  before  marriage  entered  into 
articles  concerning  her  own  estate,  she  is  considered  to  have  made 
herself  a  separate  person  from  her  husband,  and,  in  such  a  case, 
ujjon  a  motion  by  the  husband  to  commit  her  for  not  answering 
interrogatories,  she  was  ordered  to  answer.^  A  husband,  however, 
cannot  make  his  wife  a  defendant,  in  order  to  have  from  her  a  dis- 
covery of  his  own  estate  J 

But  although  a  wife  cannot,  except  in  the  cases  which  have 
been  pointed  out,  be  made  a  defendant  to  a  suit  without  her  hus- 
band being  joined  as  a  co-defendant,  yet  there  are  cases  in  which, 
although  the  husband  and  wife  are  both  named  as  defendants,  the 
suit  may  be  proceeded  with  against  the  wife  separately.  Thus,  if 
the  suit  relates  to  the  wife's  separate  property,  and  the  husband 
be  beyond  seas,  and  not  amenable  to  the  process  of  the  Court,  the 
wife  may  be  served  Avith,  and  compelled  to  answer,  the  bill.^  In 
Dubois  V.  Hole^  a  bill  was  filed  against  a  man  and  his  wife  for  a 
demand  out  of  the  separate  estate  of  the  wife,  and,  the  husband 
being  abroad,  the  mfe  Avas  served  Avith  a  subpoena,  and,  upon  non- 
appearance, was  arrested  upon  an  attachment;  and  she  having 
stood  out  all  the  usual  process  of  contempt,  the  bill  was  taken  pro 
confcsso  against  her.^"  It  is  to  be  observed,  that,  in  order  to  entitle 
the  plaintiff  to  compel  the  Avife  to  ansAver  separately,  the  husband 
must  be  actually  out  of  the  jurisdiction ;  and  the  mere  circum- 
stance that  he  Avas  a  prisoner,  was  held  not  to  be  a  sufficient 
ground  for  obtaining  an  order  for  a  separate  answer." 


Ch.  IV.  §  11. 


or  he  is  an 
alien  enemy. 

Wife  may  be 
defendant  in 
his  suit  for 
her  separate 
property ; 


but  not  to 
discover  his 
estate. 


AYife  may  be 
proceeded 
against  alone: 


where  her 
separate  prop- 
erty is  con- 
cerned, and 
husband 
abroad. 


•  20  &  21  Vic.  c.  85,  §§  21,  25,  26,  45; 
21  &  22  Vic.  c.  108,  §§  C-S:  27  &  28  Vic. 
c.  44 ;  Rud;,'c  v.  Weedon,  4  I)e  G.  &  J.  216 ; 
.0  .Iiir.  N.  S.  380,  723;  lie  IJainsdon's 
Trusts,  4  Drew.  446;  5  ,Iur.  N.  S.  55; 
Cooke  r.  Fuller,  26  Beav.  O'j;  and  other 
cases  cito'l,  nn(e,  p.  90.  If  the  marriage 
has  been  dissolved,  she  is  sued  in  her 
maiden  name,  Evans  v.  Carringfon,  1 .1. 
&  H.  598;  6  .Jur.  X.  S.  268,  7  Jur.  N.  S. 
197;  2  I)c  (;.,  V.  &  ,J.  481,  and  where  the 
wife  has  obtained  a  protection  order,  she  is 
UMually  described  in  the  title  as  "  a  married 
woman,  sued  an  a.  feme  sole."  Tidnian  v. 
Trego,  M.  II.  1863,  T.  44. 

-  (.'ountess  of  Portland  v.  Prodgers,  2 
Vern.  104. 

8  1  Inst.  132  b,  133  a.;  2  Kent  (lltii  ed.), 
1'.4,  155;  I!ol(iIl^on  i:  l.'eviiolds,  1  .Aiken, 
74;  I'lcan  i:  Morgiin,  1  Ifill  Ch.  8;  Story 
l'>|.  I'l.  §  71;  ante,  90  note. 

■•  Dccrlev  i\  Idichess  of  Mazarine, 
Salk.  116;2  Kent  ( nth  ed.),  155;  Story 
Eq.  l'l.§71.  ^ 


5  Brooks  V.  Brooks,  Free.  Ch.  24;  Stor}' 
Eq.  I'l.  §  71;  2  Story  Kq.  Jur.  §  1368; 
ante,  110;  but  by  making  her  a  defendant, 
he  admits  that  the  property  in  question  is 
her  separate  estate ;  and,  therefore,  a  de- 
murrer was  allowed  to  a  bill,  by  wliicii  he 
claimed  to  be  entitled  to  thepropcrlv  him- 
self. Earl  t'.  Ferris,  19 Beav.  67;  1  Jur.  X. 
S.  5. 

^  Brooks  t".  Brooks,  ubi  sup. 

•*  Story  Eq.  PI.  §  71.  An  order  for  leave 
to  serve  the  bill  and  interrogatories  seems, 
in  such  case,  necessary:  Ilinde,  85;  Nay- 
lor  r.  Bj^'land,  Si'ton,  1240.  The  order  may 
be  obtamcd  on  ex  parte  motion,  sujjported 
by  alFidavit.  For  form  of  order,  see  Sefon, 
1246,  Xo.  9;  and  for  forms  of  motion  paper 
and  aflidavit,  .'iee  Vol.  III. 

'■>  2  Vern.  613. 

1"  2  Vern.  614,  in  nolis;  see  also  Bell  v. 
IFj'de,  Prcc.  Ch.  28,  and  the  cases  there 
cited. 

11  Anon.,  2  A'cs.  J.  332.     If  the  wife  be 


180 


TERSONS    AGAINST   WHOM   A   SUIT   MAY   BE    INSTITUTED. 


Cm.  IV.  §  11. 
«— — Y — — ^ 

"Whcr»>  no 

sopanUo 
prii)icit_v,  wife 
i\'iim«it  be 
proi'i'iiloil 
apiiiist  witli- 
oiit  husband; 
unless  she  has 
olitaiiieil  an 
onler  to 
answer 
separately. 

-Vi  exeat  not 

ffranted 

against 

/line  covert 

executrix,  or 

adminis- 

tratrix. 


When  and 
how  husband 
may  obtain 
an  order  to 
defend  sepa- 
rately. 


Lial)ility  of 
husband, 
■where  order 
not  obtained. 


The  Court  will  coinju'l  a  woinaii  to  appear  and  answer  separately 
iVoiu  her  luisbaiul,  where  the  deniaud  is  against  her  in  resj)eet  of 
her  sejiarate  estate,  and  the  husband  is  only  named  for  conlornuty, 
and  cannot  be  aftected  by  the  decree ;  where  there  is  no  separate 
jn-opcrty  belonging  to  the  wdfe,  she  cannot  be  proceeded  against 
Mithoiit  her  husband,  unless  she  has  obtained  an  order  to  answer 
separately :  in  Avhieh  case,  she  will  be  liable  to  the  usual  ]>rocess 
of  contempt,  if  she  does  not  put  in  her  ans\TCr  in  conformity  with 
the  order  which  she  herself  has  obtained.^ 

It  is  to  be  observed  here,  that  -a  feme  covert  executrix  or  admin- 
istratrix is  not  considered  as  having  a  sejjaratc  property  in  the 
assets  of  her  testator  or  intestate ;  and  upon  this  ground,  Lord 
Eldon,  in  Pannell  v.  Taylor^-  held,  that  a  writ  of  ne  exeat  regno, 
against  a  mamed  woman  sustaining  that  character,  could  not  be 
maintained.  In  that  case,  his  Lordship  had  originally  granted  the 
writ,  upon  the  authority  of  Moore  v.  Meynell^  and  Jernegan  v. 
Glcisse  /  *  but  upon  further  argument,  he  was  of  opinion  that  it 
could  not  be  maintained  :  observing,  that  if  he  had  been  apprised 
of  the  circumstances  of  the  case  of  Moore  v.  3Ieynell  (u2:)on  the 
authority  of  which  Lord  Ilardwicke  appears  to  have  acted  in 
Jernegan  v.  Glasse),  he  should  not  have  granted  the  writ. 

Where  a  married  woman  is  living  separate  from  her  husband, 
and  is  not  under  his  influence  or  control,^  or  where  she  obstinately 
refuses  to  joins  in  a  defence  with  him,"  the  Court  will,  upon  the 
application  of  the  husband,  give  him  leave  to  put  in  a  separate 
answer.  The  apijlication  is  made  by  motion,  of  which  notice'' 
must  be  given  to  the  plaintiflT,*  and  must  be  supported  by  an  affi- 
davit of  the  husband,®  verifying  the  circumstances ;  and  process  of 
contempt  will  then  be  stayed  against  him  for  want  of  his  wife's 
answer,  and  the  plaintifi"  must  proceed  separately  against  the  wife;^" 

If  the  sejiarate  answer  of  the  husband  is  received  and  filed  at 
the  Record  and  Writ  Clerks'  Office,  before  an  order  for  him  to 


absent,  the  husband  may  obtain  time  to 
issue  a  comniissioai  to  obtain  the  wife's 
oath  to  the  answer;  and  if  she  refuse  to 
answer,  the  bill  may  be  taken /to  confesso 
against  her.  Leav'itt  v.  Cruger,  1  Paige, 
422.  See  Halst.  Dig.  170-174.  The  plain- 
tiff may  stipulate  to  receive  the  joint 
answer,  sworn  to  by  the  husband  alone. 
Leavitti".  C'ruj!;cr,  1  Paige,  422;  New  York 
Chem.  Co.  v.  Flowers,  6  Paige,  054. 

1  Powell  V.  Prentice,  Kidg.  258.  Hus- 
band and  wife  may  defend  a  suit  in  forma 
pauperis,  and  the  order  for  leave  to  do  so  is 
of  course.  Pitt  v.  Pitt,  17  Jur.  571,  V.  C.  S., 
1  Sm.  &  G.  App.  14. 

2  T.  &  Pt.  96,  103. 

3  1  Dick.  30. 

4  lb.  107;  3  Atk.  409;  Amb.  62;  and 
T.  &  R.  97,  u.  (6.);  but  see  Moore  v.  Hud- 


son, 6  Mad.  218;  2  C.  P.  Coop.  t.  Cott. 
245.  As  to  the  writ  of  ne  exeat,  see  post, 
Chap.  XXXVIII. 

6  Chambers  v.  Bull,  1  Anst.  269 ;  Barry 
V.  Cane,  3  Mad.  472 ;  Garey  v.  Whitting- 
ham,  1  S.  &  S.  163;  Gee  v.  Cottle,  3  M.  & 
C.  180 ;  Nichols  v.  Ward,  2  M'N.  &  G.  140. 

c  Ld.  Red.  105,  Pain  v. ,  1  Ca.  in 

Ch.  296;  Murriet  v.  Lyon,  Bunb.  175; 
Pavie  V.  Acourt,  1  Dick.  13. 

7  For  form  of  notice  see  Vol.  III. 

8  Whether  notice  should  be  given  to  the 
wife  also,  qumre;  see  1  S.  &  S.  163;  2 
M'N.  &  G.  143. 

9  See  Barry  t'.  Cane,  3  Mad.  472,  n.; 
for  form  of  affidavit,  see  Vol.  III. 

W  See  Bray  v.  Akers,  15  Sim.  610; 
Story  Eq.  PI.  §  71;  Leavitt  v.  Cruger, 
1  Paige,  421. 


MARRIED   WOMEN. 


181 


answer  separately  has  been  obtained,  it  is  an  irregular  proceeding ;  ^ 
and  the  plaintiff  may  move,  on  notice  to  the  husband,  that  the 
answer  may  be  taken  off  the  file  for  irregularity  ;  -  or  he  may  sue 
out  an  attachment  against  the  husband,  for  want  of  the  joint 
answer ;  ^  or  he  may  waive  the  irregularity,  and  move,  on  notice  to 
the  wife,  and  an  affidavit  of  the  facts,  that  she  may  answer  sepa- 
rately.* The  husband,  if  in  custody  for  not  fihngthe  joint  answer, 
cannot  clear  his  contempt  by  putting  in  the  separate  answer  of 
himself;^  he  sliould  move,  on  notice  to  the  plaintiff,^  supported  by 
his  own  affidavit  "^  of  the  facts,  for  leave  to  answer  and  defend  sep- 
arately from  her,  and  that,  upon  putting  in  his  separate  answer,  he 
may  be  discharged  from  custody.^ 

Where  a  married  woman  claims  an  adverse  interest,^  or  is  hving 
separate  from  her  husband,^"  or  he  is  mentally  incompetent  to 
answer,"  or  she  disapproves  of  the  defence  he  intends  to  make,^^  she 
may,  on  motion  or  petition  of  course.^^  obtain  an  order  to  defend 
separately  ;  ^*  and  if  a  husband  insists  that  his  wife  shall  put  in  an 
answer  contrary  to  what  she  believes  to  be  the  tact,  and  by  menaces 
prevails  upon  her  to  do  it,  this  is  an  abuse  of  the  process  of  the 
Court,  and  he  may  be  punished  for  the  contempt.^^ 

If  the  husband  has  put  in  his  answer  separately  from  his  wife, 
under  an  order  so  to  do  ;^^  or  without  an  order,  and  the  plaintifi' 
desires  to  waive  the  irregularity ; "  or  an  order  has  been  made, 
exempting  the  husband  from  process  for  want  of  her  answer ;  ^^  or 
if  she  refuses  to  join  with  him  in  answering  ;^^  or  if  he  is  abroad  \^^ 
or  if  the  suit  relates  to  her  separate  estate,  and  she  is  abroad,-^  or 


Ch.  IV.  §  11, 
« , ^ 


When  and 
how  wife  may 
obtain  order 
to  defend 
separately. 


When  and 
how  plaintiff 
may  obtain 
order  for  wife 
to  answer 
separately. 


1  Gee  V.  Cottle,  3  M.  &  C.  180 ;  Nichols 
r.  Ward,  2  AI'X.  &  G.  140;  and  see  Garey 
V.  \Vhittinf,'ham,  1  S.  &  S.  163;  Len- 
aglian  r.  Sniitli,  2  Pliil.  539. 

*  Gee  V.  Cottle,  and  Nichols  v.  Ward, 
iihi  sup. ;  Collard  v.  Smith,  2  Beaslcy  (N. 
.1.),  43,  45.  For  form  of  notice,  see  Vol. 
III. 

3  Gee  V.  Cottle,  ubi sup.;  Garey  r.  AVhit- 
tinKham,  1  S.  &  S.  1G3;  Nichols  «.  Ward, 
2  MN.  &  G.  140. 

■•  Nicliols  r.  War.l,  2  M'N.  &  G.  143,  n. 
For  forms  of  notice  and  affidavit,  sec  Vol. 
III. 

6  Gecv.  Cottle,  3  M.&C.  180. 

<■'  (iiutre,  if  the  wife  should  be  served, 
sec  1  S.  &.  S.  103;  2  .M'N.  &  G.  143. 

7  Harrv  r.  Cane,  3  Mad.  472,  n. 

«  Sec  \ichoJs  r.  Ward,  2  M'N.  &  G. 
143;  Seton,  1255,  No.  5.  For  forms  of 
notice  of  motion  and  affidavit  iu  support, 
«ee  Vol.  III. 

»  Ld.  lied.  104;  Anon.,  2  Eq.  Ca.  Ab. 
CO,  pi.  2. 

i»  I-d.  Red.  104 ;  Rudge  v.  Wcedon,  7  W. 
K.  30.S,  V.  C.  K.,  n. 

11  Kstcoiirt  r.  Kwinfrton,0  Sim.  252,  and 
cases  tliere  referred  to;  2  .Iiir.  414. 

'■^  Ld.  IJcd.  104;  Ax  parte  Ilnlsam,  2 
Atk.  50. 


13  For  form  of  order  on  motion,  see 
Seton,  1254,  No.  3;  and  for  fonns  of  mo- 
tion paper  and  petition,  sec  Vol.  III. 

l-i  The  order  js,  according  to  the  present 
practice,  usually  obtained  on  petition  of 
course,  at  the  Koils;  and  it  appears  from 
information  obtained  from  the  secretary 
of  the  ]\I.  E.,  that  the  practice  is  to  make 
the  order  on  the  apjilicatiou  of  the  wife, 
■whenever  she  is  made  a  defendant  in  re- 
spect of  licr  separate  estate,  without  inquir- 
ing whether  in  fact  the  interests  of  the 
husband  and  wife  are  adverse.  If  their 
interests  are  adverse,  the  order  will  be 
made,  though  the  suit  does  not  relate  to 
her  separate  estate. 

16  hx parte  Ilalsam,  2  Atk.  50. 

10  Bray  v.  Akers,  15  Sim.  610;  Seton, 
1255,  No.  4. 

17  See  Nichols  i'.  Ward,  2  M'N.  &  G. 
140. 

18  lb.  143,  n. 

19  Woodward  r.  Conebear,  8  Jur.  G42, 
V.  C.  W. 

-"  Dubois  ?•.  Hole,  2  Vern.  613;  Hun  van 
V.  Mortimer,  0  Mad.  278;  Lethley  v.  I'ay- 
lor,  9  Sim.  262. 

^1  Nichols  V.  Ward,  2  M'N.  &  G.  143,  n. 


182 


PERSONS    AGAINST   WHOM    A    SUIT   MAY   BE    INSTITUTED. 


\\'Uere  cover- 
ture denied. 


Cn.  IV.  §  n.  thov  live  apavt  ;^  or  if  tlio  luisbniid,  fnim  nu'iifal  incapacity,  is  un- 
able to  joiu  Avitli  her  in  answering;-  or  if,  ntler  the  joint  answer  is 
put  in,  the  husband  goes  abroad,  and  the  bill  is  amended,  and  an 
answer  is  required  thereto  ;*  or  if  the  fact  of  marriage  is  in  dispute 
between  the  husbaml  and  wife  : ''  tlic  ]ilaintitr,  where  no  order  for 
her  to  answer  separately  has  been  obtained  by  her  or  her  husband, 
may,  on  motion,  supported  by  an  affidavit  of  the  facts,  obtain  an 
order  ^  that  she  may  answer  sej)aratcly  from  her  husband.®  Notice 
of  the  motion  "^  should  be  given  to  the  wife  ;  ^  and  if  slic  is  abroad, 
an  order  for  leave  to  serve  her  there  with  the  notice  is  necessary,® 
and  may  be  obtained  on  an  ex^Mvte  motion.^*^ 

Where  a  woman  was  made  a  defendant  to  a  bill  iilcd  for  the 
purpose  of  establishing  a  will  against  her,  and  a  nian  wlio  pre- 
tended that  he  was  her  husband,  but  Avhich  tlie  woman  denied :  on 
her  making  application  to  answer  separately.  Lord  ITardAvicke 
ordered,  that  she  should  be  at  liberty  to  put  in  a  separate  answer, 
but  without  prejudice  to  any  question  as  to  the  validity  of  the 
marriage.^^ 

•  In  general,  the  separate  answer  of  a  /erne  covert  ought  to  have 
an  order  to  warrant  it,  and  if  put  in  witliout  an  order,  it  may  be 
taken  off  the  file  ;  ^^  but  if  a  husband  brings  a  bill  against  his  wife, 
he  admits  her  to  be  a  feme  sole^^  and  she  must  put  in  her  answer 
as  such,  and  no  order  is  necessary  to  warrant  her  so  doing ;  ^*  and 
if  she  does  not  put  in  her  answer,  the  husband  may  obtain  an  order 
to  compel  her  to  do  so.^^ 

But  although,  strictly  si^eaking,  the  answer  of  a  fetne  covert,  if 
separate,  ought  to  be  warranted  by  an  order,  yet  if  her  answer  be 
put  in  without  such  an  order,  and  the  same  be  a  fair  and  honest 
answer,  and  deliberately  put  in  with  the  consent  of  the  husband,  and 


Wife's  separ- 
ate answer 
should  have 
an  order  to 
warrant  it; 


except  to  bus- 
baud's  bill. 


Answer  with 
out  order, 
may  be 
accepted. 


1  Wickcns  v.  Marchioness  of  Town- 
send,  cited,  1  Smith's  Pr.  410,  n.;  Seton, 
1250. 

2  Estcourt  r.  Ewington,  9  Sim.  252;  2 
Jur.  414. 

3  Carleton  v.  M'Enzie,  10  Ves.  442. 

■*  Longwortli  v.  Bellamy,  Seton,  1245. 

6  For  forms  of  order,  see  Seton,  1255, 
Nos.  4,  6. 

6  See  Hope  v.  Carnegie,  L.  R.  7  Eq.  254 ; 
S.  C.  ib.  2C.3. 

"  For  forms  of  notice  of  motion  andafti- 
davit  in  support,  see  Vol.  III. 

8  ^sichols  V.  Ward,  2  M'N.  &  G.  143,  n. ; 
Seton,  1255,  1250;  but  see  Bray  v.  Akcrs, 
15  Sim.  610;  Hope  v.  Carnegie,  L.  R.  7 
Eq.  263. 

■J  See  Nichols  v.  Ward,  2  M'N.  &  G. 
143,  n. 

w  For  form  of  motion  paper,  see  Vol. 
III. 

11  Wvbourn  v.  IJIount,  1  Dick.  155. 

12  Wyatt's  P.  K.  53;  and  see  Higgiuson 


V.  Wilson,  11  Jur.  1071,  V.  C.  K.  B.  An 
answer  of  a  wife,  put  in  separatelj^  without 
a  previous  order,  was  suppressed,  for  ir- 
regularit}'.  Perine  v.  Swaiiie,  1  .lolin.  Ch. 
24;  Lcavitt  1'.  Cruger,  1  Paige,  421;  Col- 
lard  V.  Smith,  2  Beaslev(N.  J.),  43;  Rob- 
bins  V.  Abrahams,  1  Hafst.  Ch.  IG.  But  the 
irrcgularilv  will  be  waived  bj'  the  plain- 
tiff liling  a  replic;ition.  Fulton  Bank  v. 
J5eacli,  2  Paige,  807;  S.  C.  G  Wend.  3G; 
Collard  v.  Smith,  2  Bcaslcy  (N.  .1.),  45.  If 
tiie  wife  ai)prcliend  that  licr  liusl)au(l  will 
not  make  a  proper  defence  for  her,  she 
may,  as  of  course,  obtain  leave  to  answer 
separately'.  Lingan  v.  Henderson,  1  Bland, 
270;  see  Anon.,  2  Sumner's  Ves.  332,  note 
(a);  Ferguson  v.  Smith,  2  John.  Ch.  139. 

13  See  Earl  v.  Ferris,  19  Beav.  67;  1 
Jur.  N.  S.  5;  ante,  p.  110. 

1'  Ex  parte  Strangeways,  3  Atlc.  478; 
Ld.  Red.  105. 

15  Ainslie  v.  Medlicott,  13  Ves.  266. 


MARRIED    WOMEN.  183 

the  plaintiff  accepts  it  and  rej^lies  to  it,  the  Court  ^vill  not,  on  the  Ch.  iv.  §  ii. 
motion  of  the  wife,  or  of  her  executors,  set  it  aside. ^  ' y  ■  —' 

The  separate  answer  of  a  married  woman  is  j^ut  in  by  her  in  the  How  separate 
same  manner  as  if  she  were  t\.feine  sole,  without  joining  any  guar-  ^iis^er  si^om 
dian  or  other  j^erson  with  her ;  ^  and  when  put  in  under  an  order, 
she  has  the  full  time  for  answering  from  tile  date  of  the  order.^ 
When  an  order  to  answer  sej^arately  has  been  obtained,  it  should 
be  produced  to  the  Commissioner  before  whom  the  answer  is 
sworn,  and  be  referred  to  in  the  jurat ;  *  and  the  order  must  be 
produced  at  the  Office  of  the  Record  and  Writ  Clerks,  at  the  time 
of  filing  the  answer.^  If,  however,  the  married  woman  is  an  infant, 
she  cannot  answer,  either  separately  or  jointly,  until  a  guardian 
has  been  appointed  for  her ;  ^  such  appointment  will  be  made  by 
order,  on  motion  or  petition  of  course,  supported  by  affidavit  of  the 
fitness  of  the  proposed  guardian  J 

A  married  woman,  obtaining  an  order  to  answer  sejDarately  from  Feme  covert, 
her  husband,  renders  herself  liable  to  i^rocess  of  contempt,  in  case  or(ier°to^ 
she  does  not  put  in  her  answer  pursuant  to  the  order ;  ®  but  an  answer,  is 
order  for  leave  to  sue  out  such  process  is  necessary,  and  may  be  process,  on 
obtained  by  the  plaintiff  on  an  ex  parte  motion.^  default, 

Where  husband  and  wife  are  defendants  to  a  bill,  the  wife  will  but  is  not 
not  be  compelled  to  answer  to  any  thing  which  may  expose  her  to  ang^er^o 
a  forfeiture ;  ^^  neither  is  she  compellable  to  discover  whether  she  has  expose  herself 
a  separate  estate,  unless  the  bill  is  so  fi-amed  as  to  warrant  the    ^  "'"eiure, 

^  .  ,  .  ,  .  „,,  nor  to  dis- 

Court  m  making  a  decree  agamst  such  estate.     Thus,  where  a  bdl  cover  her 
was  filed  against  a  man  and  his  wife,  for  the  purpose  of  enforcing  estatT^unless 
the  specific  perfonnance  of  an  agreement,  alleged  to  liave  been  case  made 
entered  into  by  an  agent  on  their  behalf  for  the  purchase  of  an  against  uT 
estate  from  the  ])laintiff,  and  in  suj^port  of  the  plaintiff's  case,  it 
was  alleged  that  the  wife  had  se})nrate  moneys  and  j^roperty  of  her 
own,  and  had  joined  with  her  husband  in  authorizing  the  agent 
to  enter  into  the  agreement,  but  the  bill  prayed  merely  that  the 
husband  and  wife  might  be  decreed  specifically  to  j^ci'fonn  the 
agreement,  and  dirl  not  seek  any  specific  relief  against  her  separate 
estate  :  the  wife,  having  obtained  an  order  to  that  effect,  put  in  a 

1  Diikc  of  Chandos  t'.  Talbot,  2  P.  Wms.  30  Beav.  405;  8  .Tur.  N.  S.  3r.l;  Bull  v. 
371.  Witlicy,  9  Jur.  N.  S.  695,  V.  C.  S.;  Cra- 

2  For  formal  parts  of  such  answer,  see  ham  v.  Kitcli,  2  De  G.  &  S.  246:  12  Jur. 
Vol.  \\\.  833. 

3  .I.-j(kflon  p.  Haworth,  1  S.  &  S.  101.  »  Taylor  v.  Taylor,  12 Beav. 271;  Thick- 
*  Fur  form  of  jurat,  see  Vol.  III.  ncsse  f.  Acton,  15  Jur.  1052,  V.  C.  T.; 
fi'Braithwaite's  I'r.  45,  397.  Home  c.  Patrick,  Bull  w  Witliey,  nhi  mp. 
0  C'olman  r.  NorlhcDte,  2  Hare,  147;  7  As  to  notice  in  other  eases,  see  "(iraliam  i'. 

Jur.  528;  Braitliwaite's  I'r.  47.  Fitch,  uldmp.;  Bushell  v.  Buslieil,  1  S.  & 

7  For  forms  of  motion  paper  and  peti-  S.  164;  M'Kenna  r.  Everett,  Seton,  1256, 

tion,   and   aflidavit  in  support,  see    Vol.  No.  7.     For  form   of  motion   paper,  seo 

in.  Vol.  III. 
»  I'owell  r>.  rrentice,  Ridcw.  P.  C.  258;  m  Wrottesleyi'.Bcndish,  3P.  Wm8.235, 

Lena^lian  v.  Smith,  2  Phil.  537;  Bunyan  238. 

V.  Mortimer,  C  Mad.  278;  Ilome  f.  Patrick, 


184 


PERSONS    AGAINST   WIIOJl    A    SUIT   IMAY   BE    INSTITUTED. 


Cn.  TV.  5  11. 


nor  to  expose 
her  husband 
to  a  charge 
of  telony. 

Cannot  be 
made  defend- 
ant for  the 
mere  pui-pose 
of  discovering 
husband's 
vouchers. 


Her  answer 
not  read 
against 
husband, 
except  where 
marriage  con- 
cealed with 
his  consent. 


Admission  of 
will  in  separ- 
ate answer 


sopnvnto  (loinurror  :is  to  so  iinidi  ortlie  bill  as  required  from  licr  a 
discovory  ^vlietlier  she  had  not  separate  money  and  property  of  her 
own,  and  answered  tlie  rest.  Uiion  argument,  Sir  Thomas  Plumer 
V.  C.  aHowod  the  demurrer,  on  tlio  oix)und  that  as  the  decree,  in 
cases  where  a  fonc  covert  Avas  hehl  Uahle,  had  been  uniformly 
against  the  separate  estate,  and  not  against  the  fone  covert  herself, 
and  as  the  bill  did  not  seek  any  decree  against  any  trustees,  or 
partieuhii"  fund,  but  only  against  the  Avife,  it  couhl  not  be  supported, 
and  the  interrogatory,  if  answered,  would  consequently  be  of  no 
xise.^ 

A  wife  cannot  be  comjielled  to  make  a  discovery  which  may 
expose  her  husband  to  a  charge  of  felony ;  and  if  called  uj^on  to 
do  so,  she  may  demur.^ 

In  like  manner,  a  married  woman  cannot  be  made  a  party  to  a 
suit,  for  the  mere  purpose  of  obtaining  discovery  from  her,  to  be 
made  use  of  against  her  husband ;  ^  therefore,  in  Xe  Texier  v.  The 
3Targrave  of  Anspach,'^  where  a  bill  was  filed  against  the  Margrave 
to  recover  a  balance  due  to  the  plaintiff  upon  certain  contracts,  to 
which  bill  the  Margravine  was  made  a  party,  as  the  agent  of  her 
husband,  for  the  purpose  of  eliciting  fi'om  her  a  discovery  of  cer- 
tain vouchers,  which  were  alleged  to  be  in  her  possession :  a 
demurrer  by  the  Margravine  separately,  was  allowed  by  Lord 
Rosslyn,  and  afterwards  upon  rehearing  by  Lord  Eldon,  after  the 
Margrave's  death.  Upon  the  same  princij^le,  where  a  bill  Avas 
filed  against  a  man  and  his  Avife  for  discovery  in  aid  of  an  action 
at  law,  brouolit  asrainst  him  to  recover  a  debt  due  from  the  Avife 
dion  sola,  a  separate  demurrer  put  in  by  the  wife  Avas  alloAA'cd.^ 

In  Mutter  v,  Bcddwiii^  the  Court  agreed  clearly,  that  a  wife 
can  never  be  admitted  to  answer,  or  otherwise  as  evidence,  to 
charge  her  husband ;  and  that  where  a  man  marries  a  widoAV 
executrix,  her  evidence  will  not  be  alloAved  to  charge  her  second 
husband ; '  but  in  that  case,  the  Avife  having  held  herself  out  as  a 
feme  sole,  and  treated  with  the  plaintiff  and  other  parties  to  the 
cause,  who  were  ignorant  of  her  marriage,  in  that  character,  and 
it  haA-ing  been  proved  in  the  cause  that  on  some  occasions  the 
husbaml  had  giA'cn  in  to  i\\c  concealment  of  the  mamage,  the 
Court  allowed  the  answer  of  the  Avife  to  be  read  as  evidence  against 
the  husband,  and  decreed  accordingly. 

It  was  supposed  that  the  admission  of  a  Avill,  in  the  separate 
answer  of  a  married  Avoman,  who  was  the  heiress-at-law  of  the 


1  Francis  v.  Wigzell,  1  INIad.  2.58. 

2  Cartwright  r.  Green,  8  Yes.  405,  410; 
see  Storj'  Efj.  PI.  §  519. 

8  2  Story  Eq.  .Jur.  §  1496. 
*  5  Ves.  322,   329;    and   15  Ves.   159, 
164. 


6  Barron  v.  Grillard,  3  V.  &  B.  165;  see 
Metier  v.  Metier,  3  C  E.  Green  (N.  J.), 
270. 

6  1  Eq.  Ca.  Ab.  227,  pi.  15. 

T  See  Cole  v.  Gray,  2  Vern.  79. 


MAERIED   "SVOMEN. 


185 


testator,  was  sufficient  e^-idenee  to  enable  the  Court  to  declare 
the  will  established ;  ^  but  it  has  now  been  decided,  that  such 
evidence  is  not  sufficient  for  that  pm-pose,  or  to  bind  her  inheri- 
tance.^ As  a  general  rule,  however,  the  separate  answer  of  a 
raaiTied  woman  may  be  read  against  her.^ 

Where  a  husband  and  wife  are  made  defendants  to  a  suit 
relating  to  personal  property  belonging  to  the  wife,  and  they  put 
in  a  joint  ansAver,  such  answer  may  be  read  against  them,  for  the 
purpose  of  fixing  them  with  the  admissions  contained  in  it ;  but 
where  the  subject-matter  relates  to  the  inheritance  of  the  wife,  it 
cannot;*  and  the  facts  relied  x;pon  must  be  proved  against  them 
by  other  evidence.  Thus,  in  Jlerest  v.  Hodgson^  the  L.  C.  B. 
Alexander  refused  to  permit  the  joint  answer  of  the  husband  and 
wife  to  be  read,  Ijut  ordered  the  cause  to  stand  over,  to  give  the 
plaintiffs  an  ojiportunity  of  proving  the  facts  admitted.  And  it  has 
been  held,  that  the  joint  answer  of  the  husband  and  wife  may  be 
read  against  the  wife  with  reference  to  her  separate  estate,  as  well 
as  her  separate  answer,  on  the  ground  that  in  such  a  case  she  can- 
not be  compelled  to  answer  separately.® 

From  the  report  of  the  case  of  Eyton  v.  Eijton^'  it  appears, 
on  first  view,  as  if  the  separate  answer  of  a  husband  had  been  ad- 
mitted by  the  Master  of  the  Rolls  to  be  read  as  evidence  against 
the  Avife  in  a  matter  relating  to  her  inheritance ;  but  upon  closer 
attention  it  will  be  found,  that,  in  all  probability,  the  reason  of 
the  decree  in  that  case  was,  that  his  Honor  conceived  that  the 
counterpart  of  the  settlement,  which  appears  to  have  been  pro- 
duced, was  considered  to  be  sufficient  evidence  of  the  settlement : 
at  least,  this  appears  to  have  been  the  ground  upon  which  the 
case  was  decided  on  the  appeal  before  the  Lord  Keejier  Wright. 

In  JVardy.  Meath^  a  bill  was  exhibited  against  the  husband 
and  Avife,  concerning  the  Avife's  inlieritance  ;  the  husband  stood 
out  all  jirocess  of  contcm|»t,  and  upon  its  being  moved  that  the 
bill  might  be  taken  pro  confesso^  it  Avas  opposed,  because  the  Avife, 
having  in  the  interim  obtained  an  order  to  that  effect,  put  in  an 
answer,  in  which  she  set  forth  a  title  in  herself;  and  the  Court 
decreed,  that  the  bill  should  l)e  taken  2^i'(>  covfcxso  against  the 
husband  only,  and  that  he  should  account  for  all  the  jirofits  of  the 


Cn.  IV.  §  11. 


of  married 
woman,  not 
sufficient 
evidence  to 
establish  will, 
or  bind  her 
inheritance. 

Joint  answer 
of  husband 
and  wife  may 
be  read 
against  them, 
in  matters 
relating  to 
personal 
estate;  but 
not  where  suit 
relates  to  her 
inheritance ; 
it  may  be 
read,  as  well 
as  her  separ- 
ate answer,  in 
suit  relating 
to  her  separ- 
ate estate. 

Separate 
answer  of 
husband  can- 
not be  read 
against  wife, 
as  to  her 
inheritance ; 


Uill  cannot  be 
taken /;rocon- 
fiism  against 
her,  wlicrc 
she  answers 
separately  on 
his  default. 


1  Codrington  r.  Earl  of  Sliclburn,  2 
Dick.  475. 

2  Brown  v.  Ilnywnrd,  1  Hare,  432;  6 
Jur.  fi47:  Hce  Comley  v.  Hendricks,  8 
Blackf.  189. 

»  Lrl.  Ked.  104, 105.  Tiic  peculiiir  rela- 
tions of  inisbnnd  and  wife  will  not  pro- 
tect her  from  making  a  discovery  relating 
solely  to  Iht  own  conduct,  iin<l  afli-rting 
only  her  own  intercHts.  Metier  i'.  I^Ietler, 
3  0.  E.Green  (N.J. ),  270. 


^  Evans  v.  Cogan,  2  P.  Wms.  449. 

c  9  I'ri.  503;  see  also  Elston  v.  Wood,  2 
M.  &  K.  678. 

c  (fallow  r.  Howie,  1  De  G.  &  S.  531; 
11  Jiir.  984 ;  Clive  v.  Carew,  1  J.  &  H.  199, 
207;  6  Jur.  N.  S.  487. 

7  I'ree.  Cii.  IIG. 

B  2  Cha.  Ca.  173;  1  Eq.  Cn.  Ab.  05, 
pi.  4. 


186 


TEESONS    AGAINST   WHOM   A    SUIT   IIAY   BE    INSTITUTED. 


Cii.  IV.  §  11. 


No  porsoiial 
(leoivo  nindo 
ajiiiiiist  :i 
niarriod 
woman. 


AVhen  sepa- 
rate estate; 
may  be 
charged : 


by  testamen- 
tary charge 
of  debts ; 


Lin  J  which  ]iv  h;ul  roccivod  suice  the  covoi-liui',  :iii(l   the  profits 
whii'h  sliovild  be  rcceivod  during  coverture. 

It  may  be  observed,  in  tliis  plaee,  that  there  is  no  case  in  which 
the  Court  has  made  a  personal  decree  against  a  feine  covert 
alone.^  She  may  i)ledgc  her  sejiarate  property,  and  make  it  an- 
swerable for  her  engagements ;  -  but  where  her  trustees  arc  not 
made  parties  to  a  bill,  and  no  particular  fund  is  sought  to  be 
charged,  but  only  a  personal  decree  is  prayed  for  against  her,  the 
bill  cannot  be  sustained.  Upon  this  ground,  in  the  case  of 
JF^ntnci's  v.  Wig^xll,^  before  referred  to,  where  a  bill  was  filed 
against  a  husband  and  wife  for  the  specific  pei-formance  of  an 
agreement  for  the  purchase  of  an  estate,  charging  that  the  wife 
had  separate  property  sufticient  to  answer  the  ])urchase-money, 
but  without  prajang  any  sj^ecific  relief  against  such  sejiarate  estate, 
a  demurrer  put  in  by  the  wife,  to  so  much  of  the  bill  as  sought 
discovery  fi-om  her  whether  she  had  a  separate  estate  or  not,  was 
allowed. 

It  appears,  however,  that  Avhere  a  married  woman,  having  a 
general  power  of  appointment,  by  will,  over  real  or  personal  estate, 
makes,  by  her  will,  her  separate  property  liable  to  the  payment 
of  her  debts,  a  Court  of  Equity  will  lay  hold  of  the  estate  so 
devised,  and  apply  it  in  the  payment  of  written  engagements 
entered  into  by  her,  and  in  the  discharge  of  her  general  debts. 
In  the  case  of  Oicois  v.  Dickenson,^  where  a  married  woman  had 
made  her  will  in  pursuance  of  a  power,  and  thereby  charged  her 
real  estate  with  the  payment  of  debts.  Lord  Cottenham  entered 
into  the  principles  upon  which  Equity  enforces  the  contracts  of 
married  women  against  their  separate  estate,  and  rejected  the 
theoiy  that  such  contracts  are  in  the  nature  of  executions  of  a 
power  of  appointment :  he  observed,  "  The  view  taken  by  LoM 
Thurlow,  in  Uuhne  v.  Tenant,  is  more  correct.  According  to  that 
view,  the  sejiarate  j^i'operty  of  a  married  woman  being  a  creature 
of  Equity,  it  follows,  that,  if  she  has  power  to  deal  with  it,  she  has 
the  other  power   incident   to  property  in   general,   namely,  the 


1  Hulme  1'.  Tenant,  1  Bro.  C.  C  IG,  21; 
Franci.'?  v.  Wigzell,  1  Mad.  258,  26.3;  Ay- 
lett  r.  Ashton,  1  M.  &  C.  105,  111;  2  Kent 
(11th  ed.),  164;  see  also  .Jordan  v.  Jones,  2 
Phil.  170,  172,  where  the  Court  refused  to 
compel  a  married  woman  to  execute  a 
conveyance  of  an  estate  not  settled  to  her 
separate  Ase;  but  in  cases  of  tliis  descrip- 
tion, the  married  woman  can  usuallj'  be 
established  to  be  a  trustee,  and  then  an 
order  under  the  Trustee  Acts  may  be  ob- 
tained. 

2  See  Sperling  v.  Rochfort,  8  Sumner's 
Ves.  175,  182,  Perkins's  note  (a),  and 
cases  cited;  Fetteplace  v.  Gorges,  .3  Bro. 
C.  C  (Perkins's  ed.)  8,  10,  and  note,  and 
cases  cited;  2  Kent  (11th  ed.),  164,  1C5, 
and  notes.    A  wife  may  bestow  her  sepa- 


rate property,  bj'  appointment  or  other- 
wise, upon  her  husband  as  well  as  upon  a 
stranger.  2  Story  p:q.  Jur.  §§  1395,  1396; 
Methodist  Epis.  Church  ».  Jaques,  .3  .fohn. 
Ch.  86-114;  Bradish  v.  Gibbs,  3, John.  Ch. 
52.3.  Her  separate  estate,  upon  her  iippli- 
cation  and  consent  given  in  Court,  may 
be  charged  with  and  made  liable  for  his 
debts.  Demarest  «.  Wvncoop,  3  John. 
Ch.  144 ;  Field  v.  Sowle,  4  Russ.  112.  She 
maj-even  become  the  debtor  of  her  husband 
for  money  borrowed  of  him  to  improve  her 
separate  estate.  Gardner  v.  Gardner,  22 
Wencf.  526;  S.  C.  7  Paige,  112;  2  Kent 
(11th  ed.),  164  and  note. 

3  1  Mad.  258. 

4  C.  &P.  48,  54;  4  Jar.  1151. 


MAERIED    WOMEN. 


187 


power  of  contracting  debts  to  be  paid  out  of  it ;  and  inasmuch  as 
her  creditors  have  not  the  means  at  Law  of  compelling  payment 
of  those  debts,  a  Court  of  Equity  takes  upon  itself  to  give  effect 
to  them,  not  as  personal  liabilities,  but  by  laying  hold  of  the 
separate  property,  as  the  only  means  by  which  they  they  can  be 
satisfied ;  "  acting  upon  this  principle.  Lord  Cottenham  referred  it 
to  the  Master,  to  inquire  what  debts  there  were  to  be  paid  under 
the  provisions  of  the  will.  In  order  to  bind  her  separate  property, 
however,  there  must  be  a  contract,  fraud,  or  breach  of  trust;  but 
the  contract,  it  would  seem,  need  not  be  in  writing.^ 

"Where  the  Court  thought  a  married  woman  defendant  ought  to 
pay  certain  costs,  and  it  did  not  appear  that  she  had  separate 
estate,  the  Coiu-t  gave  the  plaintiff  Hberty  to  apply  for  payment 
of  these  costs,  in  case  of  any  moneys  becoming  payable  to  her 
separate  use.^ 

K  the  equity  of  redemption  of  a  mortgaged  estate  comes  to  a 
man-ied  woman,  and  a  bill  is  brought  against  her  and  her  husband 
to  foreclose  it,  upon  which  a  decree  for  foreclosure  is  pronounced, 
the  wile  is  Uable  to  be  absolutely  foreclosed,  though  dviring  the 
coverture,  and  will  not  have  a  day  given  her  to  redeem  after  her 
husband's  death ;  ^  and  where  a  widow  filed  a  bill  to  set  aside  a 
decree  of  foreclosure  pronounced  against  her  and  her  husband 
during  coverture,  and  to  be  let  in  to  redeem,  and  the  mortgagee 
pleaded  the  proceedings  and  decree  in  the  former  cause,  the  plea 
was  allowed.^ 

Wliere  an  estate  has  been  sold  under  a  decree  of  the  Court,  a 
feme  covert  is  as  much  bound  by  the  decree  as  ^feme  sole,  although 
it  may  be  to  her  prejudice  ;  as  it  would  most  ruinously  depreciate 
the  value  of  property  sold  under  a  decree  in  Equity,  if,  where  there 
is  neither  fraud  nor  collusion  in  the  purchaser,  his  title  could  be 
defeated.  It  is  to  be  observed,  however,  that  a  decree  obtained  by 
fraud  is  invahd.'' 

It  may  licre  be  mentioned,  that  a  married  woman  defendant,  in 
case  she  desires  to  appeal  against  a  decree  or  order  made  in  the 
suit,  must  appeal  by  her  next  friend." 


Ch.  IV.  §  11. 


1  Vniijjlian  r.  Vanderstcgcn,  2  Drew. 
1C5,  .-JO-S;  Ilolxlay  r.  Peters  (No.  2),  28 
Bcav.  354;  6  .Iiir.  N.  S.  7'J4;  Wright  f. 
Chard,  4  Drew.  GT.T;  5  .lur.  N.  S.  1334;  1 
De  G.,  F.  &  .1.  507 ;  0  .lur.  N.  S.  470;  Clive 
V.  farcw,  1  .1.  &  II.  U''J;  •',  .lur.  N.  S.  487; 
Jolinfon  r.  (;a!laplier,  7  .lur.  N.  S.  273;  'J 
W.  K.  .006,  L.  .J.I.;  3  I).i  G.,  V.  &  J.  404; 
Roldcn  r.  Nirholav,  3  .Fur.  X.  S.  H84,  V.  C. 
W.;  Shattock  v.  .Sliaffock,  L.  K.  2  Kq.  182, 
M.  H.:  Koffcrs  r.  Ward,  «  Allen,  387; 
I'icard  r.  Iline,  L.  K.  G  Ch.  Ap.  274;  2 
Story  Y.(\.  .lur.  §§  1400,  1401;  Gardner  r. 
Gardner,  22  Wend.  626. 


2  I'cmberton  v.  M'Gill,  1  Jur.  N.  S. 
1045,  V.  C.  W. 

«  Mallack  v.  Gnlton,  3  P.  Wms.  352;  but 
the  decree  ouf^ht  not  to  1)0  made  absolute 
at  once,  even  by  consent,  on  an  allidavit 
verityiuK  tlie  amount  due.  ^Harrison  v. 
Kenimdv,  10  Hare,  App.  51. 

■•  Mafla.k  ?•.  (ialton,  3  P.  Wms.  352. 

5  lUirke  r.  Crosbie,  1  Hall  &  B.  489; 
Kennedy  ''•  Dalv,  1  Sch.  &  Lef.  355. 

0  Elliot  1'.  Ince,  7  De  G.,  M.  &  (J.  475;  3 
,Tur.  N.  S.  5!i7;  or  ol)lain  an  order  to  ap- 
peal in  fonm'i  ptni//eri.i  without.  Crouch  v. 
Waller,"  4  De  G.  &  J.  43;  6  Jur.  N.  S.  320; 
ante,  pp.  89,  40,111. 


by  contract, 
fraud,  or 
breach  of 
trust. 

Leave  given 
to  apply  for 
costs  against 
separate 
estate. 


Feme  covert 
bound  by  a 
decree  of  fore- 
closure ; 


and  by  a  sale 
under  a 
decree. 


Feme  covert 
defendant,  if 
she  appeals, 
must  do  so  by 
her  next 
friend. 


188 


PERSONS    AGAINST   "WHOM   A   SUIT   MAY   BE    INSTITUTED. 


Cm.  IV.  ^11. 


Noatniliiiu'iit 
by  di;ltll  of 
luislijiiul  sikhI 
with  wife,  or 
by  marriage 

of  flllllllo 

defoiulaiit. 

<Striis,  where 
:i  new  interest 
arises  to  her 
by  ileatli  of 
luisband. 


Suit  abates 
on  wife's 
death. 


AVliorc  a  suit  has  been  instituted  against  a  man  and  his  wife, 
and  the  husband  dies  pending  the  proceedings,  the  suit  will  not  be 
abated.^  AVhen  a  female  defendant  marries,  no  abatement  takes 
]daee ;  but  the  husband's  lumic  shoidd  be  introduced  in  all  subse- 
quent proceedings.^ 

But  although,  where  a  bill  has  been  exhibited  against  a  man  and 
his  wife,  and  the  husband  dies  jicnding  the  suit,  there  is  no  abate- 
ment, and  the  wife  will  be  bound  by  the  former  answer  and  pro- 
ceedings in  the  cause,  yet  where,  by  the  death  of  the  husband,  a 
new  interest  arises  to  the  M-ife,  it  seems  that  she  will  not  be  bound 
by  the  former  answer.  Thus,  where  a  bill  was  filed  by  the  assign- 
ees of  a  husband  to  compel  the  specific  jicrformance  of  a  contract 
for  the  sale  of  a  part  of  his  estate,  to  which  the  wife  was  made  a  co- 
defendant  in  respect  of  certain  terms  of  years  which  were  vested 
in  her  as  administratrix  of  a  person  to  whom  the  terms  had  been 
assigned  to  protect  the  inheritance,  and  she  had  joined  with  her 
husband  in  putting  in  an  answer,  by  which  she  claimed  to  be  dow- 
able  out  of  the  property :  upon  the  death  of  her  husband,  an 
objection  was  taken  to  the  suit  being  proceeded  with  till  a  supple- 
mental bill  had  been  filed  against  her,  in  order  to  give  her  an 
opportunity  of  making  another  defence  in  respect  of  the  right  of 
dower  which  had  become  vested  in  her,  and  Sir  Thomas  Plumer 
M.  R.  said,  that  her  former  answer  could  not  be  pressed  against 
her,  because,  in  the  former  case,  she  Avas  made  a  party  as  adminis- 
tratrix ;  but  the  right  to  dower  which  she  then  had  was  not  claimed 
by  her  as  representative,  but  in  her  own  character ;  and  it  was  an 
interest  that  had  devolved  ujion  her  since  her  answer  was  put  in ; 
his  Honor,  therefore,  held  the  suit  to  be  defective.*  A  supplemental 
bill  was  thereupon  filed  against  the  "widow,  in  order  to  enable  her 
to  claim,  in  her  separate  character,  what  she  had  before  claimed 
in  her  character  of  wife.  Upon  hearing  the  cause,  however.  Lord 
Eldon,  although  he  recognized  the  principle  laid  down  by  Sir 
Thomas  Plumer,  said,  that  he  should  have  been  inclined,  in  that 
case,  to  have  come  to  a  different  decision,  as  he  thought  that  it 
would  have  been  difficult  for  the  Avidow,  in  her  answer  to  the  sup- 
plemental bill,  to  state  her  case  differently  from  the  way  in  which 
it  had  been  stated  in  her  former  answer.*  It  is  conceived  that 
under  the  present  practice,  however,  it  would  not  be  held  necessary 
for  the  plaintiff  to  take  any  step  in  the  cause,  in  order  to  enable  a 
widow  to  raise  a  new  defence. 

It  follows,  from  what  has  been  before  stated,  that  where  a  man 


1  Ld.  Rd.  59 ;  Shelberry  v.  Briggs,  2 
Vefn.  249;  1  Eq.  Ca.  Ab.  1,  pi.  4;  Dur- 
baine  V.  Knight,  1  Vern.  318;  1  Eq.  Ca. 
Ab.  126,  pi.  7. 

2  Ld.  Ked.  58;  Wharam  v.  Broughton,  1 


Ves.  S.  182;  and  see  Saptc  v.  Ward,  1  Coll. 
25.  For  the  title  of  tiieir  joint  answer  in 
such  case,  see  Vol.  HI. 

3  Mole  V.  Smith,  1  J.  &  W.  665,  668. 

4  Mole  V.  Smith,  Jac.  490,  495. 


MAREIED    WOMEN.  189 

and  his  ■ndfe  are  defendants  to  a  suit,  if  the  wife  dies  there  will  be   Ch.  IV.  §  ii. 
an  abatement  of  the  suit.     Thus,  where  a  man  ha\dng  married  an   "— — y — — ^ 
administratrix,  the  plaintiff  obtained  a  decree  against  him  and  his 
wife,  after  which  the  wife  died:  it  was  held,  that  the  suit  was 
abated,  and  that  the  new  administrator  ought  to  be  made  a  party, 
before  any  further  proceedings  could  be  had  in  the  cause.-' 

For  the  means  by  which  the  plaintiff  compels  the  appearance   Appearance 
and  answer  of  the  husband  and  wife,  in  those  cases  in  which  they  ^"^  «inswer: 
answer  jointly,  and  for  the  process  in  those  cases  in  which,  accord-  peiled. 
ing  to  the  j^rinciples  above  laid  down,  a  separate  answer,  by  either 
the  one  or  the  other,  ought  to  be  filed,  the  reader  is  referred  to  the 
Chapters  on  Process,^ 

1  Jackson  v.  Eawlins,  2  Vern.  195;  ib.  2  gee  imsL  Chap.  VIII.  §  4;  CJiap.  X. 

ed.  Raithby,  n.  (2).  §  2. 


CHAPTER    V. 


OF    TARTIES    TO    A    SUIT. 


Section  I.  —  Of  7iecessary  Parties,  in  res2)ect  of  the  Concurrence 
of  their  Interests  %mth  that  of  Plaintift. 


General  rule ; 


All  persons 
interested  ai 
neccssar)^ 
parties. 


It  is  the  constant  aim  of  a  Court  of  Equity  to  do  complete  jus- 
tice by  deciding  upon  and  settling  the  riglits  of  all  persons  inter- 
ested in  the  suhject  of  the  suit,  so  as  to  make  the  jjerformance  of 
the  order  of  the  Court  perfectly  safe  to  those  who  are  comj)ellcd 
to  obey  it,  and  to  prevent  future  litigation.^  For  this  purpose,  aU 
persons  materially  interested  in  the  subject,  ought  generally,  either 
as  plaintiffs  or  defendants,  to  be  made  parties  to  the  suit,^  or  ought 
by  service  upon  them  of  a  copy  of  the  bill,''  or  notice  of  the  decree  * 
to  have  an  opj^ortunity  afforded  of  making  themselves  active  jjar- 
ties  in  the  cause,  if  they  should  think  fit.^ 


1  Ld.  Red.  163;  Story  Eq.  PI.  §§  72,  76; 
Caldwell  r.  Tagsart,  4  Peters,  190;  West 
f.  Kandall,  2  Mason,  190-19G;  Joy  v. 
Wirtz,  1  Wash.  C.  C.  517;  Mandeville  v. 
Kiggs,  2  Peters,  482;  Cutler  v.  TuttJe,  4  C. 
E.  Green,  549, 556 ;  Richardson  v.  Hnstings, 
7  Beav.  .323, 326 ;  Hare  v.  London  and  North 
Western  Railway  Co.,  1  .1.  &  11.  252.  It 
seems,  however,  that,  under  the  modern 
English  practice,  the  Court  is  less  unwill- 
ing to  relax  the  rule  in  special  cases. 
Ford  V.  Tennaut,  29  Beav.  452;  7  Jur.  N. 
S.  615,  L.  J.I. 

2  Ld.  Red.  164. 

3  Ord.  X.  11,  14,  15. 

4  15  &  16  Vic.  c.  86,  §  42,  r.  8. 

5  Orders,  August,  1841,  23d  and  26th. 
Generally,  all  persons  interested  in  the 
subject  of  a  suit  should  be  maile  parties, 
plaintifts,  or  defendants.  Steiihenson  v. 
Austin,  3  Met.  474,  480;  Williams  v.  Rus- 
sell, 19  Pick.  162,  165;  West  r.  Randall,  2 
Mason,  181;  Stor^^  v-  Livingston,  13  Pe- 
ters, 359;,  Pipe  r.  Bateman,  1  Clarke 
(Iowa),  369;  New  Braintreer.  .Southworth, 
4  Gray,  304;  Crocker  r.  Iliprglns,  7  Conn. 
342;  Eootman  v.  Pray,  R.  M.  Charlt.  291; 
Watkins  v.  Wasliington,  2  Bland,  509; 
Hox'ie  V.  Carr,  1  Sumner.  172;  Wliitingv. 
Bank  of  United  States,  13  Peters,  6-14; 
Hopkirk  r.  Page,  2  Brock.  20;  M'Connell 
V.  M'Connell,  11  Vt.  290;  Evans  v.  Chism, 
18  Maine,  220;  Hussey  v.  Dole,  24  Maine, 


20;  Beals  v.  Cobb,  51  Maine,  348;  Pierce 
V.  Faunce,  47  ]\Iainc,  507;  Oliver  t'.  Palm- 
er, 11  Gill  &  J.  426;  Willis  v.  Henderson, 
4  Scam.  20;  Wells  -v.  Strange.  5  Geo.  22; 
Turner  v.  Berry,  3  Oilman,  541;  llicks  v. 
Campbell,  4  C.  E.  Green,  183;  Pence  v. 
Pence,  2  Beasley  (N.  J.),  257.  The  general 
rule,  recjuiring  all  persons  interested  to  be 
made  parties  to  the  suit,  is  confined  to  par- 
ties to  the  interest  involved  in  the  issue,  and 
who  must  necessarily  be  affected  bj-  the  de- 
cree. Michigan  State  Bank  v.  Gardner,  3 
Gray,  308,  per  Thomas  J.;  Story  Kq.  PI. 
§  72.  It  is  a  rule,  which  is  more  or  less  with- 
in the  discretion  of  the  Court,  and  may  be 
disptnsed  with,  when  it  becomes  extreme- 
ly diflicult  or  inconvenient.  Wendell  v. 
Xwa  Rensselaer,  1  John.  Ch.  349;  Story 
Eq.  I'l.  §§  94,  96;  Hallett  v.  Ilallett,  2 
Paige,  15;  Culleu  v.  Uuke  of  (Queens- 
berry,  1  Bro.  C.  C.  (Perkins's  ed  )  101, and 
Mr.  Belt's  notes;  !Mann  v.  Butler,  2  Barb. 
Ch.  362;  BirdsDng  v.  Birdsong,  2  Head 
(Tenn.),  289  ;  Tobin  v.  Walkiiishaw,  1 
McAll.  (Cal.)  C.  C.  26;  United  States  v. 
Parrott,  1  McAll.  (Cal.)  C.C.271;  Westi;. 
Randall,  2  Mason,  181;  Brasher  v.  Van 
Corthindt,  2  John.  Ch.  242;  Boisgerard  v. 
Wall,  1  Sm.  &  j\I.  Ch.  404;  Whitney  v. 
Mayo,  15  111.  '251;  Soc.  for  Prop,  of  Gospel 
V.  ilartland,  2  I'ainc  C.  C.  536.  Where 
the  persons  interested  are  so  numerous  as 
to  make  it  impossible,  or  very  inconven- 


PERSOXS    HAVING    COXCURREXT    INTERESTS    WITH    TLAIXTirF. 


191 


The  strict  application  of  this  rule,  in  many  cases,  creates  diffi- 
culties ;  which  have  induced  the  Coiu't  to  relax  it ;  and,  as  we  shall 
see,  it  has  long  been  the  established  practice  of  the  Court,  to  allow 
a  plaintiff  to  sue  on  behalf  of  himself  and  of  all  the  others  of  a 
numerous  class  of  which  he  is  one,  and  to  make  one  of  a  numer- 
ous class  (as  the  members  of  a  joint-stock  company),  the  only 
defendant,  as  representing  the  others,  on  the  allegation  that  they 
are  too  numerous  to  be  all  made  parties ;  and,  in  addition,  the 
Court  is  now  enabled,  whenever  it  thinks  fit,  to  adjudicate  upon 
questions  arismg  between  j^arties,  without  making  other  persons 
who  are  interested  in  the  projDerty  in  question,  or  in  other  property 
comprised  in  the  same  instrument,  parties  to  the  suit.^  When  the 
Court  acts  on  this  power,'  the  absent  parties  are  not  bound  by  the 
decree ;  ^  whereas,  in  the  cases  first  alluded  to,  the  absent  parties 
are  generally  bound.^ 

The  aj)plication  of  the  general  rule,  above  referred  to,  Avill  be 
considered  ^firf<t,  with  reference  to  those  whose  rights  ai'e  con- 
current witJi  tlie  rights  of  the  party  instituting  the  suit ;  and 
secondly,  with  reference  to  those  who  are  interested  in  resisting 
the  plaintiff's  claim. 

With  respect  to  the  first  class,  it  is  to  be  observed,  that  (subject 
to  the  ju-ovisions  of  the  late  Act  above  pointed  out)  it  is  required 
in  all  cases  where  a  party  comes  to  a  Court  of  Equity  to  seek  for 


Ch.  V.  §  1. 


Wlien  rule 
relaxed. 
One  of  a  nu- 
merous class, 
allowed  to  sue 
on  behalf  of 
himself  and 
all  others  of 
the  same 
class ; 
Court  may 
adjudicate  in 
the  absence 
of  some  of  the 
interested 
persons. 


ient,  to  bring  them  all  before  the  Court,  a 
part  of  them  may  lile  a  bill  in  behalf  of 
themselves,  and  all  others  standing  in 
the  same  situation.  Robinson  v.  Smith,  3 
Paige,  222 ;  per  Foster  ,1.  in  Williston  v. 
Alicliigan  Southern  and  Northern  R.I!.  Co., 
1.3  Alien,  400.  Where  a  decree  in  relation 
to  the  .suhject-niatter  of  litigation,  can  be 
made  without  in  any  way  concluding  the 
interest  of  a  partii-ular  ])erson,  tliat  person 
is  not  an  essenti;il  [lat  ty.  Story  v.  Living- 
ston, 1.3  I'etcrs,  .359. 

By  22d  of  the  Kquily  Rules  of  the  United 
States  Courts,  —  "  If  any  persons,  other 
than  those  named  as  defendants  in  the 
bill,  shall  appear  to  be  necessary  or  proper 
parties  thereto,  the  bill  shall  aver  the  rea- 
son, why  they  arc  r.ot  made  parties,  by 
showing  them  to  be  without  the  jurisdic- 
tion of  the  Court,  or  that  they  cannot  be 
joined  witlmut  ousting  the  jurisdiction  of 
the  Court  as  to  other  parties.  And  as  to 
persons  wlio  are  wilhout  the  jurisdiction, 
and  may  properly  be  made  parties,  the 
bill  may  [)ray,  that  process  mav  issue  to 
make  them  |»artics  to  the  bill,  if  tlicj'  should 
come  within  the  jurisdiction."  Sec;  Krick- 
Bon  j;.  Xesniith,  4';  .N.  II.  .371;  Towie  v. 
Pierce,  12  Met.  .32'.';  Story  Kq.  PI.  §  78; 
anlc.  pp.  1.12,  l')3  and  notes. 

All  persnns  having  the  same  interest 
should  stand  on  the  same  side  of  the  suit; 
but  if  any  such  refuse  to  appear  as  plain- 


tiffs, they  may  be  made  defendants,  their 
refusal  being  stated  in  the  bill.  Contee 
V.  Dawson,  2  Bland,  2G4;  Pogson  v.  Owen, 
3  Desans.  31 ;  Cook  v.  Iladley,  Cooke,  4C5 ; 
Morse  v.  Hovey,  9  Paige,  197 ;  Bartlett  v. 
Parks,  1  Cush.  8G;  Whitnev  v.  JIayo,  15 
III.  251;  Smith  v.  Sackott,  5  Oilman, 534; 
LovcU  V.  Farrington,  50  Maine,  239. 
Parties  should  not  be  joined  as  plaintiffs 
in  a  suit  without  their  knowledge  or  con- 
sent; if  they  are,  the  bill,  as  to  them, 
should  be  dismissed.  Gravenstine's  App. 
49  Penn.  St.  510. 

Parties  having  conflicting  interests  in 
the  subject  of  litigation  should  not  be 
joined  as  plaintifls  in  the  suit,  (irant  v. 
Van  Schoonhovcn,  9  Paige,  255;  Turnhani 
V.  Turnham,  3  P..  Mon.  581 ;  Bartlett  v. 
Parks,  supvd  ;  iMichigun  I'ank  v.  Gardner,  3 
Grav,  308,  309,  jier  Thomas  .1.;  Crook  (,'. 
Brown,  11  Md.  158;  .Johnson  v.  Vail,  1 
McCarter  (N.  .!.),  423,  425,  42C. 

1  15  &  10  Vic.  c.  SO,  §  51.  The  Court 
acted  on  this  power  in  the  case  of  Parnell 
V.  Ilingston,  3  Sm.  &  (J.  .337,  which  is 
believcfi  to  be  the  only  reported  case  in 
which  it  has  done  so.  "See  also  Swallow 
V.  I'.inns,  9  Hare  Ap|).  47;  17  .lur.  295; 
I.anhani  r.  I'irie,  2  .hir.  N.  S.  1201,  V.C.S. ; 
Prentice  r.  Prentice,  10  Hare,  App.  22;  Jic 
JJrown,  29  Bcav.  401. 

-  Doody  V.  Iliggins,  9  Hare  App.  32. 

^  Barker  v.  Walters,  8  Beav.  92. 


192 


OF   PARTIES   TO    A   SUIT. 


Cn.  V.  §  1. 


All  hnviiig 
a  rij^iit  to  sue 
tloti'iulant  for 
the  same 
thing  should 
be  parties. 


Where  they 
need  not  be 
active  par- 
ties. 


Persons  hav- 
ing legal 
estate. 


tli:it  relief  Avliich  the  ])niH-i}iles  thore  iieted  upon  eiitille  him  to 
receive,  tliat  lie  should  bring  before  the  Court  nil  such  i):irtie8  as 
are  necessary  to  enable  it  to  do  com])letc  jixstice;  and  that  he 
should  so  far  bind  the  rights  of  all  persons  interested  in  the  subject, 
as  to  render  the  jierforniance  of  the  decree  which  he  seeks  ])erfectly 
safe  to  the  party  called  ui)on  to  perform  it,  by  preventing  his  being 
sued  or  molested  again  respecting  tlie  same  matter  either  at  Law 
or  in  Equity.  For  this  purpose,  formerly,  it  Avas  necessary  that  he 
should  bring  regularly  before  the  Court,  either  as  co-plaintiffs  Avith 
himself,  or  as  defendants,  all  persons,  so  circumstanced,  that  unless 
their  rights  were  bound  by  the  decree  of  the  Court,  they  might 
have  caused  future  molestation  or  inconvenience  to  the  party 
against  whom  the  relief  was  sought. 

But  now,  a  plaintiff  is  enabled,  in  many  cases,  to  avoid  the  ex- 
pense of  making  such  persons  active  parties  to  the  cause,  by  serv- 
ing them  with  copies  of  the  bill  under  the  general  order,^  or  with 
notice  of  the  decree  under  the  recent  Act.^  The  practice  arising 
under  these  provisions  will  be  stated  hereafter ;  for,  as  it  does  not 
affect  the  principle,  requiring  all  persons  concurrently  interested 
with  the  plaintiff,  to  be  bound  by  the  decree,  but  only  substitutes, 
in  some  cases,  an  easier  mode  of  accomplishing  that  end ;  it  will 
be  convenient,  in  the  first  instance,  to  consider  what  is  the  nature 
of  those  concurrent  rights  and  interests,  which  render  it  necessary 
that  the  persons  possessing  them,  should  be  made  either  active  or 
passive  parties  to  the  suit. 

In  general,  w^here  a  plaintiff  has  only  an  equitable  right  in  the 
thing  demanded,  the  i:)erson  having  the  legal  right  to  demand  it 
should  be  a  party  to  the  suit ;  ^  for,  if  he  were  not,  his  legal  right 
would  not  be  bound  by  decree,*  and  he  might,  notwithstanding 
the  success  of  the  plaintiff,  have  it  in  his  power  to  annoy  the  de- 
fendant by  instituting  proceedings  to  assert  his  right  in  an  action 
of  Law,  to  which  the  decree  in  Equity  being  res  inter  alios  acta 
would  be  no  answer,  and  the  defendant  would  be  obliged  to  resort 
to  another  proceeding  in  a  Court  of  Equity,  to  restrain  the  plain- 
tiff at  Law  from  j^roceedings  to  enforce  a  demand  which  has  been 
already  satisfied  under  the  decree  in  Equity.  This  complication 
of  litigation  it  is  against  the  principles  of  Equity  to  ])ermit,  and  it 
therefore  requires  that  in  every  suit  all  the  persons  Avho  have  legal 
rights  in  the  subjects  in  dispute,  as  well  as  the  persons  having  the 
equitable  right,  should  be  made  parties  to  the  proceedings.^ 


1  Ord.  X.  11,  14. 

2  15  &  10  Vic.  c.  86,  §  42,  r.  8. 

3  See  Johnson  v.  Rankin,  2  Bibb,  184; 
■Neilson  t:  Churchill,  5  Dana,  341. 

4  Ld.  Red.  145. 

5  In  a  suit  under  a  statute,  which  pro- 
vided that  any  inhabitant  of  a  town  might 


maintain  a  suit  in  Equity,  by  bill  or  peti- 
tion, to  restrain  tlie  town  from  a  misappli- 
cation of  money  in  violation  of  a  statute 
under  which  it  was  received,  tlie  plaintiffs 
averred  that  they  were  inhabitants  of  the 
town,  and  men  of  property,  liable  to  be 
taxed  therein,  and  that  the  application  of 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF.  193 

Upon  this  ground  it  is,  that  in  all  siuts  by  j^ersons  claiming     Cn.  V.  §  l;^ 
under  a  trust,  the  trustee  or  other  person  in  Avhom  the  legal  estate   ""^       ^ 
is  vested,  is  required  to  be  a  party  to  the  proceeding.^    Thus  Avhcre   Trustees. 
an  estate  had  been  limited  by  a  marriage  settlement  to  a  trustee 
and  his  heirs,  upon  trust  during  the  lives  of  the  plaintift'  and  his 
wife,  to  apply  the  prohts  to  their  use,  with  remainder  to  the  chil- 
dren of  the  marriage,  with  remainder  over ;  and  a  bill  was  brought 
by  the  persons  interested  under  that  settlement  to  set  aside  a 
former  settlement,  as  obtained  by  fraud,  it  was  held  that  the  plain- 
tiff could  have  no  decree  because  the  trustee  was  not  a  party ;  '^ 
and  where  it  appeared  that  a  mortgage  had  been  made  to  a  trus- 
tee for  the  plaintiff;  it  was  determined  that  the  trustee  was  a  neces- 
sary party  to  a  suit  to  foreclose  the  equity  of  redemption.^ 

The  rule  is  the  same  whether  the  trust  be  expressed  or  only   whether 
implied,  as  where  the  executor  of  a  mortgagee  files  a  bill  to  fore-  p^fj^;, 
close  a  mortgage  of  freehold  or  copyhold  estate,  he  should  make  the  implied. 
heir-at-law  of  the  mortgagee  a  party ;  *  because  although  according 
to  the  principles  upon  which  the  Courts  of  Equity  proceed,  money 
secured  by  mortgage  is  considered  as  })art  of  the  personal  estate 
of  the  mortgagee,  and  belongs  on  his  death  to  his  })ersonal  repre- 
sentative; yet,  as  the  legal  estate  is  in  the  heir,  he  would  not,   lleirof  mort- 
unless  he  was  before  the  Court  when  it  was  pronounced,  be  bound   "'  °    ' 
by  the  decree.     There  is  another  reason  why  it  is  necessary  to 
bring  the  heir  before  the  Court  in  a  bill  to  foreclose  a  mortgage, 
because  if  the  mortgagee  should  think  proper  to  redeem  the  estate 
under  the  decree,  he  will  be  a  necessary  party  to  the  reconveyance.^ 
And  so  important  is  it  considered  in  such  a  case  that  the  heir 
should  be  a  party,  that  wliere  the  mortgagee  died  without  any  heir 
that  could  be  discovered,  the  Court  restrained  his  executor  from 
proceeding  at  Law  to  compel  payment  of  the  mortgage  money, 
and  ordered  the  money  into  Court  till  the  heir  could  be  found.® 

The  heir,  however,  is  only  a  necessary  party  where  nothing  has  neirof  mort- 
bcen  done  by  the  mortgagee  to  affect  the  descent  of  the  legal  es-  sagee  not 

the   money    contemplKted   by    the    town  Eq.  I'l.  §§  74a,  200,  201;  Hveiit  (lltli  ed.), 

would  l)c  a  direct  injiirv  to  them,  it  was  18(j,  and  cases  cited. 

held,  tiiat  the  p'aintitVs  had  such  an  inter-  6  Wood  v.  Williams,  4  Mad.  186. 

est  in  tile  lu'iuev  and  in  its  ajtplicalion,  as  ^  Schoolc  v.  Sail,  1  Sch.  &  L.  177.    The 

would  entile  tlinni  to  mainlaiii  such  hill,  result  of  this  case  was,  that  alter  the  cause 

if  iinyqualilication  of  interest  were  neces-  hail  remained  some  years  in  Court,  it  wns 

8ury."    Jjut  it  seems  that  no  such  ([ualilica-  tliouj,'lit  worth  while  to  {,'et  an  Act  of  I'ar- 

tion  of  interest  is  re(|uisite  for  this  purpose.  liament  to  revest  the  estate,  on  an  alle- 

Simin'>nsi'.  Hanover,  23  Tick.  188.  K''1'0"  that  the  heir  could  not  be  (bund. 

1  .Maliu  r.  Miilin,  2  .l<>hn.  Cli.  2ri8;  Fish  See  also  Stoke  v.  ll..bsoii,  1'.)  Vcs.  385;  3 

r.  Ilowhiud,  1    I'aif,"',  20;  Cas-idayr.  Mc-  V.  &  H.  54;  Smith  r.   Kiclinell,   ib.notis; 

Daniel,  8   |{.   Mon.  bVJ;  Carter  t'.  Jone.s,  Scliehnardine  »'.  llarn.p,  0  Mad.  .TJ.     'I'lic 

6  Ired.  Ivp  VM.  dilViciilty   I'.xperienccd  in  the  case  referred 

■■^  1)  Mod.  80.  to  is  nowmet  by  the  jirovisionsof  the  Trus- 

8  Wood  V.  Williams,  4  Mad.  18,0;  Hich  tee  Act,  1800,  §"l!i,wliich  enables  the  Court, 

ens  V.  Ktllv,  2  Sm.  &  (i.   201;  Story    lv|.  in  such  a  case,  to  vest  the  estate;  see /)(«<, • 

I'i.  §§  201^  20!t,  and  note;  see  IJoyden  v.  and  see  Re  lioden's  Trust,  1  De  ti.,  .M.  & 

Partridge,  2  (Jmv,  lt)0.  C.  57;  9  Hare,  820;  Ui  Lea's  Trust,  li  W. 

*  Scott  V.  Nicholl,  3   Kuss.  470;  Story  K.  4Ha,  V.  C.  W. ;  but  see  A'c  Hewitt,  27 


L.  J.  Ch.  302,  L.  C.  and  L.  JJ. 


13 


104 


OF    PARTIES    TO    A    SUIT. 


Cn.X.  5  1. 


iiocossjuy 

estate  do- 
vised, 


or  assigned. 


Last  assignee 
only  neces- 
sarv. 


Derivative 
mortgagees. 


Covenantee, 
in  a  suit  for 
specific  per- 
fonnance  of 
covenant. 


t.atc  u|)on  liiiu.  If  tlic  descent  of  the  legal  estate  lias  been  diverted, 
it  is  necessary  to  have  before  the  Court  the  person  in  whom  it  is 
actually  vested;^  and  therefore,  where  a  mortgagee  has  devised 
his  mortgage  in  such  manner  as  to  pass  not  only  the  money  se- 
cured, but  the  legal  estate  in  the  property  mortgaged,  the  devisee 
alone  may  foreclose  without  making  the  heir-at-law  of  the  original 
mortgagee  a  party.- 

Upon  the  same  ])rinciple,  where  a  mortgagee  in  his  lifetime  act- 
\ially  assigns  his  whole  interest  in  the  mortgage,  even  though  the 
assignment  be  made  without  the  privity  of  the  mortgagor,  the  as- 
signee alone  may  foreclose  without  bringing  the  original  mortgagee 
before  the  Court ;  ^  and  where  there  have  been  several  mesne  as- 
signments of  the  mortgage,  the  last  assignee,  provided  the  legal 
estate  is  vested  in  him,  will  be  sufficient  wdthout  its  being  neces- 
sary to  bring  the  intermediate  ones  before  the  Court.*  It  is  to  be 
observed,  however,  that  in  order  to  justify  the  omission  of  the  in- 
termediate assignees  in  the  case  of  an  assignment  of  a  mortgage, 
the  conveyance  must  have  been  absolute,  and  not  by  way  of  mort- 
gage;°  for  if  there  be  several  derivative  mortgagees,  they  must 
all  be  made  parties  to  a  bill  of  foreclosure  by  one  of  them.  Thus, 
where  A.  made  a  mortgage  for  a  term  of  years  for  securing  350^. 
and  interest  to  B.,  who  had  assigned  the  term  to  C,  redeemable  by 
himself  on  paying  300Z.  and  interest ;  and  B.  died,  and  C.  brought 
a  bill  against  A.  to  foreclose  him  without  making  the  representa- 
tives of  B.  the  original  mortgagee  parties,  it  wan  held  by  the  Court 
that  there  was  plainly  a  want  of  proper  parties.'' 

The  principle  that  requires  a  trustee  or  other  owner  of  the  legal 
estate  to  be  brought  before  the  Court  in  suits  relating  to  trust 
projicrty,  applies  equally  to  all  cases  where  the  legal  right  to  sue 
for  the  thing  demanded  is  outstanding  in  a  diffei-ent  party  from  the 
one  claiminsz  the  beneficial  interest.     Thus  where  a  bill  is  filed  for 


1  See  Eagle  Fire  Ins.  Co.  v.  Cammet,  2 
Edw.  Ch.  127. 

2  Williams  v.  Day,  2  Cli.  Ca.  32;  Ken- 
voise  V.  Cooper,  6  Mad.  371. 

3  Chambers  v.  Goldwin,  9  Ves.  2C9; 
Story  K(|.  PI.  §  ISO;  Bi.sIiop  of  Winchester 
V.  Beavor,  3  Sumner's  Ves.  314,  and  note 
(a),  and  31.5,  316;  Whitney  v.  M'Kiunev, 
7  John  Ch.  144. 

*  Chambers  v.  Goldwin,  9  "Ves.  269. 

5  Storv  Eq.  PI.  §  191;  Kittle  v.  Van 
Dj-ck,  l"  Sand.  (N.  Y.)  76,  cited  ;ws.',  § 
2  of  this  chapter,  in  note  to  point,  "mort- 
gagee unnecessary  where  mortgage  is  as- 
signed." 

G  Hobart  v.  Abbot,  2  P.  Wms.  643;  Kit- 
tle V.  Van  Dyck,  1  Sand.  (X.  Y.)  76.  The 
general,  although  not  universal,  rule,  is 
that  all  incumbrancers,  as  well  as  tiie  mort- 
gagor, should  be  made  parties,  being,  if 
not  indispensable,  at  least  proper,  jiarties 
to  a  bill  of  foreclosure,  whether  tliey  are 
prior  or  subsequent  incumbrancers.   Story 


Hrj.  PI.  §  19S,  and  cases  cited;  Findley  v. 
Bank  of  United  States,  11  Whe:it.  304; 
Haines  v.  Beach,  3  John.  Ch.  4.59;  Ens- 
worth  «.  Lambert,  4  John.  Ch  605;  Mc- 
Gown  V.  Yorks,  6  .loliii.  Ch.  450;  ]$isIiop 
of  Winchester  r.  Beavor,  3  Sumner's  Ves. 
314,  note  («);  Taite  v.  Pallas,  1  Hogan, 
261;  Bodkin  v.  Fitzpatrick,  1  LLgan,  308; 
Canby  v.  Bidgeway,  Ilalst.  N.  J.  Dig.  168; 
Lyon"  V.  Sandford,  5  Conn.  544  ;  Benwick 
r." Macomb,  1   Ilopk.  277;  Fell  v.  Brown, 

2  Bro.  C.C.( Perkins's ed.)  278,  279,  notes; 
Maderias  v.  Cutlett,  7  Monroe,  476;  Wing 
V.  Davis,  7  Greenl.  31 ;  Poston  v.  Eubank, 

3  J.  J.  Marsh.  44;  Stuckcri;.  Stucker,  3  J. 
J.  JIarsIi.  301;  Cooper  v.  Martin,  1  Dana; 
25;  Noyes  v.  Sawyer,  3  Vt.  160;  .ludson 
V.  Emanuel,  1  Ala.  N.  S.  598;  Miller  v. 
Kershaw,  1  Bailey  Eq.  479;  Bristol  v. 
Morf;an.3  I'Mw.  Cli.  142;  Nodine  v.  Green- 
lield,  7  Paige,  544;  4  Kent  (11th  ed.),  186; 
see  Platt  c.  Squire,  12  Met.  494. 


PERSONS    HAVING   CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


195 


Rule  not 
extended  to 
persons  con- 
tracting not 
under  seal  as 
a<;ents  for 


the  specific  performance  of  a  covenant  under  hand  and  seal  of  one,     Ch.  v.  §  i. 
for  the  benefit  of  another,  the  covenantee  must  be  a  party  to  a  bill  y     -' 

by  the  person  for  whose  benefit  the  covenant  was  intended,  against 
the  covenantor.^     And  so  in  Cope  v.  Farry^-  which  was  a  bill  filed 
for  the  specific  performance  of  a  covenant  for  the  surrender  of  a 
copyhold   estate   to  A.,  in   trust  for   others,  Lord   Chief  Bai-on 
Richards  said,  that  as  the  eifect  of  a  surrender,  if  the  Court  de- 
creed it,  would  be  to  give  the  legal  estate  to  A.,  he  ought  to  be  a 
party,  otherwise  another  suit  might  become  necessary  against  him. 
It  is  to  be  observed,  that  the  preceding  cases  arose  upon  cove- 
nants formally  entered  into  under  hand  and  seal ;  the  same  rule 
wUl  not,  however,  apply  to  less  formal  instruments,  such  as  ordi- 
nary agreements  not  under  seal,  where  one  jiarty  contracts  as 
agent  for  the  benefit  of  another.     In  such  cases,  it  is  not  necessary  others. 
to  bring  the  agent  before  the  Court,  because,  even  at  Law,  it  is 
the  umloubted  right  of  the  principal  to  interpose  and  supersede 
the  right  of  his  agent  by  claiming  to  have  the  contract  performed 
to  himself,  although  made  in  the  name  of  his  agent.^     This  i)rinci- 
ple  was  acted  upon  by  the  Court  of  Queen's  Bench,  in  the  case  of 
the  Duke  of  Norfolk  v.  Worihi/*  and  in  Bethune  v.  Farebrother^ 
where  the  plaintiff"  not  wishing  to  appear  as  purchaser,  procured 
J.  S.  to  bargain  for  him,  who  signed  the  contract  (not  as  agent) 
and  paid  the  deposit  by  his  own  check;  yet,  inasmuch  as  it  was 
the  plaintiff's  money,  he  was  allowed  to  maintain  an  action  for  it 
without  showing  any  disclaimer  by  J.  S.     Upon  the  same  princi- 
ple, in  Equity,  if  the  plaintiflf  had  filed  a  bill  against  the  Acndor, 
for  a  specific  performance,  he  would  not  have  been  under  the  ne- 
cessity of  making  J.  S.  a  party  to  the  suit,  because,  if  he  had  suc- 
ceeded in  his  object,  performance  of  the  contract  to  the  plaintiff" 
might  have  been  shown  in  answer  to  an  action  at  LaAV  by  J.  S., 
whose  title  was  merely  that  of  agent  to  the  plaintiff".     It  is,  liow- 
ever,  frequently  the  practice  to  join  the  auctioneer  as  co-plaintiff"  Auctioneers; 
with  the  vendor  in  suits  for  specific  performance  of  contracts  en- 

1  Cooke  V.  Cooke,  2  Vem.  3C ;  2  Eq.  Ca. 
Ab.  7:{,  pi.  8;   Story  Eq.  I'l.  §  209. 

^  2  .J.  &  W.  588;  and  see  Rolls  v.  Yate, 
Yeiv.  177;  1  Bulst.  25,  b. 

8  Crocker  v.  IIiggins,7  Conn.  342.  The 
party  in  interest  in  a  contract,  restint;  in 
parol,  may  sue  upon  it.    Lapliam  v.  (Jrecn, 


«  Vt.  407;  Story  .Agency,  §  4 is  e«  .sery.  ; 
I'itts  ».  Mower,  1h  Maine,  3"il;  Jvlinond  r. 
Caldwell,  15  Maine,  340;  Higdon  i'.  Tlioni- 
as,  1  liar.  &  (J.  153;  White  v.  Owen,  12 
Vt.  301;  l)unhi[)'»  I'aley's  Agency,  324, 
note;  Hoggin  r.  Short,  24  Wend.  401; 
Thorp  I".  l''arf|ucr,  0  B.  Mon.  3. 

In  the  case  of  the  United  Slate.s  v.  Par- 
melc,  1  I'nine  C.  C.  2.52,  it  was  held,  that 
no  actifin  will  lie  in  the  name  of  the  prin- 
cipal, on  a  written  contract  made  by  his 
ngtrtit  in  his  own  name,  although  the  de- 
fendant may  have  known  the  agent's  char- 


acter. See  Clarke  v.  Wilson,  3  Wash. 
C.  C.  560;  Newcomb  v.  ClMrk,  1  Denio, 
220;  Finney  V.  Bedford  Ins.  Co.,  8  Met.  348, 
CoUyer  Pnrtn.  (I'erkins's  ed.)  §§  412,  G5;j; 
Dunlap's  I'aicv's  ,\geiicv,  324,  note;  Harp 
V.  Osgood,  2"llill,  210;  West  Hoylstnn 
Manuf.  Co.  I'.  .Se:irle,  15  Tick.  225;  Hub- 
bard V.  Borden,  0  Wliart.  79,  92.  This, 
however,  is  not  universally  true,  iis  np- 
pears  in  the  case  of  fuctors  making  written 
contracts  in  their  own  name  for  tlie  pur- 
chase or  sale  of  goods  for  their  piinci|i  ils. 
So  in  cases  of  agi-nts  jirocuring  policies  of 
insurance  in  their  own  names,  for  the  ben- 
efit r)f  their  i)rincipals,  iind  in  other  cases, 
which  will  be  found  commented  on  in 
Story  Agencv,  §  lOl. 

4  1  Camp.  N.  I',  c.  3;i7. 

6  Cited  5  M.  &  S.  385. 


u)(; 


OF    PARTIES    TO    A    SUIT. 


On.  V.  §  1. 


But  ntjoncy 
must  1)0 
estalilishod 
l>v  I'vidouce; 


or  apin'ar 
from  eon- 
tract. 


Otherwise, 
agent  a  neces- 
sary party. 


Persons  en- 
titled under 
sub-contract. 


torod  into  at  aiu-tions;^  but  that  is,  because  he  has  an  interest  in 
tlio  contract,  and  may  maintain  an  action  nj)on  it.  He  has  also  an 
interest  in  being  ])roteeted  against  the  k'u:a1  liabihty  which  he 
may  have  incurred  in  an  action  by  the  purchaser  to  recover  the 
deposit.'^ 

In  order  to  enable  the  plaintifl'  to  dispense  with  the  necessity 
for  making-  the  agent  entering  into  a  contract  for  his  employer,  in 
his  own  name,  a  party  to  a  suit  to  enforce  such  contract,  he  must 
state  in  his  bill,  and  be  in  a  situation  to  show  by  evidence,  that  he  was 
actually  an  agent  in  the  transaction,  as  appears  to  have  been  done 
in  the  case  of  Betlmne  v.  Farehrother^  by  proving  that  although 
the  money  Avas  paid  by  the  check  of  the  agent,  it  Avas  in  fact  the 
money  of  the  purchaser.  The  foct  of  the  person  contracting  being 
the  agent  of  the  plaintiff  may  likewise  appear  from  the  contract 
itself;  but  if  it  does  not  appear  from  the  contract  itself,  and  the 
plaintiff  is  not  in  a  situation  to  show  the  agency,  by  proving  that 
the  money  Avas  his  own,  or  some  act  tantamount,  he  must  make 
the  agent  a  party  either  as  co-plaintiff  Avith  himself  or  as  a  defend- 
ant, in  order  to  bind  his  interest ;  for  otherwise  such  agent  would 
have  a  right  to  sue  either  in  Equity  for  a  specific  performance  of 
the  same  contract,  or  to  bring  an  action  at  LaAV  for  the  recovery  of 
the  money  paid  to  the  defendant ;  and  parol  evidence  on  the  j^art 
of  the  defendant  would  in  either  case  be  inadmissible  to  show,  in 
opposition  to  the  written  contract,  that  the  j^urchase  was  made  on 
behalf  of  another.''  The  same  rule  Avill  apply  if  the  agent  con- 
tracted as  Avell  on  his  own  behalf  as  in  the  capacity  of  agent  for 
anothei".  In  that  event  the  bill  must  be  filed  in  his  own  name, 
and  in  that  of  the  person  on  Avhose  behalf  he  acted,  or  at  least 
Buch  person  must  be  a  party  to  the  suit;  and  upon  this  principle, 
in  Small  v.  Atticood,^  where  a  contract  Avas  entered  into  for  the 
purchase  of  an  estate  by  certain  persons  in  their  oAvn  names,  but 
in  fact  on  their  own  account,  and  also  as  agents  for  other  parties, 
a  bill  to  rescind  the  contract  was  filed  in  the  names  of  both  of  the 
agents,  and  of  the  other  parties  for  Avhom  they  contracted. 

With  respect  to  the  effect  of  a  sub-contract  in  rendering  it 
necessary  to  bring  the  party  concerned  in  it  before  the  Court  in  a 
litigation  between  the  original  contracting  parties,  the  following 
distinction  has  been  made ;  viz.,  if  A.  contracts  Avith  B.  to  convey 
to  him  an  estate,  and  B.  afterwards  contracts  Avith  C.  that  he,  B., 
will  convey  to  him  the  same  estate,  in  that  case  C.  is  not  a  neces- 


1  See  Cutts  v.  Thodey,  13  Sim.  20G,  211 ; 
«nd  see  7  Ves.  289. 

2  But  where  an  auctioneer  used  fraud 
to  enhance  the  price  of  property  sold  at 
auction,  it  was  held,  that  in  a  suit  in 
Equity  by  a  purchaser  for  relief  against 
the  sale,  it  was  not  necessary  to  make  the 
auctioneer  a  party.     Veazie  v.  Williams, 

How.  U.  S.  134. 


8  Cited  5  M.  &  S.  385. 

4  Bartlett  v.  Pickers^ill,  1  Cox,  15;  1 
Eden,  515;  see  2  Sugden  V.  &  V.  (7th 
Am.  ed.)  91J,  and  notes;  Botsford  v.  Burr, 
2  .lohn.  Ch.  400;  Hughes  v.  More,  7 
Cranch,  176. 

6  1  Young,  407. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF.  197 

sary  party  to  a  suit  between  A.  and  B.  for  a  specific  performance ;     Ch.  v.  §  i. 
but  if  the  contract  entered  into  by  B.  with  C.  had  been,  not  that  ^ 

he,  B.,  should  convey  the  estate,  but  that  A.,  the  original  vendor, 
should  convey  it  to  C.,  then  C.  would  have  been  a  necessary  party 
to  a  suit  by  B.  against  A.  for  a  specific  performance.^ 

Upon  the  principle  above  stated,  it  is  presumed  that  where  a  man 
enters  into  a  contract  which  is  expressed  in  the  instrument  itself  to 
have  been  entered  into  by  him  as  agent  for  another,  he  would  not 
afterwards  be  allowed  to  sue  for  a  performance  of  that  contract  on 
his  own  behalf,  on  the  allegation  that  he  Avas  not  authorized  to  act 
as  agent,  without  bringing  the  party,  on  whose  behalf  it  was  ex- 
pressed to  be  made,  before  the  Court.^  At  Law  it  has  been  held, 
that  a  plaintifl"  under  such  circumstances  could  maintain  an  action, 
by  procuring  from  the  party  on  Avhose  behalf  he  appeared  to  have 
entertained  the  contract,  a  renunciation  of  his  interest.*^ 

It  is  to  be  observed  here,  that  although  an  agent  entering  into  a 
contract  in  his  own  name,  may  be  joined  in  a  suit  as  co-plaintiff  with 
his  principal,  as  in  the  case  before  referred  to  of  an  auctioneer,  who 
is  frequently  joined  with  the  vendor  in  a  bill  against  a  purchaser, 
because  he  has  an  interest  in  the  contract,  or  may  bring  an  action 
upon  it,  it  is  merely  on  the  ground  of  the  interest  which  he  has  in 
the  contract,  and  that  the  rule  is  indisputable,  that  wherever  an 
agent  has  no  interest  whatever  in  the  property  in  litigation  or  in 
the  contract,  and  cannot  be  sued  either  at  Law  or  in  Equity  re- 
specting it,  in  such  case  he  ought  not  to  be  made  a  party ;  and 
that  if  he  is  made  a  co-plaintiff  in  the  suit,  a  demurrer  upon  that 
ground  will  be  allowed;^  though  now,  in  such  a  case,  the  Court 
may  grant  such  relief  as  the  special  circumstances  of  the  case 
require.^ 

IJpon  this  principle  it  has  also  been  determined,  that  an  agent 
who  bids  at  an  auction  for  an  estate,  and  signs  the  memorandum 
in  his  own  name,  need  not  be  made  a  co-defendant  with  his  em- 
ployer in  a  bill  for  a  specific  performance  of  such  agreement.*^ 

Where  the  subject-matter  in  litigation  is. a  legal  chose  in  action  Assignor  of  a 
which  has  been  the  subject  of  assignment,  the  assignor,  or,  if  dead,   action,  orluf. 
his  personal  representative,  should  be  a  party;'  fur  as  an  assign-   rqircsenta- 

1  17.  Walford,  4  Itiiss.  372;  nnd  Nel-       C.  332,  cited  Ld.   lied.  ICO;  see  Avers  v. 

thorpe  V.  \1»\^>\U'..  1  Coll.  203.  iind  tlio  cases        Wright,  H  Ired.  Kq.  22!}. 

there  cited;    .M(^('reigiit  r.  Foster,  W.   N.  ''  Corbin    r.    Knierson,    10    Leigh,   663; 

(1870)  157;   IH  W.  1{.  !iO.''j,  L.  C.  Hell  r.   Shrock,   2   It.  Moii.  20;   Combs  v. 

2  See  Add.  Coiit.  600,  624.  'riirlton,  ih.  I!i4;  Allen  r.  Crocket,  4  liibb, 
8  Bickerton  r.  liurrell,  0  M.  &  S.  383.  240;  I'.romley  v.  Holland,  7  Sumner's  Ves. 
*  King  of  Spain  r.  Machado,  4  liussell,  3.  note  (c);  Voorheesi;.  Do  Myer,  3  Siindf. 

228;  y(V/«  e^iVim,  Cutl'u.  I'latell,  !7;.242,  and  ( 'li.  614 ;  The  Auditor  i'.  .lolui.son,  1  Hen. 

Makepeace  r».  llnytliorne,  ii.  244 ;  .lones  r.  &   iM.  o.'JC;   Bradlev  i'.  Morgan,  2  .\.   K. 

Hart,  1  Hen.  &  .Vl.  470.  Marsh.  361);   Klderkin  i>.  Slmlt/.,  2  HIackf. 

6  15  &  16  Vic.  c.  «6,  §  49.  345;  Currier  v.  Howard,  14  Cniy.  511,513; 

0  Kmgsleyr. Young,  i:o!ls,.Iuly  30, 1807,  Kosign  v.  Kellogg,  4  Pick.   1.     In    Treco- 

Coo.  Eq.  V\.  42;  sec  also  Lissett?'.  Keave,  thick  v.  Austin,   4  .M;ison,  16,  41  ct  geij.,  it 

2  Atk.  394 ;  Newman  v.  Codfrcy,  2  Bro.  C.  was  strenuously  mainlained  by  Mr.  Justice 


li>8 


OF    PARTIES    TO    A    SUIT. 


("ii.  V.  §  I.     nuMit  of  a  chosi'  t)i  action  is  nut  reconnizcd  in  a  Court  of  Law,  and 
is  only  considered  good  in  Equity,  the  recovery  in  Equity  by  the 


Story,  f  liat  tlic  nssi{?nor  in  a  c/iosc  in  action 
is  not,  in  Iviiiity*  a  necessary  jjiivty,  where 
the  suit  is  by  the  .issif^nee  anil  tlie  as-ign- 
nu-nt  is  absolute.  ]\tiIlor  r.  llemkrson, 
2  Stockt.  Ch.  (N.  ,1.)  320;  see  AVard  r. 
Van  Bokkelin,  "2  I'aice,  280;  Bnien  r. 
Crane,  1  Green  Cii.  ;!47 ;  I'olk  v.  (iallant, 
2  Dev.  &  Bat.  Cli.  305;  Everett  r.  Winn, 

1  Sm.  v*i:    M.  Cii.   67;  Snelliiig   v.   IJoyii, 

2  Monroe.  132;  Kennedy  r.  Davis,  7  Mon- 
roe, 372 :  i\[orey  r.  Forsvtli,  A\'alk.  CIi.  465  ; 
Beaeh  r  White,  Walk."(,'li.  495;  Dixon  v. 
Buell,  21  HI.  203;  Cohrick  v.  Hooper,  3 
Ind.  316;  Varnev  r.  Bartlett,  5  Wis.  270; 
Moor  r.  Yenzie,  32  Maine,  343,355;  Wiiit-- 
ney  v.  M'Kinney,  7  John.  Cii.  144;  Brown 
V.  Jolmson,  53  Maine,  246,  247;  Pingree 
V.  Coffin,  12  Gray,  302,  303.  In  Ho'bart 
I'.  Andrews,  21  l"'ick.  526,  531,  532,  Mr. 
Justiee  Wilde  seems  inclined  to  favor  the 
same  doctrine.  And  it  was  so  held  in 
Haskell  r.  Hilton,  30  Maine,  419;  see 
Ander.'^on  v.  Wells,  6  B.  Mon.  540;  Clark 
V.  Smith,  7  B.  Mou.  273;  Day  v.  Cum- 
mings,  19  Vt.  496.  In  Story  Eq.  PI.  §  153, 
the  law  on  this  subject  is  thus  stated:  "  In 
general,  the  person,  having  the  legal  title 
in  the  subject-matter  of  the  bill,  must  be  a 
party,  eitlier  as  plaintiff"  or  as  defendant, 
though  he  has  no  benefici;\l  interest  there- 
in ;  so  that  the  legal  right  may  be  bound 
by  the  decree  of  the  Court.  In  cases, 
theretVire,  where  an  assignment  does  not 
pass  the  legal  title,  but  only  the  equitable 
title,  to  the  property,  as,  for  example,  an 
assignment  of  a  chose  in  action,  it  is  usual, 
if  it  be  not  always  indispensable,  to  make 
the  assignor,  holding  the  legal  title,  a  pnrty 
to  the  suit.  Indeed,  the  rule  is  often  laid 
down  far  more  broadl}-,  and  in  terms  im- 
porting, that  the  assignor,  as  the  legal 
owner,  must  in  all  cases  be  made  a  party, 
wliere  the  equitable  interest  only  is  passed. 
Thus  it  has  been  laid  down  in  a  book  of 
ver\'  high  authority,  that  if  a  bond  orjudg- 
ment  be  assigned,  the  a^^signor,  as  well  as 
assignee,  must  be  a  party ;  for  the  legal 
right  remains  in  the  assignor.  But  it  may 
perhaps  be  doubted,  whether  the  doctrine 
thus  stated  is  universally  true.  The  true 
priiiciple  would  seem  to  be,  that  in  all 
cases,  where  the  assignment  is  absolute 
and  unconditional,  leaving  no  equitable 
interest  whatever  in  the  assignor,  and  the 
extent  and  validity  of  the  assignment  is 
not  doubted  or  denied,  and  there  is  no  re- 
maining liability  in  the  assignor  to  be 
affected  by  the  decree,  it  is  not  necessary 
to  make  the  latter  a  party.  At  most,  he  is 
merely  a  nominal  or  formal  party  in  such 
a  case.  It  is  a  very  different  question, 
whether  he  may  not  properly  be  made  a 
piTrty,  as  a  legal  owner,  although  no 
decree  is  sought  against  him;  for  in  man}' 
cases  a  person  maj*  be  made  a  party, 
though  he  is  not  indispensalde.  Hut 
where  the  assignment  is  not  absolute  and 
unconditional,  or  the  extent  or  viiliditj'  of 
the  assignment  is  disputed  or  denied,  or 
there  are  remaining  rights  or  liabilities  of 


the  assignor,  which  may  be  aflected  by  the 
decree,  there  he  is  not  only  a  })ro])er,  hut 
a  neeessar}-,  part}'."  Montague  v.  I.obdell, 
11  Cush.  114,  115;  Helton  r.  Williams,  4 
Florida,  11;  see  Miller  r.  Hear,  3  I'aige, 
466;  Craig  i'.  Johnson,  3  J.  J.  Marsh.  573; 
2  Story  Eq.  .lur.  §  1057;  Brown  v.  John- 
son, 53  Maine,  246;  Houghton  v.  Davis, 
23  Maine,  3,'i.  The  promisee  named  in  a 
written  contract  to  convey  land,  who  has 
tninsferred  it  by  an  unconditional  verbal 
assignment,  need  not  be  made  a  partj'  to 
a  suit  by  his  assignee  for  specific  perform- 
ance of  the  contract  Currier  v.  iloward, 
14  Gray,  511.  In  Field  v.  Maghee,5  Paige, 
539,  it  was  held,  tluit  the  assignee  of  a  chose 
in  action,  wliich  has  been  absolutely  as- 
signed, is  not  authorized  to  file  a  bill  for 
the  recovery  of  the  same,  in  the  name  of 
the  assignor;  see  also  Hogers  v.  'I'raders' 
Ins.  Co!,  6  Paige,  583;  Miller  v.  Bear,  3 
Paige,  467,468;  Whitney  v.  M'Kinney,  7 
John.  Ch.  144;  Sedgwick  v.  Cleveland, 
7  Paige,  287;  Polk  v.  Gallant,  2  Dev.  & 
Bat.  Eq.  395;  Snellingr.  Bo3'd,  5  Monroe, 
172.  But  if  the  assignee  be  a  mere  nomi- 
nal holder,  without  interest  in  the  thing  as- 
signed, then  the  suit  should  be  brouglit  in 
the  name  of  the  party  in  interest.  Field  v. 
Maghee,  5  Paige,  589;  Rogers  v.  Traders' 
Ins.  Co.,  6  Paige,  583. 

It  has  been  recentlj'  held  in  England, 
in  the  case  of  Hammond  v.  Messenger,  9 
Sim.  327,  that  the  assignee  of  a  debt, 
notinitself  negotiable,  is  not  entitled  to  sue 
the  debtor  for  it  in  Equity,  uidess  some  cir- 
cumstances intervene,  which  show  that  his 
remedy  at  Law  is,  or  may  be,  obstructed  by 
the  assignor.  The  same  doctrine  has  also 
been  distinctly  held  in  New  York  and 
other  States.  Carter  v.  United  Ins.  Co., 
1  John.  Ch.  463;  Ontario  Bank  v.  Mum- 
ford,  2  Harb.  Ch.  596:  Adair  r.  Winchester, 
7  Gill  &  J.  114;  Smiley  v.  Hell,  Martin  & 
Yerg.  378;  Mo.seley  v-  Brush,  4  Rand.  392; 
see  also  Rose  v.  Clark,  1  Y.  &  Col.  Ch.  534, 
548 ;  Motteux  r.  The  London  Assurance  Co. 

1  Atk.  545;  Dhegetoft  iJ.  The  London  As- 
surance Co.,  Moseley,  83;  2  Story  Eg.  Jur. 
§  1057  a,  and  note";  Story  Eq.  PI.  §  153, 
and  note.  It  is  remarked  by  Mr.  Justice 
Story,  that  "  this  doctrine  is  apparently 
new;  and  never  has  been  adopted  in 
America.  Tlie  general  principle  here  es- 
tablished seems  to  be,  that  wherever  an 
assignee  has  an  equitable  right  or  interest 
in  a  debt,  or  other  property  (as  the  assignee 
of  a  debt  certainly  has),  there,  a  (Jourt  of 
I'^quity  is  the  proper  forum  to  enforce  it, 
and  ho  is  not  to  be  driven  to  any  circuity 
by  instituting  a  suit  at  Law  in  the  name  of 
the  person,  who  is  possessed  of  the  right." 

2  Story  Eq.  Jur.  §  1057  a.;  Townsend  v. 
Carpenter,  11  Ohio,  21. 

It  may  well  be  worthy  of  considera- 
tion whether  the  doctrine  in  the  case  of 
Hammond  v.  Messenger,  vbi  stipnt,  is  not 
founded  in  better  reason  than  that  which 
is  above  stated  as  the  American  doctrine, 
if,  by  the  American  doctrine,  we  are  to 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


199 


assignee  would  be  no  nnsw^er  to  an  action  at  Law  by  the  assignor, 
in  whom  the  legal  right  to  sue  still  remains,  and  who  might  exer- 
cise it  to  the  prejudice  of  the  party  liable ;  ^  in  which  case  the  party 
liable  would  be  driven  to  the  circuitous  process  of  filing  another  bill 
against  the  plaintift'  at  Law,  for  the  purpose  of  restraining  his  pro- 
ceedings. 

Upon  this  ground,  where  an  obligee  had  assigned  over  a  bond, 
and  died,  and  the  assignee  sued  for  it  in  Equity,  the  cause  was 
directed  to  stand  over,  to  make  the  personal  representative  of  the 
obligee  a  party ;  ^  and  in  another  case,*^  where  the  assignor  of  a 
bond  was  dead,  and  there  was  not  a  representative,  it  was  held,  on 
a  bill  filed  by  the  assignee  against  the  obligor  for  a  ne  exeat,  that 
there  was  a  want  of  parties.  And  in  like  manner,  where  a  bill  was 
filed  by  the  assignees  of  a  judgment,  without  the  assignor  being  a 
party,  it  was  held,  that  the  plaintiffs  could  not  go  on  with  that  part 
of  their  case  which  sought  payment  of  the  debt,* 

For  the  same  reason,  where  a  bill  was  filed  against  the  directors 
of  an  unincorporated  joint-stock  company,  by  a  holder  of  shares, 
of  which  some  were  original,  and  some  were  alleged  to  be  deriva- 
tive, without  stating  with  respect  to  the  derivation  of  them,  the 
manner  in  which  he  had  become  possessed  of  them,  or  whether 
they  had  been  transferred  to  him,  in  the  manner  in  which,  accord- 
ing to  the  regulations  of  the  company,  such  transfer  ought  to  have 
been  made.  Lord  Brougham  api)earod  to  think  that  the  ])ersons  by 
wliom  the  shares  had  been  assigned  to  the  plaintifis  ought  to  have 
been  parties  to  the  suit.® 

The  same  princijilc  appears  to  have  been  acted  upon  by  the 
Court  of  Exchequer,  in  certain  cases  in  which  bills  liave  been  filed 
for  tithes,  by  lessees,  under  parol  demises  (which,  in  consequence 
of  tithes  being  things  lying  in  grant,  are  void  at  Law),  in  which 

nndcrstiind,  that  the  mere  assignment  of 
a  debt  will  f^ivu  the  assignee  a  right  to  sue 
ill  Kfjuity,  wlien  tiie  assignor  couhl  only 
pursue  his  remedy  at  I/iw.  See  Carter  v. 
United  Ins.  Co.,  1  John.  Ch.  4G.3;  Onta- 
rio Bank  v.  Mumford,  2  IJarh.  Ch.  596; 
Gover  v.  Christie,  2  Ilarr.  &  .1.  07; 
Adair  v.  Winchester,  7  Gill  &  .1.  114; 
Smilev  v.  Ikll,  Martin  &  Yerg.  378; 
Moseffy  «.  r.rush,  4  Rand.  392;  Winn  v. 
IJowles,  f,  Munf.  23.  The  doetriiie  of  the 
case  of  Hammond  v.  Messenjrer  is  simply, 
that  a  dc'ht,  not  r)tlierwise  nroperh'  a  sub- 
ject of  l'>(ni!y  fognizance,  aoes  not  become 
gucli,  merely  because  it  Ims  bciMi  assifincd 
and  the  a*»ign(^e  is  compelled  to  sue  at  Law 
in  the  name  of  the  :is'»igni>r.  This  subject 
underwent  a  thorough  discussion  in  On- 
tario I'.ank  t'.  Mmntbrd,  above  cited,  in 
which  Chancellor  Walworth  cited  with 
approbation  tiie  case  of  llanimond  v.  Mes- 
senger, iind  reairirmed  the  ib'etrine  it  con- 
tains to  its  full  extent.  "  As  a  f;cneral  rule," 
said  he,  "  this  ( !ourt  will  not  (entertain  a  suit 
brought  by  tiie  assignee  of  a  debt,  or  of  a 


Ch.  V.  §  1. 


Obligee  in  a 
bond, 

or  his  repre- 
sentative. 


Assignor  of  a 
judgment. 


Assignor  of 
shares  in  an 
unincorporat- 
ed joint-stock 
company. 


Lessor  of 
tithes  by 
parol. 


chose  in  action,  which  is  a  mere  legal  de- 
mand; but  will  leave  him  to  his  remedy  at 
Law  by  a  suit  in  the  name  of  the  assignor." 

1  See  the  remarks  of  Thomas  .1.  in  Mon- 
tague V.  Lobdell,  n  (hish.  Ill,  114,  115; 
and  also  the  remarks  of  Wilde  J.  in  Ho- 
bart  V.  Andrews,  21  Tick.  526,  531,  532, 
upon  the  above  statement  by  Mr.  Daniell. 
Hrown  V.  Johnson,  53  Maine,  246. 

-  Hiace  V.  Harrington.  2  Afk.  235;  Coale 
?i.  IMildrcd,  3  Ilarr.  &  J.  27«;  sec  Ensign  v. 
Kellogg,  4  I'ick.  1. 

a  Kav  v.  Fenwick,  3  Bro.  C.  C.  25. 

<  (!athcart  v.  Lewis,  1  Ves.  J.  463; 
Partington  v.  Bailey,  6  L.  ^.  X.  S.  Ch. 
170,  M.  I{. ;  M'Kiniiie  v.  Uutherfonl,  1 
Dev.  &  I'.at.  V.i\.  395;  i'.lliott  )'  Wurins, 
5  MoMVue,  339;  Pcnd)erton  )'.  Riddle,  ih. 
401;  VouiiK  r.  Roiles.  ih.  50(J;  Kldurkin 
V.  Shultz,  2  Blackf.  340. 

6  Walburn  v-  Ingilby,  1  M.  &  K.  01; 
C.  P.  Coop.  T.  Brough,  270;  see,  how- 
ever. Biigsliaw  V.  Hiisteni  Union  Hallway 
Co..  7  Hare,  114;  13  Jur.  002;  allinnod, 
14  Jur.  491,  L.  C. 


200 


OF    TARTIES    TO    A    SUIT. 


Cii.  V.  §  T. 


Assitriior  of 
ii  cliost:  In 
action,  i;oiio 
ally  iniule 
co-plaiiititl'. 


Personal  rep- 
resentative. 


Where  no 
representa- 
tion in 
England. 


cnsos,  upon  dcimirrors  beiiij;'  put  in  and  sulnnittiMl  to,  the  Court 
has  pcnuiftod  tlio  plaintitVs  to  anicMid  their  hills,  hy  making  the 
lossiirs  ])artios  to  the  .sui-t.^ 

.Vlthouti'h  tlic  assignor  of  a  chose  in  action  is  sometimes  made 
n  ]iarty  defendant  to  a  suit,  yet  the  more  general  ])ractice  is  (espe- 
eiall)'  -where  tlie  assignment  contains,  as  it  ahnost  always  does,  a 
power  of  attorney  from  the  assignor  to  the  assignee  to  sue  in  his 
name),  to  make  the  assignor  a  co-])laintiff  in  the  bill ;  although  it 
seems,  that  even  if  the  assignment  is  stated  upon  the  hill,  and,  con- 
sequently, that  there  is  an  admission  of  the  fac^t  as  between  the  co- 
plaintifts,  still  it  is  necessary  to  prove  the  assignment,  in  order  to 
show  that  there  is  no  misjoinder  of  plaintiffs;^  though  now,  it  is 
conceived  that  such  proof  would  certainly  not  be  required.^ 

U})on  the  principle  above  laid  down,  it  is  held  that  idthough  a 
creditor  or  legatee  of  a  person  deceased  may,  in  some  cases,  under 
peculiar  circumstances,  such  as  an  allegation  of  fraud  or  collusion,* 
bring  a  bill  against  a  debtor  to,^  or  creditor  of,"  the  estate,  yet 
such  a  suit  can  in  no  case  be  maintained  without  the  ])ersonal 
representative  being  a  party.''  But  it  seems  that  a  specific  legatee, 
suing  trustees  for  his  legacy,  need  not  make  the-  executor  a  party» 
if  he  alleges  that  he  has  his  assent.®  Again,  although  an  executor 
has  actually  released  his  interest  in  the  property  sued  for,  it  has 
been  held  that  he  must,  nevertlieless,  be  a  jjarty  to  the  suit.^  And 
so  it  has  been  held,  that  an  administratrix  of  an  intestate,  although 
she  had  assigned  his  interest  in  a  partnership  concern  to  his  next 
of  kin,  was  the  proper  person  to  file  a  bill  against  the  surviving 
]>artners  to  have  the  partnership  accounts  takcn.^° 

Where  a  testator,  having  been  resident  in  India,  where  all  his 
])roperty  was,  died  there,  having  made  a  will,  whereby  he  be- 
queathed the  residue  of  his  estate  to  persons  resident  in  this  country, 


1  HenningD.  Willis,.'?  Wood,  29;  Jack- 
son I'.  Benson,  IM'l^el.  62. 

2  Saver  v.  Wngsfaff,  2  Y.  &  C.  2.30; 
Choltnondeley  v.  Clinton,  4  IJligli,  123; 
Ryan  v.  Anderson,  3  ^lad.  174;  Blair  v. 
Biomlev,  5  Hare,  554;  11  Jur.  115; 
affirmed,  2  Phil.  354;  11  .Jiu".  617.  In 
every  case  of  a  bill  in  Equitj-,  asking 
relief  for  a  plaintiff,  as  assignee  of  the 
rights  of  another,  the  assignor  must  lie 
made  a  party,  and  the  assignment  ought 
to  be  shown  and  proved,  though  not 
denied,  nor  proof  of  it  called  for  in  the 
answers.  Corbin  v.  Emerson,  10  Leigh, 
663;  Sniitli  v.  Hiirley,  8  Missou.  559, 
560;  see  finlt,  198  note. 

8  15  &  16  Vic.  c.  86,  §  49. 

*  Gregory  v.  Eorrester,  1  M'Cord  Ch. 
Z2o;  post,  cii.  6,  §  4,  and  cases  cited  in 
notes  to  this  point. 

6  Attornev-General  t'.  Wvnne,  Mos.  126; 
Wil.«on  V.  Sloore,  1  My.  ii  K.  126,  142; 
see  also  Saunders  v.  Druce,  3  Drew.  140; 
and  this  has  been  done  incases  of  partner- 
ship.    Bowsher  v.  Watkins,  1 II.  &  M.  277 , 


Travis  v.  Milne,  9  Hare,  141;  and  see 
Stainton  v.  Carron  Company',  18  Beav. 
146;  18  ,Jur.  137;  Harrison  v.  Righter,  3 
StocUt.  (N.  J.)  389. 

G  Earl  Viuie  v.  Rigden,  18  W.  R.  308, 
V.  C.  M.;  see,  however,  S.  C.  \V.  N. 
(1870)  210;  18  W.  R.  1092,  L.  C.  &  L.  J. 
James. 

"  Kumnev  v.  Maud,  Rep.  temp.  Finch, 
330;  Grinitli  v.  Batevnan,  ib.  334;  Attor- 
nej'-General  v.  Twisden,  ib.  336;  Conway 
f.  Stroud,  2  Freem.  188;  West?;.  Randall, 
2  Mason,  181.  If,  however,  the  executor 
is  an  outlaw  and  cannot  be  found,  the  suit 
m;iy  proceed  without  him.  Heath  v.  Per- 
cival,  1  P.  Wnis.  682,  684;  2  Eq.  Ca.  Abr. 
167,  pi.  14;  630,  pi.  2. 

s  Smith  V.  Brooksbank,  7  Sim.  18.  21; 
see,  however,  Moore  v.  IJhigrave,  1  Ch. 
Ca.  277,  and  observations  on  this  case  in 
Smith  V.  Brooksbank. 

'■>  Smithbv  v.  Stinton,  1  Ver.  31. 

10  Clegg  V.  Fishwick,  1  M'N.  &  G.  294, 
299;  12  Jur.  993. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


201 


but  a])pointecl  persons  in  India  his  executors,  who  proved  the  will 
there,  and  remitted  the  proceeds  to  their  agent  in  this  country,  it 
was  held,  that  the  residuary  legatees  could  not  maintain  a  suit 
against  the  agent,  without  having  a  representative  to  the  testator 
in  England,  before  the  Court.^ 

Where  a  claim  on  property  in  dispute  would  vest  in  a  personal 
representative  of  a  deceased  person,  and  there  is  no  general  per- 
sonal representative  of  that  person,  an  administration  limited  to 
the  subject  of  the  suit  will  be  necessary,  to  enable  the  Court  to 
proceed  to  a, decision  on  the  claim;  but  now  the  Court  is  em- 
powered, by  the  forty-fourth  section  of  the  Act  15  &  16  Vic.  c.  86, 
if  it  thinks  fit,  to  appoint  a  person  in  such  cases  to  represent  the 
estate,  or  to  proceed  iu  the  absence  of  any  such  representative. 

Where,  however,  the  object  of  the  suit  is  the  general  adminis- 
tration of  the  estate,  a  general  personal  representative  is  always 
necessary ;  ^  and  the  Court  will  not  proceed  in  such  a  suit  when 
the  estate  is  only  represented  by  an  administrator  ad  litem  ;  ^  nor 
appoint  a  person  to  represent  the  estate  under  the  section  above 
referred  to,'*  and  a  general  personal  representative  is  a  necessary 
party  to  a  suit  against  an  executor  or  administrator  de  son  tort° 

When  the  object  of  the  suit  is  only  to  bind  the  estate,  it  is  sufii- 
ciently  represented  by  an  administrator  ad  litem  ;  ^  and,  as  a  general 
]»roj)Osition,  it  has  been  laid  down  that  an  administrator  ad  litem 
lepresents  the  estate  to  the  extent  of  the  authority  which  tlie 
letters  of  administration  purport  to  confer ; '  and  when  a  limited 
administration  has  been  granted,  and  general  letters  of  administra- 
tion are  afterwards  granted,  the  general  administrator  is  bound  by 
tlie  proceedings  in  a  cause  in  which  the  estate  was  represented  by 
a  limited  administrator.^ 


Ch.  v.  §  1. 


Wliere  limit- 
ed adminis- 
tratiou  suffi- 
cient; 

statutory 
representa- 
tive may  be 
appointed,  or 
tiie  Court 
may  proceed 
in  the  absence 
of  a  represent- 
ative. 

Where  the 
suit  is  for 
the  adminis- 
tration of  the 
estate,  a  gen- 
eral personal 
representa- 
tive is  neces- 
sary. 

Administra- 
tor ad  litem  ; 
represents  es- 
tate to 
extent  of 
authority 
wiiich  letters 
of  administra- 
tion purport 
to  confer. 


1  Logan  V.  Fairlie,  2  S.  &  S.  284;  see 
Cani|)bell  v.  Wallace,  10  Gray,  162;  Camp- 
bell V.  Shnldon,  13  Pick.  8;  Story  Conf. 
Laws,  §  513,  and  numerous  cases  cited  in 
notes,  §  514  b. ;  Story  Va\.  I'l.  §  179.  Exec- 
utors rei=i<liMg  abroad,  or  who  have  never 
acted  on  the  estate,  are  not  necessarily 
made  parties  to  the  suit.     Clifton  v.  Haig, 

4  Desitus.  330;  Storv  Kq.  I'l.  §  179. 

•■!  IVriny  v.  Watt's,  2  I'hil.  149,  1.53; 
Donald  i.  Bather,  16  Heav.  26;  Barber  «. 
Walker,  W.  N.  (1867)  127;  15  W.  R.  728, 
L.  .1.1. 

3  (Jroft  V.  Waterton,  13  Sim.  G53;  but 
see  2  I'hil.  552;  Groves  t).  Levi,  or  Groves 
r.  Lane,  9  Hare  App.  47;  16  .lur.  1061; 
and  see   Wofidhouse  v.  Woodhouxe,   L.  \\. 

5  lv|.  514,  V.  C.  S.  If  necessary  for  the 
protection  of  the  estate,  u  1)111  pniyiiig  an 
injunction  and  receiver,  may  i)e  filed,  al- 
though there  is  no  personal  repre«entiitive. 
Steer  r.  Steer,  13  W.  K.  225,  V.  C.  K.; 
2  Dr.  &  Sin.  311;  but  a  bill  filed  before 
administraiiim  to  protect  the  fiH«ets  is  de- 
murrable, if  it  asks  an  iiccount.  I'awlings 
V.  Lambert,  1  .J.  &  H.  458;  Overington  v. 
Ward,  34  Beav.  175. 


4  Groves  V.  Levi,  ««/?)•«,-  Silver  v.  Stein, 
1  Drew.  295;  9  Hare  App.  82;  see,  how- 
ever, Maclean  v.  Dawson,  27  Beav.  21, 
369;  5  .Jur.  N.  S.  1091;  Williams  v.  Page, 
27  Beav.  373. 

5  Penny  v.  Watts,  2  Phil.  149,  153; 
f'reasor  v.  Robinson,  14  Beav.  589;  15 
.lur.  1049;  Beardmore  v.  (iregory,  2  H.  & 
.M.  491;  11  .lur.  X.  S.  3C3;  contra,  Cle- 
land  V.  Clt^land,  Prec.  Ch.  64;  and  see 
Cooke  V.  (iittings,  21  Beav.  497. 

0  El  I  ice  v.  Goodson,  2  Coll.  4;  D.ivis  v. 
Chanter,  2  Phil.  545,  549;  Devavnos  v. 
Hobinsnn,  24  Beav.  97,  98;  3  -Inf.  N.  S. 
707,  708;  Maclean  v.  Dawson,  27  Beav. 
^1,  369;  5  .Jur.  N.  S.  1091;  Williams  v. 
Allen,  10  W.  I{.  512,  L.  .J.L,  4  De  G.  I''.  & 
.1.  71;  overruling  S.  C.  29  Beav.  292;  8 
.lur.  X    S.  270. 

7  Faulkner  r.  Daniel,  3  Hare,  199,  207; 
Davis  u.  (ylianter,  supra;  Williams  r.  Al- 
len, .'Vi  Beav.  650;  Woodhouse  v.  Wood- 
house.  L.  U.  8  Kq.  614,  V.  C.  S. 

«  Davis  V.  Chanter,  supra;  and  lliirris 
V.  Milburn,  2  Hagg  64,  referred  to,  2  Phil. 
652. 


202 


OF    PARTIES    TO    A    SUIT. 


rii.  V.  5  1 


Application  of 
15  &  1(5  Vic. 
c.  86,  §  44. 


Discretion  of 
the  Court ; 

Section  in- 
tended gen- 
erally to 
apply  only 
in  cases  of 
one  of  a  class. 


Cases  in 
which  the 
section  will 
be  acted  on. 


It  may  not  he  oul  ot"  |»lacc  here  to  observe  thai  the  Attoriicy- 
Cii'iieral  (U)es  not  re|>resont  the  estate  of  ti  deceased  illogitiniate 
jiorson,  so  as  to  dispense  with  the  necessity  of  a  j)ersona]  repre- 
sentative.^ 

With  regard  to  the  power  of  the  Courts  to  appoint  a  person  to 
represent  the  estate  of  a  deceased  person,  Lord  Hatherly,  then 
Vice  Chancellor,  observed,  in  the  case  oi Long  v.  /Storfe,  that  "the 
forty-fourth  section  of  the  Statute  is  only  intended  to  apply  to  a 
ease  in  which  there  is  a  ditKculty,  either  from  insolvency  or  some 
other  cause,  in  obtaining  representation  to  a  deceased  party;" ^ 
and  the  same  learned  Judge  said,  in  another  case,  that  it  is  always 
in  the  discretion  of  the  Court  whether  it  will  act  on  the  ])OAver 
conferred  by  this  section  ;  ^  and  in  the  case  of  Gihtion  v.  Wells,'^  Sir 
John  Romilly  M.  R.  'said,  "  Tlie  obje(;t  of  the  Statute  is :  Avliere 
you  have  real  litigating  })arties  before  the  Coui-t,  but  it  lia|)pens 
that  one  of  the  class  interested  is  not  represented,  then,  if  the 
Court  sees  that  there  are  other  persons  present  who  bond  fide 
represent  the  interest  of  those  absent,  it  may  allow  that  interest  to 
be  represented,  but  it  will  not  allow  the  whole  advei-se  interest 
to  be  represented."  The  observations  of  the  learned  Judges  above 
quoted  show^  generally  the  cases  in  Avhich  the  Court  will  exercise 
the  poAver  conferred  upon  it  by  the  forty-fourth  section  of  the  Act; 
and  it  will  be  useful  now  to  refer,  shortly,  to  some  of  the  reported 
cases  in  which  the  Court  has  acted  on  this  power,  or  has  refused 
to  do  so.  It  has  been  determined  that  the  enactment  extends  to 
those  cases  where  the  estate  to  l)e  represented  is  sought  to  be  made 
liable;^  and  jiending  proceedings  in  the  Probate  Court,  a  repre- 
sentative has  been  appointed ;  ®  and,  again,  wheie  the  next  of  kin 
refused,  or  after  notice  neglected,  to  take  out  administration  ;''  and 
where  the  executor,  who  had  proved  the  w^ill  in  India,  refused  to 
prove  it  in  England ;  ^  and  where  it  was  uncertain  whether  the 
person  whose  estate  was  to  be  rej)resented,  and  who  was  a  neces- 
sary party  to  the  suit,  and  beneficially  interested,  was  dead  or 
alive.®  Where  there  are  otlier  jjcrsons  parties  to  the  suit  in  the 
same  interest  as  the  deceased  party,  it  is  conceived  that  the  Court 
will,  generally,  pernut  the  suit  to  proceed  without  any  reju'csenta- 


1  Bell  f.  Alexander,  6  Hare,  .'543,  54r). 

2  Kay  App.  12;  and  see  Joint  Stock 
Discount  Co.  v.  Brown,  L.  K.  8  Eq.  37G, 
V.  C.  .J. 

3  Tarratt  v.  Lloyd,  2  Jur.  N.  S.  371,  V. 
C.  W. 

■*  21  Beav.  620;  and  see  Hewitson  v. 
Todtiunter,  22  L.  J.  C.  H.  76,  V.  C  S. ; 
Meades  ».  Guedalla,  10  VV.  K  4S.5,  V.  C. 
W. ;  /ie  Joint  Stock  Discount  Company, 
Fyfe's  case,  17  W.  P..  870,  M.  It. 

s  Dean  and  Cliapter  of  Ely  v.  Gaylord, 
16  Beav.  561;  .Joint  Stock  Discount  Co.  v. 
Brown,  L.  K.  8  Ec|.  376,  V.  C.  J.;  and  see 
Re.  Banking  L.  K.  6  Eq.  601,  V.  C.  G. 


6  Ilele  V.  Lord  Bexlev,  15  Beav.  340; 
Robertson  v.  Kemble,  VV.  N.  (1867)  305, 
M.  U. 

■?  Tarratt  v.  Llovd,  supra;  Ashniall  v. 
Wood,  1  Jur.  N.  S."ll30,  V.  C.  S. ;  iJavies 
V.  Boulcott,  1  L>r  &  Sni.  23;  see  also 
Swallow  V.  Binns,  1)  Hare  App.  47;  17 
Jur.  295;   Haw  v.  Vickers,  1  W.  II.  242. 

8  Sutherland  v.  De  Virenne,  2  .Jur.  N. 
S.  301,  V.  C.  S. ;  see  also  Bliss  v.  Putnam, 
29  Beav.  20;  7  Jur.  N.  S.  12;  Mortiiuerv. 
Mortimer,  11  W.  K.  740,  M.  1{. 

'••  Mortimer  v.  Mortimer,  11  W.  11.  740, 
M.  U. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


203 


tive  of  the  estate  of  such  party  ;^  so,  also,  when  the  deceased 
person  was  an  accounting  party,  or  without  any  beneficial  interest, 
and  died  insolvent.^ 

Before  the  late  Act,  in  some  cases,  when  it  has  appeared  at  the 
hearing  of  a  cause  that  the  personal  representative  of  a  deceased 
person,  not  a  party  to  the  suit,  ought  to  be  privy  to  the  proceed- 
ings under  a  decree,  but  that  no  question  could  arise  as  to  the 
rights  of  such  representative,  the  Court  has,  on  the  hearing,  made  a 
decree,  ilirecting  proceedings  before  one  of  the  Masters  of  the  Court, 
without  requiring  the  representative  to  be  made  a  party  by  amend- 
ment or  otherwise ;  and  has  given  leave  to  the  parties  in  the  suit 
to  bring  a  representative  before  the  Master,  on  taking  the  accounts 
or  other  proceedings  directed  by  the  decree.^ 

Having  now  noticed  the  principal  cases  in  which  the  Court  has 
acted  on  the  power  given,  by  the  Statute,  those  in  which  it  has  re- 
fused to  do  so  will  be  shortly  referred  to.  It  has  been  held,  that 
the  enactment  does  not  enable  the  Court  to  appoint  a  person  to 
represent  the  estate,  or  to  proceed  without  one,  where  he  would 
have  to  be  active  in  the  execution  of  the  decree  which  the  Court 
is  called  upon  to  make;*  nor  where  the  whole  adverse  interest  is 
unrepresented;  5  nor  where  the  general  administration  of  the  estate 
to  be  rei)rescnted  is  sought;*'  nor  where  the  deceased  was  an 
accounting  party;"  nor  where  there  is  personal  responsibility  at- 
tached to  the  position  ; «  nor  will  the  Court  direct  money  to  be 
paid  to  a  person  appointed  under  this  section.^ 

The  44th  section  of  the  Act  expressly  refers  to  other  proceed- 
ings, as  well  as  suits ;  and  it  has  accordingly,  been  held  that  it 
applies  to  special  cases  and  petitions.^''     The  proper  person  to  be 


Ch.  V.  §  1. 


Rule  before 
the  Act. 


Cases  in 
■which  the 
section  will 
not  be  acted 


The  section 
applies  to 
special  cases 
and  petitions. 


1  Abrey  v.  Newman,  10  Hare  App.  58; 
17  Jiir.  153;  Cox  v.  Taylor,  22  L.  J.  Ch. 
910,  V.  C.  K. ;  Rucker  v.  Scholefield,  7  L. 
T.  N.  S.  .'■,04,  V.  C.  W.;  Twvnhain  v. 
Pi.rter,  W.  N.  (1809)  22S,  V.  C.  .1.;  and 
see  He.Ksant  r.  Nohle,  20  L.  T.  Cli.  2.'{G.  L. 
C.  In  Tarratt  ?•.  l-loyil,  supru,  however, 
the  Court  appointed  a  rfi)resentalive. 

'-  Chalb-rs  V.  Ileadlam,  9  Hare  App.  40; 
Ma'.'nav  v.  Davidson,  9  Hare  Apj).  82; 
ll:ind  V.  liandle,  2  W.  li.  .3:^1,  V.  C  W.; 
IJoger.s  V.  Jones,  1  Sin.  &  C  17;  10  Jur. 
968;  Levcewtfr  v.  Norri-*,  10  .(iir.  N.  S. 
1173.  V'.  C.  K.;  13  W.  K.  201,  V.  (J.  K., 
but  see  Cox  v.  Stephens,  9  .Inr.  N.  S. 
1144,  1145:  11  \V.  K.  929.  V.  C.  K.;  see 
also,  Asliniall  v.  Wocl,  supra,  where  in  a 
similar  case  a  person  was  a])pointed  to 
represent  a  deceased  pnrtv;  and  see 
WhittinKton  i'.  (looding,  10  Ilare  \\>\).  29. 
In  MiicK  r.  Hawkins,  1  C.  1*.  Coo]).  T- 
Cott.  300,  wliicli  was  a  similar  case  bct'^rc 
the  Act.  an  olijection  for  want  of  parties 
was  overruled;  see  aNo  Coildard  r.  Has- 
Inm,  1  .Iiir.  X.  S.  251,  V.  (.'.  W.;  and 
Mailox  r.  .lackson,  3  Atk.  400. 

3  Ld.  Red.  178. 


■»  Fowler  v.  Bayldon,  9  Hare  App.  78. 

5  Cox  r.  Stephens,  9  .Jiir.  N.  S.  1144, 
1145;  11  VV.  U.  929,  V.  C.  K.;  Gibson  v. 
Wills,  21  Heav.  020;  and  see  Vacy  v. 
Vacv,  1  L.  T..  N.  S.  207,  V.  C  VV. 

0  Groves  v.  Levi  or  Lane,  9  Hare  App. 
27;  10  .Fur.  1011;  Silver  r.  Stein,  1  Drew. 
295;  9  Ilare  App.  82;  .lames  r.  Ashton, 
2  .Jur.  N.  S.  224,  V.  ('.  W.;  Bruiton  v. 
Birch,  22  L.  .1.  Ch.  911,  V.C.  K.;  Wil- 
liams V.  I'af^e,  27  Reav.  373;  Maclean  v. 
Dawson.  27  Beav.  21,  309;  5  Jur.  N.  S. 
lO'.il. 

-  Rowland  v.  Evans,  33  Beav.  202. 

»  He  Joint  Stock  Discount  Company, 
Fvfc's  case,  17  W.  U.  870,  M.  R. 

"y  Byam  v.  Sutton,  19  Beav.  040;  Raw- 
lins c.'M'Mahon.  1  Drew.225;  9  Hare  App. 
82;  Jones  v.  I'oulkes.  10  \V.  R.  55,  V.  C. 
K. 

1"  Swallow  V.  Biims,  9  Hare  App.  47; 
17  Jur.  295;  Ex  parte  Cramer,  9  Hare 
App.  47;  Hewitson  r.  Tndhunter.  22  L.  J. 
Ch.  70,  V.  C.  S.;  He  \Uwk\\\\i.  L.  H.  0  Va\. 
001,  v.  C.  G. ;  and  see^j"«<.  Chap.  XXXV., 
§3;  Petitions,  and  Chap.  XLIIL,  special 
case. 


204 


OF    PARTIES    TO    A    SUIT. 


Cii.  V.  §  1. 


Proper  porsoii 
to  ln'  appoint- 
oil  to  ropiv- 
sent  tho 
estate. 

Mode  ol"  ob- 

tainiiiir 

appointment. 


Administra- 
tion y^cMf/eH^e 
lite,  mnler  20 
&  21  Vic.  c. 
77,  §70: 
21  &  22  Vic. 
c.  95,  §  22. 


Where  execu- 
tor or  ad- 
ministrator 
abroad,  limit- 
ed adminis- 
tration 
granted ; 


:ipiH>intO(l  luiilor  tliis  section  is  the  person  wlio  would  be  appointed 
:idininistrator  ad  litem  ;^  but  the  Court  Avill  not  ap])oint  a  person 
against  his  will.'-  It  would  seem  that  the  plaintiff  may  ajjply  for, 
and  obtain,  an  order  nnder  the  44th  section  on  motion,  without 
serving- the  other  ))arties  to  the  cause  or  proceeding ;  ^  but  notice 
must  be  given  to  the  persons  entitled  to  take  out  administration  to 
the  deceased  party ;  *  the  Court  can,  liowever,  make  the  order  at 
the  hearing.'^  No  appearance  is  required  to  be  entered  by  the 
]>arty  a])pointed;  but  notice  of  his  ap])ointment,  and  of  the  name 
and  address  of  the  solicitor  who  will  act  for  him,  shoiild  be  given 
to  the  Record  and  Writ  Clerk,  for  the  purpose  of  service ;  and  the 
order  should  be  produced  to  him  for  entry.^ 

It  should  here  be  observed,  that  under  the  Court  of  Probate 
Act,  1857  and  1858, 'the  Court  of  Probate  has  power,  pending 
litigation  as  to  the  validity  of  a  will,  or  the  right  to  administration, 
to  ap])oint  an  administrator,  who  has  all  the  powers  of  a  general 
administrator,  excejit  the  j)ower  of  distributing  the  estate,  but  who 
is  to  act  under  the  direction  of  the  Court  of  Probate ; ''  and  the 
same  Statute  also  enables  the  Court  of  Probate,  in  certain  cases, 
where  necessary  or  convenient,  to  appoint  any  person,  either  gen- 
eral or  limited  administrator  to  a  deceased  person.^ 

It  has  also  been  enacted,  that  if,  at  the  expiration  of  twelve 
calendar  months  from  the  death  of  any  testator  or  intestate,  the 
executor  or  administrator,  to  whom  probate  or  administration  has 
been  granted,  is  then  residing  out  of  the  jurisdiction  of  the  Courts 
of  Law  and  Equity,  the  Court  of  Probate  may,  upon  the  appli- 
cation of  any  creditor,  next  of  kin  or  legatee,  grant  a  special 
administration,  limited  "  for  the  purpose  to  become  and  be  made 
a  party  to  a  bill  or  bills  to  be  exhibited  against  him  in  any  of 


1  Dean  of  Ely  t'.  Gayford,  16  Beav.  561; 
and  see  lleleiJ.  Lord  Hexlev,  15  Beav.  340; 
Ashmall  i'.  Wood,  1  Jur.  N.  S.  1130,  V.  (J. 
S.;  Sutherland  ».  De  Virenne,  2  Jur.  N.  S. 
301,  V.  C.  S.,  where  the  Court  appointed 
the  executor  who  had  not  proved;  see 
also  Mortimer  v.  Mortimer,  11  \V.  li.  740, 
M.  K. ;  Swallow  v.  Binns,  9  Hare  App. 
47;  17Jur.  295;  Hewitson  v.  Todliunter, 
22  L.  J.  76,  V.  C.  S.;  P^obertson  v.  Kem- 
ble,  W.  N.  (1867)305,  M.  K. 

2  Prince  of  Wales  Association  v.  Palmer, 
25  Beav.  605;  Hill  v.  Bonner,  26  Beav.  372; 
Lonf^  V.  Storie,  Kav  App.  12;  Whiteaves 
V.  Melville,  5  W.  R"  676,  V.  ('..  W.;  Joint 
Stock  Discount  Company  v.  Brown,  L.  IJ. 
8  Eq.  376,  380,  V.  C  J. 

3  Seton,  1179;  Davies  v.  Boulcott,  1  Dr. 
&  Sna-  23;  see,  however,  contra.  Chaffers  v. 
Headlain,  9  Hare   App.  46. 

*  Davies  v.  Boulcott,  supra  ;  Tarratt  v. 
Wood,  2  Jur.  X.  S.  371.  V.  C.  W. ;  Joint 
Stock  Discount  (Jo.  v.  Brown,  L.  K.  8  Eq. 
376,  V.   C.  J.     Where,  after  decree,  the 


representative  is  required  for  the  purpose 
of  accounts  or  inquiries  at  chambers,  the 
application  for  the  order  may  be  made 
there  by  ex  parte  summons.  For  forms  of 
orders  dispensing  with  and  appointinfr  rep- 
resentatives, see  Hele  v.  Lord  Bexle}',  15 
Beav.  340,  Seton,  1178. 

5  Hewitson  v.  Todhunter,  22  L.  J.  Ch. 
76,  V.  C.  S.;  Mendes  v.  Guedalla,  10  W. 
H.  485,  V.  C.  W. 

0  Braithwaite's  Prac.  561.  Where  a 
representative  is  thus  appointed  of  the 
estate  of  a  deceased  party  to  the  cause, 
the  title  of  the  cause  is  corrected  by  intro- 
ducing, after  the  deceased's  name,  "  since 
deceased,  and   uHo  A.  B.    appointed   by 

order,  dated  day  of 187 — ,  to 

represent  his  estate." 

7  20  &  21  Vic.  c.  77,  §  70;  and  see  Veret 
V.  Duprez,  L.  II.  6  E.p  329,  V.  C.  M.; 
Tichborne  v.  Tichborne,  L.  K.  1  P.  &  D. 
730. 

8  20  &  21  Vic.  c.  77,  §  73. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


205 


her  Majesty's  Courts  of  Equity,  and  to  carry  the  decree  or  decrees 
of  any  of  the  said  Courts  into  efiect,  and  not  furtlier  or  other- 
wise ; "  and  it  has  also  been  enacted,  that  the  Court  of  Equity 
in  which  such  suit  shall  be  depending,  may  appoint  (if  it  shall  be 
needful)  any  jierson  or  persons  to  collect  in  any  outstanding  debts 
or  effects  due  to  such  estate,  and  to  give  discharges  for  the  same ; 
such  persons  or  jierson  giving  security,  in  the  usual  manner  duly 
to  account  for  the  same.  Moreover,  the  Accountant-General  of  the 
Court  of  Chancery,  or  the  Secretary  or  Deputy  Secretary  of  the 
Bank  of  England,  are  enabled  to  transfer,  and  the  Bank  is  to  suffer 
a  transfer  to  be  made,  of  any  stock  belonging  to  the  estate  of  such 
deceased  person,  into  the  name  of  the  Accountant-General,  in  ti-ust 
for  such  purposes  as  the  Court  shall  direct,  in  any  suit  in  which  the 
person  to  whom  such  administration  has  been  granted  shall  be  or 
may  have  been  a  party ;  provided,  nevertheless,  that  if  the  execu- 
tor or  administrator,  capable  of  acting  as  such,  shall  return  to  and 
reside  within  the  jurisdiction  of  any  of  the  said  Courts  pending 
such  suit,  such  executor  or  administrator  shall  be  made  jiarty  to 
such  suit;  and  the  costs  incurred  by  grantilig  such  administration, 
and  by  proceeding  in  such  suit  against  such  special  administrator, 
shall  be  paid  by  such  person  or  persons,  or  out  of  such  fund,  as  the 
Court  where  such  suit  is  depending  shall  direct.  Where  an  infant 
is  sole  executor,  administration  Avith  the  will  annexed  must  be 
granted  to  the  guardian  of  such  infant,  or  to  such  other  person  as 
the  Court  of  Probate  shall  think  fit,  until  such  infant  shall  have 
attained  the  full  age  of  twenty-one  years;  at  which  period,  and 
not  before,  probate  of  the  will  shall  be  granted  to  him.  And  the 
person  to  whom  such  administration  shall  be  granted  shall  have 
the  same  powers  vested  in  him  as  an  administrator  has,  by  virtue 
of  an  administration  granted  to  him  durante  minore  cetate  of  the 
next  of  kin.i  And  now,  by  t^ie  "  Court  of  Probate  Act,  1858," 
such  limited  ailniinistration  may  be  granted,  whether  it  be  or  be 
not  intended  to  institute  proceedings  in  the  Court  of  Chancery .^ 

In  some  cases,  where  the  trustee  lias  had  no  beneficial  interest 
in  the  property,  and  Avas  not  possessed  of  a  legal  estate  which  he 
could  set  uj)  at  law  to  the  annoyance  of  the  defendant  in  Equity, 
the  rule  which  requires  tliat  the  trustees,  or  otlier  ])ersoiis  having 
the  legal  estate  in  the  thing  demanded,  should  in  all  cases  be 
liefore  tlie  Court,  has  been  dispensed  with,  and  the  Court  has  per- 
mitteil  bills  to  be  filed  by  the  cestui  que  trusts  witliout  making 
sucli  trustee  a  party,  the  cestui  que  trusts  uinlertaking  for  him 
that  lie  sliall   coidunn   to  such   decree  as  the  Court    shall  luake.^ 


Ch.  V.  §  1. 


And  a  receiv- 
er appointed. 


Stock  may  be 
transferred 
into  name  of 
Accountant- 
General, 


in  any  suit  to 
which  limited 
administrator 
a  party. 


Executor  or 
administrator 
coming  with- 
in jurisdic- 
tion must  be 
made  a  party. 


AVhen  sole 
executor  is  an 
infant,  special 
administra- 
tion granted. 


Limited  ad- 
ministration 
under  21  &  22 
Vic.  c.  95, 
§18. 

In  what  cases 
trustees  dis- 
pensed with; 

Where  no 
legal  estate; 


1  38  (ico.  III.  c.  h7;  20  &  21  Vic  c.  77, 
§  74,  and  21  &  22  Vic.  c.  95,  §  IH;  see  Coi- 
las  V.  Ilesse,  12  W.  It.  665,  V.  C.  K.; 
Dickins  t>.  Harris,  1  W.  N.  93,  V.  C.  S. 


2  21  &  22  Vic.  c.  95,  §  18. 

8  Kirk  V.  Clark,  Free,  in  Ch.  275. 


206 


OF    PARTIES    TO    A    SUIT. 


Intermediate 
trustees  of 
equitable  in- 
terests. 


Deposit  of 
deeds. 


Assignor  of 
equitable  in- 
terest. 


Original  les- 
see, in  suits 
by  lessor 
against  as- 
signee of 
lease. 


Where,  however,  new  trustees  of  a  settlement  lind  been  <luly  np- 
jiointetl,  hut  the  trust  property  had' not  been  assigned  or  trans- 
fiMivd  to  them,  tliey  were  held  necessary  parties  to  a  suit  for 
carrying  the  trusts  of  the  settlement  into  execution.^ 

Again,  where  a  bill  was  filed  to  carry  the  trusts  of  a  will  into 
execution,  whereby,  amongst  other  things,  lands  were  limited  to 
trustees  for  a  term  of  years,  to  raise  a  sum  of  money  by  way  of 
portions  for  younger  children,  two  of  which  younger  children  had 
assigned  their  shares  of  the  sum  to  be  raised  to  a  trustee  for  the 
benefit  of  the  others,  but  which  last  trustee  was  not  before  the 
Court;  it  was  considered  that  as  the  trustees  of  the  term  who  had 
the  legal  estate,  and  all  the  children  who  had  the  beneficial  inter- 
est, were  parties,  there  was  no  occasion  to  make  the  other  ti'ustec 
a  party.'^  Upon  the  same  iirinciple,  where  a  man  had  executed  a 
deed,  providing,  in  case  of  his  death,  for  a  woman  and  her  chil- 
dren, and  had  deposited  it  in  the  hands  of  an  attorney  for  the 
benefit  of  all  parties,  but  afterwards  procured  ])ossession  of  it  liim- 
selfj  it  was  held,  on  demurrer,  that  the  woman  and  her  children 
could  maintain  a  suit  to  compel  him  to  deliver  up  the  deed,  with- 
out making  the  attorney  with  whom  it  was  deposited,  and  against 
whom  no  breach  of  trust  was  alleged,  a  party." 

For  the  same  reason  it  has  been  held,  that  although,  as  we  have 
seen,'*  the  assignor  of  a  chose  in  action  is  a  necessary  party  to  a  suit 
by  the  assignee,  yet  the  assignee  of  an  equitable  interest  in  the 
nature  of  a  chose  in  action  may  maintain  a  suit  for  the  assertion 
of  that  interest  without  bringing  the  assignor  before  the  Court.'' 

The  principle  that  the  person  having  the  legal  right  to  sue  for 
the  matter  which  he  might  enforce  at  Law  against  the  defendant, 
should  be  before  the  Court,  applies  to  all  persons  who  had  legal 
demands  against  the  defendants  arising  out  of  the  same  matter; 
thus,  as  it  has  been  decided  that  at  Law  an  assignee  of  a  lease  may 
be  sued  for  non-pei-formance  of  the  covenants  both  by  the  lessor 
and  the  original  lessee  from  whom  he  derives  title,  Courts  of  Equity 
will  not  permit  either  the  lessor  or  lessee  to  institute  proceedings 
against  him  in  respect  of  his  covenants,  without  having  the  other 
before  them,  in  order  that  the  rights  of  both  may  be  settled  at  the 
same  time.  Upon  this  ground,  where  a  man  granted  a  lease  of 
houses  for  thirty  years  to  B.,  who  covenanted  to  keep  them  in  good 
repair,  and  died  having  bequeathed  the  term  to  his  wife;  and  after- 
wards by  mesne  assignments,  the  term  became  vested  in  a  pauper, 


1  Xelson  V.  Seaman,  1  Ue  G.,  F.  &  •!. 
3C&;  (;  .Fur.  N.  S.  §  2.58. 

2  Ileiid  V.  \A.  Tevnliam,  1  Cox,  57. 

3  Knye  v.  Moore,"l  S.  &  S.  Gl. 

4  ^7j<e,  p.  198. 

5  Blake  v.  Jones,  8  Anst.  651 ;  Sayles  v. 
Tibbitts,  5   li.   I.   70;  Cator  v.   Croj-don 


Canal  Co.,  4  Y.  &  C.  Ex.  405,  419;  8  .lur. 
277,  L.  C. ;  Padwiek  v.  Piatt,  11  Beav. 
503;  Kulham  v.  M'Ciirthy,  1  II.  L.  Ca. 
70.3;  l'>ag.sliaw  v.  Eastern  Union  Kail  way 
Co.,  7  Hare,  114;  13  Jur.  602;  aliiimed, 
14  Jur.  491. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


207 


but  the  houses  becoming  out  of  repair  and  the  rent  in  arrear,  a  bill 
was  brought  by  the  lessor  against  the  assignee  for  repairs  and  an 
account  of  the  arrears  of  rent;  upon  an  objection  being  taken, 
that  the  executors  of  the  original  lessee  were  not  parties,  the  Lord 
Chancellor  said,  that  to  make  the  proceedings  unexceptionable,  it 
would  be  very  proper  to  have  them  before  the  Court ;  for  that  it 
did  not  appear  to  him  but  that  the  plaintiff  might  have  had  a  sat- 
isfaction at  law  against  the  executors,  and,  if  so,  the  plaintiff's 
equity  will  be  their  equity.^  The  same  objection  was  allowed  in 
the  case  of  the  City  of  London  v.  Bichmond,^  which  was  also  the 
case  of  a  bill  against  the  assignee  of  a  lease,  for  jxayment  of  rent 
and  perfonnance  of  covenants. 

The  rule  which  requires  all  persons,  having  similar  rights  to  sue 
at  Law  with  that  of  tlie  plahitiff,  to  be  brouglit  before  the  Court, 
does  not  apply  to  a  bill  filed  by  the  last  indorsee  of  a  bill  of  ex- 
change wliich  has  been  lost,  against  the  acceptor ;  in  which  case  it 
has  been  held  that  neither  the  drawer  ^  nor  the  prior  indorsees  are 
necessary  parties;^  because,  in  such  cases,  the  ground  of  the  appli- 
cation to  a  Court  of  Equity  is  the  loss  of  the  instrument ;  and 
relief  is  only  given  upon  the  terms  of  the  plaintiff  giving  the  de- 
fendant ample  security  against  being  called  upon  again  by  the 
drawer  or  indorsees,  in  case  they  should  become  possessed  of  tlie 
instrument.^  And  it  seems  also,  that  the  drawer  is  not  a  necessary 
party,  Avhere  a  suit  is  instituted  by  an  acceptor  against  the  holder 
of  a  bill  of  exchange  which  is  forthcoming,  for  the  purpose  of 
having  it  delivered  up.** 

Tlie  principle,  that  persons  having  co-existeut  rights  with  the 
jdaintiff  to  sue  the  defendant  must  be  brought  before  the  Court  in 
all  cases  where  the  subject-matter  of  the  right  is  to  be  litigated  in 
Equity,  is  not  confined  to  cases  where  such  co-existent  rights  to 
sue  are  at  Law ;  it  api)lies  equally  to  cases  where  another  person 
has  a  right  to  sue,  for  the  same  matter  in  Equity ;  in  such  cases 
the  defendant  is  equally  entitled  to  insist  that  the  person  possess- 
ing such  riglit  should  be  brought  before  the  Court  before  any  de- 
cree is  pronounced,  in  order  that  such  right  may  be  bound  by  the 
decree.^  Thus,  where  a  bill  was  filed  by  a  vicar  against  a  seques- 
trator for  an  account  of  the  jjrofits  (jf  a  benefice,  received  during 
its  vacation,  it  appears  to  have  been  thought  by  the  Court  that  the 
bishop  ought  to  have  been  a  party  to  the  suit,  because  the  seques- 


Ch.  V.  §  1. 


Drawer,  or 
prior  indor- 
sees of  a  bill 
of  exchange, 
not  necessary 
parties  to  a 
suit  by  last 
indorsee,  to 
recover 
amount  of 
lost  bill; 


nor,  semble, 
drawer,  to  a 
suit  by  accep- 
tor against 
holder  for  de- 
li \ery  lip  of 
bill. 

General  rule 
is  applicable, 
■Nvlu'thor  the 
right  is  in 
E(iuity  or  at 
Law. 


1  Sainstry  ».  Grainmcr,  2  I'>|.  Ca.  Ab. 
165,  c.  C. 

2  2  Vem.  421 ;  1  Uro.  I'.C.  ed.  Toml.  510. 

3  Diivies  r.  Dodd,  4  Trice,  17C. 

*  MiicarlMfV  v.  (iraliam,  2  Sim.  285. 

''  Ueiipecting  the  juri.'siliction  in  ca«es  of 
lost  notes  and  bills,  sec  1  Story  Kq.  Jur. 
§§  85,  «0. 


•5  Karle  v.  Holt,  5  Ilnrc,  ISO;  see,  how- 
ever, I'eiifold  r.  Nunn,  5  Sim.  405. 

7  See  Shields  v.  Tliomns,  IS  How.  U.  S. 
25.3.  Wlicrc  lliii'c  out  dI'  forty-seven  ten- 
ants in  common  filed  a  bill  for  an  injunc- 
tion, to  restniin  digging  of  stone  on  tiio 
common  proper!)-,  an  objection  for  want  of 
partic''  was  oven  uleil.  Ackroyd  v.  Uriggs, 
14  W.  R.  25,  V.  C  S. 


208 


or    PAUTIES    TO    A    SUIT. 


(11.  V.  5  1. 


Liinatic,  in 
suit  by  bitihop 
and  seques- 
trator for 
tithes ; 


and  in  all 
suits  on  his 
behalf. 


Whether  for 
whole  or 
part; 

joint-tenants. 


Joint-tenants, 
or  tenants  in 
common, 
in  case  of 
partition. 


Lessee  of  ten- 
ant in  com- 
mon. 

Termor  for 
years  may  sue 


trator  wms  aci-(iuiil;iliK'  to  liiiii  for  \\li;it  Ik,'  had  received;^  and,  on 
(1r'  otluT  liaml,  wluTi'  a  hill  was  lih'd  l)y  a  hislioj)  and  a  sequestra- 
tor ati-.-unst  an  ofcujiior  tor  an  aci-ount  of  titlics  during  the  lunacy 
of  tlie  incunihcnt,  who  had  been  found  a  lunatic  under  a  connnis- 
sion,  it  "svas  held  that  the  incumbent  or  liis  committee  ought  to 
have  been  a  party."'^  It  seems,  however,  that  where  a  living  is  un- 
der sequestration  for  debt,  the  incumbent  may  maintain  a  suit  for 
tithes  without  making  tlie  sequestrator  or  the  bisliop  a  ]>:irty.  This  . 
a]i])ears  to  have  been  the  opinion  of  Lord  Lyndhurst  C.  13.,  in 
Warrington  v.  Sadler,^  where  a  decree  was  made  in  a  suit  by  a 
vicar  for  tithes,  although  the  vicarage  was  under  sequestration, 
and  the  occupiers  had  actually  paid  certain  alleged  moduses  to 
the  secjuestrator.  Upon  the  princii)le  above  stated,  it  is  held,  that 
in  general,  Avhcre  a  suit  is  instituted  on  behalf  of  a  lunatic  either 
by  the  Attorney-General  or  his  committee,  the  lunatic  himself 
must  be  a  co-plaintift',  because  he  may  recover  his  senses,  and 
would  not  be  bound  by  the  decree.* 

In  the  above  cases,  the  jierson  required  to  be  party  had  a  con- 
current right  with  the  plaintiff' in  the  whole  subject  of  the  suit; 
the  same  rule,  however,  applies  where  he  has  only  a  concurrent 
right  in  a  i)ortion  of  it;  thus,  where  there  are  two  joint-tenants 
for  life,  and  one  of  them  exhibits  a  bill,  the  other  must  be  a  ])arty, 
unless  the  bill  shows  that  he  is  dead  ;  ^  and  where  A.,  B,,  and  C.  were 
joint  lessees  under  the  City  of  London,  and  A.  and  B.  brought  a 
bill  against  the  lessors  to  have  certain  allowances  out  of  the  rent, 
and  it  appeared  upon  the  hearing  that  C.  Avas  living,  an  objection, 
because  he  was  not  a  party  to  the  bill,  was  allowed;®  and  so, 
where  a  bill  is  brought  for  a  partition  either  by  joint-tenants  or 
tenants  in  common,  as  mutual  conveyances  are  decreed,  all  persons 
necessary  to  make  such  conveyances  must  be  parties  to  the  suit;'' 
and  where  one  tenant  in  common  had  granted  a  lease  of  his  share 
for  a  long  term  of  years,  the  lessee  was  held  to  be  a  necessaiy 
party  to  the  suit,  at  the  expense,  nevertheless,  of  his  lessor,  who 
Avas  to  be  responsible  for  his  costs.^  Where,  however,  three  out 
of  forty-seven  tenants  in  common  filed  a  bill  for  an  injunction  to 
restrain  the  digging  of  stone  on  the  common  property,  a  de- 
murrer, for  want  of  parties  was  overruled  ;^  and  where  a  tenant  in 
common  had  demised  his  share  for  a  long  term  of  years,  it  was 


1  Jones  V.  Barrett,  Bunb.  192. 

2  Bishop  of  London  v.  Nicholls,  Bunb. 
141. 

3  1  Young,  283. 

4.  See  ante,  pp.  9,  82 ;  Gorhara  v.  Gor- 
ham,  .3  Barb.  Ch.  24. 

5  Haycock  V.  Haycock,  2  Ch.  Ca.  124; 
Weston  «.  Keighley,  Rep.  teni|).  Finch,  82. 
But  see  Phitt  v.  Squire,  12  Met.  494,  in 
which  this  rule  seems  to  have  been  disre- 
garded.    Post,  213,  note. 


6  Stafford  v.  The  City  of  London,  1  P. 
Wms.  428;  1  Stra.  95,  S.  C 

■?  Anon.,  3Swiin.  139;  Brasher «.  Macey, 
3  J.  J.  Marsh.  93;  see  Ikaker  v.  Deve- 
reaux,  8  I'aige,  513.  Every  person  inter- 
ested ill  land  belonging  to  co-tenants 
should  be  made  party  to  a  bill  for  parti- 
tion.    Borah  v.  Archers,  7  Dana,  170. 

8  Cornish  v.  Gcst,  2  Cox,  27. 

9  Ackroyd  v.  Briggs,  14  W.  li.  25,  V. 
C.  S. 


PERSONS    HAYIXG    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


209 


held  that  the  tennor  for  years  was  entitled  to  file  a  bill  for  a  par- 
tition against  the  other  tenants  in  common,  without  bringing  the 
reversioner  of  the  share  demised  before  the  Court ;  ^  and  so  it 
seems  that  where  one  of  the  parties  is  only  tenant  for  life,  he  may 
maintain  a  suit  for  a  partition  without  the  party  entitled  in  remain- 
der.2  Where  the  object  of  a  suit  is  to  ascertain  boundaries,  the 
rule  is  different,  and  the  Court  will  not  entertain  a  bill  of  that  de- 
scription without  having  the  remainder-men  and  all  parties  inter- 
ested before  it.^ 

It  is  not  in  general  necessary,  in  questions  relating  to  real  prop- 
erty, that  the  occupying  tenants  under  leases  should  be  parties, 
unless  their  concuiTcnce  is  necessary,  as  in  the  case  above  referred 
to  of  the  lessee  of  a  tenant  in  common  ;  or  unless  the  object  of  the 
suit  is  to  restrain  an  ejectment  brought  against  them  instead  of 
against  their  landlord ;  as  in  the  case  of  Lawley  v,  Waldon^  in 
which  Lord  Eldon  allowed  a  demurrer  for  want  of  parties  to  a  bill 
by  the  owner  of  an  estate,  to  restrain  an  action  of  ejectment  against 
his  tenant  without  making  him  a  party  ;  observing,  however,  that 
if  the  plaintiff  in  Equity  had  been  made  a  defendant  at  Law,  as  he 
might  have  been,  he  should  not  have  thought  it  necessary  to  make 
the  tenant  a  party  to  the  bill,  notwithstanding  his  being  a  co-de- 
fendant ;  but  that,  as  he  was  the  only  defendant  at  Law,  he  must 
be  a  party  to  the  bill.^ 

But,  although  it  is  not  usual,  in  suits  relating  to  property,  to 
make  the  occupying  lessees  of  such  property  parties  to  the  proceed- 
ings, yet  if  such  lessees,  or  other  persons  having  only  limited  in- 
terests in  the  property,  seek  to  establish  any  riglit  respecting  such 
property,  it  is  necessary  that  they  should  bring  the  owners  of  the 
inheritance  before  the  Court,  in  order  that  in  case  the  suit  is  un- 
successful, the  decree  of  the  Court  dismissing  the  bill  may  be 
binding  iq)on  Ihem.  Tlius,  to  a  bill  by  the  lessees  of  property  in 
a  ])arish  to  estaldish  a  modus,  the  owner  of  the  inheritance  must 
be  a  })arty  ;  and  for  the  same  reason,  if  there  is  a  question  con- 


Ch.  V.  §  1. 

for  partition 
without  les- 
sor. 

Wlion  tenant 
for  life  may 
without 
remainder- 
man; 
not  where 
suit  to  ascer- 
tiin  boun- 
daries. 

Lessees  not 
in  general 
necessary, 
unless  in  par- 
tition; 
or  in  bills  to 
restrain  an 
ejectment. 


Owner  of  in- 
heritance in 
suits  of  les- 
sees, to  estab- 
lish general 
right. 


Wlien  a  mo- 
dus in  ques- 
tion; 


1  Bariiit^  r.  Na^^h,  1  Vcs.  &  B.  5.05;  Mea- 
ton  r.  Deardcn.  10  IJeav.  147. 

2  Wills  V.  Sliidc,  6  Vcs.  498;  see  also 
Brnsscv  «.  Chidnjcrs,  4  l)e  (i  ,  M.  &  G. 
528.  It  docs  not  constitute  any  ohjccliou 
in  Kquity,  tliat  the  partition  niav  not 
finiilly  conclude  tlie  interests  of  ail  per- 
sons, as,  where  the  jiartitioti  is  asiicd  only 
by  or  npainst  a  tenant  for  life,  or  where 
there  arc  contin^'cnt  interests  to  vest 
in  persons  not  in  tsae.  l''or  the  Court 
will  i-till  proceed  to  make  partition  i)e- 
tween  the  parlies  l^efore  the  Ci'urt,  who 
possess  competent  present  intercsis,  such 
as  a  teiiiiiit  for  life  or  for  years.  The 
partition  in  sucli  cases,  however,  is  i)ind- 
ing  oidy  upon  those  jiarties  who  are  before 
the  Court,  and  those  whom  they  virtually 

VOL.   I. 


represent.  1  Story  Eq.  Jur.  050;  Giiskcll 
V.  Gaskell,  0  8iui.  043;  Wotton  v.  Cope- 
land,  7  .lohn.  Cli.  141);  Striker  r.  Jlott,  2 
I'aige,  .387,  3S0;  Woodworth  v.  Campbell, 
6  J'aige,  518. 

3  Hay  ley  v.  Best,  1  R.  &  M.  059;  see 
also  M'dler  v  Warmiugton,  1  .).  &  W. 
484;  Spcer  v.  Crawter,  2  Mer.  410;  Atlor- 
nev-Ucneral  r.  Stephens,  I    K.  &  .1.  724; 

1  .)ur.  N.   S.   1039;  0  De  ('..,  M  &  G.  Ill; 

2  Jur.  N.  S.  51;  Siory  Kfp  I'l.  §  105.  All 
the  tenants  in  common  should  be  parties 
to  a  suit  for  adjusting  land  titles.  I'opo 
V.  Mclonc,  2  A.K    M;irsh.  2:t9. 

■•  3  Swan.   142;  Po'le  v.  Marsh,  8  Sim. 
528. 
fi  See  Story  Eq.  PI.  §  151. 


14 


210 


OF   PARTIES   TO    A    SUIT. 


rn.v.  §1. 


or  fees  of 
office, 


or  a  right  of 
way. 


Where  juris- 
diction with- 
drawn ft'om 
Court  of  Law. 


Lessee  may 
sue  for  tithes, 
without  les- 


Seeus,  where 
claim  under 
parol  demise. 


cevniiig  a  right  of  common,  tliotigh  a  lonsclioldor  may  enforce  it  at 
Law,  yet  if  he  bring  a  bill  in  K(|[iiity  to  establish  such  right,  lie 
nnist  bring  the  ])ersons  in  whom  the  fee  of  his  estate  is  vested  be- 
fore the  Court ;  ^  and  so,  in  a  suit  in  Equity  to  establish  a  right  to 
fees  in  an  otHce,  although  in  an  action  at  Law  for  such  fees  it  is 
not  necessary  to  make  any  person  a  jKirty  but  the  one  who  has 
actually  received  such  fees,  yet  in  Equity  it  is  necessary  to  have  all 
persons  before  the  Court  who  have  any  jiretence  to  a  right.^ 

Upon  the  same  principle,  where  a  bill  filed  by  a  lessee  against  a 
lord  of  a  manor,  and  the  tenant  of  a  particular  house,  to  have  the 
house,  Avhich  obstructed  the  plaintiff's  way,  pulled  down,  and  to  be 
cpiieted  in  the  possession  of  the  way  for  the  future,  the  defendant's 
counsel  objected  for  want  of  parties,  because  the  plaintiff's  lessor 
was  not  before  the  Court,  and  the  objection  was  allowed.^ 

These  cases  all  proceed  upon  the  principle  before  laid  dowTi, 
namely,  tliat  of  preventing  a  defendant  from  being  harassed  by  a 
multiplicity  of  suits  for  the  same  thing ;  in  consequence  of  which 
principle  it  is  held  to  be  a  rule  of  a  Court  of  Equity,  that  if  you 
withdraw^  a  question  from  a  Court  of  Law  for  the  purpose  of  in- 
sisting upon  a  general  right,  you  must  have  all  the  parties  before 
the  Court  who  are  necessary  to  make  the  determination  complete, 
and  to  quiet  the  question.* 

The  aj^plication  of  this  rule,  however,  is  strictly  confined  to  cases 
where  the  lessee  seeks  to  establish  a  general  right ;  where  he  only 
seeks  that  which  is  incidental  to  his  situation  as  tenant,  he  need 
not  make  his  landlord  a  party.  Thus,  a  lessee  of  tithes  may  file  a 
bill  for  tithes  against  an  occupier,  without  making  his  lessor  a  party, 
because  the  claim  to  tithes  abstracted,  is  merely  possessory ;  and, 
upon  the  same  principle,  where  an  occupier  who  was  sxied  for  tithes 
by  the  lessee  of  an  im|)ropriate  rector,  filed  a  cross-bill  against  such 
rector  for  a  discovery  of  documents,  &c.,  a  demurrer  to  such  bill  by 
the  rector  was  allowed.^ 

In  order  to  entitle  a  lessee  to  sue  for  tithes  without  his  lessor, 
he  must  claim  under  a  demise  by  deed^  because  tithes,  being  things 
which  lie  in  grant,  cannot  be  demised  by  parol,  and  a  decree  in 
favor  of  a  plaintiff  claiming  under  a  verbal  demise,  would  therefore 
be  no  bar  to  another  suit  for  the  same  tithes  by  the  lessor.  Upon 
this  ground,  in  Ilenning  \.  Willis,^  the  Court  of  Exchequer  allowed 
a  demurrer  to  the  plaintiff's  bill  because  the  impropriator,  who  was 
the  lessor,  was  not  a  j^arty,  and  the  plaintiff  having  submitted  to 
the  demurrer,  obtained  leave  to  amend  his  bill  by  making  the  im- 


1  Poore  V.  Clark,  2  Atk.  515;  Story  Eq. 
PI.  §  121. 

2  Pawlet  V.  Bishop  of  Lincoln,  2  Atk. 
296. 

3  Poore  V.  Clark,  2  Atk.  615. 


*  Poore  V.  Clark,  2  Atk.  515;  see  Crews 
V.  IJiircham,  1  Black,  U.  S.  312 

6  Tooth  V.  The  Dean  &  Chapter  of  Can- 
terbury, 3  Sim.  61. 

6  3  Wood,  29;  3  Gwil.  898. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF.  211 

propriatov  a  party.^  A  similar  denuuTer  was  put  in  to  a  bill  for  Ch.  V.  §  i. 
tithes  by  a  lessee  under  a  parol  demise,  in  Jackson  v.  Jienson,^  and'  '"^  i  ' 
allowed ;  leave  being  also  gi\en  to  amend,  by  making  the  impro- 
priator a  party ;  and  in  Williams  v.  Jones,^  the  principle  to  be 
deduced  from  the  foregoing  cases  was  recognized  by  Lord  Lynd- 
hurst  C.  B.  In  that  case  the  vicar,  who  was  the  lessor,  had  been 
originally  made  a  party  to  the  suit,  but  as  he  had  by  his  answer 
disclaimed  all  interest  in  the  tithes  in  question,  the  plaintiff  had 
dismissed  the  bill  as  against  him,  and  brought  the  suit  to  a  hearing 
against  the  occupier  only ;  and  Lord  Lyndhurst  held,  that  as  the 
vicar  had  been  originally  a  party,  the  circumstance  of  the  bill  hav- 
ing been  dismissed  as  against  him,  made  no  difference,  for  although 
his  disclaimer  could  not  be  read  against  the  other  defendants,  no 
inconvenience  could  arise,  because  the  lessor,  after  such  disclaimer, 
would  never  be  allowed  to  set  up  any  claim  against  the  occupier 
for  the  same  tithes. 

The  rule,  that  persons  claiming  joint  interests  in  an  estate  can-  joint-tenants 
not  sue  Avithout  making  their  companions  parties,  applies  equally  of  legacy; 
whether  the  subject-matter  of  the  suit  be  real  or  personal  property; 
thus,  where  a  legacy  is  given  to  two  jointly,  one  cannot  sue  for  it 
alone  ;  though  where  there  are  several  legacies,  each  may  sue  for 
his  own.*     And  so,  where  there  are  several  persons  interested  as 
joint-tenants,  in  moniiy  secured  by  mortgage,  they  must  all  be  joint-tenants 
made  i)arties  to  a  bill  to  foreclose  such  mortgage.^     This  was  de-  J^,*  ™°^,*^n^^ 
cided  to  be  the  law  of  the  Court  by  Lord  Thurlow,  in  the  case  of  foreclosure 
Loioe  V.  Morgan,'^  where  a  mortgagee  had  assigr.ed  the  money  se-  ^"''^^' 
cured  by  the  mortgage  to  three  persons  as  joint-tenants.     In  that 
case,  his  Lordship  appears  to  have  laid  a  stress  upon  the  circum- 
Btance  of  the  parties  interested  in  the  money  being  joint-tenants ; 
from  V  hich  it  has  been  inferred  that  a  tenant  in  severalty  or  in 
common  might  foreclose  as  to  his  share,  without  making  the  other  or  tenants  in 
persons  interested  in  the  money  parties  ;  and  a  decree  to  this  effect  tommon, 
was  actually  made  by  Lord  Alvanley  M.  R.  in  a  case  where  trustees 
of  money  Ijelonging  to  several  individuals  had  laid  it  out  on  a 
mortgage,  and  afterwards  one  of  the  persons  entitled  to  jiartof  the 
mortgage  money  filed  a  bill  against  the  mortgagor  and  the  trnstees 
for  liis  share  of  the  ni(>rtg;igc  money,  or  a  foreclosure  ;  which  was 

1  Till!  1)111  was  ameiulfd,  by  making  the  So  where  a  legacy  is  given  to  A.  and  B.  in 
Jes.-or  a  del"'  ndunt,  iiiid  praying  thiit  the  equal  moieties,  a  bill  will  lie  by  A.  for  his 
octupi'T  might  be  decretd  to  account  moiety,  without  making  B.  a  piirty  to  the 
with  the  Icfsor,  and  that  what  should  be  suit.  HuRlison  v.  Cookson,  3  Y.  &  C  (iTS. 
foun'l  due  in  the  account  mii;ht  be  pad  ''  Stuckcr  i'.  Stucki-r,  3  .1.  .1.  MmvsIi.  301 ; 
into  ('ourt  tor  Ihc  Ix-ndit  of  tli<-  plain-  ^Ving  v.  Davis,  7  (Jrecnl.  31;  I'alincr  v. 
titr.  See,  Lord  Lyndliur-t's  judgment  in  Karl  of  Caill.^lc,  1  S.  &  S.  42a;  Story  V.(\. 
Williams  i'.  .loiics,  Vounge,  20u.  I'l.  §  201;  Noyes  v.  Sawver,  3  Nt.  100  ; 

2  .Mi.el.  02;  13  I'ri.  131.  Woodwaid  v.  \Vood,  It)  Ala.  213. 

«  1  Vouiige,  2-J2.  «  1  Bro.  C.  C.  308;  and  see  Slansfield 

*  Haycock  v.  Haycock,  2  Cii.  Ca.  124.       r.  Hobion,  16  Beav.  lUO. 


212 


OF    TARTIES    TO    A    SUIT. 


Cit.  V.  §  1. 


but  some  of 
the  benolioia- 
ries  therein 
may  now  be 
dispensed 
with. 


All  persons 
entitled  to 
redeem. 


Owner  of  one 
of  two  estates 
mortgaged 
for  same  sum, 
carmot  re- 
deem his  part 
separately. 


cntcrtiiinotl,  although  tl>c  ]iartlos  iiiterostotl  in  the  rest  of  the  money 
wore  not  bolbvo  the  Court. ^ 

In  a  case  before  Sir  John  Lcaeh  V.  C,  however,  it  Avas  deter- 
tniued  that  there  can  be  no  retleni})tion  or  foreclosure  unless  all 
the  parties  interested  in  the  mortgage  money  are  before  the  Court; 
and,  on  this  ground,  a  bill  by  a  person  entitled  in  severalty  to  one- 
sixth  of  the  mortgage  money,  to  foreclose  one-sixth  of  the  estate, 
was  dismissed  with  costs.'-  The  rule  as  laid  down  by  Sir  John 
Leach,  in  the  case  above  cited,  is  now  modified  by  the  provision  of 
the  late  Act  enabling  trustees,  in  suits  relating  to  real  or  personal 
estate  vested  in  them,  to  represent  the  persons  beneficially  entitled,^ 
unless  the  Court  requires  such  persons  to  be  parties  ;  and  the  Court 
has,  accordingly,  in  a  redemption  suit,  dispensed  with  some  of  the 
beneficiaries,  though  it  appears  that  it  will  not  dispense  with  all.* 
In  a  foreclosure  suit,  however,  the  trustees  of  the  debt,  under  an 
assignment  for  the  benefit  of  creditors,  were  held  sufficiently  to 
represent  all  the  creditors.^ 

As  a  person  entitled  to  a  part  only  of  the  mortgage  money  cannot 
foreclose  the  mortgage  without  bringing  the  other  parties  interested 
in  the  mortgage  money  before  the  Court,  so  neither  can  a  mortgagor 
redeem  the  mortgaged  estate  without  making  all  those  who  have  an 
equal  right  to  redeem  with  himself  parties  to  the  suit.^ 

For  this  reason  it  was  held,  in  Lord  Cholmondeley  \.Lord  Clinr- 
ton^  that  where  two  estates  are  mortgaged  to  the  same  person  for 
securing  the  same  sum  of  money,  and  afterwards  the  equity  of 
redemption  of  one  estate  becomes  vested  in  a  different  party  from 


1  Montpomerie  v.  The  Marquis  of  Bath, 
3  Ves.  560.  In  Mr.  lick's  note  (1)  to 
Lowe  ^v  Jlorgan,  1  Bro.  C.  C.  (I'erkins's 
ed.)  36S,  he  bubmits,  that  the  decision  in 
Montgomerie  v.  M.  of  B.,  uhi  supra,  is 
evidently  wrong.  See  also  Story  Eq.  PI. 
§201. 

■■2  The  assignment  of  a  note  secured  by 
mortgage,  is  not  an  assignment  of  the 
mortgage.  The  assignee,  however,  in 
sucli  case  has  an  equitable  interest  in  the 
mortgage,  winch  a  Court  of  Equity  will 
uphold  and  ])rutect;  and,  therefore,  when 
a  bill  is  brought  to  foreclose  or  redeem 
the  mortgage  the  assignee  should  be  made 
a  party  to  the  suit,  btone  v.  Locke,  46 
Maine,  44-5. 

3  15  &  16  Vic.  c.  86,  §  42,  r  9. 

*  Stansficld  v.  Hobsun,  10  Beav.  1S9. 

5  Morley  v.  Morley,  25  Beav.  253 ;  see 
Thomas  v.  Dunning,  5  De  G.  &  S.  G18; 
Knight  V.  Powell,  24  Beav.  436;  4  Jur. 
N.  S.  197. 

6  Chapman  v.  Hunt,  1  McCarter  (N.  .J.), 
149;  Story  Eq.  Pi.  §  201;  Mitford's  PI. 
39, 164 ;  Large  v.  Van  Doren,  1  ilcCarter 
(N.  .J.),  2W. 

A  mortgagor,  filing  his  bill  to  redeem, 
may  brmg  before  the  Court  all  parties  who 


might  call  for  redemption ;  or  he  may 
bring  his  bill  against  the  last  mortgagee, 
if  he  choose  to  incur  the  risk  of  a  lore- 
clo-ure  by  a  ])rior  mortga;;ee  during  its 
pendency.  Stone  v.  Bartlett,  46  Maine, 
438,  443.  In  Piatt  v.  Squire,  12  Met.  494, 
it  was  held  that  one  of  two  joint  assignees 
of  a  second  mortgage  could  maintain  a 
bill,  in  his  individual  name,  to  redeem  the 
prior  mortgnge,  without  joining  his  co- 
assignee.  IJewey  J.  said:  "  The  plaintiff 
has  a  legal  interest,  as  assignee  of  that 
mortgage,  although  not  the  entire  interest. 
His  redemption  will  enure  to  ti.e  benefit 
of  his  co-tenant.  He  can  ordy  redeem  by 
payment  of  all  claims  of  the  delendant 
under  the  prinr  mortgage  to  the  same 
extent  as  would  have  been  paid  if  the 
co-assignee  were  a  part^- to  the  bill;  and 
therefore  the  defendant  can  sustain  no 
injury."  When  this  case  came  again 
before  the  Court  the  same  learned  Judge 
said:  "It  was  somewhat  questionable, 
whether  the  ])laintill',  as  joint  assignee, 
could  rely  upon  this  mortgage  to  support 
a  liill  to  redeem  filed  by  him  alone.  But 
the  Court  held  that  he  might."  Piatt  v. 
Squire,  5  Cush.  553. 
7  2  Jac.  &,  W.  3,  134. 


PEESOXS    HATING    CONCURRENT    INTERESTS    WITH   PLAINTIFF.  213 

the  Other,  the  owner  of  one  cannot  redeem  his  part  separately.  Ch.  V.  §  i. 
The  mortgagee  is  entitled  to  insist  that  the  whole  of  the  mort-  '  »  ' 
gaged  estate  shall  be  redeemed  together;  and,  for  this  pm-pose, 
that  all  the  persons  interested  in  the  several  estates  or  mortgages 
should  be  made  parties  to  a  bill  seeking  an  account  and  redenip- 
tion.i  The  same  rule  prevailed  in  Palk  v.  Lord  Clinton,'^  which 
differed  from  that  of  Lord  Cholmondeley  v.  Lord  Clinton,  above 
cited,  in  the  circumstance,  only,  of  its  being  a  bill  by  a  second 
mortgagee  of  part  of  an  estate  to  redeem  a  first  mortgage,  which 
embraced  the  whole  property. 

In  the  above  cases,  the  mortgage  of  the  two  estates  was  for  the   o^Tier  of  two 
same  sum  of  money,  and  was  part  of  the  same  transaction.     The  ga|ed^o'"se- ^ 
rule,  however,  has  been  extended  to  cases  where  a  mortgage  has  cure  difterent 
been  of  two  distinct  estates  to  the  same  mortgagee  tor  securmg  redeem  one 
different  sums  of  money;  and  it  has  been  decided  in  many  cases,  o^^y; 
that  a  mortgagee  of  two  separate  estates,  upon  distinct  transactions 
from  the  same  mortgagor,  is  entitled  to  hold  both  mortgages  till 
the  amount  due  upon  both  be  discharged ;  and  that  even  against 
the  purchaser  of  the  equity  of  redemption  of  one  of  the  mortgaged 
estates  without  notice ;  so  that  the  mortgages,  although  for  dis- 
tinct sums,  are  in  effect  for  one  sum.     Upon  this  principle,  where 
the  purchaser  of  the  equity  of  redemption  of  a  mortgaged  estate 
filed  his  bill  against  the  mortgagee,  to  redeem,  and  the  defendant, 
by  his  answer,  stated  a  subsequent  mortgage  made  to  him,  by  the 
same  mortgagor,  of  a  distinct  estate  for  a  distinct  debt,  it  was  held 
that  the  persons  interested  in  the  equity  of  redemption  of  the  sec- 
ond mortgage  were  necessary  parties  to  the  suit.*^     And  this  rule 
prevails  although  one  mortgage  be  a  pledge  of  personalty  and  the   though  one 
other  a  mortgage  of  realty."    It  does  not,  however,  hold  longer  Jp'^eaKebe^^ 
than  while  both  mortgages  continue  united  in  the  same  mort-  and  the  other 
gagee  ;  so  that  if  a  mortgagee,  having  two  distinct  mortgages  on  °^  ^^'^^'y* 
two  separate  estates,  assigns  one  of  the  mortgages  to  a  third  per- 
son, the  assignee  of  the  assigned  mortgages  need  not  be  brought 
before  the  Court  in  a  suit  to  redeem  the  other.^ 

The  rule  which  requires  that  in  a  bill  filed  for  the  purpose  of  i„,„itby 
rcdeeininf--  a  mortfaffc,  tlie  iilaintiff  should  bring  before  the  Court   second  nioru 
all  those  who,  as  well  as  himself,  have  a  right  to  redeem,  has  been   redcoin  the 
held  to  ai)i)]y  to  a  second  incumbrancer  filing  a  bill  to  redeem  a  I^^I;^"'^;:^;^ 
prior  incuinl>rance,  who  must,  in  such  case,  bring  the  mortgagor,  sary  party. 

1  StorvE.i.  ri.  §182;  ]}ailev  r.  Myrick,       10  .Tur.  Ill;  Tassell  v.  Sniilh,  2  Dc  C,  & 
80  JIainf-   50.  "  G.  7i;i;  \  .Iiir.  N.  S.  1090;  Vint  r.  I'adKct, 

2  12  ViH.  4ft.  2  I)c  (i.    &  .1.  Oil;    4   .lur.   N.  S.   1122; 
8  Ireson  f   Denn,  2  Cox,  425;  sec  Story        Sell.v  v.  I'onifret,  1  .1.  &  II.  y.'JG;  7  .lur. 

Eq.  IM   §  287.  N.  S.  800;  3  De  G.,  V.  &  J.  CM;  «''•  ^^6,    . 

*  .loiKR  r.  Smith,  2  Veg.  .1.  372,  reversed  L.  C. 

bv  House  of  I^rds,  see  6  Vc».  229,  n. ;  fee  6  Willie  v.  Lugg,  2  Eden,  78. 
al-o  Watts  V.  Hymes,  1  De  G.,  M.  &  G.  240 ; 


214 


OF    TAHTIES    TO    A    SUIT. 


Cii.  V.  §  1. 


Hut  may  fore- 
close mort- 
gagor and 
third  mort- 
gagee with- 
out the  first 
being  a  party. 


Sale  of  in- 
cumbered 
estates. 

Execution  of 
trusts  of  sur- 
plus. 


as  woll  ns  the  prior  incuiiihrnnocr  before  the  Court.^  Tliis  is  a 
rule  ot"  long  standinii:,  aiul  Avas  followed  by  Lord  Thurlow,  when 
his  adhoronce  to  it  was  very  incoiiveiiieiit  in  consequonce  of  the 
heir-at-law  of  the  mortj^agor  being  abroad,  llis  Lordship  then 
said,  that  it  seemed  to  him  "  impossible  that  a  second  mortgagee 
shoidd  come  into  Court  against  the  first  mortgagee  without  making 
the  mortgagor  or  his  heir  a  party.  The  natural  decree  is,  that  the 
second  mortgagee  shall  redeem  the  first  mortgagee,  and  that  the 
mortgagor  shall  redeem  him  or  be  foreclosed."  ^  The  same  rule 
was  confirmed  by  Lord  Eldon,  in  Palh  v.  Lord  Clinton^  and  has 
ever  since  been  acted  upon  as  the  rule  of  the  Court.* 

But  although  a  second  mortgagee  seeking  to  redeem  a  first  mort- 
gagee, must  make  the  mortgagor  or  his  heir  a  party,  yet  he  may,  if 
he  please,  yo?'ecZose  the  mortgagor  and  a  third  mortgagee,  Avithout 
bringing  the  first  mortgagee  before  the  Court,  because  by  so  doing 
he  merely  puts  himself  in  the  place  of  the  mortgagor  and  subse- 
quent mortgagee,  and  leaves  the  first  mortgagee  in  the  situation 
in  which  he  stood  before.^  And  if,  in  such  a  case,  he  makes  the 
prior  mortgagee  a  party,  he  must  offer  to  redeem  him.^  For  the 
same  reason  it  has  been  held  that  a  third  mortgagee  buying  in 
the  first,  need  not  make  the  second  mortgagee  a  party  to  a  bill  to 
foreclose  the  mortgagor.  Upon  the  same  ground  it  is  unnecessary, 
in  a  bill  by  creditors  or  incumbrancers  for  the  sale  of  an  estate,  to 
make  annuitants,  or  other  prior  incumbrancers,  parties ; '  and  so,, 
in  a  suit  for  the  execution  of  a  trust  by  those  claiming  the  ultimate 
benefit  of  the  trust  after  the  satisfiiction  of  piior  charges,  it  is  held 
not  to  be  necessary  to  bring  before  the  Court  the  persons  claiming 
the  benefit  of  such  prior  charges  ;  and,  therefore,  to  a  bill  for  the 
application  of  a  surplus  after  payment  of  debts  or  legacies,  or  other 
prior  incumbrances,  the  creditors,  legatees,  or  incumbrancers  need 
not  be  parties.* 


1  Thompson  v.  Baskervillc,  3  Ch.  Rep. 
215;  Farmer  v.  Curtis,  2  Sim.  466;  and 
see  Hunter  v.  Macklew,  5  Hare,  238. 

2  Fell  V.  Brown,  2  Bro.  C.  C.  276. 

3  12  Ves.  48 

<  Storv  Eq.  PI.  §§  84,  186, 195;  see  Hal- 
lock  V.  Smith,  4  .lohn.  Ch.  649;  4  Kent 
(11th  ed.),  186.  In  a  suit  for  the  fore- 
closure of  a  mortgage  of  real  estate, 
claimed  as  a  homestead,  the  wife  being  a 
necessary  party  to  a  full  iuiju-fment  of 
the  controversy,  should  be  allowed  to 
intervene.  Sarfrent  v.  Wilson,  5  Cal  504. 
So  the  wife  should  be  made  a  party  to  a 
bill  to  f  ireclose  a  mortgage  executed  liy 
her  and  iier  husband.  .Johns  v.  Keardon, 
3  Md.  Ch.  Decis.  57.  In  a  bill  to  redeem 
by  a  widow,  who  is  entitled  to  dower  in 
her  husband's  lands,  subject  to  a  mortgage 
executed  in  his  lifetime,  in  which  slie 
joined  to  release  dower,  she  maj' join  as  a 
co-defendant  to   the  mortgagee,  one  who 


after  the  execution  of  the  mortgapre,  pur- 
chased her  husband's  interest  in  the  land. 
McCabe  v.  Bellowes,  1  Allen,  269. 

5  Richards  v.  Cooper,  5  B.  304;  Lord 
Ilollis's  case,  cited  3  Ch.  Rep.  86;  Rose  v. 
Page,  2  Sim.  471;  Brisco  v.  Kenrick,  1 
C.  P.  Coop.  t.  Cott.  371;  and  see  Arnold 
V.  Bainbrigge,  2  l)e  G.,  F.  &  J.  92; 
Audslev  v.  llnnn,  26  Beav.  195;  6  Jur. 
N.  S.  205;  4  .Jur.  N.  S.  12G7;  1  De  G.,  F. 
k,  J.  226;  Story  Kq.  I'l.  §  193;  see 
Person  V.  Merrick,  5  Wis.  231;  Wright  V. 
Bunrlv,  11  Iiid.  398. 

e  Gordons.  Ilorsfall,  5  Moore,  393;  11 
Jur.  569. 

■?  Rose  V.  Page,  2  Sim.  471;  see  Parker 
V.  Fuller,  1  R.  &  M  656. 

8  L.  Red.  175.  In  Kunkel  v.  Markell, 
26  Md.  407,  Weispl  .J.  said:  "  The  principle 
is  well  establi-hed  that  upon  a  bill  to  fore- 
close, the  inortg;igiir  is  a  necessary  "party, 
unless  the  bill  discloses  a  state  of  facts  or 


PERSONS    HAYING    COXCUREENT    INTERESTS    \YITH    PLAINTIFF. 


215 


Under  the  provisions  of  the  late  Act  above  referred  to  with 
regard  to  trustees  rejjresenting  theii-  cestui  que  trusts,^  it  has  been 
held,  that  when  the  mortgaged  estate  was  vested  in  trustees,  who 
also,  as  executors  of  a  will  or  otherwise,  were  the  persons  who 
would  be  in  possession  of  the  funds  for  payment  of  the  mortgage 
debt,  they  might  properly  represent  the  beneficiaries,-  but  that 
when  this  was  not  the  case,  the  cestui  que  trusts,  or  some  of  them, 
must  be  before  the  Court.^ 

When  the  mortgagor  has  become  bankrupt,  he  is  not  a  necessary 
party  to  a  suit  for  foreclosure,  even  if  the  nssignees  disclaim ;  * 
though  the  last  proposition  appears  to  have  been  doubted  by  Sir 
James  Wigram  V.  C.^ 

The  same  principle  which  calls  for  the  presence  of  all  persons 
having  an  interest  in  the  equity  of  redemption  in  the  case  of  bills 
to  redeem  a  mortgage,  requires  that  where  a  mortgagee  seeks  to 
foreclose  the  mortgagor,  he  should  bring  before  the  Court  all  per- 
sons claiming  an  interest  in  the  mortgage  ;  ®  therefore,  a  derivative 
mortgagee  must  make  the  original  mortgagee,  or,  if  dead,  his  repre- 
sentative, a  party  to  a  bill  against  the  mortgagor  for  foreclosureJ 

If,  however,  a  mortgagee  has  assigned  or  conveyed  away  from 
himself,  not  only  the  money  due  on  the  mortgage,  but  also  the 
mortgaged  premises,  the  assignee  may,  as  we  have  seen,  foreclose 
Avithout  making  the  original  mortgagee  a  party,^  and  upon  the 
same  principle,  it  may  also  be  inferred,  from  the  case  oi  Menvoize 


Ch.  V.  §  1. 

Trustees,  if 
also  execu- 
tors, havinij 
redemption 
fund,  repre- 
sent their 
cestui  que 
trusts  of 
incumbered 
estates. 
Bankrupt 
mortgagor 
not  a  neces- 
sary- party, 
though 
assignees 
disclaim. 
All  persons 
interested  in 
mortgage 
should  be 
parties  to 
foreclosure 
suit. 


Original 
mortgagee 
not  necessary, 
where  mort- 
gage as- 
signed ; 


a  condition  of  thing',  —  as  for  instance, 
the  insolvency  of  the  mortgagor, —  which 
would  reniler  the  making  of  liim  a  p;irly 
unnecessary."  "  I'pon  a  bill  of  foreclo- 
sure," Mr.  Justice  Story  says,  "  the  mort- 
gagor himself  is  a  n^•ces^'ary  party,  as 
well  ;i8  tlie  incumbrancers,  whenever  he 

Eossesses  any  riftlit  wiiich  may  be  iiffectcd 
y  the  decree;  for  he  is  a  proper  piiit\'  to 
Ihe  account  of  wlmt  is  due  on  tlie  mort- 
gage; and  ultimately  lie  is  entitled  to  re- 
deem against  all  the  incumbrancers,  as 
the  person  iiavini;  the  ultimate  interest." 
Story  Kq.  I'l  §  195;  llallock  v.  Smith,  4 
John.  ('\\.  >'>i'J:  Farmer  r.  Curtis,  2  Sim. 
46«;  Worthinytoii  v.  i.ee,  '2  Bland,  678. 
But  wlieti  the  mortgagor  h;i8  conveyed 
the  mortgaged  premises  by  deed  of  nar- 
rantv  to  a  third  party  lie  cannot  maintiiin 
a  bifl  to  redeem.  I'liillipt  v.  Leavitt,  04 
Main*-,  405,  407. 

If  the  cfpiily  of  redemption  belongs  to 
dift'erfnt  pirsons,  as  devisee.",  '>r  as  lega- 
tees, having  charges  tlien^oii,  all  of  tliem 
should  be  jfiiiied  as  defciidants.  Storv 
Eq.  I'l.  §§11)3,  107;  AIcGown  v.  Yorks, 
6  John.  Cli.  450. 

If  the  mortgagor,  who  is  owner  of  the 
fee,  fhoulil  die,  bis  heir  is  an  indi«pcnsable 
DHfty  to  a  bll  to  forcclo.se.  Slory  En.  1*1. 
5  ItiO. 

Where  the  mortgagor  has  conveyed  his 


equity  of  redemption  absolutely,  the  as- 
signee only  need  be  made  a  party  to  the 
bill  to  foreclose.     §  197. 

1  15  &  16  Viol  C  86  §  42. 

2  llnnman  v.  Kilev,  9  Hare  App.  40; 
Sale  r.  Kit;-on,  3  l)e  G.,  M.  &  G.  119;  17 
.hir.  170;  10  Hare  App.  50;  Wilkins  v. 
IJeeves,  .3  W.  H.  305;  L.  R.  3  Eq.  494,  V. 
C.  \V.;  Marriott  v.  Kirkbam,  3  Gift".  536; 
8  Jur.  N.  S.  379. 

2  Goldsmith  v.  Stonehewer.  9  Hiire  App. 
38;  17  Jur.  199;  Young  r.  Ward,  10  Hare 
Af)p.  58;  Cropper  v.  Jlellersh,  1  Jur.  N. 
S.  299,  V.  C.  S  ;  and  see  Sitfken  v.  Davis, 
Kay  App.  21;  Wilkins  v.  iiuevc*,  supra  ; 
Tuder  V  Morris,  1  Sm.  &  (J.  503;  Wat- 
teis  V.  J..nes,  6  .(ur.  N.  S.  530,  V.  C.  S. 

*  Co.linsi,'.  Shirley,  1  U.  &  M.  638;  Ker- 
rick  r.  Sa(lcr\',  7  Sim.  317;  see  ulso  ("ash 
V.  H.icher,  1  "Hare,  310;  6  Jur.  190;  Eord 
V.  White,  10  Heav.  120. 

'^  .^ini'iclon  v.  Cox,  4  Hare,  320. 

fi  See  Story  Kq.  I'l.  §  199;  4  Kent  (lllh 
ed.),  186;  Western  lie-erve  Bank  v.  Pot- 
ter, 1  Clarke,  432. 

T  Hobart  v.  Abbot,  2  P.  AVms.  043. 

8  Miller  r.  Henderson,  2  StocUt.  (X.  .f.) 
320,  194.  .\  morlgiigee  ol  land  « ho  has 
as.signed  his  interest  in  the  mortgage  .since 
the  brciich  of  the  coniiilion  may  be  in- 
cluded as  n  defendant  in  a  bill  to  redeem. 
Doody  V,  Pierce,  a  Allen,  141. 


21(5 


OF    rAKTIES    TO    A    SUIT. 


Cm.  V. 


Ill  matters  of 
account. 


Partnersliip. 


Residues. 


V.  Cooper,^  that  wIhto  a  luorto-ngoe  lias  devised  his  interest  in  tlie 
mortuaue  in  sueli  a  maniu'r  as  to  pass  not  only  the  mortgage  money 
but  the  estate  mortgaged,  the  devisee  alone  may  foreclose  without 
making  the  heir-at-law  of  the  original  mortgagee  a  party,-  uidess 
he  claims  to  have  the  will  established  ;  ^  in  which  case  he  must  be 
made  a  defendant,  because  it  has  been  held  that  a  devisee  and  heir 
cannot  join  in  the  same  suit,  even  upon  an  allegation  that  they  have 
agreed  to  divide  the  matter  in  question  between  them.* 

The  rule  which  requires  that  all  jjarties  interested  in  the  object 
of  a  suit  should  be  parties  to  the  bill,  applies  to  all  cases  in  which 
an  account  is  sought  against  a  defendant.  One  person  cannot  ex- 
hibit a  bill  against  an  accounting  party  Avithout  bringing  before 
the  Court  all  persons  who  are  interested  in  having  the  account 
taken,  or  in  the  result  of  it,  otherwise  the  defendant  might  be 
harassed  by  as  many  suits  as  there  are  parties  interested  in  the 
account.^  Thus,  in  a  suit  for  a  partnership  account,  or  for  a  share 
of  a  partnership  adventure,  it  is  in  general  necessary  that  all  per- 
sons having  shares  in  the  same  adventure  should  be  parties,®  and  a 
residuary  legatee  seeking  an  account  and  share  of  the  residue, 
must  bring  before  the  Court  all  the  parties  interested  in  that 
residue :  '^   either  active  parties,  by  making  them  plaintiffs  or  de- 


1  6  Mad.  371. 

2  Grahiim  v.  Carter,  2  Hen.  &  M.  6. 

3  Lewis  V.  Nanole,  2  Ves.  631. 

*  Cliolmondeley  v.  Clinton,  1  T.  &  E. 
104,  116. 

6  McCabe  v.  Bellowes,  1  Allen,  269,  270; 
NewEngiaiid.&c,  Bank?;.  Newport  Steam 
Factory,  6  IJ.  I.  154. 

6  Ireton  v.  Lewis,  Eep.  t.  Finch,  96; 
Moflfatt  V.  I'arquluirson,  2  I5ro.  C.  C  338, 
and  Mr.  Belt's  note  (1);  but  it  is  to  be 
obser\-eil,  that  notwitlistaiidiiif;  the  deci- 
sion in  this  case,  they  may  be  made  ffiasi 
parties  by  the  plaintift'  suincr  on  beh:ilf 
of  himself  and  on  their  behalf.  Gorjd  v. 
Blewit,  13  Yes.  397;  and  see  Hills  v. 
Kash,  1  rhil.  594;  10  Jur.  148;  Cullen 
V.  Duke  of  Queensberry,  1  Bro.  C.  C  101, 
and  Jlr.  Belt's  note;  Dozier  t'.  Edwards,  3 
Litt.  72;  Storv  Eq.  PL  §  166;  Story 
Piirtn.  §  449;"Collyer  Partn.  (I'erkins's 
ed.)  §  361;  Wells  v.  Stranf^e,  5  Geo.  22; 
Mudftelt  V.  Gager,  52  Maine,  541.  When 
a  bill  in  Equity,  brought  by  one  of  four 
partners,  against  one  only  of  the  other 
tliree,  for  an  account,  &c.,  alleges  that  the 
other  two  are  not  within  the  jurisdiction 
of  the  Court;  that  all  the  others  have 
received  their  full  share  of  the  partner- 
ship effects;  and  th:it  the  defendant  has 
received  much  more  than  his  share,  and 
the  plaintiff  much  less;  a  demurrer  to  the 
bill,  i'i<r  nonjoinder  of  the  other  partners 
as  del'endants,  will  nut  be  .'ustained. 
Towle  II.  Pierce,  12  Met.  329;  see  Story 
Eq.  PI.  §  78;  Vose  v.  Philbrook,  3  Story, 


335;  Lawrence  v.  Pokes,  53  Maine,  110, 
116;  ISlallow  v.  Ilinde,  12  Wheat.  It3; 
Fuller  I'.  Benjamin,  23  Miiine,  255;  Mud- 
gett  V.  Guger,  52  Maine,  541. 

But  a  bill  seeking  an  adjustment  of  the 
accounts  between  the  part-owners  of  a 
vessel,  some  of  whom  reside  without  the 
jurisdiction  of  the  Court,  canin^t  be  sus- 
tained, unless  such  non-residents  are 
summoned  to  answer,  or  it  appears  from 
the  allegations  in  the  bill  that  not  only 
their  interests  will  not  be  prejudiced  by 
the  decree,  but  also  that  they  are  not 
necessary  to  the  just  ascertainment  of  the 
merits  of  the  case.  Mudgett  v.  Gager,  52 
Maine,  641.  It  is  not  enough  that  the  bill 
allege  that  the  plaintiff  does  not  claim 
there  is  any  thing  due  to  him  from  said 
non-residents;  or  that  he  does  not  seek 
thereby  to  recover  an3'  thing  from  them. 
JIudgett  V.  Gager,  siipra.  Peprc-^enta- 
tives  of  a  deceased  partner  should  be 
made  parties  to  a  bill  to  diss(jlve  a  part- 
nership, and  the  bill  may  be  amended  for 
that  purpose.  Buchard  v.  Boyce,  21  Geo. 
6.  To  a  claim  seeking  payment  of  a  part- 
nership debt  out  of  the  assets  of  a  deceased 
part  n('r,  the  surviving  partner  is  a  necessary 
jiarty.  Hills  v.  M'Pea,  5  Eng.  Law&  Eq. 
233."  So  the  heirs  of  a  deceased  partner 
must  be  parties  when  a  sale  of  real  estate 
is  sought  for  the  payment  of  firm  debts. 
Pugli  V.  Currie,  5  Alii.  446;  Lang  v.  War- 
ing, 25  Ala.  625;  Andrews  v.  P^own,  21 
Ala.  437. 

7  Parsons  v.  Neville,  3  Bro.  C.  C  365. 


PERSONS    HAVING   CONCURRENT    INTERESTS    WITH   PLAINTIFF. 


217 


fendants  to  the  bill ;  or  passive  parties,  by  serving  them  with 
notice  of  the  decree.^  And  so,  "where  a  moiety  of  a  residue  was 
given  to  one  of  the  defendants  for  life,  and,  upon  his  decease,  to 
such  persons  as  she  should  appoint,  and,  in  default  of  appointment, 
to  certain  other  persons  for  life,  it  was  held  that  the  other  persons, 
although  their  interests  depended  upon  such  a  remote  contingency, 
ought  to  be  before  the  Court.^ 

Upon  the  same  principle  it  is,  that  in  suits  by  next  of  kin  against 
a  personal  representative  for  an  account,  the  Court  requires  that 
all  the  next  of  kin  should  be  parties  to  the  suit,^  in  the  same 
manner  as  in  the  case  of  residuary  legatees ;  either  as  plaintiffs  or 
defendants  to  a  bill,  or  by  being  served  with  notice  of  the  decree.* 
It  is  to  be  observed,  that  in  all^  cases  where  the  parties  claim 
under  a  general  description,  or  of  being  some  of  a  class  of  persons 
entitled,  the  Court  would  not  formerly  make  a  decree  without 
being  first  satisfied  that  all  the  individuals  of  the  class,  or  who 
came  under  the  general  description,  were  before  it.  For  this  pur- 
pose the  Court,  in  cases  of  this  description,  before  directing  an 
account,  or  other  relief  prayed  by  the  bill,  referred  it  to  one  of  the 
Masters  to  inquire  Avho  the  individuals  of  the  class,  or  answering 
the  general  description,  were ;  and  then,  if  it  turned  out  that  any 
of  them  were  not  before  the  Court,  the  plaintiff  must  file  a  supple- 
mental bill,  for  the  purpose  of  bringing  them  in  before  the  cause 


Ch.  V.  §  1. 


In  suits  by- 
next  of  kin 


Practice 
where  suit  by 
some  of  class ; 


Inquiry  as  to 
class  divest- 
ed. 


In  Cockburn  r.  Thompson,  16  Ve"?.  328, 
Lord  Kldon  faiil,  this  admits  of  exception, 
where  it  is  not  necessary,  or  incoiivcnietit. 
Storv  Kf|.  I'l.  §  MJ,  and'  notes,  §  203.  204; 
Pritchiird  v.  llitlts,  1  Paifje,  2o.3;  Shep- 
parl  V.  Starke,  3  Munf  29;  l$ro\vn  ?;. 
IJicketts,  3  .lolin.  Ch.  533;  Davoue  v. 
Fatiniiif;.  4  John.  Ch.  199;  West  v.  Ran- 
dall. 2  Miisoii,  181,  190-199;  Hiison  v. 
M'Kcnzip,  Dev.  Kq.  4G3;  Arcndell  v- 
I'.iackw.-ll,  ib.  3-^4;  Hethij  r.  Wilson,  1 
Dev.  &  lint.  F.q.  610.  In  lirown  ?'.  Hick- 
ctfs,  3  .1.  Iiii.  Ch.  .'-.'i3,  Mr.  Chancellor  Kent 
sfcnis  to  have  thoii;;lit,  th;it  all  the  resid- 
uary legatees  should  he  technically  par- 
ties by  name.  So  in  Davoue  v.  Fanning 
4  .lolm.  Ch.  199.  It  has,  however,  been 
intimated  aiul  maintained  in  other  cases 
that  a  H'siduary  lefjatee  mij,'ht  sue  in  be- 
half "f  himself  and  all  others,  without 
makiii;;  them  technically  [larties.  Si'e 
Kettle  ('.  Ctary,  1  Taiire,  417,  419,  420, 
and  note;  l!oss  i'.  Crar}',  1  raif;;e,  416; 
Ilalle't  V.  Ilallett,  2  l'ai(,'e,  19.  20;  KRhert 
r.  Woods,  3  l'.ii>,'e,  517.  Itiile  1,  adopted 
in  15  &  16  Vic.  c.  86,  provides  flint  "  atiy 
residiiiiry  legatee  or  next  of  kin  may, 
without  "servinf^  the  remaining?  residuary 
legatees  or  next  of  kin,  li;ive  a  decice  for 
the  adminisTafion  of  the  persoinil  estate 
of  a  di-ceaserl  j)eison." 

1  15  .<L-  16  Vice.  86,  §  42,  rr.  1,  8. 

2  Sherrit  v.    liirch,   3    Hro.   C.    C.    229 


(Perkins's  ed.  note);  Davies  r.  Davies,  11 
Knjj.  Law  &Eq.l99;  Lenaphan  r.  Smith, 
2  Phil.  301;  11  ,Tur.  503;  but  not  when 
the  share  has  been  ascertnined  and  in- 
vested. Smith  7,v  Snow.  3  Mad.  10;  Hares 
V.  Stringer,  15  Beav.  206;  see  also  Grace 
V.  Terriugton,  1  Coll.  3.  A  contingent  in- 
terest depending  on  the  event  of  a  suit 
is  not  such  an  interest  as  to  make  the 
person  liaving  it  a  necessary  pnrty.  Bar- 
bour V.  Whitlock,  4  Monroe,  180;  see  Iteid 
V.  Vanderheyden,  5  Cowen,  719. 

3  See  Hawkins  i'.  ILiwkins,  1  Hare, 
543,  546;  6  .Jur.  638,  explaining  Caklecott 
V.  Caldccott,  C  &  P.  183;  5  Jur.  212;  and 
see  Shuttleworth  v.  Howarth,  C.  &  P. 
230;  5  Jur.  499;  Noland  r.  Tinner,  5  J.  J. 
IMarsh.  179;  West  v.  Kandnll,  2  Mason, 
181;  Kelhir  v.  I?celor,  5  Munroe,  573; 
Oldham  v.  Collins,  4  J.  J.  Marsh.  50; 
Story  Kq.  PI.  §  89.  and  cases  cited;  sea 
also  Hule  1  in  preceding  note  1. 

■•  15  &  16  Vic.  c.  86,  §  42,  rr.  1,  8. 

<■  AVlittre  one  of  the  next  of  kin  of  an 
Intestate,  vho  died  in  India,  procured 
letters  of  administration  to  his  elVectS 
liere,  it  was  held  that  he  might  sue  the 
person  who  had  taken  out  an  Indian  ad- 
ministration, and  had  afterwards  come  to 
this  country,  witliont  inakinc  the  rest  of 
the  next  ot'  kin  pjirties.  Siindihinds  v. 
lunc'),  3  Sim.  204;  hut  see  Stoiv  Kq.  Pi. 
§  179;  Story  Couf.  Laws,  §§  513,  514. 


218 


OF    rAIlTIES    TO    A    SUIT. 


Cn.  V.  §  1. 


Formerly, 
deoroo  iiuule 
coiitiiii;ont  on 
n'sult  ol"  iii- 
iiuiry ; 


But  now,  in- 
qiiirv  should 
uot,  in  terms, 
be  pri'Iimiiia- 
r\-  to  taking 
the  accounts. 


One  legatee 
interested  in 
realty,  or  one 
residuary  de- 
visee or  heir, 
may  have  an 
administra- 
tion decree ; 
but  the  others 
must  have 
notice  of  it. 

Exceptions  to 
rule,  where 
some  of  the 

Earties  have 
een  account- 
ed with  and 
paid; 


was  ruially  hoanl.^  And  acconling  to  Sir  Jamt'S  Wigraiu  V.  C, 
in  an  adnrniistvatioii  suit,  in  which  inquiries  are  necessary  to  ascer- 
tain who  are  the  ])arties  benolicially  interested  in  the  estate,  it  is 
irre^uhu-  to  direct  the  accounts  to  be  taken  until  after  the  inciuiries 
have  been  made,  and  the  Master  has  made  his  report.  But  wliere 
the  i)arties  interested  are  the  children  of  a  party  to  the  suit,  or  are 
persons  of  a  class  in  such  circumstances,  that  the  Court  may  be 
reasonably  satisfied,  at  the  hearing,  that  all  parties  beneficially 
interested  are  parties  to  the  record,  the  Court  may,  at  the  time  of 
directing  the  inquiries,  also  order  that,  if  the  Master  shall  find  that 
all  the  persons  beneficially  interested  arc  parties  to  tlic  suit,  he  do 
then  proceed  to  take  the  account ;  this  is,  however,  an  irregularity; 
and  tlie  Court  will  not  make  the  order  in  that. form,  unless  it  be 
reasonably  clear  that  all  the  persons  interested  are  parties.^  Under 
the  present  practice  of  the  Court,  however,  it  being  no  longer 
necessary  to  make  all  the  residuary  legatees  or  next  of  kin  parties 
for  the  purpose  of  the  decree,  although  it  is  usual  still  to  direct 
such  an  inquiry  as  above  mentioned,  yet  it  should  not  in  terms  be 
made  preliminary  to  taking  the  accounts,  in  order  that  the  Judge's 
discretion  to  proceed  in  the  absence  of  the  parties  may  not  be 
fettered.^ 

In  like  manner  as  in  the  case  of  residuary  legatees  and  next  of 
kin,  one  legatee  interested  in  a  legacy  charged  upon  real  estate, 
one  of  the  persons  interested  in  the  proceeds  of  real  estate  directed 
to  be  sold,  or  one  residuary  devisee  or  heir,  may  have  an  adminis- 
tration deci'ce,  without  making  the  others  of  the  class  parties  in 
the  first  instance  ;  though  they  must  be  served  with  notice  of  the 
decree.* 

The  nde  that  all  persons  interested  in  an  account  should  be 
made  parties  to  a  suit  against  the  accounting  party,  will  not  apply 
where  it  appears  that  some  of  the  parties  interested  in  such  ac- 
count have  been  accounted  with  and  paid ;  thus,  in  the  case  of  a 
bill  by  an  infant  cestui  que  trust  coming  of  age,  for  his  share  of 
a  fund,  it  is  the  constant  practice  to  decree  an  account  with<jut 
requiring  the  other  cestui  que  trusts  who  have  come  of  age  before. 


1  But  see  Waits  v.  Templer,  1  S.  &  S. 
319;  Story  Eq.  PI.  §  90,  and  notes.  But 
one  of  several  of  the  next  of  kin  of 
an  intestate,  entitled  to  distribution,  may 
sue  for  his  distributive  share  without 
making  the  other  distributees  parties,  if 
the  latter  nre  unknown,  or  cannot  be 
found,  and  that  fact  is  charged  in  the  bill. 
lb.  In  such  case  the  bill  niny  properly 
be  filed  on  behalf  of  the  pluintiff,  and  also 
of  all  the  other  persons  who  may  be  en- 
titled as  distributees.  Ih.  KuleS  adopted 
in  13  &  16  Viet.  86,  provides  that  "  In  all 
cases  of  suits  for  the  protection  of  property 


pending  litigation,  and  in  all  cases  in  the 
nature  of  trusts,  any  person  miiy  sue  on 
behalf  of  himself  and  of  all  persons  hav- 
ing the  same  interest." 

2  Baker  v.  Hnrwood,  1  Hare,  327;  see 
also  Hawkins  v.  Hawkins,  1  Hare,  543;  6 
Jur.  G38;  Sav  v.  Crce'l,  3  Hare,  455;  8 
Jur.  893;  Phillipson  v.  Gatty,  6  Hare,  26; 
12  .lur.  4.30. 

8  Seton,  188;  Ord.  XXXV.  18;  and  as 
to  evidence  necessary  to  support  siuh  an 
inquirv,  see  Milieru.  Briddon,  1  M'N.  &  G. 
687. 

4  15  &  16  Vic.  c.  86,  §  42,  rr.  2,  3,  8. 


PERSONS    HAVrSG    CONCURRENT   INTERESTS    WITH    RLAINTIFF. 


219 


and  have  received  their  shares,  to  be  before  the  Coiirt.^  And  in 
the  case  of  a  partnership,  where  a  bill  was  filed  against  factors  by 
the  persons  interested  in  one  moiety  of  a  cargo  of  tobacco,  for  a 
discovery  and  account  as  to  that  moiety,  without  making  the  per- 
son interested  in  the  other  moiety  a  party,  and  it  appeared  that 
the  defendants  had  distinguished  in  their  accounts  between  him 
and  the  plaintiffs,  and  had  divided  the  funds,  and  kept  sej^arate 
accounts,  the  Court  held  that  the  owner  of  the  other  moiety  was 
not  a  necessary  party  to  the  suit.^  And  where  A.,  B.,  C,  being 
partners  together,  A.  agreed  with  D.  to  give  him  a  moiety  of  his 
share  in  the  concern,  it  was  held  that  an  account  might  be  de- 
creed between  A.  and  D.  without  making  B.  and  C.  parties.^  It 
is  also  held,  that  to  a  bill  by  a  person  entitled  to  ascertain  aliquot 
portion  of  an  ascertained  sura  in  the  hands  of  trustees,  the  co-cestui 
que  t/msts  are  not  necessary  parties.*  In  some  cases  where  a  party 
having  a  joint  interest  with  the  plaintifis  in  the  taking  of  an 
account  has  been  abroad,  the  cause  Avill  be  allowed  to  go  on  Avith- 
out  him  ;  ^  thus,  in  the  Exchequer,  where  a  bill  was  filed  by  some 
of  the  children  of  a  freeman  of  London,  who  was  dead,  for  an 
account  and  division  of  his  personal  estate,  and  it  appeared  that 
one  of  the  children  was  beyond  sea,  the  Court  was  moved  that 
they  might  hear  the  cause  without  him;  and  that  if  it  appeared 
that  he  had  any  right,  he  might  come  before  the  deputy  remem- 
brancer on  the  account ;  and  though  no  precedent  was  produced 
of  such  an  order,  the  Court  gave  liberty  to  hear  the  case  without 
hini.'^ 

The  question  whether  a  trustee  of  an  estate  can  be  called  upon 
by  a  purchaser  of  a  portion  of  an  estate  sold  to  difierent  persons 
under  a  trust  for  sale,  without  bringing  all  the  other  j^ersons  in- 
terested in  the  same  estate  before  the  Court,  was  discussed  before 
Lord  Kldon,  in  the  case  of  Goodson  v.  Ellison?  In  that  case  the 
persons  beneficially  interested  in  an  estate  vested  in  trustees  had, 


Ch.  v.  §  1. 


and  in  cases 
of  partner- 
ship. 


Where  bill  is 
for  portion  of 
ascertained 


Where  party- 
having  joint 
intere.-it  is  out 
of  the  juris- 
diction. 


Purchasers  of 
difierent  por- 
tions of  an 
estate  from 
beneliciaries, 
where  legal 
estate  out- 
standing. 


1  D-Woif  f.  D'Wolf,  4  R.  I.  450.  So 
wliere  the  division  of  an  estate  in  pursu- 
ance of  a  will,  is  not  to  he  made  at  one  and 
the  same  time,  but  at  the  several  periods 
wIk'U  any  one  or  more  of  the  lofjatees  shall 
separate  from,  the  testator's  family,  it  i-*  not 
ne<«;!^siiry  that  all  ilie  legatees  be  made  [lar- 
ties  locach  mit  in  ('lianecry  for  a  division  ; 
l)ut  ordy  tho-(!  entitled  to  y)articipate  in  the 
divi.'-iiin  thin  in  f^utglion.  JJranch  j;.  Hooker, 
3  Munf.  43.  So  where  it  appeared,  that 
some  of  the  h'^atees  had  obt:iin<d  rlecrees, 
in  uniitlier  '•uit.  for  liicir  portions,  it  was 
pP'per  lo  dismiss  the  liill  iis  to  them,  they 
liavintc  been  made  defeinlants.  Moore  t'. 
licanctoimp,  5  Dana,  71. 

2  Wcymonth  )•.  lioyer,  1  Ves.  .1.  410;  sec 
also  Anon..  2  Kq.  Ca.  Ab.  ICG,  pi.  7;  Hills 
I'.  Na.sh,  1  I'hil.  594,597;  10  Jur.  148. 


3  Brown  v.  De  Tastet,  .Tac.  284 ;  see  also 
Brav  t'.  Fromont,  6  Mad.  5. 

4  "Perry  v.  Knott,  5  Ueav.  29.3;  Smith  v. 
Snow,  3  Mad  10;  Story  E(|.  PI.  §§207,  212; 
Hares  r.  Strinjier,  15  Ileav.  20C  ;  Lenajjlian 
r-'.  Smith,  2  I'hil.  301;  11  Jur.  503;  Hunt  v. 
Peacock,  (i  Hare,  361 :  11  Jur.  555. 

<■'  Stoiv  E(|.  I'l  §§  78-S9,aud  cases  cited; 
Milli;,'aTi"  v.  .Milled^e,  3  Criincii,  220;  West 
V.  Katidall.  2  Mason,  190;  Weymouth  v. 
Boyer,  1  Sumner's  Ves.  410,  note  (c),  and 
cases  cited;  Towie  v.  Pierce,  12  Met.  329; 
S'ory  Kcp  PI.  §  78;  Vo«e  v.  Phillirook,  3 
Story  335;  nnte,  210,  note;  Lawrence  v. 
Pokes,  53  .Maine,  110;  Mud^ett  f.  Gager, 
52  Maine.  641. 

0  K-fjers  V.  Linton,  Bunb.  200. 

^  3  Kuss.  583,  693,  596. 


220 


OF   TARTIES    TO   A    SUIT. 


Cn.  V.  §  1. 


Cestui  que 
trusts,  in  suits 
bj-  trustees ; 


for  specific 
performance, 
under  trusts 
for  sale. 


many  years  before  the  commencement  of  the  suit,  jtroccedcd  to 
sell  the  entirety  in  various  lots,  one  of  which  Avas  ]uirchase(l  by 
the  )ilaintitf,  and  all  the  i^ersons  beneficially  interested  joined  in 
conveying  it  to  him.  The  trustee,  however,  did  not  join,  and 
upon  his  death  the  legal  estate  became  vested  in  the  defendants, 
xipon  Avhosc  refusal  to  convey  without  the  sanction  of  the  Court, 
the  bill  was  filed,  and  a  decree  for  a  conveyance  by  the  defendants 
was  pronounced  by  Lord  Gilford  M.  R.,  who  directed  that  they 
should  pay  the  costs  of  the  suit.  Upon  ap])eal,  hoAvever,  to  Lord 
Eldon,  his  Lordship  expressed  considerable  doubts  Avhether  a 
trustee  could  be  called  upon  to  divest  himself  of  a  trust  by  con- 
veying different  parcels  of  the  trust  jiroperty  at  different  times, 
and  whether  it  was  not  therefore  necessary  to  have  all  the  otlier 
cestui  que  trusts  before  the  Court ;  but  upon  re-argument  the 
Lord  Chancellor  stated,  that  he  thought  there  were  parties  enough 
before  the  Court  to  enable  him  to  make  a  decree,  but  as  it  Avas  the 
case  of  an  old  trust,  he  thought  the  Court  was  bound  to  inquire 
into  the  facts,  and  that  the  trustees  had  a  right  to  have  the  con- 
veyance settled  in  the  Master's  office. 

It  is  a  general  rule,  arising  out  of  the  preceding  principles,  ad- 
mitting of  A'cry  fcAV  exceptions,  that  a  trustee  cannot,  under  ordi- 
nary circumstances,  institute  proceedings  in  Equity  i-elating  to  the 
trust  property,  wdthout  making  the  cestui  que  trusts  parties  to  the 
proceeding.^  Thus,  Avhere  a  bill  is  filed  by  trustees  for  sale,  against 
a  purchaser,  for  a  specific  performance  of  the  contract,  the  cestui 
que  trusts  of  the  purchase-money  must  be  parties  unless  there  is  a 
clause  in  the  trust  deed  declanng  the  receipt  of  the  trustees  to  be 
a  sufficient  discharge,  which  is  considered  as  a  declaration  by  tl»e 
author  of  the  trust,  that  the  receipt  of  the  persons  beneficially 
interested  in  the  jiroduce  of  the  sale  shall  not  be  necessary ;  ^  and 


1  Kirk  17.  Clark,  Preo.  Cha.  275;  Large 
f.  A"an  Doren,  1  McCarter  (N.  J.),  208; 
Phillipson  v.  (5atf_v,  6  Hare,  26;  12  .lur. 
430;  see,  however,  Alexander  v.  Cana, 
1  De  G.  &  S.  415.  A  mere  nominal  trustee 
cannot  brinp  a  suit,  in  his  own  name,  with- 
out joininj,'  his  cestui  que  trusts  with  him. 
Stilwell  V.  IM'Xeelv,  1  Green  Ch.  205; 
Schenck  «.  Ellinawood,  3  Edw.  Ch.  175; 
Helm  V.  H:irdin.  2  I?.  .Monr.  2.32;  IMalin  v. 
Malin,  2  .John.  Ch.  238;  Fish  v.  Rowland, 
1  Paipp,  20 :  P.ifield  v.  Taylor,  1  Beattv,  03 ; 
Storv  Eq.  PI.  5§  207,  209 ;"  Busney  v.  Spear, 
17  Geo.  223 :  jhill  v.  Harris,  1 1  Texas.  300 ; 
Woodward  r.  AVood,  19  Ala.  213;  Richards 
V.  Richard.^  9  Gray,  313.  AVhere  a  bill  in 
Equ'ty  to  enforce  the  specific  performance 
of  a  contract  involves  the  title  of  the  cestui 
9Me^?•«J!/«  to  the  property  in  dispute,  or  where 
they  are  interested,  not  only  in  the  fund 
or  estate  respecting  which  the  question  at 


issue  has  arisen,  but  also  in  that  question  it- 
self, thev  are  necessary  partie'^.  Van  Doren 
V.  Kobin.son,  1  C.  E.  Green  (N.  J.).  256. 
Pule  4,  adopted  in  15  &  16  Vic.  c  86,  pro- 
vides that  "any  one  of  several  cestui  que 
trusts  under  any  dee  1  or  instrument  may, 
without  serviiijrany  other  of  such  cestii!  que 
trusts,  have  a  decree  for  the  execution  of 
the  trusts  of  the  deed  or  instrument :  "  see 
M'Leod  V.  Annesley,  IC  Ueav.  G'i7;  .Tones 
V.  Jiimes,  9  Hare  App.  80.  Tiie  cestui  que 
trusts  are  not  necessary  parties  to  a  suit  in 
which  a  mortgagee  for  their  benefit  is  br  'U^ht 
in  question, —  ilieir  trustees  are  the  proper 
parties  to  ref)resent  them.  New  .Jersey, 
&c.,  Co.  V  Ames,  1  l^easlev  (N.  .T.),  507; 
Asiitonr.  Atlantic  Hank,  3  Allen,  219.  220; 
81riw».  Norfolk  County  U.  It  Co.,  5  Graj', 
170,  171;  Wrigiit  v.  Pundv,  4  Ind.  398. 

2  Per  Sir  .J.  Leach  V.'C,  Calverly  v. 
Phelp,  6  .Mad.  232. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF.  221 

where  a  bill  was  filed  by  certain  persons,  describing  themselves  as     Ch.  V.  §  1. 
trustees  for  a  society  consisting  of  a  great  number  of  persons,  for    '        ,        ' 
the  specific  performance  of  an  agreement  entered  into  by  them-  Not  neces- 
selvcs  for  the  benefit  of  the  society,  and  a  demurrer  was  put  in  ^eceipls^o? 
because  the  members  of  the  society  were  not  parties  to  the  suit,  tmsteesgood 
upon  the  argument  of  which,  it  was  insisted  that  a  trustee  could  ^^^^^^'^^  ^f  ^^ 
not  file  a  bill  respecting  the  trust  property,  without  making  the  numerous  so- 
cestui  que  trust  a  party ;  and  that,  although  the  members  of  the  ^ntehdf  ofil 
society  were  so  numerous  that  it  was  not  practicable  to  make  all  for  specific 
of  them  parties,  the  bill  ought  to  have  been  filed  by  some  of  them  ^^^  ormance. 
on  behalf  of  themselves  and  the  others,  and  that  it  did  not  appear 
by  the  bill  that  the  plaintifis  were  even  members  of  the  society,  the 
demurrer  was  upon  these  grounds  allowed.^     Upon  the  same  prin-  Executor  of 
ciple,  if  a  mortgagee  dies,  and  his  heir  files  a  bill  of  foreclosure,  the   "^^f^y^^s'  '"^ 
executor  of  the  mortgagee  must  be  a  party,^  because,  although  at  heir  to  fore- 
Law  the  legal  right  to  the  estate  is  in  the  heir,  yet  in  Equity  he  is  ^°''^' 
only  considered  as  a  trustee  for  the  executor-,  who  is  the  person 
entitled  to  the  mortgage  money;-'  and  for  this  reason,  where  the 
heir  of  the  mortgagee  had  foreclosed  the  mortgagor  without  making 
the  executor  of  the  mortgagee  a  party,  and  a  bill  was  filed  by  the 
executor  against  the  heir,  the  land  was  decreed  to  the  executor.* 
It  seems,  however,  that  although  the  personal  representative  is  the  but  heir  of 
person  entitled  to  receive  the  money,  the  heir  has  a  right  to  say  "J^^yfefe^m 
that  he  will  pay  off"  the  mortgage  to  tlie  executor,  and  take  the  the  mortgage. 
benefit  of  the  foreclosure  himself;^  and  for  this  reason  as  well  as 
that  before  stated,  the  heir  of  a  mortgagee  is  a  necessary  party  to 
a  bill  of  foreclosure  by  the  personal  representative,®  unless  the 
mortgagee  has  devised  the  mortgaged  estate,  in  which  case,  as  we 
have  seen,  his  heir  is  not  a  necessary  party  to  a  bill  by  the  devisee 
to  foreclose  the  equity  of  redemption.'' 

There  are  instances  in  which,  under  peculiar  circumstances,  in  what  cases 
trustees  are  alloweil  to  maintain  a  suit,  without  their  cestui  que  gue'^wUhout^ 
trusts  as  in  the  case  Ijefore  mentioned,  of  trustees  under  a  deed,  by  cestui  que 

tfusts, 

which  estates  are  vested  in  them  upon  trusts  to  sell  and  to  apply 
the  produce  amongst  creditors  or  others,  with  a  clause,  declaring 
the  receipt  of  the  trustees  to  be  a  good  discharge  to  the  pur- 

1  Douglas  V.  Ilorsfall,  2  S.  &  S.  184.  Mass.  309;  Grace  v.  Hunt,  Cooke  (Tenn.), 

2  See    Koiith   V.    Smith,   5   Conn.    1.3.3;  314;  Dcnn  u.  Spinning,  1  Halst.  471. 
Graham  v.  Carter,  2  Hen.  &  M.  6;  Story  *  Gobe  v.  Carlisle,  cited  2  Vern.  06. 
Kq.  I'i.  §  200.  ''  Clerkson  v.  JJowyer,  2  Vern.  00. 

3  Freaite  «.  Ilorsev,  Nels.  93 ;  2  Freem.  «  Story  Kq.  I'l.  §  200;  Davis  u  lleming- 
IHO,  S.  C.  ;  1  Cli.  Ca.  51,  S.  C.  ;  2  K(|.  Ca.  way,  29  Vt.  438.  The  lioirs  of  a  deceased 
Al).  "7,  S.  C.;  Dexter  r.  Arnohl,  1  Sumner,  m<irtf;agee  cannot,  however,  sustain  a  bill 
113;  4  K'-nt  ;iltti  cd  ),  l>itj;  Coin.  Dig.  for  foreclosure,  but  it  must  be  brought  in 
Tit.  Chun  ,4  A.  9;  Demarest?;.  Wvnk'iop,  the  name  of  IJie  executor  or  ii(linini>trator. 
3  John.  Ch.  145;  Scott  v.  Macfarfand,  13  Roath  v.  Smith,  5  Conn.  133. 

''  Kenvoize  v.  Cooper,  0  .Mad.  371. 


222 


OF    TAUTIES    TO    A    SUIT. 


Ch.V.  §1. 


30th  Onl.  of 
Aug.,  1841. 


I'luisers.^  And  now  by  the  ;Ui(h  Order  of  Au<;ust,  1841,  in  uU  suits 
concerning  real  estate  wliicli  is  vested  in  trustees  by  devise,  and 
such  trustees  are  coni]»etent  to  sell  and  <;ive  discharges  for  the 
proceeds  of  the  sale,  and  for  the  rents  and  jirolits  of  the  estate, 
sucli  trustees  shall  represent  the  persons  beneiicially  interested  in 
the  estate,  or  the  proceeds,  or  the  rents  and  proHts,  in  the  same 
manner,  and  to  the  same  extent;  as  the  executors  or  administrators 
in  suits  concerning  ])ersonal  estate,  represent  the  ])ersons  hencfi- 
cially  interested  in  such  personal  estate;  and  in  such  cases  it  shall 
not  be  necessary  to  make  the  persons  beneiicially  interested  in  such 
real  estate,  or  rents  and  profits,  parties  to  the  suit.'^  But  the  Court 
may  upon  consideration  of  the  matter  on  the  hearing,  if  it  shall 
so  think  fit,  order  such  i:)ersons  to  be  made  parties.     This  order  ap- 


1  See  Calverly  v.  Phelp,  6  Mad.  229 ;  as 
to  foreclosure  in  such  case*,  s^cepost,  S.  U. 
AVliere  it  appears  on  tiie  face  of  the  con- 
tract ihat  it  was  the  intent  of  the  parties 
to  exclude  tlie  cestui  que  trust  from  the  ne- 
ces-ity  of  taking  any  part  in  the  transaction 
relating  to  the  management  of  tiie  tru^^t,  tlie 
cestui  que  truH  is  not  a  necessary  party. 
Biliehl  v.  Taylor,  1  Heat.  91;  S.  C.  1  Moll. 
192.  So  where  a  hill  is  hrought  by  the 
tru>tee  to  obtain  possession  of  the  trust 
property,  an' I  the  cestui  que  trust  has  no 
interest  in  the  possession.  Furjiuson  v. 
Aiipieiihite,  10  Sm.  &  M.  301;  Ashton  v. 
Atlantic  Hank,  .3  Allen,  219,  220.  A  trus- 
tee may  maintain  a  bill  to  redeem  a  mort- 
gage, made  by  himself,  of  the  trust  estate, 
without  makinghis  cestui  que  trust  {\  party. 
Boyden  v.  Partridiie,  2  Gr.iy,  190. 

Where  a  mortgage  deed  of  land  has  been 
executed  to  a  trustee,  to  secure  the  pay- 
ment ofdebts  to  sundry  persons,  the  trustee 
may  maintain  a  bill  to  Ibreclose,  without 
making  the  cestui  que  trusts  parties.  Swift 
V.  Stehbins,  4  Stew.  &  P.  467;  Shaw  v. 
Norfolk  County  R  R.  Co  ,  6  Grr.y,  170,  171. 

A  conveyance  in  trust  may  be  cancelled 
by  a  decree  in  Equity  though  the  cestui  que 
trusts  be  not  made  parties.  Campbell  v. 
Watson,  8  Ohio,  500. 

2  This  rule  has  been  adopted  by  the  Su- 
preme Court  of  the  United  States.  Equity 
Jtule,  49.  Hut  it  has  been  abrogated  in 
Erit;land  by  Cons.  Ord  ,  Prel.  Ord.  r.  1 ;  the 
cases  which  it  was  intended  to  meet  being 
included  in  the  more  comprehensive  en- 
actments of  15  &;  16  Vic.  c.  86,  §  42,  r.  9; 
whereby  it  is  provided,  that  in  all  suits  con- 
cerning real  or  personal  estate,  which  is 
vested  in  trustees  under  a  will,  settlement, 
or  otlierwise,  such  trustees  shall  repre.sent 
the  persons  beneficially  interested  under 
the  trust,  in  the  same  manner,  and  to  the 
same  extent,  as  the  executors  or  adminis- 
trator-', in  suits  concerning  personal  estate, 
represent  the  persons  beneficially  inter- 
ested in  such  personal  estate,  and  in  such 
cases,  it  shall  not  be  necessary  to  make  the 


persons  beneficially  interested  under  the 
trust  parties  to  the  suit,  but  the  Court  may, 
upon  consideration  of  the  matter,  on  the 
heiiring,  if  it  shall  so  think  fit,  order  such 
persons  or  anj"-  of  them  to  be  made  parties. 
This  rule  is  retrospective,  and  apijliesto  all 
suits,  as  well  as  redemption  and  foreclosure 
suits.  Fowler  v.  Hoyldon,  9  Hare  App.  78; 
Goldsmid  v.  Stonehewer,  9  Hare  App.  38; 
17  Jur.  199;  White  v.  Chittv,  14  W.  K. 
3G6,  V.  C.  W.  It  has  been  held  that,  in  an 
administration  suit,  tlie  trustees  of  settled 
shares  sufficiently  represent  their  rt'fi<M«(/!ie 
trusts.  Densem  v.  El  worthy,  9  Hare  App. 
42.  It  has  also  been  held,  that  execut(-rs 
with  a  i)ower  of  sale,  and  al-o  devisees  in 
trust  sul)ject  to  payments  ofdebts,  are  trus- 
tees within  the  rule;  Shaw  v.  Hardingham, 
2  W.  K.  657,  M.  li.  ;  Smith  v.  Andrews,  4 
\V.  R.  353,  V.  C.  K.  ;  but  that  an  execu- 
tor with  only  an  implied  power  of  sale,  is 
not.  Holt'in  v.  Stannard,  4  .Jur.  N.  S.  576, 
JI.  R.;  see,  however,  22  &  23  Vic.  c.  35, 
§§  14,  16.  The  rule  does  not  apply  when 
tlie  cestui  que  ti-usls  have  concurred  in 
breaches  of  trust.  Jesse  v.  Hennett,  6  l)e 
G  ,  M.  «&  G.  609;  2  Jur.  N.  S.  1125.  And 
where  an  estate  is  sold  under  a  decree  of 
the  Court,  as  a  general  rule  (with  a  possible 
exception  in  some  cases  of  extreme  dilli- 
culty),  the  Court  will,  in  the  exercise  of  its 
discretion,  require  all  the  persons  interested 
in  the  proceeds  to  be  parties  to  the  suit;  or 
to  be  served  with  notice  of  the  decree,  in 
order  to  secure  a  proper  and  advantageous 
sale,  and  protect  the  title  of  purchasers  from 
bemg  open  to  inquiry  or  impeachment; 
Doodv  «•  lliggins,  9  llare  App.  32;  Pi^ott 
V.  Pigott,  2  >,'.  R.  14,  V.  C.  W. ;  and  where- 
ever  the  trustee".'  personal  interest  ma}"- 
prevent  them  protecting  the  interest  of  the 
cestui  que  Irvsls,  the  Court  will  require  the 
cestui  que  trusts,  or  some  of  them,  to  be 
made  parties.  Read  v.  Prest,  1  K.  &  J.  183. 
Trustees  cannot,  however,  re[)resent  some 
of  the  cestui  que  ti-usts  in  any  contention 
inter  se ;  but  only  where  the  contention 
is  between  all  ihd cestui  que  trusts  on  the 


PERSOXS    HAVING    COXCURRENT    INTERESTS    WITH    PLAINTIFF. 


223 


plies,  not  only  to  suits  by  persons  claiming  adversely  against  the  Ch.  V.  §  i.  - 
estate,  but  also  to  suits  by  some  of  the  persons  beneficially  inter-  *— — y — — ^ 
ested,  seeking  relief  in  respect  of  alleged  misconduct  of  the  trustees ; 
and  in  such  cases,  it  renders  it  unnecessary  that  persons  having 
charges  on  the  estate  should  be  parties.^  It  is  necessary,  however, 
that  tlie  trustees  who  are  einpowei-ed  to  give  discharges,  shou.ld 
themselves  be  entitled  to  the  legal  estate,  otherwise  the  order  does 
not  apply,  and  the  cestui  que  trusts  must  be  made  parties  to  the 
suit.-  In  cases,  also,  where  the  interest  of  the  cestui  que  trusts  is  When  ti-ustee 
collateral  to  the  riglits  between  the  plaintiff  and  the  defendant,  a  oiit^ cestui  owe 
person  standing  in  the  place  of  trustee  has  been  allowed  to  main-  irmts. 
tain  a  suit  respecting  the  trust  property,  without  making  the  per- 
sons for  whom  he  is  trustee,  parties ;  thus  the  pawnee  of  a  chattel 
or  his  representative  may  maintain  a  suit  for  the  chattel  without 
making  the  pawner  a  party.^  And  so  in  the  case  of  Samlle  v. 
Tancred^^  Avhere  a  bill  was  brought  for  an  account,  and  for  the  de- 
livery cf  a  strong-box,  in  which  were  found  jewels,  and  a  note  in 
these  words:  "Jewels  belonging  to  the  Duke  of  Devonshire,"  in 
tlie  liands  of  Mr.  Saville,  whose  representative  the  plaintiff"  was, 
and  in  whose  possession  tliey  had  been  for  fifty  years,  and  an  ob- 
jec.ion  was  taken  that  the  Duke's  representative  ought  to  have 
been  a  party,  it  was  held  that  tlie  plaintiif  might  sustain  the  suit 
without  liim.^  And  upon  the  same  princijile,  where  one  of  two 
trustees  had  been  jirevailed  upon  by  his  co-trustee  to  transfer  the 
trust  fund  into  his  name  alone,  and  the  co-trustee  -afterwards  sold 
the  stock,  and  received  the  produce,  and  never  replaced  it ;  u})on 
a  bill  filed  by  tlie  trustee  against  his  co-trustee  to  compel  him  to 
rcjilace  the  stock,  a  demurrer  was  put  in,  on  the  ground  that  the 
cestui  que  trusts  of  the  fund  were  not  made  parties,  which,  upon 
argument,  was  overruled.^  And  where  a  trustee  filed  a  bill  to  fore- 
close a  mortgage,  it  being  a  breach  of  trust  to  have  lent  the  money 


one  hand,  and  a  stranj^er  on  the  other. 
Mainond  r.  U  alker,  3  Jur.  N.  S.  066,  V.  C. 
W.;  I'avner.  Pnrker  I..  U.  ICh.  Ap.  327; 
12  .lur.N.  S.  221.  L.J.I. 

1  Ohljonie  I'.  I'Virt'iiian,  2  Hare,  0.5C;  8 
Jur.  55;  Ward  i'.  Hassctt,  6  Ilare,  17'J;  see 
al.-<o,  npr)n  tlic  con-triK'lion  of  tliis  order, 
<'ox  ;•.  Harnard,  5  I  hire,  'lUZ;  IJovd  )•. 
Siniih,  13  Sim.  457;  7  Jur.  400;  Miller  r. 
lliidillestone,  13  Sim.  407;  7  Jur.  504; 
liecve  V.  Richer,  1  l)e  (J  &  S.  024  ;  11  Jur. 
1)00;  Jones  v.  How,  7  Ilarc,  270;  14  Jur. 
145. 

-  Turner  »'.  Hind,  12  Sim.  414.  It  .seems 
doulitful  whether  the  order  applic"  to  the 
ea-c  (t<  a  liill  of  foreclosure  of  frechohLs  de- 
visi'.l  in  trust  for  sale.  Wilton  v.  Jones,  2 
y    &(J.  244. 

'"A  liill  in  Ef|uily,  brought  by  a  pledgee 
agaiii.sl  a  stranger  "to  recover  posso'-sion  of 


the  property  pledged,  which  avers  that  the 
])'aiiitifl'"s  claim  is  sulHcient  to  cover  the 
property,  and  to  wliich  tiie  jjledgor  is  made 
a  delcudiint,  is  not  open  to  demurrer  on  the 
ground  that  lie  sliould  have  been  Joined  as 
a  ])laiiiti(f.  Miciiigan  State  Banliy.  Gard- 
ner, 3  (Jrav,  305. 

4  I  ^'e,.■Sen   101;  3  Sivanst.  141,  S.  C. 

^  Story  V.i\   I'l.  §  221. 

G  Krjinco  c.  Franco,  3  Ves.  77;  Bridget 
?•.  Ilamer,  3  Y.  &  C.  72;  May  v.  Selby,  1  Y. 
&  C.  235;  6  .hir.  52;  Horsley  v.  l-awcctt, 
11  Heav.  505;  I'eai^e  r.  Ledger,  S  Hare,  313; 
4  l)e  Vm.  cS:  S.  137  (wiiich  was  the  case  of 
executors);  I'aynard  o  W'oolley,  20  lienv. 
583;  see,  however.  Chancellor  ?>.  Morecraft, 
11  Heav.  202;  and  see  l!ridi;et  r  llanu's,  1 
Coll.  72;  Story  \'a\.  I'l.  §  213,  and  .-i  discus- 
sion of  this  subject  in  tlie  note;  Cuiiuing- 
hani  t'.  I'ell,  5  I'aige,  007.     If  a  trustee  has 


224 


OF    PARTIES    TO    A    SUIT. 


On.  V.  5  I 


Personal  rep- 
ri'sontative 
mav  sue, 
witliout  per- 
sons beneti- 
cially  inter- 
ested. 


Where  execu- 
tor in  trust- 


After  great 
lapse  of  time. 


Assignees  of 
bankrupts. 


\\\^ou  such  :i  security,  it  was  liclil  (hat  tho  cisiiil  (jue  trusts,  wlio 
had  uovor  autliorized  or  adopted  the  mortgage,  were  unnecessary 
])artie.s.^  If,  howe\  or,  the  cestui  que  trusts  have  concurred  in  the 
breach  of  trust,  one  trustee  cannot  sue  his  co-trustee,  without 
making  tliom  parties.- 

And  here  it  may  be  observed,  tliat  the  personal  representative 
in  all  cases  represents  the  personal  estate  of  the  deceased,  and  is 
entitled  to  sue  for  it  in  Equity  as  well  as  Law,  without  making  the 
residuary  legatees,  or  any  other  persons  interested  in  it,  parties  to 
the  suit.*^  For  this  reason,  where  a  woman  by  her  will  gave  all  her 
personal  estate  to  her  bastard  child,  and  made  B.  and  C.  her  tjxecu- 
tors,  and  died  ;  and  within  a  short  time  after  the  bastard  died  in- 
testate ;  upon  a  bill  filed  by  the  executor  against  a  person  in  wdiose 
hands  the  property  of  the  mother  was,  praying  for  an  account,  the 
defendant  demurred,  because  the  representative  of  the  bastard  and 
the  Attorney-General  were  not  parties ;  and  the  demurrer  was 
overruled,  it  being  held  that  the  executor  was  legally  entitled  to 
the  estate  of  his  testatrix ;  and  though  this  may  be  in  trust  for 
another,  yet  as  the  executor  has  the  legal  title,  he  can  give  a  good 
discharge  to  the  defendant.*  And  in  every  case,  an  executor, 
though  a  bare  trustee,  and  though  there  be  a  residuary  legatee,  is 
entitled  to  sue  for  the  personal  estate  in  Equity  as  well  as  at  Law, 
unless  the  cestui  que  trusts  will  oppose  it.^  Where,  however,  there 
has  been  a  great  lapse  of  time  since  the  death  of  the  testator,  and 
it  seems  doubtful  who  are  the  pei'sons  beneficially  interested  under 
his  will,  the  Com-t  wall  not,  as  of  course,  order  payment  to  a  per- 
sonal reisresentative  cf  funds  recovered  in  the  cause,  but  may 
direct  them  to  be  j^aid  into  Court.*^ 

So,  also,  assignees  of  bankrupts  or  insolvent  debtors  may  either 
maintain  or  defend  suits  relating  to  the  estates  vested  in  them  as 
such  assignees,  without  the  creditors  for  whom  they  are  trustees 
being  made  parties  to  the  suit.''  Nor  is  it  necessary,  in  such  case, 
that  the  bankrupt  or  insolvent,  though  interested  in  the  residue, 


fraudulently  or  improperly  parted  with 
tru-t  property,  the  ceMui  que  trust  may  pro- 
ceed against  the  trustee  alone,  to  compel 
satisfaction  for  the  hrencli  of  trust,  or  he 
may  at  his  election  join  the  assignee  also, 
if  he  were  a  party  to  the  fraud,  or  if  he 
seeks  redress  agninst  him.  Baile}'  v.  Ingles, 
2  Paigp,  278;  West  v.  Kandiill,  2  Mason, 
197;  Franco  v.  Franco,  3  Sumner's  Ves. 
75,  note  {a). 

1  Allen  V.  Knight,  5  Hare,  272,  277;   10 
Jur.  943. 

2  Jes^e  V.  Bennett,  6  De  G.  &  G.  609;  2 
Jur.  N.  S.  1125. 


3  See  Miles  v.  Davis,  19  Mis.  (Bennett) 
408. 

4  Jones  V.  Goodchild,  3  P.  Wms.  33;  see 
also  Peake  ?;.  Ledger,  8  Hare,  313;  Smith 
V.  Bolden,  33  Beav.  262. 

5  Jb   48. 

6  I.oy  V.  Duckett,  1  Cr.  &  Ph.  305;  Ex 
parte  Kam,  3  M.  &  C.  25;  1  ,Iur.  6G8;  lie 
Malonv,  1  J.  &  H.  249;  Fennin2;ton  v. 
Bucklev,  6  Hare,  451,  459;  11  -hir.  468; 
Edwards  v.  Harvev,  9  Jur.  N.  S.  453;  11 
W.  R.  330,  M.  R. ;  and  see  Adams  v.  Barry, 
2  Coll.  285,  where  the  Court  required  the 
residuary  legatee  to  be  made  a  party. 

1  Spragg  V.  Binkes,  5  Ves.  587. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


225 


should  be  before  the  Court,^  though,  from  a  decision  in  Vernon's 
Reports,  it  appears  to  have  been  formerly  considered  necessary  in 
suits  by  assignees  to  have  the  bankrupt  before  the  Court.^  Where, 
however,  creditors,  instead  of  seeking  relief  under  the  Commission, 
proceed  at  Law  against  the  bankrupt,  the  bankrupt  may  hie  a  bill 
of  discovery  in  aid  of  his  defence  at  Law,  and  for  an  injunction; 
and  where  there  are  complicated  accounts,  he  may  pray  to  have 
them  taken,  and  to  have  the  balance  due  to  him  from  the  defend- 
ants set  oif  against  the  demand  of  the  creditors,  without  making 
his  assignees  parties,^  but  lie  cannot  pray  to  have  the  balance  paid 
to  him,  because  that  belongs  to  his  assignees. 

The  rule  that,  where  the  person  by  law  entitled  to  represent  the 
personal  estate  is  the  party  suing,  legatees  or  other  persons  inter- 
ested in  the  estate  need  not  be  parties,  does  not  extend  to  the  case 
of  a  residuary  legatee  suing  for  his  share  of  the  residue ;  in  Avhich 
case,  as  we  have  seen,  it  is  generally  necessary  that  all  the  residu- 
ary legatees  should  be  made  parties  to  the  suit,  either  as  plaintiffs 
or  defendants,  or  by  being  served  with  notice  of  the  decree,* 
although  where  the  number  of  the  class  is  great,  the  Court  has 
sometimes  dispensed  with  the  necessity  of  making  them  all  parties, 
and  allowed  one  to  sue  on  behalf  of  the  others.^  And  where 
legacies  are  charged  upon  real  estates,  it  will  not,  in  general,  be 
sufficient  to  bring  the  executors  before  the  Court,  tor,  except  in 
cases  coming  within  the  30th  Order  of  August,  1841,  above  men- 
tioned, all  the  other  legatees  must  be  parties  ;  ^  it  seems,  however, 
that  trustees  of  a  real  estate  for  payment  of  debts,  have  been 
allowed  before  that  order,  to  sue  without  bringing  before  the 
Court  the  creditors  or  legatees  for  whom  they  are  trustees ;  "^  but 


Ch.  V.  §  1. 


Residuary 
legatees. 


1  De  GoUs  V.  Ward,  3  P.  Win*.  311,  in 
nolis  ;  Kave  v.  Foslirooke,  6  Sim.  28 ;  Dyson 
V  Hornby,  7  De  G.,  M.  &  G.  1.  Similarly 
the  (li-ijti'r  IS  not  a  iiccessury  p:iriy  to  suits 
bv  or  a};ainst  triist«i-s  of  a  (l<;ed  duly  reg- 
istered umler  former  b;inl<riii)t  law:  Fen- 
ton  V.  Queen's  Ferry  Wire  Compaiiy,  W. 
N.  ( 18(jb)  296;  17  W.  U.  155,  V.  C  M. ;  L. 
R.  7  Kq.,  2G7. 

2  Siiarpe  v.  Gnmon,  2  Vern.  32;  1  Kq. 
Ca.  Ab.  72;  IM.  7  S.  C 

8  Lowndes  v.   Tavlor,  1  Mad.  423. 

*  15  &  10  Vic.  c.  86,  §  42,  rr.  J.  8;  and 
Bce  pi'ft,  eliap.  VII.  §  2,  I'roceedimjs  hij 
Seri'iie  of  Notice  of  llit  Decree. 

6  Harvey  v.  llarvoy,  4  Hcav.  215,220; 
sec  also  Smart  v.  Hradstock,  7  Ueav.  5u0; 
IJateiiian  v.  .Margerison,  0  Hare,  4U6,  499; 
but  ."-ee  .lones  v.  Howe,  7  Hare,  267;  14 
Jiir.  14-');  see  alco  Dnodv  )•.  Higgins,  9 
Hare  Apji.  32,  jiarticul  irly  tin;  ob.s.  rva- 
tions  of  Sir  Geo.  'I'urner  V.  C.  at  )).  3^ ; 
G'.uld  V.  Have",  19  Ala.  438.  Ail  the  dis- 
tribntees  are  necessary  parties  to  a  bill 
for  dii-tiibiition.  Hawkins  v.  Oaig.  1  15. 
Mon.  27 ;  (Jsborne  v.  Taylor,  12  Grattan 


Where  lega- 
cies charged 
on  real  estate. 


Semble,  trus- 
tees for  paj'- 
ment  of  debts 
may  sue  with- 
out creditors. 


15 


(Va.),  117;  but  see  Moore  v.  Gleaton,  23 
Geo.  142;  Keeler  v.  Keeler,  3  Stockt.  (N. 
J.),  458. 

«  Morse  v.  Sadler,  1  Cox,  352 ;  Hallett 
V.  Hallett,  2  Paige,  15;  Todd  i'.  Sterreft,  6 
J.. J.  .Miirsli.  432;  llowlandv.  Fish,  1  Paige, 
20.  In  this  last  ease  the  Court  remiirk: 
"  In  Morse  r.  Sadler,  1  Cox,  352,  tlie  Mas- 
ter of  the  Koll-i  deciiled,  thit  every  legatee, 
whose  legacy  was  charged  on  the  real  es- 
tate, must  be  a  party  to  the  bill  It  is  true 
tliiit  case  WMS  overruled  by  Chiincellor 
Kiiit,  in  Hrown  v.  Kickefts,  3  .lohn.  Ch. 
553,  where  it  was  held  that  one  legatee 
n)ight  lile  a  bill  in  favor  of  hini-elf  and  all 
others,  who  might  choose  to  couk;  in  under 
the  decree.  But  even  then.  Chancellor 
Kent  considers  it  necessary,  that  the  bill 
should  slate  the  fact  thit  it  ii  tiled  in 
behalf  of  the  |)laiiiti(r  and  all  others,  &c. 
The  reason  of  Ihc  rule  seems  to  be,  that 
the  defendants  may  not  be  charged  wiih  a 
double  di'tcnce." 

7  Ld.  Kiid.  174;  see,  however,  Harrison 
V.  Stewardson,  2  Hare,  630;  Thomas  v. 
Dunning,  6  De  G.  &  S.  618. 


326 


OF    TAKTIES    TO    A    SUIT. 


Ch.  y.  §  1. 


One  of  sev- 
eral cestui  (jue 
trusts  may 
roprosont   the 
otiicrs  in  a 
suit  lor  exe- 
cution of 
trusts,   the 
others  being 
served  with 
the  decree. 

Appointees 
under  will  of 
feme  covert. 


Some  may 
sue  for  all. 


Executors 
must  all  join. 


it  is  a]>pvchon(lc("l  tliat,  in  sucli  oases,  the  Court  would  now  gen- 
erally allow  tlie  trustees,  under  the  ninth  rule  above  referred  to,  to 
represent  the  creditors.^ 

And  now  one  of  several  cestui  que  trusts,  under  any  deed  or 
instrument,  may  be  a  plaintiif  or  defendant,  as  representative  of 
his  class,  in  a  suit  for  the  execution  of  the  trusts  of  the  deed  or 
instrument,  the  others  of  the  class  being  served  with  notice  of  the 
decree,-  but  any  cestui  que  tiiists  who  have  concurred  in  the  breach 
of  trust  must  be  parties  to  a  suit  to  make  a  trustee  liable  for  the 
loss  occasioned  thereby.^ 

Although,  in  ordinary  cases,  the  executor  represents  the  Avhole 
personal  estate,  and  no  legatee  need  be  a  party,  the  appointees 
under  the  will  of  a  feme  covert  are  in  a  different  situation,  and 
must  be  made  parties ;  *  therefore,  where  the  administrator  with  the 
will  annexed  of  a  married  woman,  filed  a  bill,  praying  that  the 
defendants  might  pay  over  to  him  a  sum  of  money,  as  to  wliich  a 
testamentary  appointment  had  been  executed  by  the  testatrix,  by 
virtue  of  a  power  in  her  marriage  settlement,  without  making  the 
appointees  parties,  the  case  was  ordered  to  stand  over,  with  leave 
for  the  plaintiff  to  amend  by  bringing  the  appointees  before  the 
Court.^  It  is  apprehended,  however,  tliat  the  Court  would  not 
now  require  the  cestui  que  trusts  to  be  parties  in  such  a  case.® 
Where  the  appointees  were  very  numerous,  and  the  bill  was  filed 
by  some  of  them  on  behalf  of  themselves  and  the  others,  the  Court 
dispensed  with  the  general  rule  which  required  them  all  to  be  ])ar- 
ties.'^  It  is  to  be  observed  that  in  Craker  v.  Parrott^  on  a  bill 
filed  by  one  of  four  children,  who  were  appointees  of  their  mother, 
to  set  aside  the  a])pointment  on  account  of  the  unfairness  of  the 
distribution,  it  was  held  that  all  the  other  cliildren  who  were  ap- 
pointees need  not  be  parties,  because  they  might  go  in  before  the 
Master. 

"Where  there  are  more  than  one  executor  or  administrator,  they 
must  all  be  parties  to  the  suit,  though  one  of  them  be  an  infant.* 
Where,  however,  one  executor  of  several  has  alone  proved,  he  may 


1  Morley  v.  Morley,  25  Beav.  253.  In 
Knight  V.  Pocock,  24  Beav.  13C;  4  .Tur. 
N.  S.  197,  it  was  held  that  trustees  did  not 
represent  creditors  who  had  not  acceded 
to  the  deed. 

2  15  &  16  Vic.  c.  86,  §  42,  rr.  4,  6, 
M'Leod  f.  Annesley,  16  Beav.  600;  Jones 
r.  James,  9  Hare  App.  80;  and  see  post, 
chap.  Ill,  §  2,  Proceedings  by  Service  of 
Notice  of  the  Decree. 

8  Jesse  V.  Bennett,  6  De  C,  M.  &  G.  609 ; 
2  Jur.  N.  S.  1125;  Williams  v.  Allen,  29 
Beav.  292. 

*  Story  Eq.  PI.  §  204,  and  note. 

5  Court  r.  Jeffer}',  1  S.  &  S.  105 ;  but  see 
Owens  V.  Dickenson,  ante,  pp.  180,  187. 


6  Musters  v.  Wright,  2  De  G.  &  S.  777; 
and  see  Sewell  v.  Ashley,  3  De  G.,  M.  & 
G.  933;  lie  Newbery,  AUcroft  v.  Farnan, 
10  W.  K.  378,  V.  0.  K. 

7  Manning  v.  Thesiger,  1  S.  &  S.  106; 
Story  Eq.  PI.  §  217. 

8  2  Chii.  Ca.  228. 

3  Offley  V.  Jenney,  3  Cha.  Rep.  92; 
Wms.  Exors.  1724;  Cramer  v.  Morton,  2 
Moll.  108.  Rule  G,  adopted  in  15  &  16 
Vice.  86,  provides  that  "any  executor, 
administrator,  or  trustee  may  obtain  a 
decree  against  any  legatee,  next  of  kin, 
or  cestui  que  ti-ust,  for  the  administration 
of  the  estate,  or  the  execution  of  the 
trusts." 


PERSONS    HAVIXG    CONCURRENT    INTERESTS    WITH   PLAINTIFF.  227 

sue  without  making  the  other  executors  parties,  although  they    Ch.  v.  §  i. 
have  not  renounced.-^     And  "where  a  person  devises  that  his  execu-  ^ 

tors  shall  sell  his  land,  anc>  leaves  two  executors  who  renounce,  but  those  who 
and  administration  is  granted  to  A.,  who  brings  a  bill  against  the   proved^'need 
heir  to  compel  a  sale,  it  seems  the  renouncing  executors,  in  whom  not. 
the  power  of  sale  collateral  to  the  executorship  was  vested,  ought  All  executors 
not  to  be  made  parties.-     It  is  not,  however,  necessary  that  the  co-pldntiffs- 
executors   or   administrators   should   be   all   co-plaintiffs ;    for   in 
Equity  it  is  sufficient  that  all  parties  interested  in  the  subject  of  but  must  be 
the  suit  should  be  before  the  Court,  either  as  plaintiffs  or  defend-  ^^^  '^*' 
ants ; '  and,  therefore,  one  executor  may  sue  without  his  co-execu- 
tor joining,  if  the  co-executor  be  made  a  defendant.* 

The  rule  that  all  persons  claiming  concurrent  interests  with  the  Persons 
plaintiff  are  necessary  parties,  equally  applies  whether  the  interest  remainder  or 
be  in  possession,  remainder,  or  reversion ;  and  upon  this  principle  it  reversion; 
is  held,  that  in  all  cases  in  which  an  estate  is  claimed  by  a  person 
deriving  title  under  a  settlement,  made  either  by  deed  or  will,  it 
is  necessary  to  make  all  the  persons  claiming  under  such  settle- 
ment parties  to  the  suit,  doic7i  to  the  person  entitled  to  the  first 
vested  estate  of  inheritance,  either  in  fee  or  in  tail,  inclusive.^    And 
where  A.  was  tenant  for  years,  with  remainder  to  B.  for  life,  with 
remainder  to  C.  in  fee,  and  B.  brought  a  bill  against  A.  for  an 
injunction  to  restrain  his  committing  waste,  it  was  held  that  the 
remainder-man,  or  the  reversioner  in  fee,  ought  to  be  before  the 
Court.®     It  will  be  borne  in  mind,  however,  that  where  the  jn'op 
erty  is  vested  in  trustees  under  a  deed  or  will,  the  trustees  now 
generally  represent  all  the  cestui  que  trusts.'' 

It  is  not  necessary,  in  such  cases,  to  bring  before  the  Court  any 

1  Davies  r.  "\Villiam<<.  1  Sim.  5;  Dyson  V.  Graham,    1    Paige,    384;  sec   Judson    v. 

Morri.s,  1  Hare,  413;  Hineliart  v.  Kineliart,  Gibbons,  5  Wend.  224. 

2  McCarter  (X.  .T.),  144;  Marsh  v.  Oliver,  '^  Yates  v.  Compton,  2  P.  Wms.  308. 

1  McCarter  (X.  J.),  202.    It  will  be  seen  on  3  Wilkins  v.  Fry,  1  Mer.  244,  262. 

referring  to  the  rejiort  of  tiie  ca^e  of  I)avies  ■*  Ulouiit  v.  Burrow,  3  15ro.  C.  C.  90;  see 

I'.  Williams,  si//ira,  that  Sir  .lolin  Lencli  Dane  r.   Allen,  1  (Jreen  Ch.  288.     It  ap- 

V.  C.  is  reported  to  have  said:   "  Wiiere  pears  to  have  been  at  (ir.st  doubted  whether 

one  executor  has  alone  proved,  he  may  sue  a  co-executor  refusing  to  join  as  co-plaintiff 

in    Kquit}-,   as    well   as   at  Law,  without  was  entitled  to  his  costs.     3  Hro.  C.  C.  90. 

naming   the   others   as    parties;"    but   in  5  Finch  f.  Finch,  2  Ves.  492;  Sohier  v. 

Ciminiiiis  r.  Cummins,  .'J  Jo.  &   Lat.   92,  Williams,  1  Curtis  479;   Story  Eq.  PI.  § 

Ld.  St.  Leonards,  then  Lord  Chancellor  of  144,  note.     Where  the  (irst  tenant  in  tail 

Irchiml,  speukinf;  of  this  case  said  :"  This  was  a  lunatic,  the  ncrson  entitled  to  the 

may  he  do  as  to  suits  in  I'-quitj-,  but  ccr-  next  estate  of  inheritance  was  held  a  nec- 

tainly  it  is  not  the  case  as  to  actions  at  essarv   jtarty.     Singleton    v.  Hopkins,    1 

Law."     And  see  Ilensloe's  case,  3  Kep.  Jur.  ^«.  S.  1199. 

30G;  Kilby  r.  Stanton,  2  Y.  &.L77;  and  <»  Hy  Lord  King,  in  Jlollineux  r.  Powell, 

sec    Wms.   Kxors.   1724,  an<l  cases  there  citeil  3  I'.  Wms.  208,  n.;  but  see  1  Dick, 

cited;  A<ld.  (.'ont.  10.50.     But  an  executor,  197,  19H,  and  ImUmi  on   Injunctions,  103; 

though  he  lias  not  proved    the  will,  is  a  Story  Kq.  I'l.  §  1.59.     It   will  be  borne  in 

necessary    party  defi-ndant   to   a   suit  to  mind,  however,  that  when;  the  ))rop(rty  is 

rnrry  the  trusts  of  the  will  into  e.xecution.  vested  in  trustees  under  the  deed  or  will, 

I'orguson  V.  Ferguson,!   Hayes  ^:  . I    300;  the  trustee   now,  in    luigland,  generally 

Yates  f.  Compton,  2  1'.  W.  308;  Cramer  represents  all  the  r^.s/u/ ryi/c /;•(/«/.■;.     16  &  16 

V.    Morton,  2    Moll.    108;    Thompson    v.  Vic.  c.  HO,  §  42,  r.  9. 

M6  &  16  Vic.  c.  80,  §  42,  r.  9. 


228 


OF    TARTIES    TO    A    SUIT. 


Persons 
entitled  to 
intermediate 
estates. 


Incumbran- 
rers  upon 
i.'states  tail 
must  be 
parties. 


So  executory 
.Ijvisees. 


]iorson  ontitlod  in  reinruiidor  or  reversion  after  the  first  vested 
estate  oi'  inlieritance,  because  sueli  person  is  considered  sufficient 
to  support  all  those  who  are  in  remainder  behind  hini.^  And  it 
has  rej>eatedly  been  determined,  that  if  there  be  a  tenant  for  life, 
remainder  to  his  first  son  in  tail,  remainder  over,  and  tlie  tenant 
for  life  is  brousiht  before  the  Court  before  he  has  issue,  the  coiitin- 
gent  remainder-men  are  barred.'-^ 

Although  in  cases  of  this  description,  the  first  person  in  exist- 
ence who  is  entitled  to  a  vested  estate  of  inheritance  is  suflicient  to 
represent  all  remainders  behind  him,  yet  it  is  necessary,  that  all  per- 
sons entitled  to  intermediate  estates,  prior  to  the  first  vested  estate 
of  inheritance,  should  be  before  the  Court;  thus,  where  a  marriage 
settlement  was  made  of  lands  on  the  husband  for  life,  remainder  to 
the  Avife  for  life,  with  divers  remainders  over,  and  a  bill  was  brought 
by  the  husband,  in  order  to  have  the  opinion  of  the  Court  Avhether 
a  certain  jiarcel  of  land  was  not  intended  to  be  included  in  the  settle- 
ment, and  the  wife  was  not  a  party,  the  case  was  ordered  to  stand 
over,  in  oi'der  that  she  might  be  made  a  party,  the  Court  being  of 
opinion,  that  if  a  decree  should  be  made  against  the  husband,  it 
would  not  bind  her;^  and  so,  where  a  bill  was  brought  by  a  son, 
w^ho  Avas  remainder-man  in  tail  under  a  settlement,  against  his 
father,  who  was  tenant  for  life  under  the  same  settlement,  to  have 
the  title-deeds  brought  into  Court  that  they  might  be  forthcoming 
for  the  benefit  of  all  parties  interested ;  and  objections  were  taken 
for  want  of  parties,  one  of  which  was,  that  a  daughter  of  the  defend- 
ant, who  was  interested  in  a  trust  term  for  years,  prior  to  the  limi- 
tation to  the  plaintiff,  was  not  before  the  Court,  Lord  Hardwicke 
held  the  objection  good.* 

Another  objection  in  the  same  case  was,  because  certain  annui- 
tants of  the  son,  upon  his  reversion  after  the  death  of  his  father, 
were  not  parties,  and  Lord  Hardwicke  held,  that  he  could  not 
make  the  order  j)rayed  until  the  annuitants  were  first  heard,  and 
that  consequently  the  objection  must  be  allowed.^  From  this  it 
would  seem,  that  although  a  remainder-man  in  tail  may  maintain  a 
suit  without  bringing  the  persons  entitled  to  subsequent  remain- 
ders before  the  Court,  yet  if  he  has  charged  or  incumbered  his 
estate  in  remainder,  the  persons  interested  in  such  charge  or 
incumbrance  must  be  parties;  and  it  is  held,  that  a  person  claim- 
ing under  a  limitation  by  way  of  executory  devise,  not  subject  to 
any  preceding  estate  of  inheritance  by  which  it  may  be  defeated, 


1  Anon.,  2  Eq.  Ca.  Ab.  166,  PI.  8;  Lloyd 
V.  Johnes,  !*  Ves.  37,  br,;  Kaile  Fire  Ins. 
Co.  V.  Caminet,  2  Edw.  Cii.  r27. 

2  I'er  Lord  Hedesdale,  in  Gill'ard  v.  Hort, 
1  Sch.  &  L.  40»';  an<l  >ee  iilso,  as  to  ten- 
ants for  life  representing  persons  contin- 
gently entitled  in  remainder,  in  a  suit  as  to 


per-ionaltv.  Fowler  «.  James,  1  C.  P.  Coop, 
t.  Cott.  200;  1  Phil.  fe03;  and  see  Rob- 
erts V.  Roberts,  2  Phil.  534;  12  Jur.  148; 
2  De  G.  &  S.  29. 

a  Herring  v.  Yeo,  1  Atk.  290. 

4  Pyncent  v.  Pyncent,  3  Aik.  571. 

5  i'yncent  v.  Pyncent,  -3  Atk.  571. 


PERSONS    HAVIXG    CONCURRENT    INTERESTS    WITH    PLAINTIFF.  229 

must  be  a  party  to  a  suit  in  which  his  rights  are  involved  ;  ^  but  Cn-  V- 
executory  devisees  not  in  esse,  may  be  bound  by  a  decree  against 
the  first  estate  of  inheritance. 

Where  the  intermediate  estate  is  contingent,  and  the  person  to  Where  inter- 
take  is  7iot  ascertained,  it  is  sufficient  to  have  before  the  Court  the  "state  is  con- 
trustees  to  sapi>ort  the  contingent  remainder,  together  with  the  tingent,  and 

1  '  °  ^  „  ...      Its  taker  un- 

first  person  in  esse  entitled  to  the  first  vested  estate  ot  iniieri-  ascertained. 
tance.2  Lord  Hardwicke,  in  Hojyhins  v.  Iloj^lrns,^  states  the  prac- 
tice upon  this  point  tluis :  "If  there  are  ever  so  many  contingent 
limitations  of  a  trust,  it  is  an  established  rule,  that  it  is  sufficient  to 
bring  the  trustees  before  the  Court,  together  with  him  in  whom 
the  first  remainder  of  the  inheritance  is  vested  ;  and  they  that  may 
come  after  Avill  be  bound  by  the  decree,  though  not  in  esse,  unless 
there  be  fraud  or  collusion  between  the  trustees,  and  the  first  person 
in  whom  the  remainder  of  the  inheritance  is  vested."  Thus,  in 
Lord  Gholmondeley  v.  Lord  Clinton*  in  which  the  estate  which 
was  the  subject  of  litigation  Avas  settled  upon  Baron  Clinton  for 
life,  and,  after  remainders  to  his  cliildren  (who  were  unborn)  and 
their  heirs  in  tail,  upon  the  person  who  should  then  be  entitled  to 
claim  as  Baron  Clinton  in  tail,  with  ultimate  remainder  to  the 
existing  Lord  Clinton  in  fee,  it  was  objected  that  the  person  pre- 
sum])tively  entitled  to  the  barony,  ought  to  have  been  a  party; 
but  Sir  William  Grant,  M.  R.,  overruled  the  objection  upon  the 
ground  above  stated. 

If  a  person  entitled  to  an  interest  prior  in  limitation  to  any  estate   Per.=ons 
of  inheritance  before  the  Court,  should  be  born  pending  the  suit,  f,"/(;,'ii'eJi",te 
that  person  must  be  brought  before  the  Court -by  supplemental   estates.com- 
bill;^  and  if  the  first  tenant  in  tail  is  plaintiff  in  a  suit  and  dies  pending  suit. 
without  issue  before  the  termination  of  the  suit,  the  next  remain- 
der-man in   tail,  although  he  claims  by  new  limitation,   and  not 
through   the  first  plaintiff  as  his  issue,  is  entitled  to  continue  the 
suit  of  the  former  tenant  in  tail  by  supjdemental  bill,  and  to  have 
the  benefit  of  the  evidence  and  proceedings  in  the  former  suit ;  ® 
and  80  where  a  tenant   in  tail  who  is  a  defendant  dies,''  or  his 
interest  ceases  by  the  birth  of  a  tenant  in  tail  prior  in  limitation,^ 
the  plaintiff  is  entitled  to  carry  on  the  proceedings,  in  bringing  the 
person  who  has  become  the  first  tenant  in  tail  before  the  Court. 

In  all  the  preceeding  cases  the  rights  of  the  several  parties  to  the   Persons 
subject-matter  in  litigation  were  consistent  with  each  other,  and  ,,n,i'er'incon- 

1  L.I.  Red.  174.  <  2  .1.  &  W.  1.  133.  S''^''^"'  ^'"'-'''• 

2  I,ord  Cho)itiondelev  r.  Lord   Clinton,  ^  Ld.  Hed.  174. 

2  .1.  iSi  \V.  1,  133:  see  Solder  )•.  Williams,  C  IJoyd  v.  .lolinesi,  9  Ves.  58. 

1  (Jurtis,  471t;NodiniMr.  (;reenr)eld,7  I'aiKe,  "Cn'sswell   v.    IJuteinan.  C    W.  R.  '206, 

544.     'rriislees  to  support  continKent  re-  220,  V.  {].  K.;  Re^'.  Lib.  1857,  A.  424. 

miiiodcr-i  are  now  no  longer  necessary;  8  »  Kf^remont  r.  Thompson,   L.  R.  4  Ch. 

&  >  Vic.  c.  lOt;.  §  8.                                "  Ap.  448,  L.  C. 

3  1  Atk.  590;  Ijiit  n»  to  the  report  of  this 
case,  see  2  J.  &  W.  18,  192. 


230 


OF   PARTIES    TO   A    SUIT. 


(u.  V.  5  1. 


In  suits  for 
specific  per- 
formance, 
only  parties 
to  the  con- 
tract neces- 
sary parties. 


wiM-i^  the  i-esult  ofthosiune  state  of  facts,  so  tliat  the  same  evidence 
wliich  would  establish  those  facts  would  establish  tlie  rights  of  all 
the  parties  to  maintain  the  litigation;  the  rules,  therefore,  of 
Equity  require  that  all  those  parties  so  deriving  their  right  of  liti- 
gation from  the  same  facts,  should,  subject  to  the  exceptions  which 
we  have  noticed,  be  brought  before  the  Court,  in  order  that  such 
their  rights  may  be  simultaneously  disposed  of.  In  cases,  however, 
where  the  claims  of  the  several  parties  to  the  subject-matter  of  the 
suit  do  not  arise  out  of  the  same  state  of  circumstances,  but  can 
only  be  supported  upon  grounds  which  are  inconsistent  with  each 
other,  so  that,  if  the  grounds  upon  which  the  plaintiff  supi)orts  his 
claim  be  correct,  the  case  relied  upon  by  the  other  parties  claim- 
ing the  same  thing  cannot  be  supported,  then  such  other  parties 
need  not  be  brought  before  the  Court.  And  the  reason  of  this 
is  obvious ;  for  if  a  plaintiiF  resting  his  case  upon  a  particular  title 
which  is  inconsistent  Avith  the  title  set  up  by  the  other  claimants, 
is  able  to  establish  the  truth  of  his  case  by  evidence,  he  will  be  en- 
titled to  a  decree  against  the  defendant  whom  he  sues  ;  if  he  is  not 
in  a  situation  to  establish  his  case,  his  bill  must  of  course  be  dis- 
missed ;  and  the  circumstance  of  his  having  brought  other  parties 
claiming  under  a  diiFerent  title  before  the  Court,  Avould  be  of  no 
advantage  to  the  defendant  principally  sued;  because,  if  the  plain- 
tiff fliils  in  his  claim,  the  bill  must  be  dismissed  as  against  them  as 
well  as  against  the  principal  defendant,  and  such  dismissal  can  be 
no  bar  to  prevent  the  other  parties  themselves,  from  asserting  their 
claim  against  the  defendant.-^ 

In  suits  for  specific  performance,  it  is  a  general  rule,  that  none 
but  parties  to  the  contract  are  necessary  parties  to  the  suit ;  ^  and 
a  mere  stranger  claiming  under  an  adverse  title  should  not  be  made 
a  party  to  such  a  suit,^  although  a  person  claiming  by  virtue  of  an 
antecedent  .agreement  is  a  proper  party  to  a  suit  by  a  purchaser 
for  specific  performance,  and  to  have  the  right  to  the  i)urchase- 
money  ascertained.'*     Where,  however,  there  are  other  persons  so 


1  For  application  of  this  principle  to 
suits  for  tithes  by  impropriator  or  vicnr, 
■SVilliamson  v.  Lonsdale,  Dan.  Ex.  171; 
9  Price,  167,  S.  C;  Williams  v.  Price, 
Dan.  13;  4  Price,  1.5G;  Carte  v.  Ball,  3 
Atk.  500;  and  Petch  v.  Dalton,  Scacc.Jan. 
1819,  cited  1  .1.  &  W.  .51.5;  Daws  v.  Benn, 
ib.  513;  Jac.  95:  Bailev  v.  Worrall,Bunb. 
115;  Cook  V.  Blunt,  2"  Sim.  417;  Wing  v. 
Morrell,  M'Cl.  &  Y.  625:  Tooth  r.  Do;ni 
and  Cliapter  of  Canterbury,  3  Sim.  49; 
Pierson  v.  David,  1  Clarke  (Iowa),  23. 

2  'lasker  v.  Small,  3  M.  &  C.  03,  69;  1 
•Tur.  930;  Wood  p.  White,  4  M.  &  C.  460; 
Pobertson  v.  The  Grent  Western  Railway 
Conipiny,  10  Sim.  314;  Humphreys  t). 
Hoi  lis,  .Jiic.  73;  Paterson  v.  Long,  5  Beav. 
IfcO;  Pciicock  V.  Penson,  11  Beav.  355;  12 


Jur.  951;  Pctre  v.  Duncombe,  7  Hare.  24; 
De  Hnghton  v.  Money,  L.  H.  2  Ch.  Ap. 
164,  170,  L.  ,].].;  Bishop  of  Winchester  v. 
Mid  Hants  Railway  Co..  L.  R.  5  Eq.  17,  V. 
C.  S.;  Abdraman  Iron  Works  Company  v. 
Wickens,  L.  K.  4  Ch.  Ap.  101,  L.  C. ;  Fen- 
wick  V.  Bulmaii,  L.  R.  9  Kq.  105,  V.  C.  S.; 
see,  however,  Diiking  v.Wliimper,  26  Beav. 
568;  see  Morgiin  v  Mor(riin,2  WheJit.  290; 
Lord  V.  Underdunck,  1  Sandt'.  Ch.  46;  Hoo- 
ver V.  Donallv,  3  Hen   &  M.  316. 

8  Tasker  v.  Small,  3  M.  &  C.  63,  09;  1 
Jur.  936;  De  Hoghton  v.  Money,  L.  R.  2 
Ch.  Ap.  164,  170,  L.  J.I.  But  see  Carter 
V.Mills,  .30  Mi«.  (9  .Jones)  432,  cited  infra. 

*  We-t  Midland  Riulway  Company  v. 
Nixon,  1  H.  &  .M.  176;  and  see  Chadwick 
V.  Maden,  9  Hare,  188. 


PERSONS    HAYIXG    COXCURRENT    INTERESTS    WITH    PLAINTIFF.  231 

interested  in  the  subject-matter  of  the  contract  as  that  their  con-  Ch.  V.  §  i. 
currence  is  necessary  for  the  completion  of  the  title,  it  is  the  duty 
of  the  vendor  to  bring  them  forward,  to  assist  in  giving  effect  to 
his  contract ;  ^  but,  as  plaintiffs,  they  have  no  right  to  sue ;  and  if 
such  persons  should  be  infants,  and  it  were  attempted,  by  making 
them  co-plaintiffs  with  the  vendor,  to  bind  their  rights  by  a  decree, 
the  fact  of  their  being  so  made  parties  would  be  a  fotal  objection 
to  the  suit ;  and  whether  the  point  was  or  was  not  raised  by  the 
other  parties  the  Court  would  refuse  to  pronounce  a  decree.-  It 
would  appear  also,  that,  in  some  cases,  where,  subsequently  to  the 
contract,  another  person  has  acquired  an  interest  under  the  ven- 
dor, with  notice  of  the  rights  of  the  purchaser,  the  latter  has,  in  a 
suit  for  specific  performance,  been  allowed  to  join  such  person  with 
the  vendor  as  a  defendant  to  the  suit ;  ^  and  where  the  vendor  has 
parted  with  the  posssession,  he  must  join  the  lessee  of  the  pur- 
chaser as  defendant  to  a  suit  for  specific  performance,  and  a  dec- 
laration of  his  lien  for  unpaid  purchase-money.^ 

Formerly  it  was  the  invariable  practice  of  Courts  of  Equity  to  Heir  of  dev- 
require  the  heir-at-law  to  be  a  party  to  a  suit  in  all  cases  where  esgary^mrt 
the  trusts  of  a  will  of  real  estate  Avere  sought  to  be  executed,  tosuitrelat- 
This  practice  arose  from  the  peculiar  principle  adopted  by  Courts  devised^°  ' 
of  Equity  in  cases  of  wills  relating  to  real  estate ;  namely,  that  they 
would  not  caiTy  into  effect  a  will  of  real  estate,  until  the  due  exe- 
cution had  been  either  admitted  by  the  heir  or  proved  against  him. 
For  this  purpose,  it  was  necessary  that  the  heir  should  be  made  an 
adverse  party.     The  case  of  an  heir-at-law  was,  therefoi*e,  an  ex- 
ception to  the  rule  above  laid  down,  that  persons  claiming  under 
titles  inconsistent  with  those  of  the  plaintiff,  need  not  be  made 
parties  to  the  suit.     This   exception    has  now   been  in   a  great 
measure  abolished,  for  by  the  31st  Order  of  August,  1841,''  it  is 
provided,  "  that  in  suits  to  execute  the  trusts  of  a  will,  it  shall  not 
be  necessary  to  make  the  heir-at-law  a  party ;  but  the  plaintiff  shall 
be  at  liberty  to  make  him  a  party  wlien  lie  desires  to  have  the  will 
established  against  him."     Before  this  order,  it  Avas  necessary  in 

1  Wood  V.  Wliite,  4  M.  460,  483;  Chad-       them  injuriou'^lv  bv  casting  a  cloud  upon 
wick  V.  Miideri,  'J  Hare,  168.  his  title.     Carte'r  v.'Milis,  30  Mis.  (9  Jones) 

2  Wood  V.  White.  4  .M.  &  C.  400,  483.        432. 

See  William"  r.  Leech,  28  I'etm  St.   89;  *  Bishop  of  Winchester  v.  Mid  Hants 

Burner  V.  I'utter,  32  111.  66.  R:ulway  Company,   L.  U.   5  Kq.  17  V.  C. 

3  Spence  w.  IIoKt;,  1  C'ljl.  225;  Collettt'.  S.;  and  see  Attoriiev-Gencral  (-•  Sitting- 
Hover,  1  Coll.  227;  but  seeCuttsw.  Tliodev,  bourne  &  Nheerne-<s  liaiiwav  Company,  35 
13  Sim.  200;  6  .(ur.  1027;  and  1  C.. II.  212  Beav.  268,  271;  L.  K.  1  'Vai  636,  '639; 
n.  ('/),  223  n;  see  also  I.putv  >'.  Ilillas,  2  (idodfiird  v.  Stoiicliousc  &  Nailsworth 
De  (i.  &  J.  110;  4  Jur.  N.  S.  1166.  In  a  Hallway  Compuny,  W.  N.  (Ib69)  07;  17 
suit  for  the  specific  performance  of  a  con-  W.  U,  515,  V.  C.  M. ;  Marliup  v.  Sfone- 
tra<-t  to  convey  land,  a  person  not  made  a  hou'^e  &  NaiNworlh  Hailwav  (Jomiiany, 
party,  who  claims  a  superior  tille  to  the  W.  N.  (lt-69)  00;  17  W.  \i.  484,  V.  C.  J. 
land' in  <|ne-ti  n  under  the  i)arty  of  whom  ^  f>rd.  VII.  1.  This  Order  has  been 
pcrformiince  ii  sought,  may  come  in  iind  adoptel  in  the  ICiiuity  Rules  of  tlic  United 
assert  his  rights;  as  a  decree  might  affect  States  Supreme  Court.     Rule  40. 


232 


OF    PAKTIKS    TO    A    SUIT. 


Cii.  V.  §  1. 


And  where 
land  given  In- 
deed to  pay 
debts; 


other  ex- 
amples. 


Rights  of  lieir 
unat^t'ctcd  bj' 
decree  in  his 
absence. 


Heir  neces- 
sary where 
will  sought 
to  be  estab- 
lished. 


suits  tor  tlio  uilministration  of  real  assets  under  3  &  4  Will.  IV. 
c.  104,  that  the  lieir-at-law,  as  Avell  as  tlie  devisee,  should  be  a 
party  ;  ^  and  wliere  tlie  suit  was  l)roii<j,lit  against  the  devisee,  under 
the  Statute  of  Frauchdent  Devises,- the  lieir-at-hiw  was  a  necessary 
jiarty." 

Alt  houLi'li,  liowever,  tlie  heir-at-law  was  a  necessary  party  to  suits 
instituted  for  the  purpose  of  making  devised  estates  applicable  to 
the  j)aynient  of  debts,  he  was  not  a  necessary  party  to  suits  insti- 
tuted by  creditors  claiming  under  a  deed  whereby  estates  had 
been  conveyed  to  trustees  to  sell  for  payment  of  debts,  unless-  he 
was  entitled  to  the  surplus  of  the  money  arising  from  the  sale.* 

Even  before  the  last-mentioned  Order,  there  were  some  cases  in 
which  the  Court  would  direct  the  execution  of  the  trusts  of  a  will, 
where  the  heii-at-law  was  not  a  party;  thus,  where  a  trustee  had 
been  dead  several  years,  and  freehold  lands,  subject  to  the  trust, 
had  been  quietly  enjoyed  under  the  will,  a  sale  was  decreed 
Avithout  the  heir  being  a  party .^  So,  where  the  heir-at-hiAv  was 
abroad,  or  could  not  be  found,  or  made  defoult  at  the  hearing,  the 
trusts  of  a  will  have  been  executed  in  his  absence,  but  without  a 
declaration  that  the  Avill  was  well  proved  ;  ^  and  even  upon  some 
occasions  the  Court  has,  upon  due  proof  of  the  execution  of  the 
will  and  of  the  sanity  of  the  testator,  declared  the  will  well  proved 
in  the  absence  of  the  heir.'' 

As  there  is  no  j^rovision  in  the  Order  ^  to  make  evidence  of  the 
execution  of  the  Avill,  and  the  sanity  of  the  testator,  taken  in  the 
absence  of  the  heir-at-law,  admissible  against  him  or  any  one  claim- 
ing under  him,  the  Court  still  continues  unable,  by  decree  in  his 
absence,  to  insure  the  title  against  his  rights.^  As  the  Order  pro- 
vides for  the  execution  of  the  trusts  of  a  will  in  the  absence  of  the 
heir,  and  also  gives  liberty  to  make  him  a  party,  where  it  is  sought 
to  have  the  will  established  against  him,  it  seems  scarcely  probable 
that,  under  any  circumstances,  the  old  practice,  of  declaring  a  will 


1  Brown  V.  Weatherhy,  10  Sim.  125; 
now  it  is  so  no  longer:  AVeeks  v.  Kvans,  7 
Sim.  54G;  Briilges  v.  Hinxman,  IG  Sim. 
71;  Goodchild  v.  Terretr,  5  Beav.  398; 
Burch  V.  Conev,  14  .lur.  1009,  V.  C  K.  B. 

2  3  &  4  W.  &  M.  c.  14. 

3  Story  Eq.  IM.  §  163.  Where  the  real 
estate  of  the  deceased  partj-  is  by  statute 
made  personal  assets  for  the  piyment  of 
debts,  it  is  unnecessary  to  m;ike  the  iieir 
or  devisee  of  the  estate  a  party  to  the  suit 
for  the  adminis'ratifn  of  tlie  assets.  Story 
Eq.  PI.  §  163,  and  note;  L'x parte  liullidl', 
1  .Mass.  240;  Grignon  v.  Astor,  2  How.  U. 
S.  319,  338;  but  see  Gladson  v.  Wliitney, 
9  Iowa,  267.  wliere  the  contriiry  was  held. 

■^  To  11  bill  to  charge  a  legacy  on  land 
of  a  married  woman,  she  is  a  necessary 
party.     Lewis  v.  Darling,  16  Teters,  1. 


5  Harris  v.  Ingledew,  3  P.  Wms.  92,  94. 

6  French  v.  Baron,  1  Dick.  138;  2  Atk. 
120,  S.  C. ;  Stokes  u  Taylor,  1  Dick.  849; 
Cator  V.  Butler,  2  Dick."  438;  Bmitliwaite 
V.  Kobinson,  iO.  439  n. ;  Story  Eq.  IM.  §  87. 
On  a  bill  by  an  executor  agnini-t  a  devisee 
of  land  charged  with  the  payment  of  debts, 
for  an  account  of  the  tru-t  fund,  the  cred- 
itors are  not  indispensable  parties  to  the 
suit.     Potter  v.  Gardner,  12  Wheat.  498. 

T  Banister  v.  Way,  2  Dick.  699;  vide 
ace.  AViliiiims  v.  Whinvatcs,  2  Bro.  C.  C. 
399;  Seton,  224  etseq.{  Ld.  Red.  173. 

8  Ord.  VII.  1. 

^  Ld.  Red.  172.  A  will  may  now  be 
established  in  England  asainst  the  heir  in 
the  Probate  Court;  see  20  &  21  Vic.  c.  77, 
§§  61,  62;  Seton,  226;  see  post,  chap,  on 
j'.vidence. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH   PLAINTIFF. 


233 


well  proved  in  the  absence  of  the  hen-  will  be  continued.^     It  was    Ch.  V.  §  i.  - 

formerly  the  practice,  Avhere  the  heir-at-law  could  not  be  found,  to  • 

make  the  Attorney-General  a  party  to  a  bill  for  carrying  the  trusts 

of  a  devise  of  real  estates  into  execution,  on  the  supposition  that 

the  escheat  is  in  the  Crown,  if  the  will  set  up  by  the  bill  should  be  Person 

'  1        1  T      T    •         1  1       i    entitled  to 

subject  to  impeachment.     If  any  person  should  clann  the  escheat  escheat. 
against  the  Crown,  that  person  may  be  a  necessary  party."^ 

The  rule  which  has  been  before  noticed,  that  persons  claiming  Effect  of 

under  titles  which  are  inconsistent  with  that  of  the  plaintiff,  should  •|,°ia"nt/ffs 

not  be  made  parties  to  a  suit,  even  thouo-h  thev  are  in  a  situation  having incon- 

1  '  d?  *  sistBnt  titles 

to  molest  the  defendant  in  the  event  of  the  ijlaintift'  being  unsuc- 
cessful in  establishing  his  claim,  is  equally  applicable  to  prohibit 
their  being  made  parties  as  co-plaintifis  or  as  defendants.^  Thus, 
in  the  case  of  the  Attorney- General  y.  Tarrlngton,^  wliere  an  in- 
formation and  bill  Avas  exhibited  in  the  Exchequer  by  the  King's 
Attorney-General,  and  the  Queen-dowager  and  her  trustees  as 
plaintiffs,  against  the  lessees  of  the  Queen,  of  certain  lands  which 
had  been  granted  to  her  by  the  Crown  for  her  jointure,  in  respect 
of  the  breach  of  the  covenants  in  their  leases  ;  it  was  held  that  the 
King  and  Queen-dowager  could  not  join,  because  their  interests 
were  several ;  and  so,  in  the  case  of  Lord  Cholmondeley  v.  Lord 
Clinton,^  where  a  bill  was  filed  by  two  persons,  one  claiming  as 
devisee,  and  the  other  as  heir-at-law;®  and  the  question  was  Devisee  and 
whether  they  could  maintain  a  suit  to  redeem  a  mortgage,  on  the  '^"'"''^''  '^^^' 
allegation  "  that  questions  having  arisen  as  to  which  of  them  was 
entitled  to  the  estate,  they  had  agreed  to  divide  the  estate  between 
them,"  Sir  Thomas  Plumer  M.  K.  strongly  expressed  his  opinion 
that  the  Court  could  not  proceed  on  a  bill  so  framed.  In  a  subse- 
quent case  between  the  same  parties,  the  title  of  the  plaintiff  was 
stated  in  the  same  way  as  in  the  first,  and  Lord  Eldon,  though  he 
allowed  the  demurrer  which  was  put  in  to  the  bill  upon  other 
grounds,  expressed  a  very  strong  opinion,  that  two  ])ersons  claim- 
ing the  same  thing  by  different  titles,  but  averring  that  it  is  in  one 
or  the  other  of  them,  and  each  contending  that  it  was  in  himself, 
could  not  join  in  a  suit  as  co-plaintiffs.  His  Lordship  said,  "  that 
the  difficulty  of  nuiintaining  a  suit  where  there  are  two  plaintiffs, 

1  All  the  devisees  nre  held  to  lie  ncccs-  flicting  interests;  Miles  v.  Durnford,  2  De 
sarv  parties  to  a  bill  to  set  aside  a  will;  the  G.,M.&G.  641;  Carter*?.  Sanders, 2 Drew, 
executor,  unless  lie  has  refused  to  net,  248;  Foulkes  f.  Davies,  L.  li.  7  Eq.  42  V. 
flhould  also  he  made  ii  p:itt\'.     Vaiicleave  C.  (i. 

«.  Be!iin,  2   Dana,   155 ;  see 'Hunt  »-.  Acre,  *  Hnrdres,  219. 

28  Ala.  580;  Vanderpoel  v.  Van  Valken-  ^  2.1.  &  \V.  1,  135;  affirmed,  4  Bli.  1; 

burgh,  2  Sfl.len  (N.  Y.),  I'.iO.     So  all  the  Sugil.  Law,  p.  CI,  74;  see  aWo  Kulham  v. 

legafee-i  ar«  indispensable  parties  in  such  McCarthy,  1  II.  L.  Ciis.  703;  12  .Iiir.  757. 

n  case.     McMaken  v.  McMaken,  18  Ala.  "  A  bifl  ciinnot  be  filed  agninst  the  heirs 

676.  and  devisees  jointly,  for  satisfnciion  of  a 

2  Ld.  Rod.  172.  debt  of  the  deceased.     Schermerhoru  v. 
8  The  objection  does  not  af)ply  \\herc  IJarliydt,  0  Paige,  28. 

a  sole  plaintifT  unites  in  himself  two  con- 


234 


OF    PARTIES    TO    A    SUIT. 


Cn.  V.  5   1. 


Settlor  and 
purchaser  in 
suit  to  avoid 
a  settlement 
under  the 
27  Eliz.  c.  4. 


PlaintifFand 
person  liable 
to  account 
to  him. 

Court  can 
now  relieve, 
notwith- 
standing mis- 
joinder. 


A.  and  I>.,  oaoli  assort iiii;-  tlio  title  to  be  in  liiin,  is  this,  that  if 
thr  CViiirt  (leciik's  that  A.  is  entitlecl,  and  tlic  defendants  do  not 
coniphiin,  how  is  B.  as  a  co-phiintiff  to  ap))cal  Ironi  tliat  decree?"^ 
And  in  the  recent  case  of  /Saunwrcz  v.  Saumerez^-  where  tlie  in- 
terests of  a  father  and  liis  children  who  were  joined  as  co-))laintiffs 
in  the  suit  were  at  variance  one  Avith  another ;  Lord  Cotteidiani 
said,  that  as  the  record  was  framed,  it  would  be  quite  irregular  to 
make  any  adjudication  concerning  their  conflicting  interests,  and 
directed  a  new  bill  to  be  filed. 

In  a  case  before  the  same  judge,  when  Master  of  the  Rolls, 
whei-e  a  bill  had  been  filed  by  the  settlor  in  a  voluntary  settle- 
ment, for  the  purpose  of  avoiding  the  settlement,  in  which  another 
i:)erson  claiming  as  a  purchaser,  under  the  27  Eliz.  c,  4,  against  the 
parties  entitled  under  the  voluntary  settlement,  was  joined  as  a 
co-plaintiff;  his  Honor  held,  that,  as  the  settlement  was  of  pei'sonal 
property,  it  was  not  within  the  statute,  and  that,  consequently, 
the  })urchaser,  not  having  the  protection  of  the  statute,  could  not 
have  a  better  title  than  the  settlor  from  whom  lie  purchased ;  but 
that,  if  he  had  shown  a  good  title  in  himself,  he  could  have  had  no 
relief  in  that  suit,  having  associated  himself  as  co-plaintiif  with  the 
settlor ;  it  having  been  in  several  late  cases  decided  tliat,  under 
such  circumstances,  no  decree  can  be  made,  although  the  plaintiff 
might,  in  a  suit  in  which  he  was  sole  plaintiff,  have  been  entitled 
to  relief^  Upon  the  same  principle,  it  has  been  held,  that  a  per- 
son who  is  liable  to  accovmtto  the  other  plaintiffs  cannot  be  joined 
as  co-plaintiff.* 

It  should  be  here  observed,  that  the  consequences  of  a  misjoinder 
of  plaintiffs,  such  as  above  considered,  are  no  longer  the  same  as 
formerly,  for  then  the  bill  would  have  been  dismissed ;  whereas 
now,  the  Court  is  empowered  to  grant  such  relief  as  the  circum- 
stances of  the  case  require,  to  direct  such  amendments  as  it  shall 
think  fit,  and  to  treat  any  of  the  plaintiffs  as  defendants.^ 


1  Lord  Cholmondeley  v.  Lord  Clinton, 
T.  &  R.  107,  115;  but  see  Jopp  xu  Wood, 
2  De  G.,  .1.  &  S.  323. 

2  4  .M.  &  C.  336;  see  also  Robertson  v. 
Southgate,  6  Hnre,  536;  but  see  (irigofs  v. 
Staplee,  2  De  G.  &  S.  672;  13  Jur.  29, 
which  was  a  suit  to  set  aside  a  settlement, 
as  a  fraud  on  tlie  marital  right.  Sir  J.  L. 
Knight  Bruce  V.  C.  there  said  that  if  the 
case  had  been  proved  he  should  probably 
have  relieved  against  the  transaction,  al- 
though the  wife  was  a  co-plaintiff.  See  2 
De  G.  &  S.  6J:8. 

3  ISill  V.  Cureton,  2  M.  &  K.  503;  see 
Newcomb  v.  Horton,  18  Wis.  566;  Crocker 
«.  Craig,  46  Maine,  327;  Fletcher  v. 
Holmes,  40  Maine,  364;  Gates  v.  Boomer, 
17  Wis.  455. 

4  Jacob  V.  Lucas,    1  Beav.  436,  443; 


Griffith  V.  Vanhej'tliuysen,  9  Hare,  85 ;  15 
Jur.  421;  but  it  would  appeiir  that  the 
objection  does  not  applj'  to  a  sole  plaintiff 
uniting  in  himself  two  conflicting  inter- 
ests. Miles  V.  Du'.nford,  2  De  G.,  M.  & 
G.  641;  Carter  v.  Sanders,  2  Drew.  248; 
Foulkes  V.  Davies,  L.  H.  7  Eq.  42,  V.  C.  G. 
5  15  &  16  Vic.  c.  86,  §  49.  For  cases  of 
misjoinder  since  the  Act,  see  Clements  v. 
Bowes,  1  Drew.  684;  Evans  v.  Coventry, 
3  Drew.  75;  2  Jur.  N.  S.  557;  5  De  ().,  M. 
&  G.  911;  Beeching  v.  Lloyd,  3  Drew. 
227;  Williiims  v.  Salmond,  2  K.  &  J.  463; 

2  Jur.  N.  S.  251;  Stupurt  v.  Arruwsmith, 

3  Sm.  &  G.  176;  Barton  v.  Barton,  3  K. 
&  J.  512;  3  Jur.  N.  S.  808;  Carter  v.  San- 
ders, 2  Drew,  248;  Hallows  v.  Femie,  3 
Ch.  Ap.  467,  L.  C.;  suid  acapast  Cliap.  V. 
§  4,  Joinder  of  ifninterested  Parlits. 


PERSONS    HAVING    CONCURRENT   INTERESTS    WITH    PLAINTIFF. 


235 


The  rule  that  persons  claiming  under  different  titles  cannot  be 
joined  as  plaintiffs  in  the  same  suit,  does  not  apply  to  cases  where 
their  titles,  though  distinct,  are  not  inconsistent  with  each  other.^ 
Thus,  all  the  creditors  of  a  deceased  debtor,  although  they  claim 
under  distinct  titles,  may  be  joined  as  co-plaintiffs  in  the  same 
suit,  to  administer  the  assets  of  the  debtor,^  although  it  is  not 
necessary  that  they  should  be  so  joined,  as  one  creditor  may  sue 
for  his  debt  against  the  personal  estate,  without  bringing  the  other 
creditors  before  the  Court.^  The  joining,  however,  of  several 
creditors  in  the  same  suit,  although  it  might  save  the  expense  of 
several  suits  by  different  creditors,  might  nevertheless,  where  the 
creditors  are  numerous,  be  productive  of  great  inconvenience  and 
delay  by  i-eason  of  the  danger  which  would  exist  of  continual 
abatements.  Courts  of  Equity  have,  therefore,  adopted  a  practice, 
which  at  the  same  time  that  it  saves  the  expense  of  several  suits 
against  the  same  estate,  obviates  the  risk  and  inconvenience  to  be 
apprehended  from  joining  a  great  number  of  individuals  as  plain- 
tiffs, by  allowing  one  or  more  of  such  individuals  to  file  a  bill  on 
behalf  of  themselves  and  the  other  creditors  upon  the  same  estate, 
for  an  account  and  application  of  the  estate  of  a  deceased  debtor ; 
in  which  case,  the  decree  being  made  applicable  to  all  the  creditoi'S, 
the  others  may  come  in  under  it  and  obtain  satisfaction  for  their 
demands  as  well  as  the  plaintiffs  in  the  suit ;  and  if  they  decline 
to  do  so,  they  will  be  excluded  the  benefit  of  the  decree,  and 
will  yet  be  considered  bound  by  acts  done  under  its  authority.* 
It  is  matter  rather  of  convenience  than  indulgence,  to  permit 
such  a  suit  by  a  few  on  behalf  of  all  the  creditors,  as  it  tends 
to  prevent  several  suits  by  several  creditors,  which  might  be 
highly  inconvenient  in  the  administration  of  assets,  as  well  as 
burdensome  to  the  fund  to  be  administered ;  for  if  a  bill  be 
brought  by  a  single  creditor  for  his  own  debt,  he  may,  as  at  Law, 
gain  a  preference  by  the  judgment  in  his  favor  over  the  other 
creditors  in  the  same  degree,  who  may  not  have  used  equal  dili- 
gence.'* 

In  suits  by  one  creditor,  on  behalf  of  himself  and  the  others,  for 


1  See  Cheshire  Iron  Works  v.  Gny,  3 
Graj-,  531,  534,  535;  Conro  v.  Port  Henrv 
Iron  Co,  12  Barli.  Ch.  27;  Merclinnts' 
Bank  V.  Stevciisoti,  5  AHi-n.  402,  403. 

2  Scf!  Iro-ln-  V.  VVickliffe,  7  IJ.  Mon. 
120;  Cliesliire  Iron  Works  v.  Gay,  3  Grav, 
634,  535. 

8  Anon.,  73  Alk.  672;  Peacock  v.  Monk, 
1  Vi'8.  127,  131.  A  creditor's  bill,  iiiulfr 
MiiRS.  (ienl.  St.H.  c.  113,  §  2,  to  rciicii  iiiid 
apply,  in  payment  of  ii  deM.  any  proportv 
of"  a  (lelit'ir  in  tiiat  State,  that  ciinnot  be 
come  at  to  lu^  attnclied  or  taken  on  c.xncii- 
tion  in  ii  suit  nt  l.atv  ngaitiBt  bucIi  delator, 
may  be  brouglit  by  one  creditor  for  him- 


self alone.  Sil'oway  v.  Columbian  Ins. 
Co.,  8  Grnv,  199;  see  Crompton  v.  An- 
thonv,  13  Allen,  33,  3G,  37;  Seton,  117. 

■•  i,d.  Ked.  106;  sen  48tli  of  the  Equity 
Itules  <jf  tlic  United  States  Courts. 

'<  \A.  Hed.  16(3;  I{idj.'<ly  v.  Hond,  18 
Md.  433;  ^ee  Attorney-General  v.  Corn- 
tliwaite,  2  Cox,  46;  where  it  was  admitted 
nt  the  l)ar  that  where  a  sinf^le  creditor 
file'i  a  bill  for  tlic  payment  of  bis  own  debt 
only,  the  Court  d<ies  not  din'ct  a  peneral 
account  of  the  testator's  del)ts,  but  only 
nn  account  of  the  personal  estiite  and  of 
that  particular  debt,  which  is  ordered  to 
be  paid  in  a  course  of  administration;  and 


Cn.  V.  §  1. 


Creditors  of 
deceased 
may  be  co- 
plaintiffs. 


One  creditor 
may  sue  on 
behalf  of 
himself  and 
others ; 


but  defendant 
may  liavc  bill 
dismissed 
before  decree, 
on  payment 
of  plaintiff's 
debt  and 
costs. 


236 


OF    PARTIES    TO    A    SUIT. 


Oil.  V.  5   1. 


Plaint ilV  can- 
not waive  ac- 
count aiiiiiTist 
deccasod  ad- 
ministrator. 

If  personal 
representa- 
tive admits 
assets,   plain- 
titV  entitled  to 
immediate 
decree  for 
paj'uieut. 

One  creditor 
not  entitled  to 
administra- 
tion of  realty, 
unless  he  sue 
on  behalf 
of  all. 


ntlininistralion  of  the  estate  of  a  deceased  del)tor,  tlic  defendant 
ni.iy,  at  any  time  before  decree,  have  the  bill  dismissed,  on  pay- 
ment of  the  ])lainti1f''s  debt  and  all  the  costs  of  the  siiit.^ 

In  snits  of  this  nature,  the  plaintitt' cannot  waive  an  account 
against  the  estate  of  a  deceased  administrator  of  the  debtor.'- 

If  the  debt  of  the  plaintitf  be.  admitted  or  proved,  and  the 
executor  or  administrator  admits  assets,  the  plaintiff  is  entitled  at 
the  hearhig  to  an  immediate  decree  for  ])aynient,  and  not  a  mere 
decree  for  an  account ;  ^  but  an  admisj^ion  by  the  executor  that  he 
has  paid  the  legacies  given  by  the  testator's  will,  is  not  an  admis- 
sion of  assets  for  the  payment  of  the  j^laintiff's  debt,  so  as  to  entitle 
him  to  such  an  immediate  decree.* 

One  creditor  may  also  sue,  where  the  demand  is  against  the  real 
as  well  as  the  personal  assets ;  ^  but  although  one  creditor  may  file 
a  bill  on  his  own  behalf  alone,  for  administration  of  the  personal 
estate,  he  cannot  have  a  decree  for  administration  of  the  real  estate, 
unless  he  sue  on  behalf  of  himself  and  all  the  other  creditors." 


all  debts  of  a  higher  or  equal  nature  may 
be  paid  by  the  executor,  and  allowed  liim 
in  his  discharge.  See  Gray  v.  Cliiswell,  9 
Yes.  123;  Story  Eq.  PI.'  §§  99-102;  1 
Storv  Kq.  Jur.  §§  546-550;  Brooks  v. 
Reynolds,  1  Bro.  0.  C  ( Perkins's  ed.)  18.3, 
note  (2),  ISO,  note  (5),  and  ca»es  cited; 
P;ixton  V.  Douglas,  8  Sumner's  V^es.  520; 
Thompson  v.  Brown,  4  John.  Ch.  619; 
Shephard  t'.  Guernsey,  9  Paige,  337;  Ram 
on  Assets,  c.  21,  §  1,  p.  292;  Rush  v. 
Higgs,  4  Sumner's  Ves.  638,  note  («),  and 
cases  citeil;  H  illett  v.  Ilalieit,  2  Paige.  15; 
Lloyd  V.  Loaring.  6  Sumner's  Ves.  7V3, 
note  ('();  ^Ve-t  v.  R:\ndiili,  2  Mason,  181; 
Lucas  V.  Bank  of  Darien,  2  Stewart,  280; 
New  London  Bank  v.  i.ee,  11  Conn.  112; 
Ballentine  v.  Beall,  3  Scam.  200;  Coe  v. 
Beck  with,  31  Biirb.  (N.  Y.)  339;  Hazen  v. 
Dulling,  1  Green  Ch.  133.  But  single 
creditor  suits  are  much  out  of  use.  Seton, 
117. 

1  Pemberton  v.  Pophnm,  1  Beav.  316; 
2  Jur.  10U9;  Holdcn  t'.  Kynaston,  2  Be:iv. 
204;  .Manton  v.  Roe,  14"  Sim  353;  post, 
Cliap.  XIX.,  §  1,  Lismissin<i  Bills.  As  to 
costs,  see  cases  above  referred  to,  and 
Penny  v.  lieavan,  7  Hare,  133;  12  Jur. 
936. 

2  Wadeson  v.  Rudge,  1  C.  P.  Coop.  t. 
Cott,  369;  but  see  Syines  v.  Glynn,  nnd 
Pea-e  v.  Cheesborough,  cited  Seton,  115. 

3  Woodgate  v.  KieM,  2  Hare,  211;  6 
Jur.  871;  see  also  Owens  ?'.  L)ickiiis"n,  C. 
&  P.  48,  56;  4  .lur.  1151;  Pie'd  v.  Titmus, 
1  Sim.  N.  S.  218;  15  Jur.  121.  For  form 
of  decree  for  payment,  see  Seton,  115, 
No.  3. 

*  Savage  «.  Lnne,  8  Hare,  32;  Field  v. 
Titmu«,  1  Sim.  N.  S.  218;  15  Jur.  121; 
Huttoii  V.  Ro-siter,  7  De  G.,  M.  &  G.  9. 

«  Leigh  V.  Tliomas,  2  \a^.  S.  312,  813. 

6  Bedford  v.  Leigh,  2  Dick.  707;  Uny 
V.  Selbv,  1  Y.  &  C.  0.  C.  235;  6  Jur.  52; 


Bliiir  V.  Ormond,  1  De  G.  &  S.  428;  11 
Jur.  665;  Ponsford  v.  Hartley.  2  J.  &  H. 
736;  Seton,  117;  .Johnson  v.  Compt<in,  4 
Sim.  47.  See  form  of  contingent  prayer, 
in  a  bid  by  one  creditor,  Tomlin  v.  Tom- 
lin,  1  ILire,  236.  In  such  cases  leave  to 
amend  will  generally  be  given  at  the 
hearing;  see  cases  above  cited.  After 
decree  in  a  single  creditor's  suit,  an  ac- 
count was  taken  of  the  real  estate;  the 
bill  being  taken  as  a  bill  on  bolnrif  of  all 
the  creditors;  Woods  i'.  Sowerbv,  14  W. 
R.  9,  V.  C.  W. ;  see  Story  Kq.  PI.  §  161, 
note.  Although  one  incumbnincer  cannot 
sue  without  m:\king  other  incumbrancers 
partic*.  yet  it  has  been  held  that  this  is 
cured  by  a  decree  directing  an  account  to 
be  taken  of  all  the  mortgages  and  incum- 
brances aflecting  the  estate.  See  Vin. 
Ab.  tit.  Party  (B.)  en.  51.  And  in'Mar- 
tin  V.  Martin,  Lord  Hardvvicke  said,  that 
on  a  bill  for  a  sale  for  the  satisfaction  of  a 
bond  crpilitor,  not  only  wliere  it  was  on 
behalf  of  himself  and  others,  but  even 
when  the  bill  was  for  the  satisfaction  of 
his  own  particular  debt,  the  constant 
course  of  the  Court  was  to  direct  an  ac- 
count of  all  the  bond  debts  of  the  testator 
or  intestate,  with  liberty  to  come  for  a 
satisfaction.  See  Seton,  85.  It  seems, 
however,  upon  more  recent  authorities, 
that  a  single  bond  creditor  cannot  have 
any  decree  at  all  against  the  real  estate. 
See  Bedford,  y.  Leii;h,  2  Dick.  707;  John- 
son V.  Compton,  4  Sim.  47.  Where  a  hill 
has  been  fih'd  l)y  a  single  liond  creilitor  to 
estaljlish  his  c'aim  against  the  real  estate 
of  his  deceased  debtor,  the  Court  has  per- 
mitted it  to  be  amended  by  making  it  a 
bill  "on  behalf  of  liimsidf  and  of  the 
other  specialty  creditors."  Johnson  v. 
Compton,  ubi  supra.  Where  a  judgment 
creditor  tiles  a  bill  to  obtnin  aid  in  enforc- 
ing the  payment  of  his  judgment  at  Law, 


PERSONS    HAYING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


237 


Again  in  the  case  of  creditors  under  a  triist  deed  for  payment 
of  debts,  a  few  have  been  permitted  to  sue  on  behalf  of  themselves 
and  the  other  creditors  named  in  the  deed,  for  the  execution  of 
the  trusts,  although  one  creditor  could  not,  in  that  case,  have  sued 
for  his  single  demand  without  bringing  the  other  creditors  before 
the  Court.^ 

And  where  the  trust  fund  was  to  be  distributed  amongst  the 
joint  and  separate  creditors  of  the  firm,  a  bill  of  this  description 
was  permitted  by  a  separate  creditor  only,  on  behalf  of  himself 
and  the  otlier  joint  and  separate  creditors.^ 

In  suits  for  marshalling  assets,  simple-contract  creditors  must  be 
joined  as  plaintiffs,  as  well  as  creditors  by  specialty ;  for,  upon  a 
bill  by  specialty  creditors  only,  the  decree  Avould  be  merely  for  the 
payment  of  the  debts  out  of  the  personal  estate,  and,  if  tliat  should 
not  prove  sufficient  for  the  purpose,  for  the  sale  and  application  of 
the  real  estate.  The  right  to  call  for  such  an  arrangement  of  the 
property  as  will  throw  those  who  have  debts  payable  out  of  both 
descriptions  of  estate  i;pon  the  real  estate,  in  order  that  the  per- 
sonalty may  be  left  clear  for  those  whose  demands  are  only  pay- 
able out  of  the  personal  estate,  belongs  to  the  simple-contract 
creditors,  who  have  an  equity  either  to  compel  the  payment  of  the 
specialty  debts  out  of  the  real  estate,  or  else  to  stand  in  the  place 
of  the  si)ecialty  creditors,  as  against  the  real  estate,  for  so  much  of 
the  ]jersonal  estate  as  they  shall  exhaust.  It  is  proper,  therefore, 
in  bills  of  this  nature,  to  file  them   in  the  names  of  a  specialty 


Ch.  Y.  §  1. 


so  separate 
creditor  on 
behalf  of  joint 
and  separate 
creditors. 

In  suits  to 
marshal  as- 
sets, creditor 
by  simple 
contract 
should  sue 
■with  creditor 
by  specialty. 


it  is  no  ground  of  demurrer  that  otlier 
creditors,  not  in  equal  deforce,  are  not 
made  parties  to  the  bill.  U  av  v  linigaw, 
1  (J.  K.  (;reen  (N.  J.),  213,  2"l0,  217;  Ed- 
geil  V.  HmvwioiI,  3  Atk.  357  ;  see  Clark-on 
r.  Depe_vster,  3  I'ai^c,  320;  I'annelee  v. 
Egan,  7"  I'liige,  GIO;  Urosvenor  i'.  Allen, 
9  Faij;e,  74;  Karuliam  v.  Campbell,  10 
Paige,  5'j8. 

1  Corry  v.  Trist,  Ld.  Red.  167;  Jlurphy 
r.  .lacksoii,  5  .lones  Eq.  (N.  C.)  11;  si-c, 
however,  Harrison  r.  .Stewardson,  2  Hare, 
530,  where  Sir  .1.  Wigram  V.  ('.  decided, 
thiit  twenty  creditors  iutert'sted  in  a  real 
estate  were  not  so  large  a  number  as  that 
the  Court  would,  on  the  ground  of  iiu-on- 
venifuce  alone,  allow  a  few  of  them  to 
represent  the  others,  and  dis(iens')  with 
Huch  others  as  parties,  in  n  suit  to  rccuver 
the  estate  aasiinst  the  whole  b^dv  of  cred- 
itnri.  S.-e  Story  Kq.  I'l.  §§  150,  207; 
IlMinbridg-  v.  Murto'n.  2  Ik-av.  53^;  John- 
fl"n  V  (,'arid  gi-,  31  Miine.  28;  IJryant  v. 
liusHcIl,  23  I'ick.  508;  Steven-oti  »'  Aus- 
tin, 3  >b'(.  474.  In  case  of  an  a-signinent 
for  the  bcnilit  of  (•redit<ir-',  all  the  crcdi- 
tor-*  slinnhl  be  joiiu'd  in  a  bill  to  compel  a 
distribution  of  the  fund;  but  one  crclitor 
alone  ma}' nnintniii  a  bill  for  a  violation 
of  the  trust  injurious  to  hiii.sjlf  separately. 


Dinimock  v.  IJixhy,  20  Pick.  368.  When 
creditors  claim  tmcler  u  deed  of  trust  for 
the  payment  ot  (iebt'i,  they  need  not  make 
as  parties  to  their  hill,  those  who  are  in  a 
posterior  class  to  themselves,  but  they 
must  make,  as  parties,  nil  who  are  in  tlnir 
own  cia-^s.  I'atton  v.  Bcnciiii,  6  Ired.  Eq. 
204.  No  decree  for  the  di>tribution  of  a 
fund  in  Court  can  be  made,  nn'il  all  per- 
sons interested  are  made  parties.  I)e  La 
Vergne  v.  Evertson,  1  I'aige,  181;  (ireene 
r.  Sisson,  2  Curtis  C.  C.  171.  All  the  dis- 
trdjutecs  are  necessary  parties  to  a  bill  lor 
di>tnbu'ion.  Hawkins  r.  Craiir,  1  H.  Mnn. 
27.  All  (lersoni  interested  in  the  trust 
estate  ought  to  be  joined  in  a  suit  for  its 
administration.  I'",l:im  i'.  Garninl,  25(;eor- 
pi:i,  557;  IIii.'h  r.  W<'rlev,  32  Ala.  709; 
D'Wolf  V.  D'Woir,  4  H.  i.  450;  (iould  1'. 
J  laves,  19  AIh.  438;  Kceler  v.  Keeler,  3 
Stockt.  (N.  .1.)  458. 

Creditors  of  a  testator  may  intervene 
by  petition,  and  be  made  piirties  to  a  suit 
by  the  legatees  ami  devi-ees,  brought  for 
the  jiurpose  of  falsifying  the  accounts  of 
the  ix''cutor.  Smith  v.  Britten,  2  1'.  & 
II.  (Va.)  124. 

2  Weld  V.  Bonham,  2  S.  &  S-  91;  and 
see  Uichnrdson  »'.  Hastings,  7  Beav.  323; 
Smart  v.  Brad>tock,  7  Beav.  500. 


238 


OF   PARTIES    TO    A    SUIT. 


Cn.  Y.  §  1. 


Other  oases 
in  which  oiio 
mav  sue  on 
bflialf  ot' 
himself  and 
other 
legatees ; 


Tcstamontarv 
appointees  of 
a  married 
womaa. 

Joint  pro- 
prietors of  a 
trading 
undertaking. 


Shareholders 
of  unregis- 
tered com- 
pany. 


creditor  niul  of  :i  creditor  by  simple  contract,  on  behalf  of  them- 
selves and  ot"  all  others  the  specialty  and  simple-contract  creditors.^ 

By  anaU>!2:y  to  the  case  of'  creditors,  a  legatee  is  permitted  to 
sue  on  behalf  of  himself  and  the  other  legatees;  because,  as  he 
might  sue  for  his  own  legacy  only,  a  suit  by  one,  on  belialf  of  all 
the  legatees,  has  the  same  tendency  to  prevent  inconvenience  and 
expense,  as  a  suit  by  one  creditor  on  behalf  of  all  creditors  of  the 
same  fund.-  For  the  same  reason,  where  it  has  been  sought  to 
apply  personal  estate  amongst  next  of  kin,  or  amongst  persons 
claiming  as  legatees  under  a  general  description,  and  it  may  be 
uncertain  who  are  the  persons  answering  that  description,  bills 
have  been  admitted  by  one  claimant  on  behalf  of  himself  and  of 
others  equally  interested.^ 

So,  also,  in  the  case  of  appointees  under  the  will  of  a  married 
woman,  nlade  in  pursuance  of  a  power,  where  they  were  very 
numerous,  a  bill  was  permitted  by  some  in  behalf  of  all.* 

The  right  of  a  few  persons  to  represent  the  class  is  not  con- 
fined to  the  instances  of  creditors  and  legatees ;  ^  and  the  necessity 
of  the  case  has  induced  the  Court,  especially  of  late  years,  fre- 
quently to  depart  from  the  general  rule  in  cases  where  a  strict 
adherence  to  it  would  probably  amount  to  a  denial  of  justice,  and 
to  allow  a  few  persons  to  sue  on  behalf  of  great  numbers  having 
the  same  interest ;  ®  thus,  some  of  the  proprietors  of  a  trading 
undertaking,  where  the  shares  had  been  split  or  divided  into  800, 
were  permitted  to  maintain  a  suit  on  behalf  of  themselves  and 
others,  for  an  account  against  some  of  their  copartners,  without 
bringing  the  whole  before  the  Court,'  "because  it  would  have 
been  impracticable  to  make  them  all  jiarties  by  name,  and  there 
would  be  continual  abatement  by  death  and  otherwise,  and  no 
coming  at  justice,  if  they  were  to  be  made  parties;"  and  in  case 
of  a  trade  partnership  of  more  than  twenty-five  persons  formed 


1  By  the  32  &  33  Vic.  c.  46,  it  is  enacted 
that  in  the  administration  of  the  estate  of 
any  person  ilying  on  or  after  the  1st  Jnn., 
1S70,  no  debt  shall  be  entitled  to  prefer- 
ence merely  because  it  is  a  specialty  debt, 
but  all  the  creditors  shall  be  treated  as 
standing  in  equal  degree,  and  be  paid  ac- 
cordingly out  of  tlie  assets,  whether  legal 
or  equitable. 

2  Ld.  lied.  167;  Story  Eq.  PI.  §  104; 
Brown  v.  liicketts,  3  John.  Ch.  553;  Kish 
f.  llowland,  1  Paige,  20,  23;  Kettle  v. 
Crary,  1  Paige,  417,  note;  Hallett  v.  lial- 
lett,  2  Paige,  20,  21. 

8  Ld.  Red.  169;  Smith  v.  Leathart,  20 
L.  J.  Ch.  202,  V.  C.  K.  B.;  Story  Eq.  PI. 
§  105;  see  now  16  &  16  Vic.  c.  86,  §  42, 
r.  1. 

4  Manning  v.  Thesiger,  1  S.  &  S.  106. 

''  .See  per  Ld.  Eldon,  in  Lloyd  v.  Loar- 
ing,  6  Ves.  779. 


6  Ld.  Red.  169;  Story  Eq.  PI.  §  94  et 
seq.,  and  the  cases  cited  in  notes;  West  v. 
Jiiuidall,  2  IMason,  192-196;  AVendell  v. 
Van  Kensselaer,  1  John.  Ch.  349;  Ilallett 
V.  Hallett,  2  Paige,  18-20;  Culleii  v.  Duke 
of  Queensberry,  1  Bro.  C.  C.  (Perkins's 
ed.)  101,  and  Mr.  Belt's  notes;  RIoflats  v. 
Farquliarson,  2  id.  338,  note  (1);  Lloyd  v. 
Loaring,  6  Sumner's  Ves.  773,  note  (a), 
and  cases  cited;  Willis  v.  Henderson,  4 
Scam.  20;  Mann  v.  Butler,  2  Barb.  Ch. 
302;  Per  Foster  J.  in  Williston  v.  Michi- 
gan Southern  &  Northern  R.R.  Co.,  13 
Allen,  406;  Peabody  v.  Flint,  6  Allen,  52; 
Mason  v.  York  &  (Cumberland  R.R.  Co., 
52  Maine,  107-109;  ftlarch  v.  Eastern  R  R. 
Co.,  40  N.  IL  566 ;  Smith  v  Swomestedt, 
16  How.  U.  S.  288;  48th  of  the  Equity 
Rules  of  the  United  States  Courts. 

"<  Chancey  v.  May,  Prec.  Ch.  592. 


PERSONS    HAVI!fG    CONCURRENT    INTERESTS    WITH   PLAINTIFF. 


239 


before  the  7  &  8  Vic.  c.  110,  and  registered  under  §  58  of  that  Act, 
but  not  otherwise  registered,  some  members  were  allowed  to  sue 
on  behalf  of  themselves  and  other  members  to  restrain  a  nuisance ;  ^ 
and  so,  where  all  the  inhabitants  of  a  parish  had  rights  of  com- 
mon under  a  trust,  a  suit  by  one,  on  behalf  of  himself  and  the 
other  inhabitants,  was  admitted ;  ^  and  a  freeholder  and  copyholder 
of  a  manor  may  sue  on  behalf  of  himself  and  all  other  the  free- 
hold and  copyhold  tenants,  to  have  their  rights  of  common  ascer- 
tained, notwithstanding  the  rights  of  each  freeholder  are  separate 
and  distinct  from  those  of  the  copyholders ;  ^  but  although  one 
copyholder  may  sue  on  behalf  of  himself  and    the   other  copy- 
holders to  have  the  rights  of  common  ascertained,  he  cannot  sue 
on   behalf  of  himself  alone   for   that   purpose.^      So,   also,    one 
owner  of  lands  in  a  township  has  been  permitted  to  sue  on  behalf 
of  huuself  and  the  others  to  establish  a  contributory-modus  for  all 
the  lands  there.^     Upon  the  same  principle,  a  bill  was  allowed  by 
the  captain  of  a  privateer  on  behalf  of  himself  and  of  all  other  the 
mr^riners  and  persons  who  had  signed  certain  articles  of  agreement 
with  the  owners,   for  an  account  and    distribution  of  tlie   prizes 
matle  by  the  ship,^    And  in  Lloyd  v.  Loaring^  Lord  Eldon  ex- 
pressed his  opinion,  that  some  of  the  members  of  a  lodge  of  Free- 
masons, or  of  one  of  the  inns  of  court,  of  any  other  numerous  body  of 
persons,  might  sustain  a  suit  on  behalf  of  themselves  and  the  others, 
for  the  delivery  up  of  a  chattel  in  which  they  were  all  interested. 

The  great  increase  in  the  number  of  Joint-Stock  Companies,  and 
trading  associations,  in  Avhich  large  classes  of  persons  are  jointly 
interested,  has  had  the  effect,  in  modern  times,-  of  extending  the 
practice,  which  allows  a  few  persons  to  sue  in  Equity  on  behalf 
of  themselves  and  others  similarly  interested.*  In  the  case  of 
Walworth  v.  Jlolt,"^  the  bill  Avas  filed  by  the  plaintiffs  on  behalf 
of  themselves  and  all  otliers,  the  shareholders  and  partners  of  the 
banking  company,  called  the  Imperial  IJaiik  of  P^nghmd,  except 
those  Avho  were  made  defendants.  It  did  not  in  terms  pray  a 
dissolution,  or  a  final  winding  up  of  the  afiairs  of  the  company, 

1  Wormsley  v.  Merritt,  L.  It.  4  Eq.  C95, 
V.  C.  M. 

2  Blnckliam  n.  The  Wanloii  and  Society 
of  Sutton  (JoldfieM,  1  Cli.  Ca.  2r,'j.  It 
has  been  (lo»l)ted  wlietlier  the  Attorney- 
General  ought  not  to  have  been  a  party  to 
that  suit.  Sec  L<l.  Ited.  U'J;  and  .-sec 
Attorney-'ienernl  v.  Heelifl,  2  S.  &  S.  07; 
but  see  Attorney-General  v.  Moses,  2  Mad. 
294. 

8  Smitli  V.  Earl  IJrownlow,  L.  li.  9  Eq. 
241,  M.  It.;  see  Wnrriek  v.  Queen's  Col- 
lege, Oxford,  \V.  N.  (1870)  M.  It.;  18  W. 
K.  719,  M.  It.;  L.  K.  10  Eq.  lOf);  HettH  V. 
Thompson,  W.  N.  (1^70),  203;  18  \V.  K. 
1099.  M.  It. 

*  I'hillip,  V.  Hudson,  L.  It.  2  Ch.  Ap. 
243,  L.  C. 


Ch.  V.  §  1. 

' Y ' 


Inhabitants 
of  a  parish. 


Tenants  of 
manor. 


Owners  of 

lands  to 
establish  a 
7nodus. 

Crew  of  a 
ship  for  prize 
money. 


Extension  of 
practice  in 
modern 
times. 


6  Chaytor  v.  Trinity  College,  3  Anst. 
841 ;  Story  Eq.  Jur.  §  121,  and  cases  cited. 

fi  Cood  V.  Blewitt,  13  Ves.  397.  In  that 
case  the  bill  was  ori>;iniilly  filed  by  the 
cii|)tain  in  liis  own  rifjlit,  biit  was  allowed 
to  be  amended  bv  introducing  the  words, 
"on  behalf  of  himself,"  &c.  13  Ves.  398; 
see  West  v.  Randall,  2  Mason,  193,  194; 
Storv  Kq.  PI.  §  98. 

T  6  Ves.  773,  779;  see  Sumner's  ed.  note 

8  Bcatty  V.  Kurtz,  2  Peters,  5G6;  Smnh 
V.  Swomestedt,  16  How.  U.  S.  288;  Whit- 
ney V.  Mnvo,  15  111.  2.''.1;  I'litn.im  v. 
Sweet,  1  Ciiand.  (Wis.)  2H0;  Morgan  V. 
New  York  and  Albany  It.lt.  Co.,  10  i'aige, 
290. 

»  4  M.  &  C.  035. 


240  OF   TARTIES    TO    A    SUIT. 

5^"-  ^'-  §  1-     but  it  i»r;iyc'(l  tlie  nssist:mci'  of  tlic  Court  in  tlie  realization  of  the 
^  nssots  of  the  coni])any,  and  in  the  i)aynu'nt  of  its  debts,  and  tliut 

for  that  j)urjiose  a  receiver  niiglit  be  a|)))ointed,  and  autliorized 
to  sue  for  calls  un])aid  and  other  debts  due  to  the  comjiany  in  the 
name  of  the  registered  officer,  who  was  one  of  the  defendants. 
To  this  bill  a  demurrer  was  put  in,  u])on  the  argument  of  which 
the  two  most  important  objections  to  the  bill  were,  1st,  That  it 
was  not  the  jiractice  of  the  Court  to  interfere  between  ])artners, 
except  upon  a  bill  praying  a  dissolution ;  and  '2dly,  That  all  the 
parties  interested  in  the  concern  Avere  necessary  parties  to  tlu;  bill. 
General  Lord  Cottenliam  overruled  the  demurrer,  and  in  his  judgment  ob- 

casesof  part-   Served,^  "The  result,  therefore,  of  these  two  rules,  the  one  binding 
nerships.  i\^q  Court  to  withhold  its  jurisdiction,  except  upon  bills  ])raying  a 

dissolution,  and  the  other  requiring  that  all  the  partners  should  be 
parties  to  a  bill  praying  it,  would  be,  that  the  door  of  this  Court 
would  be  shut  in  all  cases  in  Avhich  the  partners  or  shareholders  are 
too  numerous  to  be  made  parties  ;  which,  in  the  present  state  of  the 
transactions  of  mankind,  would  be  an  absolute  denial  of  justice  to 
a  large  portion  of  the  subjects  of  the  realm,  in  some  of  the  most 
important  of  their  affairs.  This  result  is  quite  sufficient  to  show 
that  such  cannot  be  the  law ;  for,  as  I  have  said  upon  other  occa- 
sions,- I  think  it  the  duty  of  this  Court  to  adai)t'  its  practice  and 
course  of  proceeding  to  tlie  existing  state  of  society,  and  not  by  too 
strict  an  adherence  to  forms  and  rules,  established  under  different 
circumstances,  to  decline  to  administer  justice,  and  to  enforce 
rights  for  which  there  is  no  other  remedy.  This  has  ahvays  been 
the  princi[)le  of  this  Court,  though  not  at  all  times  sufficiently  at- 
tended to.  It  is  the  ground  upon  which  the  Court  has,  in  many 
cases,  dis])ensed  with  the  presence  of  parties  who  would,  according 
to  the  general  practice,  have  been  necessary  parties."  ^ 

In  Modetj  v.  Alston,'^  Lord  Cottenham  said,  that  this  form  of 
suit  is  "subject  to  this  restriction  :  that  the  relief  which  is  jjrayed 
must  be  one  in  which  the  2->arties  whom  the  jjlaintiff  professes  to 
represent,  liave  all  of  them  an  interest  identical  with  his  own  ;  for 
if  what  is  asked  may  by  possibility  be  injurious  to  any  of  them, 
those  parties  must  be  made  defendants ;  because  each  and  every  of 
them  may  have  a  case  to  make,  adverse  to  the  interests  of  the  par- 

M  :M.  &  C.  635.  that    purpose.      Buchard    v.    Boyce,    21 

2  Sen  Mare  r.  Malacliv,  1  M.  &  C.  659;  Geo.  6. 

Taylor  v.  Salmon,  4  M.  '&  C.  134.  141.  *  1  Phil.  790,  798;  11  Jur.  315;  Moseley 

<*  Storv   Kcj.   PI.   §§  76,  96,  115,  115  a,  v  Crcs-ev's  Compmv,   I-.  R.  1   Eq.   405; 

115  b;    \Vest  V.  IJaiiilall,   2  Mason,  181;  12  Jiir.  N.  S.  46,  V.  0.  W.;  see  also  Slilli- 

Colt  r.  Le-nier,  9  (J.. wen,  320,  330;  Deeks  pan  v.  Mitcliell,  3  M.  &  C.  72;  1  .Jur.  888; 

V.  Staiiliope,   14  Sim.  57;   Collyer  Partn.  Hichens  v.    Congrevc,  4  Kuss.  662,  574; 

(Perkins's  ed.)   361,    in    note;  "Tavl.>r  v.  Gordon   v.   I'ym,   3  Hare,  223,   227;  Ap- 

Salnion,  4  M.  &  (J.   134,  141.     liepresen-  perly  v.   I'Hge,   1    Phil.  779,786;  11  Jur. 

tatives  of  a  deceased  p;irlner  should   be  271;  Kicliardsnn  ».  Iliistings,  7  Beav.  323, 

ma'le  parties  to  a  bill  to  dissolve  a  p^rt-  326;  11   I5eav.  17;  8  .lur.  72;  Beccliing  v. 

nerihip,  and  the  bill  may  be  amended  for  Lloyd,  3   Drew.  227;  Moor  v.  Veazie,  32 

Maine,  355. 


PERSONS    HAVING    CONCURRENT   INTERESTS   WITH    PLAINTIEF.  241 

ties  suing.     If,  indeed,  they  are  so  numerous  that  it  is  impossible    Ch.  V.  §  i. 
to  make  them  all  defendants,  that  is  a  state  of  things  for  which  no  '' 

remedy  has  yet  been  provided."  If,  however,  such  persons  are  so 
numerous  that  it  is  impossible  to  make  them  parties,  it  is  appre- 
hended that,  according  to  the  present  practice,  the  Court  will,  in 
such  cases,  pennit  the  suit  to  proceed,  upon  one  or  several  of  such 
parties  having  interests  not  identical  with  the  plaintiff,  or  of  each 
class  of  them,  if  there  are  several  classes,  being  made  defendant  to 
represent  the  others;  unless  indeed  the  object  of  the  suit  is  to 
have  the  partnership  or  company  dissolved.^ 

The  fact  of  a  company  being  incorporated  by  Act  of  Parliament  "Where  com- 
does  not  ajipear  necessarily  to  prevent  individual  members  of  the  ^o^JteTby' 
corporation  suing  on  behalf  of  themselves  and  the  other  members  Act  of 
of  the  company.     In  I^oss  v.  Hat-bottle,^  Sir  J.  Wigram  Y.  C.  ob-     '^*  ^^°^^°  ' 
served,  "  corporations  of  this  kind  are  in  truth  little  more  than 
private  partnerships ;  and  in  cases  which  may  easily  be  suggested, 
it  would  lie  too  much  to  hold,  that  a  society  of  })rivate  persons 
associated  together  in  undertakings,  which,  though  certainly  bene- 
ficial to  the  public,  are  nevertheless  matters  of  piivate  property, 
are  to  be  deprived  of  their  civil  rights,  inter  se,  because,  in  order 
to  make  their  common  objects  more  attainable,  the  Crown  or  the 
legislature  may  have  confen-ed  upon  them  the  benefit  of  a  corpor- 
ate character.     If  a  case  should  arise  of  injury  to  a  corporation  by 
some  of  its  members,  for  which  no  adequate  remedy  remained,  ex- 
cept that  of  a  suit  by  individual  corporators  in  their  private  char- 
acters, and  asking  in  such  a  character  the  in-otection  of  those  rights 
to  which  in  their  cori)orate  capacity  they  were  ^entitled ;  I  cannot 
but  think  that  the  principle  so  forcibly  laid  down  by  Lord  Cotten- 
ham  in  Wcdworth  v.  Jlolt,'^  and  other  cases,  would  apply,  and  the 

1  Richardson  v.  Larpent,  2  Y.  &  C.  C.  Co.,  10  Beav.  1,  12;  11  Jur.  74;  Salomons 
C.  507,  514;  7  Jur.  GUI;  Pare  v.  Clegg,       v.  LaiiiR,  12  Beav.  339;  14  .Tur.  279;  Fra- 

29  Beav.  589,  002;  7   Jur.   N.    S.    1130;  ser  t;.  Whalley,  2  H.  &M.  10;  East  Pant      . 

Bromlev     v.    Williams     32    Beav.    177;  Du  Co.   v.  Mcrryweatlier,   10  Jur.  N.   S. 

9  Jur.  'N.  S.  240;   lloole  v.  (ireat  "West-  1231;  13  W.  K.  31G,  V.  C.  AV.;  2  H.  &  M. 

em   Hailwiiv  Cornpanv,  L.  It.  3  Cli.  Ap.  254;   Moselev  t'.  Cresseys  Company,  L.  K. 

262,  273,  !>.' JJ.;  Cranier  v.  Bird,  L.   K.  G  1    Kq.  405;   12  Jur.  N.  S.  46,  V.  C.  W.; 

Eq.  143,   148;   Pickering  v.   William>,   15  lIooK;    r.  Gn-at    Western    Railway  Com- 

W.   K.  218,    V.  ('.  S.;  see  however,  Car-  paiiy,  1..  K.  3  (li.  Ap.  2G2,  L..1J.;  Bloxam 

lisle   V.    South    Eastern    Bailwav    Co.,    1  r.  Metropolirau  l.'ailwny  Co.,  L.  K.  3  Oh. 

M'N.  &  G.  089,  699;  14  Jur.  635;  Eaw-  Ap.  337,  L.  C ;   Atwool  r.   Menyweath- 

ceU  V.  Lawrie,  1  Dr.  &  S.  192,  203;  as  cr,  L.    U.   6  Ecp  404,  n.  (3),  V.  C.  W.; 

to   makinj;   the  Corporation  u  ilefendant  Clinch  v.  Einaiiciiil  Corporaiion,  L.  R.  5 

in  its  corporate    character,  fce   Biifisliaw  Ei[.  450,  V.  C.  W. ;   allinneii,  L.  K.  4  Ch. 

V.   Eastern  Union    Raihvav  Co.,  7   Hare,  Ap.  117,  L.  C.  vSc  I..  .U.;  Cranier  v.  Bird, 

114;  13  Jur.  602;  2  .M'N."  &  G.  389;    14  L.  R.  0  i:i|  143.  M.  R. ;  K'irn:if;lian  r.  Wil- 

Jur.  491.  liiims,  L.  R.  0  E(|.  228,    M.    i;  ;   S:ili>l.nrv 

2  2  Hare,  491;  see  al.io  Preston  v.  Grand  r.  Metropolitan  Kaihvav  Coniiianv,  W.  N, 
Collier  D.K-k  Co.,  11  Sim.  327,  344;  S.  C  (1809).  52,  W.  N.  (1870),  70;  18  W.  R. 
nwn.  Pre-ton  v.  Guvon,  5  Jur.  140;  BafC"  484,  V.  C.  J.;  ib.,  W.  N.  i  1870),  74.  L.  J. 
shaw  I.-.  Ea^t.•rn  I'liion  i:ailway  Co.,  and  (J.;  ib.  182,  V.  C.  J.;  18  W.  R.  974,  V.  C. 
Cnrlisle  v.  .Snutli  Eastern  Railway  Co.,  J.;  Sweny  r.  Smith,  L.  K.  7  Imj.  324,  M. 
ubi  supra;    (iraham  v.   iiirkenhaad  Rail-  U. 

way  C..,  2  M'N.  &  G.  140,  150;   14  Jur.  «  4  M.  &.  C.  635. 

494;  Colman  v.  Eastern  Counties  Railway 
VOL.  I.  16 


242 


OF    PARTIES    TO    A    SUIT. 


Cn.  V.  5  1. 


Where  the 
relief  prayed 
is  not  beue- 
ticial  to  all; 


as  where  suit 
is  not  neces- 
sarily advan- 
tageous 
to  all ; 


or  where 
elaim  is  not 
necessarily 
reasonable  ' 
witli  regard 
to  all. 


claims  of  justice  "would  be  found  superior  to  any  difficulties  arising 
out  of  teclinical  rules,  rcs]>ectiug  tlie  mode  in  which  corporations 
are  required  to  sue."  ^  In  the  case  Inst  referred  to,  the  Vice- 
Chancellor  allowed  a  demurrer,  on  the  ground  that  upon  the  case 
as  stated  in  the  hill,  there  was  nothing  to  prevent  the  company 
from  obtaining  redress  in  respect  of  the  matters  complained  of  in 
its  corj)orate  character,  and  that,  therefore,  the  plaintiffs  could  not 
sue  in  a  form  of  pleading  which  assumed  the  practical  dissolution 
of  the  corporation.- 

It  is  generally  necessary,  in  order  to  enable  a  plaintiff  to  sue  on 
behalf  of  himself  and  others  who  stand  in  the  same  relation  witli 
him  to  the  subject  of  the  suit,  that  it  should  appear  that  the  relief 
sought  by  him  is  beneficial  to  those  whom  lie  undertakes  to  repre- 
sent.* Where  it  does  not  appear  that  all  the  persons  intended  to 
be  represented  are  necessarily  interested  in  obtaining  the  relief 
sought,  such  a  suit  cannot  be  maintained ;  *  and  a  plaintiff  cannot, 
in  one  portion  of  a  bill,  sue  on  behalf  of  himself  and  all  the  other 
members  of  a  company,  and  by  another  portion  seek  to  establish 
a  demand  against  the  company.^  Where  three  of  the  subscribers 
to  a  loan  of  money  to  a  foreign  State  filed  a  bill  on  behalf  of 
themselves  and  all  other  subscribers  to  that  loan,  to  rescind  the 
contracts  of  subscription,  and  to  have  the  subscription  moneys 
returned,  it  was  held,  that  the  plaintifis  were  not  entitled,  in  that 
case,  to  represent  all  the  other  subscribers,  because  it  did  not 
necessarily  follow  that  every  subscriber  should,  like  them,  wish  to 
retire  from  the  speculation,  and  every  individual  must,  in  that  re- 
spect, judge  for  himself.®  And  upon  the  same  principle,  one  of  the 
inhabitants  of  a  distiict,  who  claims  a  right  to  be  served  with 
water  by  a  public  company,  cannot  file  a  bill  on  behalf  of  himself 
and  the  other  inhabitants,  to  compel  that  company  to  supply  water 


1  One  stockholder  of  a  manufacturing 
corporation  cannot  alone  maintain  a  bill 
in  Equity  to  compel  the  execution  of  a 
trust,  by  persons  who  have  taken  a  con- 
veyance of  the  company  property  intrust 
to  pay  its  debts,  because  he  stands  in  the 
same  right  with  all  the  other  stockholders, 
who  have  a  common  interest  with  him  in 
enforcing  the  trust,  and  all  of  whom 
ehould  be  made  parties,  if  not  too  numer- 
ous, or,  if  too  numerous,  the  bill  should  be 
brought  by  some  in  behalf  of  all,  so  that 
the  rights  of  all  may  be  duly  adjudicated 
in  the  final  decree.  Heath  v.  P",llis,  12 
Cush.  601;  Allen  v.  Curtis,  26  Conn.  456. 
"Where  the  plaintifT  sued  cn  behalf  of 
himself  and  others,  it  Mas  held,  that  the 
defendant,  after  answering  to  the  merits 
of  the  bill,  could  not  oljject  that  the  plain- 
tiff had  no  right  to  bring  his  bill  in  that 
form.  Jlesservey  v.  15arelli,  2  Hill,  Cli. 
667;  see  ante,  pp.  26,  144,  notes. 

2  See  also  Mozley  v.  Alston,  1  Phil. 
790,  797 ;  11  Jur.  31o";  Lord  v.  The  Govern- 


or and  Company  of  Copper  Miners,  2  Phil. 
740,  749;  12  Jur.  1059;  Yettes  v.  Norfolk 
Railway  Co.,  3  De  G.  &  S.  293;  13  Jur. 
249. 

8  Gray  v.  Chaplin,  2  S.  &  S.  267,  272; 
Attorney-General  ik  Ileelis,  2  S.  &  S.  67, 
75;  Colman  v.  K;istern  Counties  Kailway 
Company,  10  Beav.  1,  13;  11  Jur.  74"; 
Carlisle  v.  South  Eastern  Kailwfl}'  Com- 
panv,  1  M'N.  &  G.  689,  698;  14  Jur.  535; 
Muflock  V.  .lenkins,  14  Beav.  628;  Wil- 
'liams  V.  Salmond,  2  K.  &  J.  463;  2  Jur. 
N.  S.  251 ;  Moseley  v.  Cresseys  Company, 
L.  K.  1  Kq.  405;  12  Jur.  N.  S.  46,  V.  C.  W. 

^  Van  Sandau  v.  Moore,  1  Russ.  441, 
465;  Lovell  v.  Andrew,  15  Sim.  581,  584; 
11  Jur.  485;  Bainbiidge  ik  Burton,  2 
Beav.  536;  Thomas  v.  Ilobler,  4  De  G.,  F. 
&  J.  199;  8  Jur.  N.  S.  125. 

5  Thomas  v.  Hobler,  4  De  G.,  F.  &  J. 
199;  8  Jur.  N.  S.  125. 

c  Jonfs  V.  Garcia  Del  Bio,  T.  &  R.  297, 
300. 


PERSONS    HAVING   CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


243 


to  the  district  upon  particular  terms ;  because,  what  might  be  .  rea- 
sonable with  respect  to  one,  might  not  be  so  Avith  regard  to  the 
others.^  This  form  of  suit  cannot  be  adopted  where  each  of  the 
class  on  behalf  of  whom  it  is  instituted  has  a  separate  demand  in 
Equity ;  -  and,  therefore,  a  suit  by  a  shareholder  in  a  joint-stock 
company,  on  behalf  of  himself  and  the  other  shareholders,  seeking 
relief  from  the  shares,  and  the  return  of  the  dej^osits,  on  the 
ground  of  fraud  or  misrepresentation  in  the  prospectus,  cannot  be. 
maintained ;  for  the  case  of  each  person  who  has  been  deceived  is 
peculiar  to  himself,  and  must  depend  upon  its  own  circumstances.^ 
Neither  can  this  form  of  suit  be  adopted  where  the  act  complained 
of  is  voidable  and  capable  of  confirmation  by  the  members  of  the 
comi)any,  nor  where  it  is  a  mere  matter  of  internal  regulation.^ 
Where,  however,  the  object  sought  is  such  that  a  suit  of  this  na- 
ture may  be  instituted,  it  may  be  maintained,  although  a  majority 
of  the  class  on  behalf  of  whom  it  is  instituted  disapi)rove  of  it.^ 

Where  tlie  object  of  the  suit  is  the  dissolution  of  a  partnership, 
all  the  partners  must,  it  Avould  seem,  be  parties  to  the  suit,  and  a 
suit  by  one  partner  on  behalf  of  himself  and  others,  cannot  be 
maintained.^  In  cases  of  joint-stock  companies,  the  difficulties 
attending  a  suit  for  winding  up  their  affairs  have  led  to  the  intro- 
duction of  a  special  mode  of  so  doing.'' 

Where  the  object  of  the  suit  is  to  restrain  the  commission  of 
acts  which  are  ultra  vires,  or  such  that  they  cannot  be  confirmed 
by  the  members  of  a  corj)oration,  any  one  member  may  sue  on  be- 
half of  himself  and  tlie  other  members  to  restrain  them ;  ^  but  it  is 


Ch.  v.  §  1. 


Not  appli- 
cable in  suits 
for  dissolu- 
tion of  part- 
nership. 

Winding  up 
of  companies, 
25  &  20  Vic. 
c.  89,  Pt.  IV. 

Suits  to  re- 
strain acts 
vhra  vires. 


1  VVeale  v.  West  Middlesex  Waterworks, 
1  J.  &  VV.  358,  370;  see  Beaumont  r.  Mere- 
dith, 3  V.  &  B.  181 ;  Storv  Eq.  I'l.  §§  120, 
123,  125. 

2  .lones  r.  Garcia  Del  Kio.  T.  &  R.  2'.t7, 
300;  IJliiin  v.  Af,'ar,  1  Sim.  37,  43;  2  Sim. 
289;  Cniskev  v.  Tlie  Bank  of  Wales,  4 
(;itr.  314;  y'.Fur.  N.  S.  595;  Hallows  r. 
Fernie,  I..  H.  3  (;ii.  Ap.  4f;7,  ]..  C;  Tur- 
quand  r.  Marsliail,  L.  M.  0  l>|.  112,  M.  It. 

■'I  Crn^key  /•.  The  Hank  of  Wale-,  4  (iin". 
814;  9  .Jur.VN.  S.  595;  Hallows  v.  Fernie, 
L.  li.  3  (jh.  A  p.  407,  L.  C. 

■«  Ko-s-i  r.  Harhottle,  2  Hare,  461;  Moz- 
ley  1'.  Alston,  1  I'liil.  790;  11  Jur.  315; 
Lord  V.  (iovi-rnor  and  Conipanv  of  (loyiper 
Miners,  2  I'Inl.  740;  12  .lur.  1059;  Yetis  v. 
Norfolk  liailwav  (Jomf)any,  3  l)e  G.  &  S. 
293;  13  .lur.  249;  Itrowne  r.  Tiie  Mon- 
moiillisiiire  K:iilwa_v  and  ('anal  ("onq)any, 
13  IJeav.  32;  Stevens  r.  Soiilh  Devon  Rail- 
way Com|)nriy.  9  Hare,  ;il3;  MaedouL'all 
V.  .Jersey  Impfrinl  Hotel  Company,  2  M.  i*i: 
M.  52>' ;  Clinch  ?'.  financial  Corporation, 
L.  R.  5  Kq.  451.  WZ,  V.  C.  W.,  allirmed 
L.  K.  4  Ch.  Ap.  117,  L.  C.  &  L.  .1.1.; 
Lambert  i-.  Nfirlherii  IJailwav  of  Buenos 
Ayres,  IS  W.  K.  IW),  V.  C.  M  *  For  ex- 
ceptional circumstances  under  wliicli  such 


a  bill  was  permitted,  see  Atwool  r.  ]\Ierry- 
weather,  L.  R   5  Eq.  4'J4  n.  (3),  V.  C.  \V. 

•'  Bromley  v.  Smith,  1  .Sim.  8;  Small  r. 
Attwood,  Younge,  407,  450;  and  see  Wil- 
liam V.  Salmond,  2  K.  &  J.  403;  2  Jur. 
N.  S.  251;  Kernadian  v.  Williams,  L.  R. 
C  Kq.  228,  M.  R. 

c  Loiif:  V.  Y'onge,  2  Sitn.  369,385;  Beau- 
mont r.  Meredith,  3  V.  &  B.  ISO;  Abra- 
hnm  r.  Hannav,  13  Sim.  581;  Decks  v. 
Stanhope,  14  Sim.  57;  8  .lur.  349;  Wilson 
1'.  StaMhoi)e,  2(Joll.  029;  10  Jur.  421 ;  Kieh- 
ardson  v.  I.arpeiit,  2  Y.  &  C.  C.  C.  607;  7 
Jur.  691 ;  Richardson  v.  Hastings,  7  Beav. 
301;  11  Beav.  17;  8  Jur.  72;  Van  Saiidiiu 
?'.  .Moore,  1  Russ.  441,  450;  (Joopor  v. 
Webb,  15  Sim.  454,  40.'?;  on  appeal,  11 
.)ur.  443;  Apjierlv  r.  l';ige,  1  I'liil.  779, 
785;  11  Beav.  271;  Harvcv  r.  Bignidd,  8 
Beav.  343,  345.  But  see  "l.indley  I'artn., 
917,  1029;  Cockburn  r.  'rhoii)])'ion,  10 
Ves.  321,  325. 

7  'I'he  Companies  Act,  1832  (26  &  28 
Vic.  c.  89),  I'art  IV. 

f  H"dgkinson  i'.  'I'he  National  Live 
Slock  Insurance  (Jompanv,  20  Beav.  473;  6 
Jur.  N.  S.  478;4  De  U.  .Si  J.  4'J2;  5  Jur.  N. 
S.  969;  Lyde  1'.  Kiistern  Bengal  Railway 
Company,  .36  Beav.  10;  Blo.\Mm  v.  Metro- 


244 


OF    PARTIES    TO    A    SUIT. 


Oil.  V.  §  1. 


riaintitVlias 
doniinioii 
over  iho  suit 
till  (lo.ivo; 
but  not  niter. 


Semble,  dis- 
missal of  bill 
a  bar  to 
another  suit. 


Plaintiff  must 
personally 
have  a  j^ood 
cause  of  suit. 


not  necessary  lie  slioulil  a<lo])t  that  form  of  suit,  and  lie  may  sue 
in  liis  own  nanie.^ 

In  suits  of  this  nature,  tlie  phiintilV,  as  he  acts  upon  liis  own 
mere  motion,  and  at  liis  own  expense,  retains  (as  in  other  cases) 
the  nhsolute  dominion  of  the  suit  until  decree,  and  may  dismiss 
the  hill  at  his  pleasure;  after  decree,  however,  he  cannot  by  his 
conduct  deprive  other  j)ersons  of  the  same  class  of  the  benefit  of 
the  decree,  if  they  think  fit  to  ]>rosecutc  it.- 

One  of  the  objections  Avhich  has  been  suggested  to  suits  being 
framed  in  this  manner  is,  that  if  the  bill  is  dismissed  with  costs, 
other  members  of  the  partnership  or  company  may  still  file  another 
bill  for  the  same  object;  but  in  Barker  v.  Walters^  Lord  I^ang- 
dale  M.  R.  said,  that  w^here  a  company  had  autliorized  some  of  its 
members  to  enter  into  obligations  for  it,  and  they  then  came  to 
the  Court  for  relief  against  tliird  parties,  in  the  name  and  for  the 
benefit  of  all,  and  the  Court  dismissed  the  suit,  his  impression  was, 
that  the  Court  would  not  allow  other  members  to  ])rosecutc  an- 
other suit  for  the  same  object. 

In  adopting  this  foiTn  of  suit,  care  must  be  taken  in  selecting 
the  plaintiff;  for  as,  on  the  one  hand,  a  plaintiff,  who  has  a  right 
to  complain  of  an  act  done  to  a  numerous  society  of  Avhich  he  is  a 
member,  is  entitled  effectually  to  sue  on  behalf  of  himself  and  all 
others  similarly  interested,  though  no  other  may  wish  to  sue  ;  so, 
although  there  are  a  hundred  who  wish  to  institute  a  suit  and  are 
entitled  to  sue,  still,  if  they  sue  by  a  plaintiff  only,  Avho  has  per- 
sonally precluded  himself  from  suing,  the  suit  cannot  proceed.^ 
A  plaintiff  thus  suing  must  be  a  hand  fide  shareholder,  and  sue 
bond  fide   for   the   benefit   of  the  company;   therefore,  Avhere  a 


politan  Kaihvay  Company,  L.  R.  3  Ch. 
Ap.  337,  L.  C. :  Atwool  v.  Merryweatlier, 
L.  R.  5  Eq.  464,  n.  (3),  V.  C.  W.;  Clinch 
V.  Financial  C'  rporatioii,  L.  R.  5  Eq.  450, 
V.  C.  \V.;  nflirmed.  L.  U.  4  Ch.  Ap.  117, 
L.  C.  &  L.  .1.1. ;  Kcruii^'han  v.  Williams, 
L.  i!.  0  Eq.  2-28,  iM.  R.;  Gray  v.  Lewis,  L. 
R.  8  Eq.  526,  V.  C.  M. 

1  Hoolc  V.  Great  Western  Railway 
Com|)any,  L.  R.  3  Ch.  Ap.  262,  L.  .IJ. 

2  See  post,  (.'hap.  XIX.,  Dismissinr/  Bills, 
Handford  v.  Storie,  2  8.  &  S.  l'J6 ;  York 
V.  White,  10  Jur.  168,  M.  R.;  Armstrong; 
V.  Storer,  i>  Ik-av.  277;  see  al-o  Rniwn  v. 
Lake,  2  (oil.  620 ;  .lohnsoii  v.  Hnnnnersley, 
24  Beav.  408;  Wliiltin;;ton  v.  Edwards,  7 
W.  li.  72,  L.  C;  Iiichley  v.  Alsop,  7  Jur. 
N.  S.  1181;  9  W.  R.  64'J,  M.  R.;  Hubbell 
w.  Warren,  8  Allen,  173,  177;  IJpdike  v. 
Dovle,  7  R.  I.  446,  462;  Collins  v.  Taylor, 
3  (jreen  Ch.  163.  Rut  in  Atlas  Rank  v. 
Nahant  Bank,  2.'3 1'ick.  480,  492,  Shaw,  C. 
J.  said:  "The  plaintilfs  having  once  in- 
stituted the  proceedings  as  a  statute 
remedy  for  themselves  and  others,  tliej- 


go  on  afterwards  for  the  benefit  of  all 
parties  concerned,  and  the  oritrinal  plain- 
tiffs have  no  power  to  discontinue  any 
more  than  a  petitioning  creditor  could 
discontinue  the  proceedinijs  under  a  com- 
mission of  bankruptej'."  And  now  it  is 
enacted  l)y  statute  in  Massacliusetts  that 
after  a  suit  in  Ivpiity  to  enforce  the  liability 
of  stockholders  or  oflicers  of  manufactur- 
ing corporations,  shall  have  been  com- 
menced, it  shall  not  be  competent  for  the 
plaintiff  to  dismiss  the  same  without  order 
of  Court,  and  such  notice  to  other  credit- 
ors as  the  Court  may  deem  reasonable 
under  the  circumstances.  St.  1862,  c.  218, 
§8. 

8  8  Beav.  97;  9  Jnr.  73. 

4  I'er  L.  J.  Knight  Hruce,  Burt  v.  The 
National  Life  Assurance  Association,  4 
I)e  G.  &  .T.  158,  174;  Hubbell  v  Warren, 
8  Allen,  173,  177.  See  as  to  requiring  se- 
curity for  costs  from  a  ])laintitl'  in  such  a 
suit  who  is  insolvent,  Tredwell  v.  Bvrch, 
1  y.  &c.  Ex.  47G. 


PERSONS    HAVING    CONCURRENT    INTERESTS    WITH    PLAINTIFF. 


245 


director  in  another  company  took  shares  for  the  purpose  of  filing 
a  bill,  and  was  indemnified  by  such  company,  the  bill  was  dis- 
missed.^ 

In  all  cases  of  suits  for  the  protection  of  property  pending  litiga- 
tion, and  in  all  cases  in  the  nature  of  waste,  one  person  may  sue 
on  behalf  of  himself  and  of  all  persons  having  the  same  interest.^ 

In  all  cases,  where  one  or  a  few  individuals  of  a  large  number, 
institute  a  suit  on  behalf  of  themselves  and  the  others,  they  must 
80  describe  themselves  in  the  bill ;  otherwise  a  demurrer  or  plea  for 
want  of  parties  will  lie.^  Thus,  where  a  part  of  a  ship's  crew  ap- 
pointed two  of  their  number  to  be  agents,  and  a  bill  was  filed  by 
such  agents  in  their  own  name,  and  not  on  behalf  of  themselves 
and  the  others,  a  demurrer  was  alloAved  for  not  having  made  the 
whole  crew  parties ;  *  and  where  a  bill  was  filed  by  three  partners 
in  a  numerous  trading  company,  against  the  members  of  the  com- 
mittee for  managing  the  trading  concerns  of  the  company,  it  was 
dismissed,  because  it  was  not  filed  by  the  plaintiffs  "  on  behalf  of 
themselves  and  the  other  partners,  not  members  of  the  committee."^ 
And  the  Court  is  bound  to  ascertain,  by  strict  proof,  that  the  par- 
ties by  whom  the  bill  is  filed  have  the  interests  which  they  say 
they  have.^ 

The  Court  will  generally  at  the  hearing  allow  a  bill,  which  has 
originally  been  filed  by  one  individual  of  a  numerous  class  in  his 
own  right,  to  be  amended,  so  as  to  make  such  individual  sue  on 
behalf  of  himself,  and  the  rest  of  the  class.'' 


Ch.  v.  §  1. 


Suits  for  the 
protection  of 
property, 
pending  liti- 
gation, or  to  ' 
restrain 
waste. 

One  or  more 
suing  for 
themselves 
and  others, 
must  be  so 
described. 


Plaintiff  maj^ 
ani'-nd  if  not 
so  described. 


1  Forrest  v.  Manchester,  Siieffield  and 
Lincolnsliire  IJailwav  Company,  30  IJeav. 
40;  7  .Jur.  X.  S.  749;  ib.  887;  4"De  G.  &  .1. 
126;  see  also,  Colmaii  v.  Kastern  Counties 
K:iilwiiy  <'ompany,  10  Beav.  1;  11  .Tur. 
74;  IJIoxrim  r.  Metropolitan  Railway 
Company,  L.  H.  3  Cli.  An.  337,  L.  C; 
Salisbury  r.  .Melro[)olitaii  Kailway  Com- 
pany, W'.  N.  {186'J)  5-2,  V.  C.  .1. 

!2'l5  &  16  Vic.  c.  86,  §  42.  r.  5;  and  see 
Ackrovd  v.  lirigfjs,  14  W.  K.  25,  V.  C.  S. 

8  Miireli  V.  K;isteni  K.R.  Co.,  40  N.  II. 
566.  Ill  a  liill  in  Kqiiity  brought  by  an 
administrator  of  an  insolvent  estiite,  to 
obtain  a  reconveyance  of  land  alleged  to 
Lave  been  conveyed  by  the  intestate,  with- 
out consideration,  to  defraud  his  creditors, 
it  muDt  be  alleged  in  the  bill  tiiat  the  suit 
is  instituted  for  the  benefit  of  all  the  cred- 
itors of  the  estate.  (Jr^cker  v.  Craig,  46 
Maine,  3*27;  Fletciier  v.  Holmes,  40  Maine, 
364. 

*  Leich  V.  Thomas,  2  Ves.  312. 

6  Baldwin  v.  Lsiwrence,  2  S.  &  S.  18; 
and  see  Douglass  v.  Ilorsfall,  2  S.  &  S. 
184. 

6  Clay  V.  Kunr.jrd,  8  Hare,  281,  288;  14 


Jur.  803;  andsee.Smithr.  Leallihart,20L. 
.1.  Cli.  202,  v.  C.  K.  15.  A  suit  instituted 
bj'  a  f)Iaintitr  having  only  a  nominal  inter- 
est on  behalf  of  a  body  of  sliareliolders, 
not  for  the  benefit  of  the  plaintiff,  but  for 
improper  purposes,  nt  the  instigation  of 
another  person,  who  indemnifies  the  plain- 
tiff agiinst  the  costs  of  tiie  suit,  will  be 
treated  as  an  imposition  on  the  Court, 
and  tlie  bill  will  be  ordered  to  be  taken 
off  the  lile.  Robson  v.  Dodds,  L.  R.  8  Eq. 
301;  see  Seaton  v.  Grant,  L.  K.  2  Ch.  Ap. 
459. 

"  Lloyd  )•.  Loaring;  see  also  ^lijligan  v. 
Mitchell,  1  M.  &  ('.  43.'};  (Jwatkin  r.  Camp- 
bell, 1  Jur.  N.  S  131,  V.  C.  W.;  Keece 
Hiver  .Silver  Mining  <'onipany,  L.  R.  7 
K(i.  347,  M.  H.;  and  posl,  on  Amending 
Btlls.  If  a  bill  is  brought  in  behalf  of  the 
plaintiff  and  such  others  having  a  like  in- 
terest as  may  come  in  to  i)riisecute  the 
suit,  ami  no  others  come  in,  the  plaintiff 
has  the  control  of  the  suit  for  himself 
alone,  and,  in  order  to  maintain  his  bill, 
lie  must  show  that  he  is  himself  entitled 
to  efiuitable  relief.  Ilubbell  f.  Warren,  8 
Allen,  173. 


•241? 


OF    PARTIES    TO    A    SUIT. 


Cii.  V.  5 


Defendants 
interested, 


immediately, 


or  consequen- 
tially. 


Who  are 
necessary 
because  of 
immediate 
interests; 


Suction  IT.  —  Of  Necessary  Parties  to  a  Suit,  in  respect  of  their 
interest  in  7'esistin(/  the  Demands  of  the  Plaintiff} 

A  person  inny  be  atieeted  by  the  deiiiands  of  llie  |)laiiilifF  in  a 
suit,  either  inuiie<li:itely  or  eonse(|uenti:illy.'''  Wliere  an  indivicbial 
is  in  the  aetual  enjoyment  of  the  subject-matter,  or  lias  an  interest 
in  it,  either  in  possession  or  expectancy,  which  is  likely  either  to 
be  defeated  or  diminished  by  the  plaintiff's  claims,  in  such  cases 
he  has  an  immediate  interest  in  resisting  the  demand,  and  all  per- 
sons who  have  such  innnediate  interests  are  necessary  parties  to 
the  suit ;  but  there  may  be  other  persons  who,  though  not  imme- 
diately interested  in  resisting  the  plaintiff's  demands,  are  yet  liable 
to  be  affected  by  them  consequentially,  because  the  success  of  the 
plaintilf  against  the  defendants  who  are  immediately  interested, 
may  give  those  defendants  a  right  to  proceed  against  them,  for  the 
purpose  of  compelling  them  to  make  compensation,  either  in  the 
whole  or  in  part,  for  the  loss  sustained.  Those  persons,  therefore, 
as  being  consequentially  liable  to  be  affected  by  the  suit,  must  fre- 
quently also  be  parties  to  it.  The  question,  therefore,  of  who  are 
necessary  parties  to  a  suit  in  respect  to  their  interest  in  resisting 
the  plaintiff's  demands,  resolves  itself  into  two ;  namely.  Who  are 
necessary  parties, ^rs^,  in  respect  of  their  immediate  interest?  and 
secondly,  in  respect  of  their  consequential  interest? 

The  reader's  attention  will  be  first  directed  to  the  question,  who 
are  necessary  parties  to  a  suit,  in  respect  of  their  immediate  interest 
in  resisting  the  plaintiff's  demand.  And  here  it  is  to  be  observed, 
that  where  parties  are  spoken  of  as  having  an  interest  in  the  ques- 
tion, it  is  not  intended  to  confine  the  definition  to  those  only  who 
are  beneficially  interested,  but  it  is  to  be  considered  as  extending 
to  all  persons  who  have  any  estate,  either  legal  or  equitable,  in  the 
subject-matter,  whether  such  estate  be  beneficial  to  themselves  or 
not." 

1  See  ante,  notes  to  pp.  190, 191,  and  par- 
ticularly Equity  Kule  22  of  the  United 
States  Courts  quoted  on  the  latter  page. 
By  Kquity  Rule  48,  of  the  same  Onirt,  it 
is  provided  that,  "  in  all  ea^es,  wliere  it 
shall  a[)pear  to  the  Court  that  persons  who 
might  otherwise  be  deemed  necessary 
or  proper  parties  to  the  suit  cannot  be 
made  parties  by  reason  of  their  being  out 
of  the  jurisdiction  of  the  Court,  or  incapa- 
ble otherwise  of  being  made  parties,  or 
because  their  joiniler  wouM  oust  the. juris- 
diction of  the  Court,  as  to  the  parties  be- 
fore the  Court,  the  Court  may,  in  their 
di.scretion,  proceed  in  the  cause  without 
making  such  persons  parties;  and  in  such 
cases  the  decree  shall  be  without  prejudice 
to  the  rights  of  the  absent  parties." 

2  A  town  must  be  a  part}-  to  a  bill  in 
Equity  to  restrain  its  treasurer  from  pay- 
ing out  money  voted  at  legal  meetings  of 


the  town  for  illegal  purposes.  Allen  v. 
Turner,  11  Gray,  436;  see  Clark  v.  Ward- 
well,  55  jMaine,  (il. 

^  III  a  suit  seeking  to  reform  a  deed,  the 
holder  of  an  equity  of  redemption  not 
barred  by  lapse  of  time,  under  a  mortgage 
not  foreclosed,  is  a  ])arty  in  interest,  and 
must  be  notified;  and  so  also  of  the  grant- 
or and  grantee  in  the  deed  sought  to  be 
reformed.  Pierce  v.  Faunce,  47  Maine, 
507. 

Where  A.  contracts  to  convey  land  toB., 
but  actually  conveys  tlie  land  to  C,  both 
A.  and  (!.  are  proper  parties  to  a  bill  filed 
bv  15.  for  specific  performance.  Daily  v. 
Litchtield,  10  Mich.  29.  In  a  suit  to  set 
aside  a  deed  for  fraud  against  creditors, 
both  the  grantor  and  grantee  are  neces- 
sary parties.  Lovejoy  v.  Irelan,  17  Md. 
525. 


PERSONS    EESISTES^G   PLAINTIFF'S    DEM.VNDS.  247 

Under  this  definition  are  included  all  persons  who  fill  the  char-  Ch.  V.  §  2.  . 
acter  of  trustees  of  the  property  in  dispute.  But  the  rule  is  sub- 
ject to  exception,  where  the  party  is  in  the  situation  of  a  mere  bare  trustees; 
naked  trustee,  without  any  estate  vested  in  him,  in  which  case  he 
need  not,  in  general,  be  made  a  party.  Thus,  a  broker  or  agent 
signing  a  contract  in  his  own  name  for  the  purchase  or  sale  of 
proi^erty,  is  not  considered  a  necessary  party  to  a  bill  for  a  specific 
peifoiTOance  of  such  contract  against  his  principal.^  And  so,  where 
a  person  having  no  interest  in  the  matter  joins  with  another  who 
has,  in  a  contract  for  sale,  as  where  a  man  having  gone  through  a 
fictitious  ceremony  of  marriage  with  a  woman,  joins  with  her  as 
her  husband  in  an  agreement  to  sell  her  property,  he  is  not  a  neces- 
sary party  to  a  suit  to  enforce  the  contract.^ 

In  all  cases,  however,  in  which  any  estate  is  vested  in  an  indi-  trustees  hav- 
vidual  filling  the  character  of  trustee,  or,  if  he  has  no  estate,  Avhere   "J.^,i^^\g'to 
the  circumstances  are  such,  that  in  the  event  of  the  plaintifi"  sue-  unsuccessful 
ceeding  in  his  suit,  the  defendant  may  have  a  demand  over  against  '  ^  ^^  ^^' 
him,  lie  is  a  necessary  party.*     Thus  in  Jozies  v.  Jo)ies,*  where  a 
plaintiflf  sought  to  set  aside  a  lease  on  the  ground  of  forgery,  with- 
out bringing  before  the  Court  the  trustees  who  were  parties  to  the 
lease,  and  to  whom  the  fraud  was  imputed,  the  objection  for  want 
of  parties  was  allowed,  because  if  the  plaintifi"  prevailed,  the  de- 
fendant might  have  a  remedy  over  against  the  trustees.     Upon  the 
same  principle,  where  the  trustees  of  real  estates  had  conveyed 
them  over  to  purchasers,  it  was  determined,  that  on  a  bill  by  the 
cestui  que  trusts  against  the  purchasers  to  set  aside  the  conveyance, 
the  ti'ustees  were  necessary  parties.* 

A  trustee,  however,  who  is  named  in  a  will,  but  has  never  acted,   where  trus- 
and  has  released  all  his  interest  to  his  co-trustee,  ought  not  to  be  tee  under  will 

.      ,.  J,        ,  .    nas  not 

made  a  party  to  a  bill  to  set  aside  the  will  on  the  ground  of  fraud.®  acted; 

Where  a  trustee  has  assigned  his  interest  in  the  trust-estate  to  assignee  of 
another,  it  is  necessary  to  have,  not  only  the  trustee  who  has  as-  trustees; 
signed,  but  the  assignee  before  the  Court.''     It  is  improjier,  how-  agent  of  tms- 
ever,  to  make  the  agent  of  a  trustee  a  party ;  *  and  a  person  who  [fa,./"''"""'''''' 

1  Klngsley  v.  Young,  (,'oop.  Eii-  I'l.  42;  »  IJicluinlson  r.  Ilulbert,  1  Aiist.  65. 
Bee  an/e,  p.  248;  Storv  Ki|.  I'l.  §  2:}!;  Lang  ''  Uurl  v.  iJennctt,   '2    Hro.   C.    C.   225, 
r.  Hrown,  29  (;eo.  628;  see  Miller  c.  Whit-  rerkiiis's    ed.    note    {u);    Story    Eq.  PI. 
taker,  23  III.  453.  §  20!);  Bailey  r.  Inglee,  2   I'nige,  278.     If 

2  Sturge  I'.  Starr,  2  M.  &  K.  195.  tlie  trustee  lias  assigned  liis  trust  absolute- 

3  See  .McKirdev  r.  Irvine,  13  Ala.  681;  ly,  the  assignee  sliouUl  be  made  a  p:\rty  in 
Cassiday  r.  .M(l");iniel,  8  15.  Men.  51'J;  his  stead,  and  tlie  trustee  need  not  be  niiido 
Morrow" r.  Lawrence,  7  VVis.  674.  a  iiartv,  unless  the  a'^signnicnt  is  u  Ineacli 

*  3  Atk.  110.  of  trust.     St..ry   Iv).  I'l.  §§  211.  213,  214; 

6  Harrison  r.  Fryn,  Barnard.  324.  Where  Bromley  v.  Hollnnd,  7  Suniiier'>*   Vcs.  3, 

a  bill  alleged    a    Iriindulent   combination  and  note  (r);  Munch  i:  {Jnekerell,  8  Sim. 

between  the  maker   of    a   deed    of  tru'^t  21'J.     But  if  the  bill  is  brought  to  remove 

and  one  of  the    trustees   therein    named,  the  trustee,  and  recover  from   a  stranger 

and  it  was  sought  to  ^et  asiile  a  preference  prop'^rty  inipro[)erly  sold  by  the  trustee,  it 

given  to  such  trustee,  it  was  held  that  the  is  not  a    cast;    of   misjoinder.     Whitman 

maker  of  tin;  deeil  as  well  as  the  trustee  ?'.  Abernatliy,  33  Ala.  154;  see  Webber  V. 

should  be  made  a  party.     Murphy  v.  Jack-  Taylor,  5  .lones  lv|.  (N.  ('■)  36. 
son,  5  Jones  Eq.  (N.  C.)  11.  »  Attorney-General  v.  Earl  of  Chester- 


48  OF    PARTIES    TO    A    SUIT. 

had   nssiiiiuHl  to  net  as  a  Irustoo,  lliongli  not  duly  a]>iioiiit('(l,  was 
1k"1(1  to  be  an  agent  for  this  purpose.^ 

It  was,  tbnnerly,  generally  necessary,  where  there  were  more 
trustees  than  one,  that  they  should  all  be  })arties,  if  amenable  to 
the  process  of  the  Court;"  but  this  rule  has  been  in  some  res])ect8 
modified  by  a  General  Order  of  the  Court,"  which  enables  a 
plaintift*  who  has  a  joint  and  several  demand  against  several  per- 
sons, to  proceed  against  one  or  more  of  the  several  persons  liable 
without  making  the  others  parties;  and  even  before  this  Order, 
in  some  cases  where  there  were  merely  accounting  parties,  one 
might  be  sued  for  an  account  of  his  own  receipts  and  payments, 
without  bringing  the  others  before  the  Court.*  Thus,  where  a  bill 
was  filed  against  the  representative  of  one  of  several  trustees  who 
were  dead,  for  an  account  of  the  recei])ts  and  payments  of  his 
testator,  who  alone  managed  the  trust,  an  objection  that  the  repre- 
sentatives of  the  other  trustees  were  not  before  the  Court,  was 
overruled;  because  the  plaintiff  insisted  only  upon  having  an  ac- 
count of  the  receipts  and  disbursements  of  the  trustee,  whose  rep- 
resentative was  before  the  Court,  and  not  of  any  joint  receipts  or 
transactions  by  him  with  the  other  trustees.^  And  so,  where  a  bill 
was  filed  by  a  creditor  against  the  representatives  of  B.  and  C.  as 
two  trustees  of  estates  conveyed  in  trust  to  pay  debts,  for  an 
account  of  the  produce  of  the  sales,  and  payment  of  their  debts; 
and  the  representatives  of  B.  alleged  by  their  answer,  that  not 
only  C.  but  D.  also  were  trustees,  and  that  D.  had  acted  in  the 
trust,  although  they  did  not  know  Avhether  he  had  received  any  of 
the  produce,  Lord  Kenyon  M.  R.,  and  afterwards  Lord  Arden  M. 
R.,  held  D.  to  be  an  unnecessary  party.  The  reporter  of  this  case 
adds  a  query,  because  at  the  bar  the  general  o])inion  was  that  D.'s 
representatives  ought  to  have  been  parties,  nor  could  one  creditor 
suing  waive,  on  behalf  of  absent  parties  in  joint  interest  with  him- 
self, the  benefit  or  possible  benefit  of  any  ])art  of  the  trust  fund.'' 
This  query  seems  to  be  in  accordance  with  the  principles  laid  down 
in  Williams  v.  Williams.'^  Where  a  cestui  que  trust  seeks  a  gen- 
eral account,  he  must  bring  all  the  accounting  parties  before  the 
Court,  notwithstanding  the  order.^ 

field,  18  Beav.  596;  18  Jur.  686;    Maw  r.  214,    and   notes;    Fleming   v.    Gilmer,  35 

Pe'.irson,  28  Beav.  196 ;  and  see  liobertson  Ala.  62. 

V.  Armstrong,  28  Heav.  12.3;  see,  however,  6  Routh  ».  Kinder,  3  Swan.  144,  n.,  from 

Attoriiev-fiener;il  v.  Corporation  of  T^eices-  Lord  Colchester's  MSS. 

ter,  7   Beiiv.  176,  179.     But  see  Hardy  ».  '?  9   Mod.   299;    see   also    Wadeson    v. 

Caley.  33  Beav.  36.5.  Rudge,  1  C  P.    Coop.   t.    Cott.   369;   but 

1  Lin2  V.  Colnian,  10  Beav.  370,  373.  see  Masters  v.  Barnes,  2  Y.  &  C.  C.  C. 

2  16  Yin.  Ab.  Party,  B.  257,  PI.  68.  616;  7  .hir.  1167;  and  Symes  v.  Glynn, 
8  Ord.  VII.  2.  and  Pease  v.  Cheesbrough,  cited  Seton, 
*  Ladj'  Selvard    v.  The    Executors    of  115. 

nnrr-s,  1  Eri'Ca.  Ab.  74;  but  see  Munch  8  Coppard  v.  Allen,  10  ,Jur,  N.  S.  622; 

f.  Cockerell,  8  Sim.  219;    Story  Eq.  I'l.  12  W.  li.   943,  L.  JJ.;  2  Dc  G.,  J.  &  &. 

§  214,  note.  173. 
6  See  Story  Eq.  PI.  §§  207  a,  212,  213, 


PERSONS    RESISTING    PLAINTIFFS    DEMANDS. 


249 


The  rule  which  requires  the  trustees  of  property  in  litigation  to 
be  brought  before  the  Court,  renders  necessary  the  presence  of  the 
committees  of  the  estates  of  idiots  and  lunatics  in  suits  against 
the  idiots  or  lunatics  committed  to  their  care ;  ^  because  they  are 
the  trustees  of  such  estates.  Upon  the  same  ground,  the  assignees 
of  bankrupts  or  insolvents,  are  necessary  parties  to  suits  relating  to 
the  property  of  such  bankrupts  or  insolvents.- 

For  the  like  reason,  wherever  a  demand  is  sought  to  be  satisfied 
out  of  the  personal  estate  of  a  deceased  person,  it  is  necessary  to 
make  the  personal  representative  a  party  to  the  suit.  Thus,  al- 
though, as  we  have  seen,  a  creditor  or  a  legatee  may  bring  a  bill 
against  a  debtor  to  the  testator's  estate  upon  the  ground  of  collu- 
sion between  him  and  the  executor,^  yet  in  all  cases  of  this  descrip- 
tion, the  personal  representative  must  be  before  the  Court.*  And 
80,  where  to  a  bill  for  an  account  of  the  estate  of,a  person  deceased, 
and  to  have  tlie  same  applied  to  satisfy  a  debt  alleged  to  be  due 
from  him  to  the  plaintiif,  the  defendants  pleaded  that  they  were 
not  executors  or  administrators  of  the  party  whose  estate  was 
sought  to  be  charged,  nor  so  stated  by  the  bill,  and  demurred,  for 
tliat  tlie  executors  or  the  administrators  were  the  proper  parties 
to  contest  the  debt,  who  might  probably  prove  that  it  had  been 
discharged,  the  Court  allowed  both  the  plea  and  demurrer,  but 
gave  the  plaintiff  leave  to  amend  his  bill  as  he  might  be  advised ;  ^ 
but  to  a  suit  concerning  a  specific  legacy,  the  executor  is  no  longer 
a  necessary  party  after  he  has  assented  to  the  bequest ;  thus,  where 
a  bill  was  filed  by  the  reversioner  against  the  legatee  of  a  term, 
praying  that  the  lease  might  be  declared  void,  and  the  defendant 
insisted  that  if  the  lease  was  set  aside,  the  plaintiff  ought  to  pay 
the  money  ex])ended  by  the  testator  in  the  improvement  of  the 
premises,  the  executor  of  the  testator,  who  had  assented  to  the 
bequest,  was  not  considered  a  necessary  party  to  the  suit.*'  And 
where  an  executor  had  been  outlawed,  and  a  witness  proved  tliat 

1  L(l.  Kfil.  30.  It  seems  that  upon  a 
bill  for  the  recovery  of  a  debt,  due  from 
a  (Iriinkiirii,  apiinst  his  committee,  the 
dniiikard  is  a  proper,  though  not  a  neces- 
sary party.  Beach  v.  Bradlev,  8  Paige, 
140. 

2  See  Storm  v.  Davenport,  1  Sandf. 
(N.  Y.)(;ii.  i;i.1;  Ililliard  Hank.  &  Ins. 
383,  ^Vi;  Mr, ran  r  Ilav.-*,  1  John.  Ch. 
33'J;  S.-lls  r.  Ilubbell.  i  .lohn.  Ch.  3'J4; 
Sprin(;fr  r.  Vanderiiool,  4  Ivlw.  Ch.  362; 
Hotts  I'.  I'atton,  10  I'..  Mon.  4.")2. 

•<  Altnrney-CJeni-riil  r.  \\'}-iiiie,Mo«.  120; 
See  iinte,  p.  I'.t.'i;  //ii)t^  r;.  C,  §  4,  and  notes 
to  the  point,  "  I.ef^atee  or  creditor  cannot 
sue  debtor  to  testator's  estate." 

<  Sei!  I'l.stlcthwaite  r.  Howes,  3  Clarke 
down),  .'{6-j.  Hut  the  heirs  need  not  l)e 
made  parties  to  a  suit  relating;  exclusively 
to  the  personalty,  (iaiphin  r.  .M'Kinney, 
1  McCord  Ch.  280.     15ut  it  is  otherwise  in 


Ch.  V.  §  2. 


In  demands 
against 
personalty ; 


as  in  suits  by 
creditors ; 


in  suit  where 
a  reversioner 
seeks  to  re- 
scind lease 
against  spe- 
cilic  legatee, 
after  execu- 
tor's assent; 

where  execu- 
tor outlawed; 


regard  to  a  suit  respecting  the  real  e=tatc. 
Kennedy  v.  Kennedy,  2  Ala.  571;  Smith 
V.  West,  5  Litt.  48;"Carr  v.  Callagiuiu,  3 
Litt.  3(55.  And  to  a  bill  against  an  ad- 
ministrator, to  charge  the  estate  witli  an 
annual  p:iyment,  ti>  preserve  tlie  residue, 
the  distributees  of  tiie  estate  are  necessary 
jiiirties.     Cohcen  v.  (Jordon,  1  Hill  (!h.  51. 

'i  (Jriflitli  V.  Bateinun,  Hep.  t.  Finch, 
334;  Kuinney  V.  Mead,  Kej).  t.  Finch  303; 
Attorney-General  r.  Twisdfn,  Hep.  t.  l'"inch 
33fi;  and  see  Attorney-(jeneral  v.  Wynne, 
Mos.  126.  For  a  case  where  under  special 
circumstances  the  executors  of  the  settlor 
of  a  trust  fund  wouM  be  necessary  parties 
to  a  suit  for  administering  if,  see  .Fndguient 
of  Sir  .1.  Wi;.'ram  V.  C.  in  (Jaunt  v.  .John- 
son, 7  Hare,  154,  150;  12  .(ur.  1007. 

c  Malpas  f.  Ackland,  3  liuss.  273,277; 
and  sec  Smith  v.  IJrooksbank,  7  Sim.  18, 
21;  Moor  i?.  Blagrave,  1  Ch.  Ca.  277 


250 


OF    PARTIES    TO    A    SUIT. 


Cm.  V.  5  '2- 


after  appro- 
priatiou; 


After  distri- 
bution under 
detree,  or 
issue  of  ad- 
vertisements 
under  ±2  &  23 
Vic.  c.  35, 
§  29. 

executor  du- 
rante minore 
cetaie ; 


unless  he 
has  fully 
accoimted. 


Personal  rep- 
resentative 
must  be 
appointed  in 
England. 


Representa- 
tive abroad, 
coming  to 
England. 


lie  liatl  iiKiuired  atler  but  could  not  liiul  him,  it  was  thought  to  be 
a  lull  answer  to  tho  objection,  that  he  was  not  a  party  to  a  suit 
which  had  been  instituted  by  a  creditor  of  the  deceased  testator 
against  tlie  residuary  legatee.^ 

Moreover,  in  some  cases,  where  the  fund,  tlie  subject  of  tlie  suit, 
has  been  ascertained  and  a])proi)riated,  the  Court  has  dis))ensed 
with  the  apjiearance  of  a  personal  representative  to  the  testator, 
by  whose  will  the  fund  lias  been  bequeathed,-'  And  where  the 
estate  has  been  distributed  under  the  decree  of  the  Court,^  or  after 
the  issue  of  advertisements  under  the  22  &  23  Vic.  c.  35,  §  29,* 
the  ])ersonal  re})resentative  is  not  a  necessary  party  to  a  suit  to 
establish  a  claim  against  the  estate. 

The  rule  Avhich  requires  the  executor  to  be  before  the  Court  in 
all  cases  relating  to  the  personal  estate  of  a  testator,  extends  to  an 
executor  durante  Jiimore  cetate,  even  though  the  actual  executor 
has  attained  twenty-one,  and  has  obtained  probate  thereon.''  It 
is  to  be  observed,  however,  that  if  the  actual  executor  has  re- 
ceived all  the  testator's  personal  estate  from  the  hands  of  the 
executor  durante  minore  cetate^  upon  an  account  between  them, 
the  executor  durante  minore  <etate  is  not  a  necessary  party. 

The  personal  representative  required  is  one  appointed  in  England; 
and  where  a  testator  appointed  persons  residing  in  India  and  Scot- 
land his  executors,  and  the  will  was  not  proved  in  England,  but 
the  plaintiff,  a  creditor,  filed  a  bill  against  the  agent  of  the  exec- 
utors, to  whom  money  had  been  remitted,  praying  an  account  and 
payment  of  the  money  into  Court  for  security,  a  demurrer,  because 
no  personal  representative  of  the  testator  resident  within  the  juris- 
diction of  the  Court  was  a  party,  was  allowed.^ 

And  so,  where  an  executor  proved  the  will  of  his  testator  in 
India,  and  afterwards  came  to  this  country,  where  a  suit  was  insti- 
tuted against  him,  for  an  account  of  an  unadministered  part  of 
the  testator's  estate,  which  had  been  remitted  to  him  from  India 
by  his  co-executor  there,  it  was  held  necessary  that  a  personal 
representative  should  be  constituted  in  England,  and  made  a  party 
to  the  suit.'' 


1  Heath  v.  Percival,  1  P.  Wms.  683. 

2  Arthur  ?•  Hughes,  4  Ik'av.  506;  Heas- 
ley  V.  Kenyon,  5  Ijeav.  544;  Bond  v.  Gra- 
ham, 1  Hare,  484;  6  Jur.  620;  Story  Eq. 
Pi.  §  214. 

2  Farrell  v.  Smith,  2  15.  &;  B.  337;  see 
also  Poolev  r  Kav,  1  P.  Wms.  3.55;  Brooks 
V.  R'-ynofls,  1  Bro.  C.  C.  162;  2  Dick. 
603;  Douglas  v.  Clay,  1  Dick.  393;  Kenyon 
V.  Worthington,  2  Dick.  688. 

4  Clegg  V.  Rowland,  L.  R.  3  Eq.  368, 
V.  C.  Nf. 

5  GliisB  V.  Oxenham,  2  Atk.  121. 

'  Lowe  V.  pMrlie.  2  Mad.  101;  see  also 
Logan  V.  Fairlie,  2  S.  &  S.  284;  Story 
Conf.  Laws,  §§  513,  514,  514  a,  and  notes 
and  numerous    cases   both   English    and 


American  there  cited;  Story  Eq.  PI.  §  179, 
and  cases  cited  in  notes;  Asiimead  v. 
Colbv,  26  Conn.  287. 

7  iiond  V.  Graham,  1  TIarc,  482;  Tyler 
V.  Bell,  2  M.  c&  C.  89,  105;  but  see  An- 
derson V.  Gaunter,  2  M.  &  K.  703,  and  see 
the  observation  of  Lord  Cottenham  on  this 
case,  2  M.  &  C.  110.  For  the  metho.i  of 
obtaining  limited  or  special  administration 
where  the  executor  is  abroad,  see  ante,  pp. 
197,  198.  Some  of  the  American  (Jourts 
have  gone  so  far  as  to  hold,  tliat  a  foreign 
executor  or  administrator,  coming  here, 
having  received  assets  in  the  foreign 
country,  is  liable  to  be  sued  hero,  and  to 
account  for  such  assets,  notwitiistanding 
he  has  taken  out  no  new  letters  of  admin- 


PERSONS    RESISTING   PLAINTIFFS    DE3IANDS. 


251 


Whei'e  an  administration  was  disputed  in  the  Ecclesiastical 
Court,  the  Court  of  Chancery  would  entertain  a  suit  for  a  receiver 
to  protect  the  property  till  the  question  in  the  Ecclesiastical  Court 
was  decided,  although  an  administration  pendente  lite  might  be 
obtained  in  the  Ecclesiastical  Court.-^  In  such  cases,  the  rule 
requiring  a  representative  to  be  before  the  Court  must  be  dis- 
pensed with,  there  being  no  person  sustaining  that  character  in 
existence."  And  where  a  party  entitled  to  administer  refuses  to 
take  out  administration  himself,  and  j^revents  any  one  else  from 
doing  so,  he  will  not  be  allowed  to  object  to  a  suit  being  proceeded 
with,  because  a  personal  representative  is  not  before  the  Court. 
Thus,  in  D''aranda  v  Whittinyliam^  where  the  heir  of  an  obligor 
demurred  to  a  bill  by  an  obligee,  because  the  administrator  of  the 
obligor  was  not  a  jiarty,  the  demurrer  was  overruled,  because  it 
appeared  that  he  would  not  administer  himself,  and  had  opposed 
the  plaintiff  in  taking  out  administration  as  the  principal  creditor ; 
and  in  a  case  where  the  person  entitled  by  law  to  administration 
did  not  take  it  out,  but  acted  as  if  she  had,  receiving  and  paying 
away  the  intestate's  property,  an  objection  for  want  of  parties,  on 
the  ground  that  there  was  no  administrator  before  the  Court,  was 
overruled.^  In  the  case  of  Creasor  v.  Mobmsoti,^  however,  the  Court 
declined  to  follow  the  case  last  referred  to ;  and  refused  to  make  an 
order  for  an  account  against  an  administrator  de  son  tort,  unless  a 
legal  personal  representative  duly  constituted  was  a  party. 


istration  here,  nor  has  the  estate  been 
positively  settled  in  tlie  foreign  State. 
Swearingeii  i".  Pendleton,  4  Serj;.  &  K. 
389,  392;  Evans  v.  Ta'tem,  9  Serf;.  &  R. 
252,  259;  Bryan  v.  McGee.  2  Wasli.  C  C. 
3.37;  Camphell  i'.  Tonsey,  7  Cowen,  64; 
see  also  Dvwdaie's  case,  6  Coke,  47;  Ju- 
lian r.  Heynolds,  8  Ala.  080.  This  doc- 
trine, however,  seems  not  to  receive  a  very 
general  sanction;  see  Story  Conf.  Laws, 
§  .014  b.  The  doctrine  of  the  text  is  best 
supported  by  authority.  See  Story  Conf. 
Laws,  §  .014  b,  and  notes;  IJoston  v.  Boyl- 
ston,  2  Masx.  384;  (Joodwin  r.  .Jones,  3 
Mass.  .014:  Dmvis  r.  Estev,  8  I'ick.  475; 
iJawes  f.  Head,  3  Pick.  128;  Doolittle  v. 
Lewis,  7  .lohn.  Ch.  45,  47;  McRea  v.  Mc- 
l;<>a,  11  Louis.  571;  Attorney-General  t). 
liowens,  4  M.  &  W.  171.  In  Camnbell  v. 
Wallace,  10  (Jray,  102,  it  was  held,  that 
there  is  no  Kquity  jurisdiction  in  Massa- 
chusetts to  etiforce  a  trust  iirisinj;  under 
the  will  of  a  furei^fiier,  which  has  been 
proved  and  allowed  in  a  forei^^n  country 
only,  and  no  certified  copy  of  which  has 
been  filed  in  th«  I'robate  Tourt  of  that 
State.  See  fanipbell  v.  Slieldoti,  13  I'ick. 
8.  In  Sliitt.T  r.  Carmll,  2  Sandf  Ch.  573, 
it  WHS  li(;ld  that,  in  ii  case,  where  there  are 
real  assets  nf  the  estate  of  a  deceased  per- 
son within  its  jurisdiction,  although  tie 
administration  has  b<;en  taken  within  the 
State,  a  Court  of  Iv(uity  will  not  hesitate 
to  administer  tbeiu;  and  the  foreign  ex- 


ecutors may  be  made  parties  to  the  suit 
instituted  for  that  purpose.  See  Scruggs 
V.  Driver,  31  Ala.  274. 

1  Atkinson  v.  Henshaw,  2  V.  &  B.  85; 
Ball  V.  Oliver,  ib.  96;  see  also  Watkiiis  v. 
Brent,  1  M.  &  C.  97,  102;  Whit  worth  v. 
Whyddon,  2  M'N.  &  G.  52;  14  Jur.  142; 
Gumming  r.  Fraser,  28  Beav.  014;  Dimes 
V.  Steinberg,  2  Sm.  &  G.  75.  Now,  how- 
ever, it  is  a])prehended  that  the  Court 
would  require  a  special  case  to  be  made  for 
its  interference,  pending  proceedings  in  tlie 
Probate  Court;  that  < 'ourt  liaving  power 
to  ajipoint  an  administrator  ptniltuit  lite, 
with  full  powers,  and  also  to  iioniinate  him 
receiver  of  tiie  rents  of  real  estate.  20  & 
21  Vic.  c.  77,  §§  70,  71,  73;  Verey  r.  Dn- 
prez,  L.  Ii.  0  Eq.  329,  V.  C.  M.;  Tichborne 
V.  Tichborne,  L.  K.  1  P.  &  I).  730;  Hitchin 
V.  Burks,  W.  N.  (1870),  190;  18  \V.  R. 
1015;  for  an  instance  in  Chancery  since 
this  Act,  see  Williams  v.  Attirnev-Gen- 
eral,  M.  K.  8  May,  1801;  Seton,  1003. 

2  Story  Kq.  I'l.  §  91.  The  Court  can, 
however,  appoint  a  nominee  of  its  own  to 
represent  the  estate.  15  &  16  Vic.  c.  86,  § 
44. 

"  Mos.  84.  See,  however,  Penny  v. 
Waft.s.  2  Phil.  149. 

■'  (;ieland  V.  Cleland,  Prec.  Ch.  64. 

''  14  lieav.  589;  15  ,Jur.  1049;  see  also 
Cooke  V.  Ucttings,  21  Heav.  497;  Beard- 
more  V.  Gregory,  2  II.  &  M.  491;  11  Jur. 
N.  S.  363. 


Party  who 

prevents  ad- 
ministration 
being  taken 
out,  cannot 
object  to  suit 
proceeding. 


2")  2 


OF    PATITIES    TO    A    SUIT. 


I'll.  V.  5  -2. 


lioiiorally   all 

must  bo 
jiaitios. 

aliivaii,  or  in 
coiitoiiipt,  or 
not  proviuij. 


Acting  ex- 
ecutor, 
tliough  lie 
releases  and 
disclaims, 
must  bo  a 
part}'. 


Ecpresenta 
tive  of 
deceased 
executor,  or 
adminis- 
trator, when 
necessary 
party. 


Where  there  nre  several  executors  or  luhuinistrators,  they  must 
all  be  made  parties,  even  thouti^h  one  of  them  be  an  infant;^  but 
this  rule  may  be  ilispensed  with,  if  any  of  them  are  not  amenable 
to  the  pnxH'SS  of  the  Court,"  or  if  they  have  stood  out  jtrocc^ss  to  a 
seiiuestratiou  ;  and  if  an  executor  has  not  })roved  he  need  not  be 
a  ])arty.^  Thus,  -where  there  were  four  executors,  one  of  whom 
alone  proved  and  acted,  and  a  bill  was  brought  against  that  one, 
and  he  in  his  answer  confessed  that  lie  had  alone  proved  the  will 
and  acted  in  the  executorship,  and  that  the  others  never  inter- 
mt'ddled  therein,  it  -was  said  to  be  good."*  In  that  case,  however, 
if  the  executor  who  had  proved  had  died,  it  would  not  have  been 
sufficient  to  have  brought  his  executor  before  the  Court,  because 
he  would  not  have  rein-esented  the  original  testator;  the  other 
executors  would  still  have  had  a  right  to  prove,  even  though  they 
had  renounced  probate.''  The  record,  therefoi-e,  would  not  have  been 
complete  Avithout  a  new  rci)resentative  of  the  original  testator." 

Wherever  an  executor  has  actually  administered,  he  must  be 
made  a  party  to  a  suit,  although  lie  has  released  and  disclaimed.' 
But  where  a  ])laintiif  tiled  a  bill  against  one  of  two  executors,  and 
alleged  in  his  bill  that  he  knew  not  wdio  was  the  other  executor, 
and  prayed  that  the  defendant  might  discoA^er  who  he  was  and 
where  he  lived,  a  demurrer  for  want  of  parties  was  overruled.^  And 
in  tlie  case  before  referred  to,  where  one  of  two  joint  executors  was 
abroad,  an  account  was  decreed  of  his  own  receijjts  and  j^ayments.® 

The  cases  do  not  seem  to  aiford  a  very  clear  answer  to  the  ques- 
tion, under  what  circumstances,  in  a  suit  to  administer  the  assets 
of  a  deceased  testator  or  intestate,  the  plaintiiF  otight  to  join,  Avith 
the  existing  jxn-sonal  representatives,  such  parties  as  fill  the  ])osi- 
tion  of  a(bninistrators  or  executors  of  a  former  representative  of 
the  original  estate.^"    It  is  conceived,  however,  that  the  ])ractice  in 


1  Scurry  v.  Morse,  9  Mod.  89;  Offey  v. 
Jeniiv,  3  (,'h.  Hep.  92;  Hamp  v.  Robinson, 
3  I)e"G.,  J.  &  S.  07. 

2  Cowslad  V.  Cely,  Free.  Ch.  83;  but  if 
they  are  all  out  of  the  jurisdiction,  an  ad- 
ministrator durdute  absentia  must  be  ap- 
pointed.    Donald  v.  Bather,  16  IJeav.  2G. 

3  Went.  Off.  Kx.  95;  Brown  v.  I'itman, 
Gilb.  Eq.  K.  75;  16  Yin.  Ab.  Partv  B. 
251,  pi.  19;  Strickland  v.  Strickland,  12 
Sim.  463;  Dvson  v.  Morris,  1  Ilarc,  413, 
421;  6  Jur.  297;  and  see  21  and  22  Vic. 
c.  95,  §  16;  but  the  plaintiff  ir:ay  make 
him  a  partv,  if  he  has  acted  as  executor. 
Vickers  v.  Bell,  10  Jur.  X.  S.  376,  L.  .J.J. 
So  where  a  bill  seeks  discover}'  and  relief 
only  against  the  acts  of  one  of  the  execu- 
tors of  an  estate,  it  is  not  necessary  to 
make  the  other  executor  a  party  in  the 
first  instance.  But,  it  seems,  u  co-executor 
may  be  made  a  party,  during  the  progress 
of  the  suit,  if  it  shall  prove  to  be  expedient 
or  necessarv.  Footman  v.  Pray,  It.  M. 
Charlt.  291."  See  ante,  247,  248. 


4  Brown  v.  Pitman,  Gilb.  Kq.  75;  16 
Vin.  Ab.  tit.  Parties  15.  PI.  19;  Cramer  v. 
IMortoii,  2  Moll.  108;  Clifton  v.  Irlaig,  4 
Desaus.  330;  ante,  218,  221. 

0  ArnoJ'l  V.  Blenoowe,  1  Cox,  426.  It 
may  be  doubted  whether  this  is  now  so. 
See"  20  &  22  Vic.  c.  77,  §  79;  &  21  and  22 
Vic.  c.  95,  §  16. 

fi  It  has  been  determined,  that  the  gen- 
eral order  enabling  a  plaintiff  to  proceed 
agninst  one  or  more  ))ersc)ns  severally  lia- 
ble (i)rt].  Yll.  2)  does  not  a|)ply  to  a  gen- 
eral adrninistr.ition  suit.  Hall  v.  Austin,  2 
Coll.  570;  10  Jur.  452. 

7  Smithby  c   Hinton,  1  A'ern.  31. 

8  Bowyer  v.  Covert,  1  Vern.  95;  Story 
Eq.  PI.  §  92;  see  AVillls  v.  Henderson,  4 
Scam.  20. 

9  Cowslad  V.  Cely,  Prec.  in  Ch.  83;  Clif- 
ton V.  Hiiig,  4  Desaus.  330. 

10  Williams  v.  Williams  9  Mod.  299; 
Phelps  V.  Sproule,  4  Sim.  318,  321;  Hol- 
land V.  Prior,  1  M.  &  K.  237;  Masters  v. 
Barnes,  2  Y.  &  C.  C  C.  616;  7  Jur.  1167; 


PERSONS    RESISTING    PLAINTIFFS    DEMANDS. 


253 


this  respect  is  now  settled ;  viz.^  to  make  the  personal  representa- 
tives of  a  deceased  executor  j^arties,  where  he  had  received  assets 
of  the  testator  for  which  he  has  not  accounted  with  the  surviving 
executor,  and  in  respect  of  which  it  is  sought  to  charge  his  estate ; 
but  whei-e  this  is  not  the  case,  to  introduce  into  the  bill  an  allega- 
tion that  the  deceased  executor  fully  accounted  with  the  survivor, 
and  that  nothing  is  due  from  liis  estate  to  the  estate  of  the  testator, 
and  not  to  make  his  representative  a  party  to  the  suit.-^  The  fact 
of  such  deceased  executor  having  died  insolvent  or  without  having 
received  assets,  would  in  all  cases  probably  prevent  his  executors 
being  proper  parties.^ 

If  a  bill  is  tiled  against  a  married  woman,  who  is  an  executrix 
or  administratrix,  her  husband  must  also  be  a  party,  imless  he  has 
abjured  the  realm  ;  ^  or  she  has  obtained  a  protection  order,  or  is 
judicially  se])arated.*  In  Taylor  v.  Allen^  however.  Lord  Hard- 
wieke  granted  an  injunction  to  restrain  a  wife,  executrix,  from 
getting  in  the  assets,  her  husband  being  in  the  West  Indies,  and 
not  amenable  to  the  process  of  the  Court,  on  the  ground,  that  if 
she  wasted  the  assets,  or  refused  to  pay,  a  creditor  could  have  no 
remedy,  inasmuch  as  her  husband  must  be  joined  as  a  party  to  the 
suit  against  her. 

Where  a  bill  had  been  filed  for  an  account  of  the  testator's 
estate,  and  it  was  objected  that  one  of  the  executors  was  not  a 
party,  he  was  ordered  to  be  introduced  into  the  decree  then  made, 
as  a  party,  and  decreed  to  account  before  the  Master,  without  put- 
ting off  tlie  cause  to  add  parties ; "  but  this  can  only  be  done  where 
the  person  ajipears,  and  submits  to  be  bound  as  if  originally  a  party.' 

It  seems,  that  wliere  a  power  of  sale  is  given,  by  a  will,  to  exec- 
utors, and  they  renounce  jirobate,  they  will  not  be  considered  neces- 
sary parties  to  the  suit;  thus,  Avhere  a  testator  had  devised  that 
his  executors  should  sell  his  land,  and  be  possessed  of  the  money 
arising  from  the  sale  upon  certain  trusts  mentioned  in  liis  will, 
and  made  B.  and  C.  his  executors,  who  renounced;  Avhereujion 
admiiiisti'ation,  with  the  will  annexed,  was  granted  to  one  of  the 
jilaiutiffs,  upon  a  bill  brought  by  the  cestui  que  trust  of  the  pur- 


Ch.  v.  §  2. 


Ling*.  Colnian,  10  Beav.  370,  374;  Iliill 
V.  Austin,  2  Coll.  570;  10  Jur.  4o2;  Clark 
V.  Webb,  It;  Sim.  IDl;  VI  .liir.  GI5;  Story 
E(|.  I'l.  §  170,  note,  §  :{n2;  (^lince  v. 
(Quince,  1  Mniph.  100;  Iliigan  «.  Walker, 
14  Mow.  [I.  S.  2!). 

1  See  Wliittiiigton  v  Gooding,  10  Hare 
App.  29;  I'ease  v.  (Jhccsbrougli,  Seton,  115. 
But  see  Hauip  w.  liobiu'-on,  3  De  (i.  J.  & 
S.  97;  and  .'•ec  .Montgonierv  v.  Flovd,  IB 
L.  T.,  N.  S.  847,  v.  C.  'M.,  wlicre  the 
representatives  of  a  deceased  e.xecutor 
were  held  not  to  be  uecessiiry  parties, 
though  there  was  no  such  allegation.  l'"or 
form  of  decree,  where  plaintilf  does  not, 
by  lii-i  bill,  seek  to  charge  a  deceased  co- 
e.xeculor'a  estate,  see  Setou,  llo. 


2  See  Wills  v.  Dunn,  5  Grattan,  384; 
Svnu's  V.  (il^^nn,  Seton,  115. 

"3  \A.  Ked.  30. 

4  20  &  21  Vic.  c.  85,  §§  21,  25,  20;  and 
see  IJathe  v.  Hank  of  England,  4  K.  &  .1. 
564;  4  .Jur.  N.  S.  505;  21  &;  22  Vic.  c. 
108,  §  7. 

0  2  Atk.  213. 

c  I'itt  I'.  Brewster,  1  Dick.  37.  It  is  pre- 
sumed that  he  !ii)|)earod,  and  con'^enti'd  to 
this  order.  Sec  l'"ootman  v.  I'my,  11.  .M. 
Cliiirlt.  271,  cited  in  note,  (ih/c,  'J.W1.  As  to 
the  husband  of  an  accounting  jiarly,  see 
Sapte  V.  Ward.  1  Coll.  24. 

-  Seton,  1116. 


Husband  of 
executrix  or 
adminis- 
tratrix. 


Co-executor 
not  party, 
ordered  to 
account  in 
decree. 


Effect  of 
executors 
renouncing, 
where  power 
of  sale. 


254 


OF    TARTIES    TO    A    SUIT. 


Cii.  v.  § 


Wliere  per- 
sonalty is 
sought  to  be 
recovered  or 
charged ; 


residuary 
legatees 
unnecessary 
parties, 


olinso-nioncy,  under  the  Avill,  against  the  lieir,  to  c()ni])cl  liiin  to 
join  in  a  sale  of  the  hinds;  it  was  objected  that  there  wanted 
parties,  in  regard  that  the  executors  ouglit  to  liave  been  made 
defendants,  for  notwithstanding  they  had  renounced,  yet  the 
power  of  sale  continued  in  them,  and  the  objection  was  overruled, 
there  being  only  a  power  and  no  estate  devised  to  them.^  It 
should  be  noticed,  that  a  query  has  been  added  to  the  decision 
upon  this  ]ioint  by  the  reporter,  and  the  doubt  suggested  appears 
to  be  justilied  by  the  o])inion  expressed  both  by  Sir  Edward  Sug- 
den  and  Mr.  Preston,  viz.,  that  where  a  power  is  given  to  exec- 
utors they  may  exercise  it,  although  they  renounce  probate  of  the 
will.'-  It  is  to  be  observed,  however,  that  in  the  case  of  Keates  v. 
Burton,^  referred  to  by  Lord  St.  Leonards  (which  was  a  case  of  a 
discretionary  power  given  by  a  testator  over  the  application  of  the 
interest  of  a  money  fund  to  his  trustees  and  executors,  one  of 
whom  died,  and  the  other  renounced).  Sir  William  Grant  M.  R. 
remarked,  "  that  the  power  is  given  to  the  executors,  but  they 
have  not  exercised  it,  and  they  have  renounced  the  only  charac- 
ter in  which  it  was  competent  to  them  to  exercise  it ;  "  *  and  in 
the  case  of  Earl  Granville  v.  M'Neill,^  where  it  was  held,  that  the 
two  executors  who  had  proved,  could  exercise  a  power  of  appoint- 
ment given  to  their  testator,  his  executors,  administrators,  and 
assignees,  although  a  third  executor,  who  had  renounced,  was  also 
named  in  the  will.  Sir  James  Wigram  V.  C.  said,  "  I  have  referred 
to  Sir  Edward  Sugden's  book  on  Powers,  but  find  nothing  to 
make  me  doubt  the  sufficiency  of  the  appointment.  The  question 
in  all  such  cases  is,  whether  the  confidence  is  reposed  in  the  indi- 
viduals named,  or  in  the  perscms  who,  de  facto,  fill  the  given  office."  ° 
The  executor  or  the  administrator  of  a  deceased  person  being 
the  person  constituted  by  law  to  represent  the  personal  property 
of  that  person,  and  to  answer  all  demands  upon  it,  it  is  sufficient, 
wliere  the  object  of  a  suit  is  to  charge  such  personal  estate  with  a 
demand,  to  bring  the  executor  or  administrator  before  the  Court ; '' 
thus,  in  a  bill  to  be  relieved  touching  a  lease  for  years,  or  other 
personal  duty  against  executors,  it  is  not  necessary,  though  the 
executors  be  executors  in  trust,  to  make  the  cestui  que  trusts,  or 
the  residuary  legatees,  parties.^     And  so,  where  a  bill  Avas  filed 


1  Yates  V.  Compton,2  P.  Wms.  308;  see 
Ferebee  v.  Proctor,  2  Dev.  &  Biit.  430;  S. 
C-  2  Dev.  &  IJiit.  Ef).  496;  ,T:ickson  v. 
Scauber,  7  Cowen,  187;  Peck  v.  Ileiider- 
Bon,  7  Yerger,  18;  Champlin  ?;.  Pari>ii,  3 
Edw.  Ch.  581. 

2  Sucr.  I'ow.  174  (4th  ed.);  2  Prest.  on 
Abst.  264. 

3  14  Yes.  434,  437. 

4  See  1  Wms.  lexers.  156. 

5  7  Hare,  156;  13  Jur.  253. 

6  See  Wm«.  Exor.s,  251,  258. 

7  Ld.  Ked.  165 ;  Micklethwaite  v.  \Yin- 


.stanley,  13  W.  R.  210,  L.  .1.1. ;  see  Neale 
V.  Hagthorp,  3  Bland,  551;  Wilkinson  v. 
Perrin,  7  Monroe,  217;  (iaiphin  v.  M 'Kin- 
ney, 1  iM'Cord  Ch.  294;  Story  Eq.  PI.  § 
140,  and  note;  Prichard  r.  Hick.s,  1  Paige, 
270;  Kinlock  v.  Meyer,  1  Speer,  S.  C.  Kq. 
428;  IJIackwoll  v.  iilackwell,  33  Ala.  57. 

8  Anon.  1  Vern.  261 ;  1  Eq.  Ca.  Ab.  73. 
PI.  13;  Lawson  v.  Barker,  1  J5ro.  C.  <).  303; 
Love  V.  Jacomb,  ibid\  Story  Et].  PI  §  104, 
and  140,  in  notes ;  Wiser  v.  iiliiclily,  1  .lolin. 
Ch.  437 :  Dandridge  v.  Wa.shington,  2  Pe- 
ters, 377. 


PERSONS    RESISTING    PLAINTIFF'S    DEMANDS. 


255 


against  an  executor,  to  compel  the  transfer  of  a  sum  of  stock  be- 
longing to  his  testatrix,  and  the  executor,  by  his  ansAver,  stated 
that  the  residuary  legatees  claimed  the  stock,  an  objection  for 
want  of  parties  Avas  held  to  be  untenable.^ 

In  like  manner,  wliere  a  testator  gave  diiferent  legacies  to  three 
persons,  and  they  were  to  abate  or  increase  according  to  the  amount 
of  the  personal  estate ;  to  a  bill  against  the  executor  by  one  lega- 
tee, the  executor  pleaded  that  the  other  legatees  ought  to  be 
parties,  because  the  account  made  with  the  plaintiff  would  not 
conclude  them,  and  he  should  be  put  to  several  accoimts  and 
double  proof  and  charge,  the  plea  was  overruled,^  It  seems,  how- 
ever, that  where  a  i)erson  has  a  specific  lien  upon  the  property  in 
dispute,  he  must  be  brought  before  the  Court;  and  upon  this 
ground,  in  the  case  of  Langley  v.  The  Earl  of  Oxford,  which  was 
a  bill  by  the  specific  legatee  of  a  mortgagee  against  the  represent- 
ative of  the  mortgagor,  for  foreclosure,  and  the  defendant  pleaded 
a  settled  account  Avith  the  executors  of  the  mortgagee,  and  a  re- 
lease, it  was  said  by  Lord  Ilardwicke,  that  he  could  not  see  how 
the  private  account  between  the  executor  of  the  mortgagee  and 
the  debtor  could  discharge  the  lien  on  the  land ;  ^  however,  the 
bill  in  that  case  was  afterwards  dismissed.*  And  so  Avhere  a  hus- 
band had  specifically  disposed  of  his  wife's  paraphernalia  to  other 
persons ;  on  a  bill  l)y  the  wife  against  the  executor  for  a  delivery  of 
them  to  her,  the  specific  legatees  were  considered  necessary  parties,^ 

The  assignees  of  a  bankrupt  or  insolvent  debtor  ai-e  also,  as  has 
been  before  stated,  the  proper  parties  to  re])resent  the  estates  vested 
in  them  under  the  bankruptcy  or  insolvency ;  and  therefore,  in  all 
cases  where  claims  are  sought  to  be  established  against  the  estate 
of  a  bankrupt  or  an  insolvent  debtor,  it  is  necessary  to  bring  only 
the  assignees  before  the  Court,  and  the  bankrupt  or  insolvent 
liimselt"  or  his  creditors,  are  mmecessary  parties."  Thus  it  has 
l)een  held,  tliat  a  bankrupt  is  not  a  necessary  party  to  a  bill  of 
fijredosure  against  liis  assignees."  Where,  however,  fraud  and 
collusion  are  charged  between  the  bankrujit  and  his  assignees, 
the  banknii)1  may  be  made  a  party,  and  he  cannot  demur,  although 

1  lirown  V.  ])owtliwaite,  1  Mad.  446;  and 
oeo  Jones  v.  How,  7  Iliire,  207;  12  Jur. 
227. 

2  Hiiycock  V.  Hiiyrork,  2  Cli.  Ca.  124; 
Jentiiiif;^  t>.  I'aterson,  1.0  I'cav.  28.  There 
may,  however,  l>e  cnses  where  jiecuniary 
Iegat(!C»  are  proper  parlies;  as  wliere  tlierc 
is  a  (|uestioii  of  !i(leni|itioii.  Marquis  of 
llerlf.inl  r.  (>)uiit  de  Zichi,  !l  Heav.  11,  15. 

8  Larifley  r.  Karl  of  Oxford,  Atiili.  17; 
btit  pee  Serjeiint  IliH'H  note  of  IImm  ease,  in 
Khiiit's  edition  of  Amhler,  App.  C.  p.  79.0; 
Kef,"  I'''>-  I''-  1747,  fo.  ;)00. 

*  Jietr.  Lil)    I'..  1747,  fo.  300. 

«  Northey  v  .N'orthey,  2  Atk.  77.  So,  to 
h  bill  \>y  the  widow  of  an  intestate  against 


Ch.  V.  5  2. 


and  so 
pecuniary 
legatees ; 


but  persons 
having  speci- 
fic liens  may 
be  necessary. 


Specific  lega- 
tees of  wife's 
parapher- 
nalia. 


Assignees  of 
bankrupt 
represent  his 
estate ; 


the  administrator,  to  recover  her  .sli;ire  of 
the  estate,  nil  the  (listriliut(>es  "f  the  intes- 
tate should  l)(!  made  parties.  Chiiiu  V. 
Caldwell,  4  ]!il)l.,  .043. 

'1  Collet  V.  Wollaston,  3  Bro.  C.  C  228; 
IlillianI  IJank.  &  Ins.  3S3,  384;  Sells  v. 
Ilubliell,  2  .lohn.  Ch.  304;  Springer  r. 
\'aiiiler|>onl,  4  Kdw.  Ch.  3G2.  On  a  bill 
fded  by  si  receiver  for  the  creditors  and 
stockholders  of  a  corporation,  it  is  not  nec- 
essary to  nmke  the  creditors  and  stock- 
holders parties.  Mann  v.  Uruce,  1  Hiil-t. 
Ch.  (N.  .1.)  413. 

7  Adams  v.  Holbrooke,  Tlar.  Ch.  P.  30; 
Baiidiridge  v.  riiihorii,  1  lluck,  136; 
Lloyd  V.  Lander,  t>  Mad.  282,  288. 


256 


OF    TARTIKS    TO    A    SUIT. 


Cn.  V.  5  2. 


Cestui  que 
trusts  neces- 
sary parties  to 
suits  against 
their  trustees; 


■when  dis- 
pensed with. 


relief  be  prayed  against  1\iin.  Thus,  where  a  creditor,  having  ob- 
tained exeention  against  the  etVeets  of  his  debtor,  filed  a  bill 
against  the  debtor,  against  whom  a  commission  of  bankniiit  had 
issued,  and  the  persons  claiming  as  assignees  under  the  commission, 
cliarging  that  the  connnission  was  a  contrivance  to  defeat  the 
plaintirt"'s  execution,  and  that  the  debtor  having,  by  permission  of 
the  plaintiff,  ])ossessed  part  of  the  goods  which  had  been  taken  in 
execution  for  the  purpose  of  sale,  instead  of  l>aying  the  produce  to 
the  plaintiff,  had  paid  it  to  his  assignees:  a  demurrer  by  the  alleged 
bankrupt,  because  he  had  no  interest  and  miglit  be  examined  as 
a  witness,  was  overruled.-' 

Sul)ject  to  the  above  and  certain  other  exceptions,  the  rule  for- 
merly Avas  that  all  cestui  que  trttsts  were  necessary  parties  to  suits 
against  their  trustees,  by  which  their  rights  were  likely  to  be 
affected.-  Thus,  on  a  bill  for  redemption,  where  the  defendant  in 
his  answer  set  forth  that  he  was  a  trustee  for  A.,  an  objection  was 
made  at  the  hearing,  that  the  cestui  que  trust  should  have  been 
made  a  party ;  and  because  it  was  disclosed  in  the  answer,  and  the 
plaintiff  might  have  amended,  the  bill  was  dismissed.^  And  so  in 
a  bill  against  the  heir  of  a  mortgagee  to  redeem,  the  pei'sonal  rep- 
resentative must  be  a  party,  because  he  is  the  person  entitled  to 
the  mortgage  money,  and  the  heir  is  only  a  trustee  of  the  legal 
estate  for  him.* 

In  some  cases,  however,  where  the  cestui  que  trusts  are  very  nu- 
merous, the  necessity  of  bringing  them  all  before  the  Court  has 


1  King  V.  Martin,  2  Ves.  J.  C41,  cited 
Ld.  Red.  162.  In  a  bill  to  set  aside  a  con- 
veyance as  made  without  consideration 
and  in  fraud  of  creditors,  the  alleged  fraud- 
ulent prautor  is  a  necessary  defendant  in 
the  bill.  Gaylords  v.  Kelshaw,  1  Walhice, 
U.  S.  81. 

2Storv  Eq.  PI.  §§  192,193,  207;  Helm  v. 
Hardin,  2  B.  Mon.  2.32;  Ilewett  r.  Adnms, 
50  Maine,  271,  281;  Van  Doren  v.  Robin- 
son, 1  (J.  E.  Green  (N.  J.),  25S;  Clenioiis 
V.  Elder,  9  Iowa,  272. 

In  :i  suit  by  a  trustee  to  establish  and 
Uiaintaiii  thetitle  intrusted  to  him  against 
an  adverse  claim,  by  a  bill,  he  must  make 
the  cestui  que  trust  a  party.  Blake  v.  All- 
man,  5  Jones  Eq.  (N.  C)  407. 

8  Whistler  r.  Webb,  Bunb.  53;  Beals  v. 
Cobb,  51  .Maine,  349,  350;  Story  Eq.  PI. 
§  207;  Davis  v.  Hemingway,  29  Vt.  438; 
see  Creare  c.  Babcock,  10  Metcalf,  525. 

Where,  after  a  mortgage  has  been  made 
of  real  projierty,  the  propi-rty  has  been  con- 
veyed in  trust  for  the  benefit  of  children, 
both  those  in  being,  and  those  to  be  born; 
all  chihlrcn  in  esse  at  the  time  of  filing  a 
bill  of  foreclosure  of  the  mortgage  should 
be  made  parties.  Otherwise,  the  decree  of 
foreclosure  does  not  take  away  tiieir  right 
to  redeem.  A  decree  in  such  a  case  against 
the  trustee  alone  does  not  bind  the  cestui 
que  trusts.    Clark  v.  Reybum,  8  Wallace 


U.  S.  318.  Now,  however,  in  England,  in 
suits  concerning  real  or  personal  propertj', 
which  is  vested  in  trustees,  such  trustees 
represent  the  persons  beneficiMlly  inter- 
ested, in  the  same  manner,  and  to  the  same 
extent,  as  the  executors  or  administrators 
in  suits  concerning  personal  estnte  repre- 
sent the  persons  beneficially  interested  in 
such  personal  estate;  and  in  such  cases  it 
is  not  necessary  to  make  the  persons  bene- 
ficially interested  parties  to  the  suit.  15  & 
16  Vic.  c  86,  §  42,  r.  9;  but  the  rule  does' 
not  appl}'  where  the  cestui,  que  trusts  have 
concurred  in  breaches  of  trust;  .Jesse  v. 
Bennett,  6  I)e  G.,  M.  &  G.  909 ;  2  Jur.  N.  S. 
1425;  and  trustees  will  not  represent  some 
of  the  cestui  que  trusts  in  any  contention 
iiiter  se,  Hamond  v.  Walker,  3  Jur.  N.  S. 
686,  V.  C.  W.;  Payne  v.  Parker,  L.  R.  1 
Ch.  Ap.  327;  12  Jur.  N.  S.  221,  L.  JJ.; 
or  wherever  tlie  trustees'  personal  interest 
might  prevent  them  from  protecting  the 
interests  of  tin;  cestui  que  trusts;  Read  v. 
Prest.  1  K.  &  J.  183;  Pavne  v.  Parker,  L. 
R.  1  Ch.  Ap.  327;  12  Jur.  N.  S.  221,  L.  JJ; 
and  where  a  bill  was  filed  to  set  aside  a 
settlement,  it  was  held  that  some  of  the 
persons  benelicialh-  interested  tliereunder 
ought  to  be  parties;  Read  v.  Prest,  1  K.  & 
J.  183. 
4  See  Guthrie  v.  Morrell,  6  Ire.  Eq.  13. 


PERSONS    RESISTING    PLAINTIFF'S    DEMANDS.  257 

been  dispensed  with.^  Thus,  where  iiYion  a  bill  brought  against  an  Ch.  V.  §  2. 
assignee  of  a  lease  to  compel  him  to  pay  the  rent,  and  perform  '  y  ' 
the  covenants,  it  appeared  that  the  assignment  was  iipon  trust  for 
such  as  should  buy  the  shares,  the  Avhole  being  divided  into  900 
shares,  and  an  objection  was  taken  because  the  sliareholders  were 
not  parties;  the  objection  was  overruled,  as  the  assignees  by  di\-id- 
ing  the  shares,  had  made  it  impracticable  to  have  them  all  before 
the  Coiirt.'^  Formerly,  the  general  rule,  in  cases  where  real  estates 
were  either  devised  or  settled  upon  trusts  for  payment  of  debts  or 
legacies,  was,  that  if  the  persons  to  be  benefited  by  the  produce  of 
the  estate  were  either  named  or  sufficiently  indicated,  then  that 
they  must  be  all  parties  to  any  suit  affecting  the  estate  ;  if,  how- 
ever, the  bill  alleged  their  great  number  as  a  reason  for  not  making 
them  all  ])arties,  and  if  the  Court  were  satisfied  that  the  absentees 
were  sufficiently  represented  by  those  who  were  made  parties  to 
the  record,  the  presence  of  all  the  persons  interested  would  be  dis- 
pensed with ; '  and  upon  the  same  princii)le,  where  the  trusts  were 
for  tlie  pajonent  of  debts  or  legacies  generally,  the  trustees  alone 
were  allowed  to  sustain  the  suit,  either  as  plaintiffs  or  defendants, 
Avithout  ]>ringing  before  the  Court  the  creditors  or  legatees  for  whom 
tliey  were  trustees ;  *  and  now  it  is  conceived  that  the  Court  would,  in 
such  cases,  generally  allow  the  suit  to  proceed  without  any  of  the 
cestui  que  trusts  being  made  parties,  considering  their  interests  to 
be  sufficiently  represented  by  the  trustees ;  ^  except  where  it  might 
require  some  of  the  cestui  que  trusts  to  be  parties,  in  order  to  secure 
the  application  of  the  trust  money.'' 

"VVe  have  already  seen,  that  the  80th  Order  of  August,  1841,  did  In  cases  of 
not  a]»ply  to  cases  where  a  mortgagee  sought  to  foreclose  the  equity  ^^^'^  °^^^^' 
of  redem])tion  of  estates  vested  in  trustees,'^  but  that  under  the  rule 
of  the  late  Act  above  referred  to,  where  the  trustees  are  the  |)ersons 
who  would  be  in  possession  of  funds  to  redeem,  tlicy  may  iti-ojjerly 
represent  their  cestui  que  trusts  ;  ^  though,  when  this  is  not  the  case, 
the  cestui  que  trusts,  or  some  of  them,  ought  to  be  parties." 

Formerly,  in  such  cases,  the  cestui  que  trusts  were  necessary  In  suits  for 
parties  ;'"  but  to  a  suit  for  the  execution  of  a  trust  by  or  against  payiirR  prior 
those  claiming  the  ultimate  benefit  of  such  trust,  after  the  satis-  tliaiges; 

1  SocpoKt,  266.  "  Stan<»ficl(l  v.  Ilobson,  IG  Beav.  189. 

2  City  of  London  r.  liichmond,  2  Vorn.  "  See  Wilton  v.  .Jones,  2  Y.  &  C.  244. 
421.    N".  15.  In  tliat  case  tiie  orif^ina!  lessee  •*  lianmau  v.   Hiley,   'J   Hare  App.   40; 
was  cdnsiilcri'd  a  necessary  party.     Story  Sale  v.  Kitson,  3  De  G.,  M.  &  G.  119;  17 
Kq.  ri.  §118.  Jur.  170. 

3  Holland  r.  Baker,  3  Hare,  68;  Harri-  "  Goldsmid  r.  Stonchower,  17  .Tur.  190; 
«on  V.  Sfewardson,  2  IIare,530;  see  Story  9  Ilaro  App.  38;  Davis  v.  Hemingway,  29 
r.(|.   ri.  §   150;    Johnson  v.  Candage,  s'l  Vt.  438. 

Maine.  28.  1"  Osbourn  v.  Fallows,  1  H.  .iK;  M.  741; 

*  l.d.  lied.  174;  see  Stevenson  v.  Austin,  Calveriey  r.  I'lieip,  (i  Mad.  229;  laitliCid  v. 

3  Mit.  474,  4N0.  Hunt,  3   Anst.   7.">1;    Newton    r.    Karl    of 

'>  1.')  &  16  Vic.  c.  80,  §  42,  r.  9;  Morley  Kginont,  4  Sim.  074,  fiH4 ;  5  Sim.  13(),  136; 

V.  Morley,  2.0  FU-av.  253;  and  see  Knight  Coles  v.  I'orrest,  10  Ueav.  552,  057;  Story 

V.  Pocock,  24  Beav.  436.  Eq.  PI.  §§  206,  207. 
VOL.  I.                                                            17 


258 


OF   PARTIES    TO   A   SUIT. 


Cn.  V.  §  -2. 


Where  sub- 
sequently 
ascertaiued. 


All  interested 
in  money 
secured  by 
mortgage, 
necessary 
parties; 


llu'licii  ol'  prior  diary's,  it  w  as  not  lUH-essary  \o  bi'iny;  bi'tore  tlie 
Court  \\\v  persons  clainiiiii;'  tlu'  ln'iu'lit  ol"  sucli  prior  cliarges ;  and, 
tliorcforo,  to  :i  bill  lor  ajtpliratiou  of  a  surj)lus,  utter  payiucnt  of 
debts  and  legacies,  or  otiier  incumbrances,  the  creditors,  legatees, 
or  other  incumbrancers,  need  not  be  made  parties.  And  persons 
having  demands  j)rior  to  the  creation  ofsucli  a  trust,  might  enforce 
these  demands  against  the  trustees,  without  bringing  before  the 
Co\irt  the  })ersons  interested  under  the  trust,  if  the  absolute  dis- 
position of  the  property  was  vested  in  the  trustees.  But  if  the 
trustees  had  no  such  power  of  disposition,  as  in  the  case  of  trustees 
to  convey  to  certain  uses,  the  persons  claiming  the  benefit  of  the 
trust  must  also  be  parties.  Persons  having  specific  charges  on  the 
trust  property  were  also  necessary  parties;  but  this  would  not 
extend  to  a  general  trust  for  creditors  or  others,  whose  demands 
were  not  specified  in  the  creation  of  the  trust,  as  their  number,  as 
well  as  the  difficulty  of  ascertaining  who  may  answer  a  general 
description,  might  greatly  embarrass  a  prior  claim  against  a  trust 
pro]>erty.^ 

Where,  however,  the  demands  and  names  of  the  creditors,  al- 
though not  actually  specified  at  the  time  of  the  creation  of  the 
trust,  were  subsequently  ascertained  by  their  signing  a  schedule 
to  the  conveyance,  they  became  necessary  parties ;  thus  where  a 
plaintifi*  claiming  an  annuity  charged  upon  an  estate  which  had 
subsequently  been  demised  to  trustees  for  the  benefit  of  such  of 
the  grantee's  creditors  as  should  execute  the  conveyance,  filed  a 
bill,  against  the  grantor  and  the  trustees,  and  one  of  the  ci-editors 
who  had  executed  the  deed,  and  who  had  obtained  a  decree  in  an 
original  suit,  instituted  by  him  on  behalf  of  himself  and  all  other 
the  creditors  under  the  trust  deed,  praying  an  account  of  what  was 
due  to  him,  and  that  the  priorities  of  himself  and  the  other  cred- 
itors might  be  ascertained,  and  that  he  might  redeem  the  securi- 
ties which  Avere  prior  to  his  own,  and  have  the  benefit  of  the  decree 
as  to  that  part  of  the  demand  for  which  he  should  not  be  entitled 
to  priority  over  the  trust  deed  ;  it  was  held  by  the  V.  C.  of  England, 
that  all  the  creditors  who  had  executed  the  trust  deed  were  neces- 
sary parties ;  and  that,  as  it  was  stated  in  the  bill  that  several  of  the 
creditors  had  executed  the  deed,  and  only  one  was  made  a  i)ai-ty,  the 
defect  appeared  sufficiently  on  the  face  of  the  bill  to  entitle  the 
defendant  to  take  advantage  of  it  by  denmrrer.^ 

Where  the  money  secured  by  a  mortgage  was  subject  to  a  trust, 
a  mortgagor,  or  any  person  claiming  under  him,  seeking  to  redeem 
the   mortgage,  must  make  all  persons  claiming  an  interest  in  the 


1  Ld.  Red.  175;  Story  Eq.  PI.  §  216. 

2  Newton  v.  Earl  of  Egmont,  4  Sim.  574 ; 
virle  etiam,  5  Sim.  130,  S.  C.  S.  1'.;  Story 
Eq.  PI.  §§  133,  149.  One  creditor  secured 
in  a  deed  of  trust,  cannot  maintain  a  bill 


for  an  account  of  thie  fund  without  making 
all  creditors  who  are  preferred,  and  all  in 
the  Slime  class  with  him,  parties,  either  as 
plaintiffs  or  defendants.  Murphy  v.  Jack- 
son, 5  Jones  Eq.  (N.  C.)  11. 


PERSOXS    RESISTIXG    PLAINTIFF  S    DEMANDS. 


259 


mortgage  money  parties  to  the  sixit.  Thus,  where  it  appeared  that 
tlie  parties  against  whom  the  redemption  was  prayed  were  trustees 
for  a  woman  and  her  children,  the  Lord  Chief  Baron  held,  that  the 
cestui  qice  trusts  were  necessary  parties  to  the  suit,  although  under 
the  peculiar  circumstances  of  the  case,  and  to  avoid  delay  and  ex- 
pense, he  recommended  that  a  petition  sliouldbe  presented  on  their 
behalf,  praying  that  their  interests  might  be  protected,  and  directed 
the  cause  to  stand  over  for  that  purpose.^  And  in  general  it  was 
laid  down  as  a  rule,  that  there  could  be  no  foreclosure  nor  redemp- 
tion unless  all  the  parties  entitled  to  the  mortgage  money  were 
before  the  Court.-  Therefore,  where  a  mortgagee  had  assigned  the 
mortgage  upon  certain  trusts  for  the  benefit  of  his  family,  the  mort- 
gagee, the  trustees,  and  the  cestui  que  trusts^  were  considered  neces- 
sary parties  to  a  bill  to  redeem.^  And  so  where  a  mortgage  term 
had  been  bequeathed  to  trustees,  upon  trust,  to  sell  and  apply  the 
produce  among  the  testatoi''s  twelve  children  and  a  grandchild 
nominatim  /  it  was  held,  that  all  the  cestui  que  trusts,  interested 
in  the  produce  of  the  term,  w^ere  necessary  parties,  although  they 
were  numerous,  and  the  property  small,  and  although  the  trustees 
had  power  to  give  a  discharge  to  purchasers.* 

Now,  however,  it  has  been  held,  that  in  a  redemjotion  suit,  where 
the  mortgage  money  is  vested  in  trustees,  the  trustees  represent  the 
cestui  que  trusts  sufficiently  to  protect  the  mortgagor;  but  that  some 
of  the  cestui  que  trusts  ought  also  to  be  parties,  in  order  to  secure 
tlie  due  application  of  the  trust  projjcrty.'' 

It  was  said  by  Lord  Hardwicke,  that  where  a  mortgagee,  who  has 
a  plain  redeemable  interest,  makes  several  conveyances  upon  trust, 
in  order  to  entangle  the  affiur,  and  to  render  it  difficult  for  a  mort- 
gagor, or  his  rei»resentatives,  to  redeem ;  it  is  not  necessary  that 
the  plaintiff  should  trace  out  all  the  persons  who  have  an  interest 
in  such  trust,  to  make  them  parties:  the  persons  having  tlie  legal 
estate,  however,  must  be  before  the  Court,  and  Avhere  a  mortgagee 
in  fee  has  made  an  a1>solute  conveyance  with  several  limitations  and 
remainders  over,  the  decree  cannot  be  complete  Avithout  bringing 
befjre  the  Court,  at  least  the  first  tenant  in  tail,  and  those  having 


Ch.  V.  §  2. 


but  their 
trustees  now 
protect  the 
mortgagor. 


Where  mort- 
gagee assigns 
to  embarrass 
mortgagor  in 
redeeming. 


1  Drew  V.  Ilannan,  5  Price,  319;  Story 
En    ri.  §§  192,  208. 

■i  I'ahner  v.  Earl  of  Carlisle,  1  S.  &  S. 
42:!;  Storv  Kq.  I'i.  1H2,  et  nefj. ;  Large  v. 
Van  D.ir.ii,  1  Mcr'arfer (.\.  .J.),20H;  Heals 
?;.  (J()l)l(,  .',1  Maine,  348  ;  ( ).Hl)oiirn  v.  Fallows, 
1  l;.  &  .M.  741  ;  McCall  v.  Yard,  1  Stoekt. 
(N.  .1.)  3ri8;  4  K.nt  (lltli  ed.),  185. 

The  general  rule  is,  that  all  |)erson3 
materially  interested  in  the  inortj;age,  or 
mortgag>-d  e.-tate,  ought  to  bi;  made  par- 
ties to  a  bill  of  forerlo«ure.  Tiiis  will  or- 
dinarily include  thr;  jieir,  or  devixee,  or 
assignee,  and  |)ersonal  representatives  of 
the  mortgagor,  and  also  the  tenants  for  life 


and  the  fMnain-ler-iiian,  for  they  all  may 
be  interested  in  the  right  of  redemption,  or 
in  taking  the  accounts.  4  Kent  ( 1  Uii  cd  ), 
180,  180. 

3  Wetherell  v.  Collins,  3  Mad.  2.55;  Story 
Efj.  I'l.  §  192. 

••  Osbouni  r.  Tallows,  1  R.  i^-   M.  741. 

'■'  Stansfield  r.  liul)S(in,  Ki  Meav.  18U;  see, 
however,  Morley  v.  Morley,  25  Hcav.  253; 
and  Eniniot  v.  Tottenham,  10  .lur.  N.  .S. 
1090;  8.  (;.  710111.  Tiittenhain  r.  Kuum-l,  13 
W.  K.  123,  .M.  It.,  where  a  per.-on  interested 
in  part  of  the  mortgage  was  held  not  to  be 
a  necessary  party. 


260 


OF    PARTIKS    TO    A    SUIT. 


Mortgagee 
unnecessary 
where 
mortgage 
assigned ; 


inU'niu'iliate  estates.^  It  >sooins  th;it  wliciv  a  inorlo-aije  is  forfeited, 
and  the  mortgagee  exercises  the  legal  rights  he  has  acquired  by  dis- 
jjosing  of,  or  enciiiiibering  the  estate,  and  the  mortgagor  comes  for 
the  redem])tioii,  which  a  Court  of  Kqiiit y  gives  him,  it  mtist  he  upon 
the  terms  of  indemnifying  the  mortgagee  from  all  costs  arisitig  ont 
of  his  legal  acts;  upon  this  princii)le,  Sir  John  Leach,  in  the  case  of 
Wetherell  v.  Collins,'  above  referred  to,  ordered  the  mortgagor  to 
pay  the  costs  of  the  trustees,  and  cestui  que  trust,  who  were  neces- 
sarily brought  before  the  Court  in  consequence  of  the  assignment 
of  the  mortgagee. 

It  seems  formerly  to  have  been  considered  necessary,  that  a 
mortgagee,  who  had  assigned  his  mortgage,  should  be  made  a  party 
to  a  bill  of  redcmj)tion ;  ^  but  the  law  upon  the  j^oint  appears  now 
to  be  otherwise  ;  *  and  it  hiis  been  determined,  that  where  there  has 
been  an  assignment,  even  though  it  was  made  without  the  previous 
authority  of  the  mortgagor,  or  his  declaration,  that  so  much  is  due, 
the  assignee  is  the  necessary  party  ;^  for  whatsoever  the  assignee 
pays  withotit  the  intervention  of  the  mortgagor,  he  can  claim  noth- 
ing under  the  assignment  btit  Avhat  is  actually  due  between  the 
mortgagor  and  mortgagee.®  Where  a  mortgagor  is  a  party  to  an 
assignment  of  a  mortgage  by  the  mortgagee,  then  it  is  in  fact  a 
new  mortgage  between  the  mortgagor  and  the  assignee,  and  of 
course  the  original  mortgagee  is  not  a  necessary  party  to  a  bill  to 
redeem.  A  mortgagor,  however,  cannot  be  bound  by  any  transac- 
tion Avhich  may  take  place  between  a  mortgagee  and  his  assignee 
without  his  privity ;  if,  therefore,  the  mortgagee,  before  assignment, 
has  been  in  possession,  and  has  received  more  on  account  of  the 
rents  and  profits  than  the  principal  and  interest  due  upon  the 

a  party  to  such  a  bill.  Beals  v.  Cobb,  ubi 
supra.  So  where  a  mortgagee  <if  land  who 
has  assigned  his  interest  in  tiie  mortgage 
since  the  breach  oF  the  condition,  maj'  be 
included  as  a  defendant  in  a  bill  to  redeem ; 
especially  if  it  appears  that  he  is  interest- 
ed in  the  taking  of  the  account.  Doody  v. 
I'ierce,  9  Allen,  141.  Where  a  mortgage 
was  assigned  to  secure  a  loan  made  to  tlie 
assignor,  tlie  assignor  was  held  to  be  a 
nccessar}'  party  in  a  suit  commenced  by 
the  assignee,  lo  foreclose  the  mortgage,  al- 
though the  assigtmient  was  absolute  in 
terms,  and  expressed  the  payment  of  a 
full  consideration.  Kettle  v.  Van  Dyck,  1 
Sandf.  (N.  Y.)  76;  Brown  v.  Johnson,  53 
Maine,  246;  Hobart  v.  Andrews,  21  Pick. 
627;  ante,  198,  note.  Where  a  mortgagor 
has  assigned  all  his  interest  in  the  estate 
mortgaged,  he  is  not  a  necessary  party  to 
a  bill  in  Equity  to  redeem  by  the  assignee. 
Bailey  v.  Myrick,  36  Maine,  50;  Williams 
V.  Smith,  49  Maine,  564;  Hilton  v.  Lothrop, 
46  Maine,  297. 

''  Chambers  v.  Goldwin,  9  Ves.  265;  see 
Matthews  V.  Walwyn,  4  Sumner's  Ves.  118, 
note  (a). 


1  Yates  V.  Hamlv,  2  Atk.  238;  Story  Eq. 
PI.  §§  144-146,  194,  198. 

2  3  Mnd.  255. 

3  Anon.,  in  the  Duchy,  2  Ex.  Ca.  Ab. 
694,  ri.  3. 

■*  The  assignee  of  a  mortgage,  who  has 
parted  with  all  his  interest,  and  has  never 
made  himself  liable  for  rents  and  profits, 
should  not  be  made  a  party  to  a  bill  to  re- 
deem the  premises,  unless  he  is  charged 
■with  fraud  or  collusion,  or  a  discovery  is 
sought  from  him.  Williams  v  Smith,  49 
Maine,  564.  But  the  mortgagee  is  a  neces- 
sarj'  party  to  a  suit  to  reform  a  mortgage 
deed,  brought  by  a  [)Ui'chaser  at  a  sale  i)y 
the  mortgagee.  Haley  v.  Bagley,  37  Mo. 
363. 

6  Chambers  v.  Goldwin,  9  Vesey.  269. 
Where  a  mortgage  has  been  absolutely 
assigned,  it  is  not  necessar\'  to  make  the 
mortgagee  a  party  to  a  bill  brought  by  the 
mortgagor  to  redeem.  Whitney  v.  M'Kin- 
ney,  7  John.  Ch.  144;  I'eals  v.  Cobb,  51 
Maine,  348.  But  where  the  mortgagee  has 
merely  given  to  another  a  quitclaim  deed 
of  the  mortgaged  premises,  without  assign- 
ing the  mortgage  debt,  he  must  be  made 


PERSONS   RESISTING   PLAINTIFF'S   DEMANDS.  261 

mortgage,  and  a  bill  is  filed  by  tlie  mortgagor  against  the  assignee  Ch.  V.  §  2. 

to  have  an  acconnt  of  the  overplus,  he  may  make  the  mortgagee  a  ""- — y — —^ 

party  to  the  bill,  because  he  is  clearly  accountable  for  the  surplus  but  may  be 

rents  and  profits  received  by  himself^     But  upon  the  principles  accdunt^for 

laid  down  bv  Lord  Eldon,  in  the  precedino-  case,^  it  would  seem,  rents  re- 

.   "  .  »  '  '    ceived. 

that  even  in  that  case  the  assignee  only  would  be  sufticient,  be- 
cause, having  contracted  to  stand  in  the  place  of  the  originid  mort- 
gagee, he  has  rendered  himself  liable  to  have  the  account  taken 
from  beginning  to  end,  and  must  be  answerable  for  the  result. 
From  the  same  case  it  ajiijears,  that  although  there  may  have  been 
twenty  mesne  assignments,  the  person  to  whom  the  last  has  been 
made  is  the  only  necessary  jiarty  to  a  redemption  suit.^ 

Where,  however,  there  are  several  derivative  moilgages,  if  the   Derivative 
mortgagor  seeks  to  redeem  the  first,  he  must  make  all  the  subse-  ^'ortgagees. 
quent  mortgagees  parties,  because  they  are  all  interested  in  the 
account.* 

The  rules  regulating  the  practice  of  the  Court  as  to  cei^fAii  que  Persons 
trusts  being  parties  to  suits  relating  to  trust  property,  apply  to  re-  s"^'^'?'^  to 
suiting  trusts  as  well  as  others.     Tlius,  where  there  is  a  grant  or  trusts; 
devise  of  a  real  estate,  either  by  deed  or  will,  and  the  whole  equi- 
table interest  is  not  thereby  granted  or  devised,  there  will  be  a 
resulting  trust  for  the  grantor  or  his  heir  ;  ^  and  in  such  case  it  will 
be  necessary,  in  a  suit  relating  to  that  estate,  to  bring  the  grantor 
or  his  heir  before  the  Court. 

Upon  this  princi[)le  it  has  been  held,  that  in  cases  of  charities,  heir  of 
where  a  private  founder  has  appointed  no  visitor,  his  heir-at-law  is   Fj?"'"''*? 
considered  a  necessary  party  to  an  information  for  the  regulation  for  charities, 
of  the  charity,  because  in  such  case  the  heir-at-law  of  a  private 
founder  is  considered  as  the  visitor.     But  in  a  case  of  this  descrip- 
tion the  Court  refused  to  dismiss  the  information  because  of  his 
a)>sence,  and  directed  an  inquiry  for  him  to  be  made  by  the  Mas- 
ter;" and   80  in  the  case  of  a  charity,  wherever  it  is  doubtful 
whether  the  heir  is  disinherited  or  not,  he  must  be  a  party.' 

1  Heals  V.  Cobb,  51  Maine,  348,  350;  473;  Hill  v.  Adams,  2  Atk.  30;  Bishop 
Story  Kq.  I'l.  §  I'JO;  IJrynnt  r.  Krskiiie,  AS  of  Winchester  v.  Beavor,  3  Ves.  315,  316; 
Maine,  163,  158.     All   persons  who  liHve       ante,  194. 

been  m  connected  with  the  murtpiges  of  ■•  Ilobart  v.  Abbot,  2  P.  Wms.  093,  nvte, 

a  railro:id  sonsiht  to  bn  r(;deerned,  11s  to  p.  1H4,  and  notes;  210  and  note^;   Kettle 

render  them    lialdi:  for  income   under  it,  r.  Vim  Dyck,  1  San<lf.  (N.  Y.)  70;  Story 

should  be  nride  |)arties  defeudiint.     Ken-  Eq.  I'i.  §'191;  Stone  v.  Bartlett,  40  Maine, 

nebec  and  rortlitod   R.K.  (Jo.  1;.  Portland  438. 

and   Kennebec   H.U.  (Jo.,  54  Maine,   173;  6  Ripley  v.  Waterworth,  7  Sumner's  Ves. 

but  see   Lennon  r.   I'orter,   2  Gray,  473,  425,  Perkins's  note  (c),  mil  ca-es  cited;  2 

where  it  wiis  held  that  a  mesne  a-^signee  of  Story  Fq.  .hir.  §  1190  et  sn/.,  an<l  notes; 

the  morttrage  is  not  a  proper  i>arty  to  a  Scott  ?•.  I'enhoulctt,  1  Bro.  C.  C.  (I'erkins's 

bdl  to  redeem,  if  he  has  never  receive<l  any  ed.)  70,  note  («). 

rents  and  profit-*;  nor,  it  seems,  if  ho  has.  0  Attorney-General  v.  Gaunt,  3  Swan, 

2  Chambers  /;.  (Joldwin,  9  Ve«  208,  209.  148,  n. 

8  Chiiinbers   r.    (ioldwin,   9   Ves.   208;  7  Attorney-General  »i.  Green,  2  Rro.  C. 

Story  Kq.  I'l.  §  189;  Bryant  r.  Erskine,  55        C.  495;   see  ante,  p.  229;    Order  XX.XI. 
Maine,  153, 158;  Lennon  v.  I'orter, 2  Gray,       August,  1841;  see  Story  Eq.  I'l.  §  180. 


2()2 


OF   TARTIES   TO   A    SUIT. 


Cm.  V.  §  2. 


Itwner  of 
iiihoritanco 
nei-e^sarv  in 
bills  l.y  ■ 
spoiialty 
iTcditors, 
but  not  to  re- 
cover arrears 
of  annuity ; 


■where  juris- 
diction drawn 
from  Courts 
of  Law; 


to  establish 
a  custom, 


or  a  modus. 


Where  owner 
of  inheritance 
notnecessar)'. 


In  suits  to 
settle  boun- 
daries; 


AVlievi>\cr  a  vc:tl  ostato  is  to  be  recovered,  or  a  right  is  souglit 
to  be  established,  or  a  eliarge  raised  against  real  estate,  it  is  neces- 
sary that  the  person  or  j^ersons  entitk'd  to  the  inheritance  sliouhl 
be  before  the  Conrt.^  Upon  this  i)rinciple  it  is,  tliat  in  a  bill  by  a 
specialty  creditor,  to  obtain  payment  of  his  demand  out  of  the  real 
estate  of  l\is  debtor,  the  heir,  as  well  as  the  executor,  is  a  necessary 
l)arty.-  AVhere,  however,  the  arrears  of  an  annuity,  charged  upon 
real  estates,  are  sought  to  be  recovered,  if  the  arn^ars  are  such  only 
as  were  due  in  the  lifetime  of  the  ancestor,  it  will  l)c  sutiicient  to 
make  his  ])ersonal  representative  a  party,  but  for  any  arrears  after 
his  death,  the  heir  must  be  a  party .^ 

The  same  rule  api)lies  to  all  cases  where  the  jurisdiction  is  drawn 
from  the  Courts  of  Common  Law,  in  order  to  establish  a  right 
against  a  person  having  a  limited  estate  in  land  or  other  heredita- 
ments ;  and  it  is  in  such  cases  always  held  necessary  to  have  the 
owner  of  the  inheritance  before  the  Court.  Thus,  where  a  bill  was 
filed  to  establish  a  custom  whereby  the  owners  and  occupiers  of 
certain  lands  were  obliged  to  keep  a  bull  and  a  boar  for  the  use  of 
the  inhabitants  of  the  parish,  it  was  held  that  a  custom  which  binds 
the  inheritance  of  lands  can  never  be  established  in  a  Court  of 
Equity  unless  the  owners  of  the  inheritance  are  parties,  and  that 
the  master  and  fellows  of  Queen's  College,  who  were  the  owners, 
ought  to  have  been  there.^  And  so,  where  a  man  prefers  a  bill  to 
establish  a  modus  against  a  lessee  of  an  impropriator,  he  must 
make  the  owner  of  the  improin-iation  a  party.^  Upon  the  same 
princijile,  where  a  bill  was  filed  to  establish  a  modus  against  an 
ecclesiastical  rector  or  a  dean  and  chapter,  as  impropriators,  the 
ordinary  and  patron  were  considered  necessary  parties.® 

It  is  to  be  observed,  that,  to  render  the  owner  of  the  inheritance 
necessary,  the  object  of  the  suit  must  be  to  bind  the  inheritance ; 
if  that  is  not  the  case,  and  the  relief  sought  is  merely  against  the 
present  incumbent,  the  owner  of  the  inheritance,  if  made  a  party, 
may  demur.'' 

In  the  case  of  Fe7in  v.  Lord  Baltimore,^  which  was  a  suit  for  a 


1  See  New  England,  &c.,  Bank  v.  New- 
port Steam  Factory,  6  U.  I.  154. 

2  But  where  the  bill  is  filed  by  the  credit- 
ors for  the  purpose  of  making  tlu'ir  debts 
out  of  real  estate  specifically  charged  by 
the  testator  with  the  payment  of  them, 
the  heir-i-at-law  are  not  necessary  parties. 
Smith  V.  Wycoff,  11  Paige,  49.  But  in  such 
a  case,  all  the  creditors,  whose  deb's  are 
charged  upon  the  land,  should  be  made  par- 
ties if  they  are  named  in  the  will,  and  whose 
debts  are  still  due.     Ibid. 

3  Weston  V.  Bowes,  9  Mod.  309;  Story 
Eq.  PI.  §  181. 

*  Spendler  v.  Potter,  Bunb.  181. 
6  Glanvil  v.  Trelawney,  Bunb.  70. 


6  Gordon  v.  Sinipkinson,  11  Ves.  fj09; 
Cook  V.  Butt,  6  Mad.  53;  Hales  r.  Pom- 
fret,  Dan.  142;  De  Whelpdale  w.Milburn, 
5  Pri.  485. 

7  Williamson  v.  Lord  Lonsdale,  Dan.  Ex. 
171;  Markham  v.  Smith,  11  Pri.  12G;  and 
see  further,  as  to  suits  relating  to  tithes, 
Dav  V.  Drake,  3  Sim.  04,  H2;  Petch  v.  Dal- 
ton,  8  Pri.  9;  Leathes  v.  Newit,  8  Pri.  562; 
Bennett  v.  SkeiTington,  4  Pri.  143;  Tooth 
V.  The  Dean  and  Chapter  of  Canterbury, 
3  Sim.  49;  Cuthbert?;.  Westwood,  Gilb.  Kn. 
Rep.  230;  IC  Vin.  Ab.  Partv,  B.  265,  PL 
58. 

8  1  Ves.  Sen.  444,  449. 


PERSONS    RESISTING    PLAINTIFF'S    DEMANDS.  263 

specific  performance  of  an  agreement  respecting  the  boundaries  of    Ch.  v.  §  2. 

two  provinces  in  America,  it  was  considered  unnecessary  to  make    ^" ^r ' 

the  phinters,  tenants,  or  inhabitants  within  the  districts,  parties  to 
the  suit.  The  objection  taken  was  upon  the  ground  that  their 
privileges,  and  the  tenure  and  hiw  by  wliicli  tliey  hehl,  miglit  not 
be  altered  Avithout  their  consent ;  but  Lord  Hardwicke  overruled 
the  objection,  saying,  "  Consider  to  what  this  objection  goes ;  in 
lower  instances,  in  the  case  of  manors  and  honors  in  England 
which  have  different  customs  and  by-laws  frequently  ;  yet,  though 
difterent,  the  boundaries  of  these  manors  may  be  settled  in  suit 
between  the  lords  of  these  manors  without  making  the  tenants 
parties,  or  may  be  settled  by  agreement,  which  this  Court  will 
decree,  without  making  the  tenants  parties ;  though  in  case  of 
fraiul,  collusion,  or  i)rejiulice  to  the  tenants,  they  will  not  be 
bound." 

And  in  general,  it  may  Ix'  statc<l  as  a  rule,  that  oceu])ying  tenants   in  suits  for 
under  leases,  or  other  persons  claiming  under  the  ])ossession  of  a   ^^^'^''' 
party  whose  title  to  real  property  is  disputed,  are  not  deemed  nec- 
essary parties  ;  though  if  he  had  a  legal  title,  the  title  Avhich  they 
may  have  gained  from  him  cannot  be  ])rejudiced  by  any  decision 
on  his  rights  in  a  Court  of  Equity  in  their  absence  ;  and  though,  if 
his  title  was  equitable  merely,  they  may  be  affected  by  a  decision 
against  that  title.     Sometimes,  however,  if  the  existence  of  such   decree  with- 
rights  is  suggested  at  the  hearing,  the  decree  is  expressly  made   t" ulo  n'o-h^^ 
without  prejudice  to  those  rights,  or  otherwise  qualified  according  of  others" 
to  circumstances.     If,  therefore,  it  is  intended  to  conclude  such 
rights  by  the  same  suit,  the  ])ersons  claiming  them  must  be  made 
parties  to  it ;  and  where  the  right  is  of  a  higher  nature,  as  a  mort- 
gage, the  person  claiming,  as  we  have  seen,  is  usually  made  a  party .^ 
And  Avhere  a  tenant  in  common  had  demised  his  undivided  share  Lospgo,  when 
t'or  a  long  term  of  years,  the  lessee  was  held  a  necessary  party  to  a   pa'pty*^^;^!"^^ 
bill  for  a  partition,  because  he  must  join  in  the  conveyance,  and  his   cases  of  par- 
lessor  was  ordered  to  pay  Ins  costs.- 

The  same  principle  which  renders  it  necessary  that  the  owner  of  Lonl  of  tlie 
the  iidieritance  should  be  before  the  Court,  in  all  cases  in  which  a   J"wsyan' 
ri^ht  is  to  be  estaliiished  against  the  iidieiitancc,  requires  that,  in   Jf question  is 

,  ,  .  ,.       '  1111-1  .  wliethcr  hind 

cases  where  there  is  a  dispute  as  to  wlietlier  land  in  the  occupation  is  copyhold; 
of  a  defendant  is  freehold  or  copyhold,  the  loid  of  the  manor 
sliould  be  a  party.  Thus,  where  ;i  iilaintitl"  hy  his  hill,  preteiidecl 
a  title  to  certain  lands  as  freehoM,  which  lands  (he  defendant 
claimed  to  hold  Ity  copy  of  Court  roll  to  him  and  his  heiis,  and 
prayed   in  ;iid  the  lord  of  the  manor,  hut   ne\  ertheless,  the  piaintilf 

1  Ld.  Red.  175.  hefore  lie  demiseil  it,  mid  coiidnui'd  nfler- 

2  (JoriiiRh  r.  Gest,  2  Cox.  27.  A  hind-  wards,  without  joining  his  tenanl  as  ji  co- 
lord  ctmnot  maintain  a  hill  in  Kquity  to  plainlifl'.  Ingral'iam  ?■.  I)Mnnell,u  Met.  118. 
suppress  a  nuisance  caused  to  his  property 


264 


OF    PAKTIE8    TO    A    SUIT. 


cu.  V.  §  •:. 


and  ill  suits 
for  a  sum'u- 
lior  of  oDpy- 
holils  for 
lives; 

5t  ('".<,  of  in- 
heritance. 


Persons  en- 
titled under 
limitations  in 
settlement; 


first  tenant  in 
tail  neces- 
sar}',  in  suits 
coneeniiiig 
realty, 

either  to  fore- 
close, 


or  to  charge ; 


when  not  in 
question  be- 
tween vendor 
and  pur- 
chaser. 


scrvoil  tlio  (lefontlaiit  with  iirocoss  to  ivjoiu,  Avitliout  making  tlie 
lord  of  iIk>  luamir  a  iiaity  ;  it  was  onlered,  that  the  plaiiitift'sliould 
prococ'd  no  more  against  tlic  dclomhint  bt'fore  ho  shoidd  have  called 
tlie  lord  in  process.^ 

For  a  similar  icason  it  is  held,  that  where  a  bill  is  brought  for 
tlie  surrender  of  a  copyhold  for  lives,  the  lord  must  be  made  a 
party ;  because,  when  tlie  surrender  is  made,  the  estate  is  in  the 
lord,  and  he  is  under  no  obligation  to  regrant  it ;  but  it  is  other- 
wise in  the  case  of  co])yholders  of  inheritance,  there  the  lord  need 
not  be  a  party. 

It  may  be  observed  in  this  place,  that  the  same  rule  which  has 
been  before  laid  down,-  with  regard  to  the  persons  to  be  made 
parties  as  being  interested  in  the  inheritance  of  an  estate,  ])revails 
equally  in  the  case  of  adverse  interests,  as  in  that  of  concurrent 
interests  with  the  plaintiffs.  This  rule  is,  that  wherever  the  inheri- 
tance to  a  real  estate  is  the  subject-matter  of  the  suit,  the  first 
person  in  being  w  ho  is  entitled  to  an  estate  of  inheritance  in  the 
property,  and  all  others  having  intermediate  interests  must  be 
defendants.  Thus  it  is  held  necessary,  in  order  to  obtain  a  com- 
plete decree  of  foreclosure,  in  cases  where  the  equity  of  redemption 
is  the  subject  of  an  entail,  that  the  first  tenant  in  tail  of  the  equity 
of  redemiition  should  be  before  the  Court.^ 

It  appears  to  have  been  held  formerly,  that  a  decree  of  fore- 
closure against  a  tenant  for  life  would  bar  a  remainder-man,*  but 
it  is  now  settled,  that  not  only  the  tenant  for  hfe,  but  the  person 
having  the  next  vested  estate  of  inheritance,  must  be  i)arties;^ 
and  the  same  rule  applies  to  all  cases  where  a  right  is  to  be  estab- 
lished, or  a  charge  raised  against  real  estates  w  hich  are  the  subject 
of  settlement. 

A  ])laintiff,  however,  has  no  right  to  bring  persons  in  the  situa- 
tion of  remainder-men  before  the  Court  in  order  to  bind  their 
rights,  upon  a  discussion  whether  a  i)rior  remainder-man,  under 
whom  he  claims,  had  a  title  or  not,  merely  to  clear  his  own  title  as 
betAveen  him  and  a  purchaser.  This  was  decided  in  Pelham  v. 
Gre(jonj''  before  Lord  Northington ;  in  which  case  the  question 
arose  on  the  title  to  certain  leasehold  estates,  which  were  limited 
in  remainder,  after  Hmitations  to  the  Duke  of  Newcastle  and  his 
sons,  to  the  first  and  other  sons  of  Mr,  Henry  Pelham  in  tail,  and 


1  Cited  in  Lucas  v.  Arnold,  Gary.  Rep. 
81;  16  Vin   Ab.  tit.  Party.  B.  253;"F1.  46. 

2  Ante,  pp.  219,  220,  and  cases  cited. 

8  Kevni'ldsiin  v.  Perkins,  Amb.  504; 
Story  f.fi  PI.  §§  144, 19*^;  and  see  Pendle- 
ton l".  Hooth,  i  GiflF.  35;  5  .Jur.  N.  S.  840. 

<  Roscairick  r.  Parton.  1  Cli  Ca.  217; 
but  it  may  be  doubted  whether,  in  this 
case,  it  was  intended  to  lay  down  such  rule. 


5  Sutton  V.  Stone,  2  Atk.  101.  If  the 
mortgage  consists  of  a  reversion  or  re- 
mainder, subject  to  an  estate  for  life,  it 
may  be  foreclosed ;  but  the  estate  of  the 
tenant  for  life  would  not  be  affected,  and 
he  would  have  no  interest  in  the  foreclo- 
sure.    I'enninian  v.  Hollis,  13  Man.  429. 

G  1  Eden,  518;  5  Pro-  P.  C  435,  S.  C. 


PERSONS    RESISTmG    PLAINTIFFS    DEMANDS. 


2G5 


to  Avhicli  tlie  plaintiff.  Lady  Catherine  Pelhara,  claimed  to  be  abso- 
lutely entitled  on  the  death  of  the  Duke,  as  administratrix  to 
Thomas  Pelham,  the  son  of  Mr.  Henry  Pelham,  the  first  tenant  in 
tail  who  had  come  into  being.  The  plaintiff,  in  order  to  have  this 
question  decided  against  Lord  Vane  and  Lord  Darlington,  who 
were  subsequent  remainder-men  in  tail,  contracted  to  sell  the  es- 
tate, subject  to  the  Duke's  life-estate,  and  to  the  contingency  of  his 
having  sons,  to  the  defendant  Gregory,  and  brought  a  bill  against 
him  for  a  specific  performance,  to  which  she  made  Lord  Vane  and 
Lord  Darlington  parties ;  but  Lord  Xorthington  dismissed  the  bill 
with  respect  to  Lord  Vane  and  Lord  Darlington,  and  the  reason 
his  Lordship  gave  for  dismissing  the  bill  against  the  two  latter,  as 
expressed  in  his  decree,  was,  "  that  they  being  remainder-men  after 
the  death  of  the  Duke  of  Xowcastle,  if  he  should  die  without  issue, 
their  claims  were  not  "tt-ithin  his  cognizance  to  determine,  and  the 
plaintiff  had  no  right  to  bring  them  into  discussion  in  a  Court  of 
Equity."  From  this  decree  there  Avas  an  appeal  to  the  House  of 
Lords,  and  although  they  decreed  Gregory  to  perform  his  contract, 
they  affinned  the  dismissal  against  Lord  Vane  and  Lord  Darling- 
ton.^ In  Devo7isher  v.  Keicenham,^  Lord  Redesdale,  after  stating 
the  above  case  and  decision,  says,  "  I  take  this  to  be  a  decisive  au- 
thority, and  if  the  books  were  searched,  I  have  no  doubt  many 
other  cases  might  be  found  whore  bills  have  been  dismissed  on  this 
ground." 

The  owner  of  the  first  estate  of  inheritance,  however,  is  suflieient 
to  support  the  estate,  not  only  of  himself,  but  of  everybody  in  re- 
mainder behind  him  ; '  therefore,  where  a  tenant  in  tail  is  before 
tlie  Court,  all  subsequent  remainder-men  are  considered  uinieces- 
sary  j»arties.  This  is  by  analogy  to  the  rule  at  Law,  according  to 
which  there  is  no  doubt  that  a  recovery  in  which  a  remainder-man 
in  tail  Avas  vouched,  might  bar  all  remainders  behind.* 

But  although  where  there  is  a  clear  tenancy  in  tail,  there  is  no 
occasion  for  a  subsequent  remainder-man  being  a  party  to  a  bill  of 
foreclosure,  yet  where  it  is  doubtful  Avhether  a  particular  party  has 
an  estate  tail  or  not,  the  person  Avho  has  the  first  undoulited  vested 
estate  of  inheritance  ouglit  to  be  a  party;  ^  and  so,  Avhere  the  first 
tenant  in  tail  Avas  a  lunatic,  the  reinaindcr-inan  was  held  to  be  a 
proper  party." 

It  is  necessary,  however,  in  cases  of  this  sort,  not  oidy  tliat  he, 


Cn.  V.  §  2. 


1  3  Bro.  P.  C.  ed.  Toml.  204. 

2  2  Sch.  vSc  Lff.  210. 

8  Hevnoldson  r.  I'erkins,  Amb.  564;  but 
thiH  riife  (Ioi-k  not  apply  to  a  Scotch  entail; 
Fordyce  v.  UrilK'-N,  2  'I'liil.  4;»7,  ."«0<i;  2  C. 
P.  Coop.  t.  Cott.  .'520,  .•{:i4;nnd  ns  to  the 
effect  of  a  decree  against  au  infant  tenant 


in  tail,  son  S.  ('  in  tlin  Court  below.  10 
IJeav.  101;  10  .lur.  1020. 

*  I'cr  Lord  Klilon,  in  I.lovd  r.  .Tolines,  9 
Ves.  04;  s<'c  alsr.  (lid^rd  I'.'llort,  1  Sch.  & 
Lof.  3Sr,;  Storv  K<|.  I'l.  §§  144,  145. 

1  Powell  Mort.  !i"".  a. 

«  Sin);leton  v.  Hopkins  1  .Inr.  N.  S.  1190 

V.  c.  s. 


Persons  in 
remainder 
after  first 
estate  of 
inlipritance, 
unnecessary ; 


unless  nature 
of  estate 
doubtful. 


or  first  tenant 
in  tail  a 
lunatic. 

Interinediate 
tenants  tor 
life. 


200 


OF    TAKTIES    TO    A    SUIT. 


Cn.  V.  5  -J. 


Trustees  to 
preserve.  &c. 

F.xeciitory 
devisees. 


Intcrmcdi.ite 
remainder- 
man coming 
into  beinjj 
after  bill  tiled. 


EflTcct  of 
tenant  in  tail 
dying  during 
suit,  without 
issue. 


Formerly  all 
persons  liable 
to  contribute 
to  plaintiff's 
claim  were 
necessary. 


who  lias  the  first  estate  of  inlievitniice  sliotild  l)e  before  the  Court, 
I)iit  that  the  iutennediate  remaiuder-iuen  for  liie  sliouhl  be  parties.^ 
The  same  rule  Avill,  as  we  liave  seen  before,  ai)|>ly,  where  the  inter- 
Tuediate  estate  is  eotititigeiit  or  executory,  ])rovided  the  person  to 
take  is  aseertained ;  although  wlu're  the  ])erson  to  take  is  not  ascer- 
tained, it  is  suttit'ient  to  have  before  the  Court  the  trustees  to  sup- 
l)ort  the  contingent  remainders,  and  the  ])erson  in  esse  entitled 
to  the  first  vested  estate  of  iidieritance.-  Executory  devises  to 
persons  not  in  being  may,  in  like  manner,  be  bound  by  a  deci'ee 
against  a  A-estcd  estate  of  inheritance ;  but  a  person  claiming  under 
limitations  by  way  of  executory  devise,  not  subject  to  any  preced- 
ing vested  estate  of  iidieritance  by  which  it  may  be  defeated,  must 
be  a  party  to  a  bill  affecting  his  right ;  ^  and  in  general,  where  a 
person  is  seised  in  fee  of  an  estate,  having  that  seisin  liable  to  be 
defeated  by  a  shifting  use,  conditional  limitation,  or  executory  de- 
vise, the  iidieritance  is  not  represented  in  Equity  merely  by  the 
person  who  has  the  fee  liable  to  be  defeated,  but  the  persons  claim- 
ing in  contingency  upon  the  defeat  of  the  estate  in  fee  are  neces- 
sary parties.* 

If  after  a  cause  has  proceeded  a  certain  length,  an  intemiediate 
remainder-man  comes  into  esse,  he  must  be  brought  before  the 
Court  by  supplemental  bill ;  ^  and  so,  if  first  tenant  in  tail,  who 
is  made  a  party  to  a  suit,  dies  without  issue  before  the  termination 
of  the  suit,  according  to  the  constant  practice  of  the  Court,  the 
suit  is  proceeded  with  against  the  next  tenant  in  tail,  as  if  he  had 
been  originally  a  party ;  and  this  is  done  by  means  of  a  supple- 
mental bill  or  order.*^  It  seems  also  clear,  that  if  a  tenant  in  tail 
is  plaintiff  in  a  suit,  and  dies  without  issue,  the  next  remainder- 
man in  tail,  although  he  claim  by  new  limitation,  and  not  through 
the  first  jtlaintiff  as  his  issue,  is  entitled  to  continue  the  suit  of  the 
former  tenant  in  tail  by  supplemental  bill,  and  to  have  the  benefit 
of  the  evidence  and  proceedings  in  the  former  suitJ 

The  general  rule  requiring  all  })ersons  interested  in  resisting  the 
plaintiff's  demands  to  be  brought  before  the  Court  as  defendants, 
in  order  to  give  them  an  oif])ortunity  of  litigating  the  claim  set  up, 
formerly  rendered  it  imperative,  wherever  more  than  one  person 
was  liable  to  contribute  to  the  satisfaction  of  the  plaintiff's  claim, 


1  Per  Lord  Eldon,  in  Gore  v.  Stacpoole, 
1  Dow.  18,  32;  4  Kent  (11th  ed.),  180; 
Penniman  v.  Hoilis,  13  Mass.  429. 

2  Lord  Cholniondfcley  v.  Lord  Clinton,  2 
J.  &  W.  7,  and  133;  Hopkins  v.  Hopkins, 
1  Atk.  590. 

3  Ld.  Red.  174. 

4  Goodessf.  Williams,  2  Y.  &  C.  598; 
7  Jur.  1123. 

fi  Ld.  lied.  174;  Per  Lord  Eldoii,  in 
Lloyd  v.  Jolines,  9  \'es.  59;  15  &  IG  Vic. 
c.  86,  §  52;  Pullerton  i'.  Martin,  1  Drew. 


238;  Pickford  v.  Brown,  1  K.  &  J.  643; 
Jebb  V.  Tugwell,  20  Bcav.  461 

6  Cresswell  v.  liateman,  6  W.  R.  220,  V. 
C.  K. 

■?  Lloyd  ?'.  .Johnos,  9  Ves.  59;  Story  Eq. 
Pi.  §§  144,  146,  and  notes;  Dendy  »)."l)en- 
dv,  5  VV.  R.  221,  V.  C.  W.;  WilliHms  v. 
Williams,  9  W.  R.  296,  V.  C.  K.;  Ward 
V.  Shakeshaft,  7. Jur.  N.  S.  1227;  10  W.  R. 
6,  V.  C.  K;  see,  however,  Lowe  u.  Watson, 
1  Sm.  &  G.  123;  Jackson  v.  Ward,  1  Giff. 
30;  6  Jur.  N.  S.  782. 


PERSOXS    RESISTING    PLAINTIFF'S    DEMANDS.  267 

that  they  should  all  have  been  made  parties  to  the  suit.^  This  Ch.  V.  §  2. 
application,  howevei',  of  the  general  rule  has  been  materially  modi- 
fied by  the  32d  Order  of  August,  1841,-  which  provides  that,  in  all 
cases  in  which  the  plaintiff  lias  a  joint  and  several  demand  against 
several  persons,  either  as  principals  or  sureties,  it  shall  not  be  nec- 
essary to  bring  before  the  Court,  as  parties  to  a  suit  concerning 
such  demand,  all  the  persons  liable  thereto  ;  but  the  plaintiff  may 
proceed  against  one  or  more  of  the  persons  severally  liable. 

It  will,  however,  be  necessary  shortly  to  state  Avhat  was  the  Former 
practice  previous  to  this  Order,  inasmuch  as  it  will  still  ajiply  to  ^^^^  '*^^' 
all  cases  not  brought  j^i'ecisely  within  its  terms.  In  the  case  of 
Madox  V.  Jc(ckso?i,^  Lord  Hardwicke  said  :  "  The  general  rule  of 
the  Court  to  be  sure  is,  where  a  debt  is  joint  and  several,  the  plain- 
tiff must  bring  each  of  the  debtors  before  the  Court,  because  they 
are  entitled  to  the  assistance  of  each  other  in  taking  the  account. 
Another  reason  is,  that  the  debtors  are  entitled  to  a  contribution, 
where  one  ])ays  more  than  liis  share  of  the  debt ;  *  a  further  reason 
is,  if  there  are  difterent  funds,  as  where  the  debt  is  a  specialty, 
and  he  might  at  Law  sue  either  the  heir  or  executor  for  satisfaction, 
he  must  make  both  parties,  as  he  may  come  in  the  last  place  ujDon 
the  real  assets ;  ^  but  there  are  exceptions  to  this,  and  the  excep- 
tion to  the  first-  rule  is,  that  if  some  of  the  obligors  are  only  sure- 
ties, there  is  no  pretence  for  the  principal  in  the  bond  to  say,  that 
the  creditor  ought  "  to  bring  the  surety  before  the  Court,  unless  he 
has  paid  the  debt."  ®  It  may  here  be  observed,  that  by  the  teiTns 
of  the  Order,  no  distinction  is  made,  between  ])rincii)als  and  sure- 
ties, so  that  it  would  appear  as  if  the  plaintiff  inight  file  his  l)ill 
against  one  or  more  of  the  sureties,  without  making  the  principal 
a  party  to  the  suit.  In  Allen  v.  Houlden^  however,  where  one  of 
two  sureties  Avho  had  joined  the  principal  debtor  in  a  bond,  filed  a 
bill  to  set  aside  the  transaction  on  the  ground  of  fraud,  and  prayed 
an  account  of  the  jtaymenls  made  in  respect  of  the  bond  ;  Lord 
Langdale  M.  R.  held,  that  notwithstanding  the  order,  the  prin- 
ci])al  delator  and  co-surety  were  necessary  parties.  And  so,  in 
Pinhts  y.  Peter.%^  \\\\QVQ.  the  jilaiiitiff  alleged  that  he  had  accejited 
bills  of  exchange  Avithout  consifk'ratioii,  ajid  that  lie  had  been  sued 
upon  tliciii,  Mild  by  his  bill  jirayed  relief  against  the  drawer  and 
the  holder,  without  making  a  jierson  to  Avdiom  the  drawer  had  in- 

1  Jackson    v.    Kiuvliiis,   2    Vern.    195;  «  Story  Eq.  IM.  §  1G9. 
Erickson  v.  Nesmitli,  40  X.   II.  371;  Had-           G  Mil. 

ley  V.  Kus'iell,  40  X.  H.  109;  see  Ferrer  v.  7  G   Beav.  148;    and  see  also  Lloyd  v. 

Barrett,  4  .lonos  Eq.  (N.  C.)455;  Hart  «.  Smith,  13  Sim.  4.^)7;  7  .Iiir.  400;  Tierson 

ColTee,  4  .Toms  Kq.  (N.  C.)321;    Young  r.  Harclay,  2  I)e  G.  &  S.  74t;.    But  it  seems 

V.  Lyons,  8  (iill,  1C2.  that  one  of  the  makers  of  a  joint  and  sev- 

2  (Jen.  Ord.  \'I1.  2.  oral  promissorv  note  miy  be  sued  without 
8  3   Atk.   loO;  Bland  r.  Winter,  1  S.  &       the  others.     Mclntyre  v.  Conneil,  1  Sim. 

S.  240;  Collins  v.  Grillith,  2  I'.  Wms.  313.        N.  S.  22.0,  241. 
*  Erickson  v.  Nesmith,  46  N.  H.  371.  8  6  Ueav.  203,  200. 


2()S  OF   TARTIES   TO   A    SUIT. 

cii.y.  §  -2.     clorsetl  the  bill  a  ixivtv,  Lord  Lanodale  liold,  tliat  as  there  was  an 
'        >^  allegation  that  the  holder  of  the  bills  was  a  trustee  as  well  for  the 

drawer  as  also  for  the  indorsee,  sueh  iiiterveiiiiig  indorsee  was  a 
necessary  party  to  the  suit. 
Ill  cases  of  Before  this  order  it  was  held  that  all  trustees  implicated  in  a 

tru"u'  '  breach  of  trust  were  necessary  i)arties  to  a  suit  complainins^  of  the 
Ord.VII.  r.  2.  breach  of  trust ;  ^  but  since  the  Order  it  ha55  been  held,  that  where 
a  breach  of  trust  has  been  committed  by  several  trustees,  tlie  cesttci 
que  trusts  may  proceed  against  one  trustee,  in  the  absence  of  the 
others.*  But  it  must  not  be  supposed  that,  in  every  case  in  which 
a  breach  of  trust  has  been  conunitted,  the  cestui  que  trusts  can 
arbitrarily  select  any  one  trustee,  and  charge  him  as  for  a  breach  of 
trust,  whatever  the  nature  of  the  complaint  may  be.  "  Take  for 
example,"  said  Sir  James  Wigram  V.  C.  in  tlie  case  of  /Shipton  v. 
Jiawli7is,^  "  the  case  of  one  of  two  trustees  acting  alone,  and  re- 
ceiving the  whole  trust  moneys,  and  investing  them  in  his  OAvn 
name;  that  might  be  a  breach  of  trust  ^:?g?-  se;  for  the  cestui  que 
trusts  had  a  right  to  require  each  trustee  to  have  a  hold  ui)on  the 
trust  fund ;  and,  if  a  loss  resulted,  the  non-acting  trustee  might  be 
liable  for  it.  But  if  the  fund  were  safe,  though  irregularly  stand- 
ing in  the  name  of  the  trustee  only,  I  cannot  think  this  Order 
would  entitle  the  plaintiff  to  sue  the  trustee  who  had  not  acted, 
separately  from  the  other.  The  case  of  Walker  v.  Symonds,*^  as 
explained  in  Munch  v.  Cocherell^  shows  that  all  the  trustees  are, 
prima  facie^  necessary  parties  to  a  suit  complaining  of  a  breach  of 
trust,  although  execution  might  be  taken  out  against  one  only." 
There  is  no  clear  principle  laid  down  in  the  cases  determining 
where  all  the  trustees  are  necessaiy  parties,  and  where  one  may  be 
proceeded  against  without  the  others.  The  Court  appears  rather 
to  have  exercised  a  discretion,  and  to  have  allowed  tlie  Order  to 
apply  or  not  as,  under  the  circumstances,  the  justice  of  the  case 
required.^ 

It  is  to  be  observed,  however,  that  the  Order  does  not  apply  to 
TThere  Ord.  q^^q^^  -whcre  the  general  administration  of  the  estate  is  sought ; ' 
not  apply.        nor  where  accounts  of  the  trust  fund  have  to  be  taken ;  ^  and  it 

1  Walker  v.  Symonds,  3  Swanst.  75 ;  C.  were  required  to  be  parties,  see  Shipton  v. 

P.  Coop.  509-512,  574;  Munch  v.  Cocker-  Rawlins,  4  Hare,  619;  Fowler  v.  Kevnal, 

ell,  8  Sim.  219,  231;  C.   P.   Coop.  78;  n.  2  Du  G.  &  S.  749;  13  .Tur.  650,  n.;'  and 

(d);  Perrj'  v.  Knott,  4  15eav.  179;  181.  sec  Reporter's  note,  24  Beav.  99;  Lewin  v. 

3  Perrv  v.  Knott,  5  Beav.  293:  Kellaway  Allen.  8  W.  R.  603,  V.  C.  W. 

V.  Johnpon,  5  Beav.  319;  6  Jur.  751;  At-  '  Hull  v.   Austin,  2  Coll.   570;  10  Jur. 

tomey-General  v.    Corp.    of   Leicester,   7  452;  lii^^'s  v.  Penn,   4  Hare,  469;  9  Jur. 

Beav.  176;    Strong  v.    Strong,  18  Beav.  368;   Chancellor   v.    Morecraft,  11    Beav. 

408;  Attorney-General  v.  Pearson,  2  Coll.  262;  Penny  v.  Penny,  9  Hare,  39;  15  Jur. 

581;    10  Jur.  651;    Norris  v.  Wright,  14  445. 

Beav.  310.  ^  Devaynes  v.  Robinson,  24  Beav.   86; 

8  4  Hare,  623.  3  Jur.  N.  S.   707;  Coppard  v.   Allen,  10 

*  3  Swanst.  75.  Jur.  N.  S.  622;  12  W.   R.   943,  L.  JJ.;  2 

e  8  Sim.  219,  231.  De  G.,  J.  &  S.  173;  and  see  Fletcher  v. 

«  For   cases    in  which   all  the  trustees  Gibbon,  23  Beav.  212. 


PERSONS    EESISTING    PLAINTIFFS    DEMANDS. 


269 


has  been  held,  that  where  one  trustee  files  a  bill  against  a  co-trns- 
tee  who  has  been  guilty  of  a  breach  of  trust,  in  which  some  of  the 
cestui  que  trusts  have  concuiTed,  they  are  necessary  parties  not- 
withstanding the  Order.^  So,  also,  in  a  suit  for  the  recovery  of  a 
partnership  debt,  against  the  executors  of  a  deceased  partner,  the 
surviving  partner  is  a  necessary  party."  And  it  is  also  to  be  ob- 
served, that  where  the  plaintiff  has  made  several  persons  jointly 
liable  parties,  he  cannot  afterwards  waive  the  relief  against  some, 
and  take  a  decree  at  the  hearing  against  others.^ 

The  Order  does  not  apply  to  any  case  where  the  demand  is  not 
joint  and  several ;  and,  therefore,  where  there  is  only  a  joint 
demand,  the  old  practice  continvies,  and  all  the  persons  liable 
must  be  made  parties.  Thus,  if  there  be  a  demand  against  a 
])artnersliip  firm,  all  the  persons  constituting  that  firm  must  be 
before  the  Court ;  and  if  any  of  them  are  dead,  the  representatives 
of  the  deceased  j^artners  must  be  likewise  made  parties.*  And 
where  a  bill  was  filed  by  the  captain  of  a  ship,  against  the  j^ersonal 
representative  of  the  survivor  of  two  partners,  who  were  joint 
owners  of  the  ship,  for  an  account  and  satisfl^ction  of  his  demand, 
it  Avas  held  tliat  the  suit  was  defective,  because  the  representatives 
of  the  other  partner,  who  might  be  interested  in  the  account, 
were  not  before  the  Court ;  although,  as  the  demand  would  have 
survived  at  Law,  the  case  there  might  have  been  different.^ 

Although,  even  before  the  32d  Order  of  August,  1841,*'  it  was 
not  generally  necessary,  in  a  suit  against  the  ])rinci])al,  to  make 
the  surety  a  party,  yet,  where  a  person  had  executed  a  conveyance, 
or  created  a  charge  upon  his  own  estate,  as  a -collateral  security 
for  anotlier,  he  became  a  necessary  party  to  a  suit  against  the 
principal.     This  ajipears  to  have  been  the  result  of  the  dctermina- 

1  .Jesse  V.  Bennett,  6  De  G.,  M'N.  &  G. 
COO;  2  .lur.  N.  S.  112o;  Williams  v.  Alien, 
2'J  IJeav.  202;  lioberts  v.  Tunstall,  4  Hare, 
2G1. 

2  Hills  V.  M'Rao,  0  Hare,  207. 

3  Fussell  V.  KIwin,  7  Mure,  20;  13  Jur. 
333;  riie  Lonilon  Gas  Light  Company  u. 
SfK'ttiswoode,  11  Beav.  2fi4. 

*  Story  K([.  I'l.  §§  100-108;  Moffat  r. 
Farqiiiiarson,  2  I5ro.  C.  C.  (I'erkins's  cd.) 
33H,  afid  notes;  Story  I'arfn.  §  440;  1 
Storv  \'.<\.  .Iiir.  §  400;  ('i>\  r.  Sti-plKMis,  0 
•Jur.'N.  S.  1144;  11  \V.  II.  020,  V'.  C.  K.: 
and  see  Atkinson  r.  M:iekretli,  I..  H.  2  l>i. 
f)71,  M.  K.,  where  a  defaultiiifj  jiartiicr  had 
absconded.  In  ease  of  a  dormant  partner, 
the  plaiiitifT  ha.s  his  election  to  make  him 
d'-fen  taut  or  not.  ILiwlev  ''■  Gramer,  4 
Cowen,717;  (;ol)le  w.  (i.ile',  7  IJIack.  218; 
Collyer,  I'artn.  (I'erkins's  cd.)  §  301  in 
note".  Wh<;re  the  sole  ilesifjn  of  the  hill  is 
to  have  the  individual  ()roperty  of  one  part- 
ner, alleged  to  have  been  fraudulently 
conveyed  away  l)y  him,  applied  in  satis- 
faction   of  a  judgment  against  the  firm. 


Ch.  V.  §  2. 


Old  practice 
continues 
where  de- 
mand is  only 
joint; 

cases  of  part- 
nership. 


Omicr  of 
estate 
cbarf^od  as 
collateral 
security, 
necessary 
party  to 
bill  against 
principal ; 


another  partner  from  whom  no  discovery 
is  songht,  and  against  whom  no  relief  is 
pr.iyeil,  is  neither  a  necessary  nor  a  proper 
p;irtv.  Kandolph  v.  Daly,  1  C.  E.  Green 
(N.  ■.!.),  313. 

^  I'iersoii  v.  Robinson,  3  Swnn.  139,  n.; 
Scholelield  r.  Ilenlield,  7  Sim.  667;  Story 
Eq.  PI.  §  104;  Wells  r.  Strange,  5  Geo. 
22.  So  where  a  bill  is  brought  to  recover 
a  debt  against  the  estate  of  a  deceased 
partner,  the  other  partners  are  proper 
and  necessary  ))artie».  Vosc  r.  Phil- 
bmok,  3  .Story,  335.  So  to  a  bill  seek- 
ing relief  from  the  estate  of  a  deceased 
stockholder,  all  the  living  stockholders 
and  representatives  of  deceased  stock- 
holders, liable  to  ibe  <lebt,  must,  as  inter- 
esti'd  in  the  account  to  be  taken,  be  made 

iiarties  <h'ren(lant.  New  England,  &c. 
Jank  V.  Newport  Steam  Factory,  G  U.  I. 
154. 

0  This  Order  has  been  adopted  in  the 
Equity  liules  of  the  United  States  Su- 
preme ('f)urt.  l'><iuity  Rule,  51;  see  Genl. 
Ord.  VII.  r.  2. 


OF   PARTIES   TO   A    SUIT. 


Cii.  V.  5 


Seaif.  where 
collati'ral 
security  is 
ineroly  jter- 
sonal. 


In  suits  for 
contribution. 

Principal  and 
co-sureties,  or 
their  personal 
representa- 
tives, neces- 
sarj',  though 
insolvent ; 


tion  in  Stairs  v.  C/oxIo/i,^  uliicli  was  tlic  case  of  a  inoi'tgage  by 
a  priiuMpal  *)l"  oiu'  I'stati',  and  by  tlic  surety  of  another,  as  a  col- 
lateral security;  and  Li>rd  Alvanley  l\l.  H.  determined,  that  a 
bill  of  foreclosure  aj^-ainst  the  ])rinci)ial  coidd  not  be  sustained 
without  niaking  the  other  mortgagor  a  party ;  because  the  other 
had  a  right  to  redeem  and  be  ])resent  at  tlie  account,  to  ])revent 
the  burden  ultimately  falling  upon  liis  own  estate,  oi'  at  least 
falling  upon  it  to  a  larger  amount  than  the  other  estate  might  be 
deficient  to  satisfy. 

In  /Stokes  V.  Cle?idon,  it  is  to  be  obsevA'ed,  that  the  surety  had 
conveyed  his  own  estate  by  way  of  security  to  the  mortgagee. 
AVhere,  however,  he  merely  enters  into  a  personal  covenant  as 
surety  for  the  principal,  but  does  not  convey  any  estate  or  interest 
to  the  mortgagee,  he  will  not  be  considered  as  a  necessary  party, 
unless  the  surety  has  paid  ])art  of  the  debt;^  and  where  A.,  having 
a  general  power  of  ap})ointment  over  an  estate,  in  the  event  of 
sur\aving  his  father,  joined  with  two  other  persons  as  his  sureties, 
in  a  covenant  to  pay  an  annuity  to  the  plaintiff,  and  also  cove- 
nanted, that  he  w^ould  create  a  term  in  the  estate  if  he  survived 
his  father,  and  upon  the  death  of  his  father  a  l)ill  was  filed  by  the 
])laintiff  against  A.  and  other  parties  interested  in  the  estate,  to 
liuve  the  arrears  of- his  annuity  raised  and  paid;  it  was  held  upon 
demurrer,  that  the  sureties  were  not  necessary  parties.** 

In  a  bill  by  one  surety  against  another,  to  make  him  contribute, 
it  was  held,  that  the  executor  of  a  third  surety  who  was  dead 
ought  to  be  a  party,  though  he  died  insolvent.*  In  that  case,  the 
principal  had  given  a  counter-bond  of  indemnity  to  the  plaintiff, 
who  had  taken  him  in  execution  upon  it,  and  he  had  been  dis- 
charged by  an  Insolvent  Act ;  and  though  he  appears  not  to  have 
l)een  made  a  party,  yet  no  objection  was  taken ;  ^  and  it  seems 
from  this  circumstance,  and  also  from  the  case  of  Lawson  v. 
Wn'y/ht,^  that  if  the  principal  is  clearly  insolvent,  and  can  be 
proved  to  be  so  (as  by  his  having  taken  advantage  of  an  Act  for 
the  Relief  of  Insolvent  Debtors)  he  need  not  be  a  party  to  the 
suit."     It  will,  however,  be  necessary,  if  the  principal  be  not  a 

McKenna  v.  George,  2  I!ich.  Kq.  15;  ante, 
191,  245,  and  note.  Where  a  surety 
seeks  to  have  his  debt  paid  to  tiie  cred- 
itor out  of  some  specified  fund,  or  by 
some  party  other  than  himself,  such 
creditor  is  a  necessary  party  to  the  bill. 
But  the  creditor  is  not  a  neees-ary  party, 
wliere  tlie  surety  has  paid  the  debt,  and  is 
seeking  to  be  reimbursed  Ijy  the  principal 
or  co-surety.  Murphj'  v.  Jackson,  5  Jones 
Eq.  (N   C.)  11. 

"  Hole  f.  Harrison,  Finch,  15. 

0  1  Cox,  270. 

7  Story  Eq-  IM.  §  169;  see  1  Story  Eq. 
Jur.  §§  494,  496 ;  Long  v.  Dupuy,  1  Dana, 


1  Cited  2  Uro.  C.  C  275,  Twtis,  edit. 
Belt.  .3  Swanst.  150  n.;  see  also  I'avne  v. 
Compton,  2  Y.  &  C.  Ex.  457,  401;  Gedge 
V.  Matson,  25  Beav.  310. 

2  Gedtre  v.  Matson,  25  Reav.  310. 

3  Newton  V.  Earl  of  Egmont,  4  Sim.  574, 
681. 

^  Hole  V.  Harrison,  Finch,  15.  So  the 
principal  debtor  must  be  made  a  part}'. 
Trescott  v.  Smiih,  1  M'Cord  Ch.  301. 
All  persons  interested  should  be  mnde 
parties  in  such  a  case.  Moore  v.  Moberly, 
7  B.  Mon..  295.  Those,  however,  need 
not  be  made  parties  who  have  removed 
beyond    the   jurisdiction    of   the    Court. 


PEESONS   RESISTING  PLAINTIFF'S    DEMANDS. 


271 


party,  that  the  fact  of  his  insolvency  shouhl  be  proved ;  whereas,     Cn.  v.  §  2. 

if  he  be  a  party  to  the  suit,  snch  proof  will  be  unnecessary.     In 

Hole  V.  Harrison^  the  insolvency  of  the  principal  was   apparent 

from   the  fact   of  his  having  taken  advantage   of  the   Insolvent 

Act ;  but  it  is  presumed  that  the  insolvency  of  the  co-security 

was  not  so  capable  of  pi'oof,  and  that  it  was  upon  that  ground 

held   necessary  to   have   his   personal   representative   before   the 

Court,  in  order  to  take  an  account  of  his  estate.     "Where  the  fict 

of  the  insolvency  of  one  of  the  sureties  was  clear,  and  admitted 

by  the  answers,  Lord  Hardwicke  held,  that  there  was  no  necessity 

to  bring  his  representatives  before  the  Court.^    It  seems,  however, 

that   the   j)laintiff  has   his    election,   whether   he   will  bring   the 

insolvent  co-obligor  or  his  representative  before  the  Court  or  not.^ 

And  in  all  cases  coming  under  the  3'2d  Order,*  the  plaintiff"  has 

the  option  to  sue  all  the  jDersons  jointly  and  severally  hable,  if  he 

shall  think  fit.    Independently  of  this  Order,  a  plaintiff"  is  allowed, 

in  a  case  whei'e  there  are  several  persons  who  are  each  liable  to 

account  for  his  own  receii)ts,  to  file  a  bill  against  one  or  more  of 

them  for  an  account  of  their  oAvn  receipts  and  j^ayments,  without 

bringing  the  other  j^arties  to  the  suit.     Thus,  where  a  residuary 

legatee  brought  liis  bill  against  one  of  two  executors,  without 

his  co-executor,  who  was  abroad,  to  have  an  account  of  his  own 

receipts   and   payments,  the   Lord   Chancellor  said,  "  The   cause 

shall  go  on,  and  if  upon  the  account  any  thing  appear  difficult,  the 

Court  will  take  care  of  it;  the  reason  is  the  same  here  as  in  the 

case  of  joint  factors,  and  the  issuing  out  of  process  in  this  case  is 

]>urely  matter  of  form."  '" 

The  same  rule  mil,  it  appears,  be  adopted,  where  there  are  joint  Joim  factors, 
factors,  and  one  of  them  is  out  of  the  jurisdiction.     And  in  the 
case  (){  Ladij  Sch/ardx.  The  Executors  of  Ilcu-ris,^  above  referred 
to,  wliere  it  did  not  a])pear  that  the  ])arties  were  out  of  the  juris- 
diction, the  Court  permitted  the  representatives  of  one  of  several 


Plaintiff  may 
elect  whether 
or  not  to 
bring  insol- 
vent co- 
obligor  before 
the  Court. 

Where  per- 
sons are 
se\ierally 
liable  to 
account,  bill 
may  be  filed 
against  one 
without 
others ; 

co-executors. 


104;  Young  v.  Lyons,  8  Gill,  162;  l\ron- 
taguc  I'  'rur))in,  >^  Grattiin,  453;  Watts  v. 
Gayle,  20  Ahi.  817.  It  is  not  sullicient  in 
such  a  case  merely  to  allege  the  insolvencj' 
of  the  jiriiicipal.  Houni;  r.  I'iikett,  2  Kng. 
510.  Where  one  of  several  juilgineiit  debt- 
ors is  wiiolly  irrespoiisilile  ami  deslitiite  of 
property,  he  need  not  he  made  a  partj-  to 
a  judgment  creditor's  bill.  Williams  v. 
Huhl.ard,  1  Maun.  (Mich.)  440.  Where 
a  bill  ill  ivjuity  is  brought  ag:iinst  any  of 
the  stockholders  of  a  corporation  to  com- 
pel them  to  pay  a  debt  of  the  corponitioii 
for  wliicli  lliev  are  individually  liable,  the 
general  rule  is,  that  all  jiersous  liable  to 
contribute  .shouhl  be  ni;i<le  ])arties  to  tlie 
bill.  I»ut  this  is  a  rule  of  convenience 
and  not  of  necessity;  and  where  certain 
of  the  stockholders  witliin  the  jurisdiction 


are  insolvent,  the  pIiintifT  may  have  his 
decree  against  such  as  are  solvent  for  his 
whole  debt,  each  pa\'ing  such  proiiortion 
of  the  whole  debt  as  his  stock  hears  to  the 
whole  iimoiiiit  of  stock  owned  by  the  sol- 
vent stoekholdeis,  over  whom  the  Court 
has  a<'(|uired  jurisdiction.  Krickson  v. 
Nesmitli,  40  N.ll.  371. 

1  Hep.  T.  Finch,  15. 

2  Madox  V.  .huksoii,  3  Atk.  40G. 

3  Unywooil  r.  Ovev,  0  Mad.  113;  sec 
Clapett'w.  Worthiiigto'n,  3  Gill,  83. 

*  Genl.  (Jrd.  VII.  r.  2. 

6  Cow.slad  )).  Celv,  Tree,  in  Ch.  83;  1 
Kip  Ca.  Ab.  73, 1'l.  18;  2  Kq.  Ca.  Ab.  1U5, 
1*1.  3,  S.  C  ;  but  see  Devavnes  r.  Kobiu- 
8on,  24  Heav.  08;  3  Jur.  N.".S.  707. 

6  1  i:q.  Ca.  Ab.  74,  I'l.  20. 


273 


OF   PARTIES    TO    A    SUIT. 


Cii.  V.  5  •:. 


Joint  broach 
of  trust. 

Where 

co-oMiijors 

niuiieriius. 


Exceptions  to 
rule,  where 
parties 
numerous ; 


contract  on 
behalf"  of 
parisliiouers; 


bill  by  trades- 
man af:jainst 
club-com- 
mittee; 


bills  apainst 
joint-stock 
companies ; 


trustees,  who  "vvi've  di'ad,  to  be  sued  for  :iri  necount  of  the  receipts 
aiul  ilislmrsenieuts  of  his  testator,  who  nh)ne  managed  the  trust, 
without  bringint;-  the  representatives  of  the  other  trustees  before 
the  Court;  and  now,  under  the  32d  Order  of  August,  1841,^  it  is 
not  necessary  to  make  all  the  persons  committing  a  breach  of  trust 
parties  to  a  suit  instituted  for  reth'css  of  the  ■\vrong.^ 

The  nde,  that  all  the  parties  liable  to  a  demand  should  be  before 
tlie  C'oin't,  was  a  rule  of  convenience,  to  prevent  further  suits  for 
a  contribution,  and  not  a  rule  of  necessity;  and  therefore  might 
be  dispensed  with,  especially  where  the  parties  Avere  many,  and 
the  delays  might  be  multiplied  and  continued.^  Thus,  where 
there  Avere  a  great  number  of  obligors,  and  many  of  them  were 
dead,  some  leaving  assets  and  others  leaving  none,  the  Court  pro- 
ceeded to  a  decree,  tliough  all  of  them  w^ere  not  before  it.* 

The  general  rule,  requiring  the  presence  of  all  parties  interested 
in  resisting  the  plaintilf 's  demand,  has  also  been  dispensed  with  in 
a  variety  of  cases,  where  the  parties  were  ntimerous,  and  the  ends 
of  justice  could  be  answered  by  a  sufficient  number  being  before 
the  Court  to  represent  the  rights  of  all.^  Thus,  where  A.  agreed 
wdth  B.  and  C,  to  pave  the  streets  of  a  i:)arish,  and  B.  and  C,  on  be- 
half of  themselves  and  the  rest  of  the  parish,  agreed  to  pay  A.,  and 
the  agreement  was  lodged  in  the  hands  of  B.,  it  was  held,  that  A. 
should  have  his  remedy  against  B.  and  C.  and  that  they  must  resort 
to  the  rest  of  the  parish.''  And  so  in  Oulloi  v.  The  Duke  of  Queens- 
berry,  where  a  bill  was  filed  by  a  tradesman  against  the  committee 
of  a  A^oluntary  society  called  "  The  Ladies'  Club,"  for  money  ex- 
pended and  work  done  under  a  contract  entered  into  by  the  defend- 
ants, on  behalf  of  themselves  and  the  other  subscribers,  and  it  was 
objected  that  all  the  members  who  had  subscribed  should  be  parties, 
the  objection  was  overruled,  and  a  decree  made  for  the  plaintiff.'' 

The  same  rule  was  acted  upon  by  Sir  Thomas  Plumer  M.  R., 


1  Genl.  Ord.  VII.  r.  2. 

2  Kella\v;iy  V.  Johnson,  5  Beav.  319; 
Perrv  v.  Knott,  5  Beav.  293;  and  see 
Ship'ton  V.  Rawlins,  4  Hare,  622;  Hall  v. 
Austin,  2  Coll.  570;  10  Jur.  452. 

8  Darwentf.  Wnlton,  2  Atk.510;  Anon., 
2  Eq.  Ca.  Ab.  160,  IM.  27;  Story  Va{.  Jur. 
§§  78,  82:  Krickson  r.  Nesmith,"'46  N.  II. 
371.  374-377;  Stimson  v.  Lewis,  36  Vt. 
91,  93. 

*  Ladv  Cranbourne  v.  Crispe,  Finch, 
105:  1  Efj.  Ca.  Ab.  70;  see  48th  Equity 
Kule  of  I,  nited  States  Supreme  (Jourt. 

5  The  like  doctrine  applies  to  cases 
where  there  are  matij'  persons  defend- 
ants, bel"nging  to  voluntary  associations, 
against  whom  the  suit  is  brought,  as  to 
cases  where  the  bill  is  brouf^ht  by  some 
proprietors  ns  plaintiffs  on  behalf  of  all. 
Storv  Eq.  I'l.  110  H  seq. ;  Wood  v.  Dum- 
mer,"3  Mason,  315-319,  321,  322;  Stimson 


r.  Lewis,  36  Vt.  91,  94;  Gorman  v.  Kus- 
sell,  14  Cal.  531;  see  Whitney  v.  Mayo, 
15  111.  251.  So  where  the  creditors  of  an 
insolvent  debtor,  who  has  assigned  his 
pro])erty  for  the  payment  of  his  del)ts,  are 
numerous,  and  some  of  them  not  within 
the  Common  wealth,  it  is  not  necessary 
that  they  should  l)e  made  piiriies  to  a  bill 
in  Equity  which  concerns  his  assets;  he 
and  his  sissignecs  only  need  be  made  par- 
ties. Stevenson  v.  Austin,  3  JMet.  474; 
Wakeman  v.  Grover,  4  Piiige,  23;  see 
Dias  V.  Bouchand,  10  Paige,  445;  Johnson 
V.  Candiige,  31  Maine,  28;  Duvall  v.  Speed, 
1  M.  Ch.  Dec.  229. 

G  Meriel  v.  Wymondsold,  Hard.  205; 
see  also  Anon.,  2  Eq.  Ca.  Ab.  166,  PI.  7. 

7  Cullen  V.  Duke  of  (iueensberry,  1 
Bro.  C.  C.  101,  Perkins's  ed.  and  notes; 
1  Bro.  P.  C.  396,  S.  C.  on  appeal. 


PERSONS    RESISTING    PLAINTIFFS    DEMANDS. 


273 


in  a  bill  for  the  specific  performance  of  an  agreement  for  a  lease, 
against  the  treasurer  and  directors  of  a  Joint-Stock  Company 
established  by  Act  of  Parliament,  who  had  purchased  the  fee  of 
the  premises  fi-om  the  party  who  had  entered  into  the  agreement, 
although  the  rest  of  the  proprietors,  whose  concurrence  in  the 
conveyance  would  be  necessary,  were  not  before  the  Court.''^  The 
Master  of  the  Rolls,  on  that  occasion,  came  to  the  conclusion,  that 
although  the  bill  required  an  act  to  be  done  by  parties  who  were 
absent,  yet,  as  they  were  so  numerous  that  they  could  not  be 
brought  before  the  Court,  he  would  go  as  far  as  he  could  to  bind 
their  right,  and  made  a  decree  declaring  the  plaintiifs  entitled  to 
a  specific  j^erformance,  and  restraining  the  treasurer  of  the  com- 
pany from  bringing  any  action  to  disturb  the  plaintifl's  in  their 
j)Ossession.^ 

From  the  case  oi  Horsleyv.  Bell^  cited  in  the  above  case  of  the 
Ladies'  Club,  it  appears  that,  in  cases  of  this  description,  the  act- 
ing members  of  the  committee  are  all  Hable,  though  some  of  them 
may  not  have  been  present  at  all  the  meetings  which  have  taken 
place  respecting  the  contract.  In  that  case,  the  defendants  were 
all  the  acting  commissioners,  under  a  Navigation  Act,  and  the 
plaintiff  had  been  employed  on  their  behallj  and  it  appeared  that 
the  orders  had  been  given  at  different  meetings  by  such  of  the 
defendants  as  were  present  at  these  meetings ;  but  none  of  the  de- 
fendants Avere  present  at  all  the  meetings,  or  joined  in  all  the 
orders,  but  every  one  of  them  were  ])resent  at  some  of  the  meet- 
ings, and  joined  in  making  some  of  the  orders;  and  one  of  the 
questions  in  the  cause  was,  whether  all  the  acting  commissioners 
Avere  lial;le  on  account  of  all  the  orders,  or  only  as  to  those  Avhich 
they  had  respectively  signed.  Upon  this  point  the  Court  Avas  of 
opinion  that  all  the  acting  commissioners  Avere  liable  in  toto. 
Every  one  who  comes  in  afterAvards  approves  the  former  acts; 
and  if  any  one  of  the  commissioners  Avho  had  acted  before  dis- 
approved tlie  subse(pient  acts,  he  might  have  gone  to  a  future 
meeting  and  j)rotested  against  them. 

In  tlie  ]»recediiig  cases,  the  decision  was  made  uj)on  the  ground 


Ch.  V.  §  2. 


liability  of 
acting  mem- 
bers. 


1  Menx  I'.  Maltby,  "2  Swans.  277;  Par- 
sons f.  Sjiooncr,  U  I  Ian-,  102;  Id  Jur.  4"2;i; 
and  nee  l>ouf;la>.s  v  llcjrsl'all,  '2  S  &  S. 
184  I'lie  tiilldwin^  cases  illustrate  the 
mode  of  pl'-adiiif;  in  a-tionn  liy  ami 
ngamt-t  Joint-Stuck  Cornpanii's,  and  will 
bu  us  I'ul  \\\  Iraiiiiiii;  -uits  in  i'!c|uily. 
Stewart  r  Dunn,  12  .M  i*c  U'.  (JfiO;  Uaviil- 
Koii  w.  Cooper,  11  M.  &  W.  77><;  Sn)iili  v. 
(iold«wortliy,4  Kl- 15.  4:iO  In  a  bid  agiiinst 
an  un  ncorj/oiiited  bunUinK  coni|iiii.v,  the 
nii-nibcrs  oi  wliicli  mtc  ninu'rons,  ami,  in 
jpari,  unluiowii,  it  is  not  ni;ce-s:iry  to  bring 
all  the  .stockholders  betore  the  Court,  be- 

VOL.   I. 


fore  a  decree  cin  be  made.  Mandeville  v. 
Kit,'gs,  2  I'eters,  4t>2;  see  Van  Vecliten  v. 
'lei  ry,  2  .J<ilin.  Cli.  l'.»7;  Sliuw  y.  Norfolk 
Couiity  U.K.  Co.,  o  (iriiy,  170,  171;  Krick- 
soii  v.  Ne-mitli,  4  Allen,  233;  lludlcy  v. 
Hnsscll,  40  N.  11.  lO'J. 

''i  2  Swans.  2btj;  and  see  \h.  '2^7,  and 
the  cases  there  cit'd;  Tliorntui  v.  High- 
tower,  17  Geo.  1 ;  but  see  Mcliride  v.  \aw\- 
Bay,  11  Eng.  Law  &  l^i   24>J. 

»  See  Amb.  770,  juid  1  JJro.  C.  C.  101, 
n.,  where  the  ease  is  nioro  fully  ri'ported; 
and  see  Attoniey-Ueneral  v.  llrowu,  1 
Swan.  '2U6. 


Adoption  of 
act  of  mem- 
bers present 
at  ])receding 
meetings. 

Uesult  of  the 
cases. 


18 


OF   PARTIES    TO    A    SUIT. 


Cm.  V.  §  2. 


Bills  of  peace, 


by  City  of 
Loniloii,  to 
e^tahlish 
right  to 
duties; 

by  lords  of 
manors  as  to 
rights  of 
common ; 

by  parson  for 
tithes. 

Suits  against 
some  of  many 
shareholders. 


tliat,  if  tlie  pl:iinlltV  succeeded  in  his  doinaiids  against  the  individ- 
uals sued,  they  wouki  not  be  injured,  as  they  had  a  remedy  over 
against  tlie  others  for  a  contribution,  wliich,  under  tlieir  own  reg- 
uhitious,  tliey  might  enforce,  although  the  enforcement  of  it,  on 
the  ])art  of  the  j)laintiffs  against  so  numerous  a  body,  would  be 
nearly  impossible.^  Tliere  are,  however,  other  cases  in  which  suits 
are  permitted  to  proceed  against  a  few,  of  many  individuals  of  a 
certain  class,  ^vithout  bringing  the  rest  before  the  Court,  although 
their  interests  may  in  some  degree  be  aftected  by  the  decision,  as 
in  tlie  case  of  bills  of  peace  brought  to  establish  a  general  legal 
right  against  a  great  many  distinct  individuals :  ^  Thus,  for  in- 
stance, a  bill  may  l)e  brought  by  a  person  having  a  right  at  Law 
to  demand  service  from  the  in<lividuals  of  a  large  district  to  his 
mill,  for  the  purpose  of  establishing  that  right.  And  the  cor])ora- 
tion  of  London  has  been  allowed  to  exhibit  a  bill  for  the  puqiose 
of  establisliing  their  right  to  a  duty,  and  to  bring  only  a  few  per- 
sons before  the  Court,  who  dealt  in  those  things  on  which  the 
duty  was  claimed.^  And  so  bills  are  frequently  entertained  by 
lords  of  manors  against  some  of  the  tenants,  on  a  question  of  com- 
mon afll'cting  them  all ;  and  a  parson  may  maintain  a  bill  for  tithes 
against  a  few  of  the  occupiers  within  the  parish  although  they  set 
up  a  modus  to  which  the  whole  are  jointly  liable.* 

The  principle  upon  which  the  Courts  have  acted  in  those  cases 
has  been  very  clearly  laid  down  by  Lord  Eldon  in  Adair  v.  The 
New  River  Company-'  In  that  case,  a  bill  was  filed  by  a  person 
entitled,  under  the  Crown,  to  a  rent  reserved  out  of  a  moiety  of 
the  profits  of  the  New  River  Company,  to  which  moiety  the 
CrcwTi  was  entitled  under  the  original  charter  of  that  company, 
but  had  subsequently  granted  it  to  Sir  John  Middleton,  the 
original  projector,  reserving  the  rent  in  question.  By  a  variety 
of  mesne  assignments,  the  King's  moiety  of  the  profits  had  be- 
come vested  in  a  hundred  persons,  or  upwards ;  and  the  bill  was 
filed  against  the  company  and  eight  of  those  persons  for  an 
account,  and  it  charged,  that  there  was  not  any  tangible  or  cor- 
poreal property  upon  which  the  plaintiff  could  distrain,  and  that 


1  See  48th  Equity  Rule  of  United  States 
Supreme  Court. 

2  It  is  not  a  sufficient  objection  to  a  bill 
by  creditors  against  a  corporation  and  its 
debtors  to  compel  the  collection  by  the 
corporation  of  what  is  due  to  it,  and  the 
payment  of  the  debt  it  owes,  that  all 
the  creditors  or  stockholders  are  not 
joined.  If  necessary,  the  Court  may,  at 
the  suggestion  of  either  party  tliat  the 
corporation  is  insolvent,  administer  its 
assets  by  a  receiver,  and  thus  coili-ct  all 
the  subscriptions  or  debts  to  the  corpora- 
tion. Ogilvie  V.  Knox  Ins.  Co.,  22  How. 
U.S.  380;    S.   C.   2   Black,    U.   b.    539. 


And  the  stockholders  who  are  called  upon 
by  such  bill  to  pay  the  balances  due  on 
their  several  subscriptions  to  the  stock  of 
the  company,  cannot  be  allowed  to  defend 
themselves  by  an  allegation  that  their 
subscriptions  were  obtained  by  fraud  and 
misrepresentation  of  the  agent  of  the 
company.  Ogilvie  v.  Knox  Ins.  Co.,  22 
How.  U.  S.  380. 

2  City  of  London  v.  Perkins,  4  Bro.  P. 
C.  1.58. 

4  Hardcastle  v.  Smithson,  3  Atk.  246. 

5  11  Ves.  42it;  see  Story  Eq.  PI.  §  116 
et  seq. ;  ante,  272,  273,  note. 


PERSONS    RESISTING    PLAINTIFF'S    DEMANDS.  275 

the  parties  were  so  numerous,  and  thus  liable  to  so  many  fluctua-     Ch.  V.  §  2. 
tions,  that  it  was  impossible,  if  the  plaintiff  could  discover  them, 
to  bring  them  all  before  the  Court,  and  that  these  impediments 
were  not  occasioned   by  the  plaintiff  or  those  under  whom  he 
claimed,  but  by  the  defendants.     To  this  bill  an  objection  was 
taken  for  want  of  parties,  because  all  the  persons  interested  in  the 
King's  share  were  not  before  the  Court;  but  Lord  Eldon  said, 
that  there  was  no  doubt  that  it  is  generally  the  rule  that  wherever 
a  rent  charge  is  granted,  all  persons  Avho  have  to  litigate  any  title 
with  regard  to  that  rent  charge,  or  with  each  other,  as  being  liable 
to  pay  the  whole  or  to  contribute  amongst  themselves,  must  be 
brought  before  the  Court ;  ^   but  that  it  was  a  very  different  con- 
sideration whether  it  was  possible  to  hold,  that  the  rule  should  be 
applied  to  an  extent  destroying  the  very  purpose  for  which  it  was 
established,  viz.,  that  it  should  prevail  where  it  is  actually  imprac- 
ticable to  bring  all  the  parties,  or  where  it  is  attended  with  incon- 
venience almost  amounting  to  that,  as  well  as  where  it  can  be 
brought  without  inconvenience.      It  must  depend  upon  the  cir- 
cumstances of  each  case.     His  Lordship  also  said,  that  there  were 
authorities  to  show  that,  where  it  is  impracticable,  the  rule  shall 
not  be  pressed;  and  in  such  a  case  as  the  one  before  him,  the 
King's  share  being  split  into  such  a  number  that  it  Avas  impracti- 
cable to  go  on  with  a  record  attempting  to  bring  all  parties  having 
interest  in  the  subject  to  be  charged,  he  should  hesitate  to  deter- 
mine, that  a  person  having  a  demand  upon  the  whole  or  every  part 
of  tlie  moiety,  does  not  do  enough  if  he  brings  all  whom  he  can  bring. 
His  Lordship  then  goes  on  to  say,  "There  is  one  class  of  cases 
very  important  u])on  this  subject,  viz.,  where  a  person  having  at 
Law  a  general  right  to  demand  service  from  the  individuals  of  a 
large  district,  to  his  mill  for  instance,  may  sue  thus  in  Equity  :  his 
demand  is  upon  every  individual  not  to  grind  com  for  tlieir  OAvn 
subsistence,  except  at  his  mill ;  to  })ring  actions  against  any  individ- 
u:d  for  subtracting  that  sei-vice  is  regarded  as  perfectly  impracti- 
cable ;  therefore,  a  bill  is  tiled  to  establish  that  right,  and  it  is  not 
necessary  to  bring  all  the  individuals.     Why  ?    Not  that  it  is  inex- 
pedient, but  that  it  is  impracticable  to  l>ring  them  all.^     The  Court, 
therefore,  has  required  so  many  that  it  can  be  justly  said  they  Avill 
fairly  and  honestly  try  the  legal  right  between  themselves,  all  other 
persons  interested,  and  the  plaintiff;  and  when  the  legal  right  is 
so  established  at  Law,  tin-  rcinedy  in  Equity  is  very  simple  :  merely 
a  l»ill  stating  that  the  right  has  been  estahlishctl  in  such  a])rocee<l- 
ing;  and  upon  that  ground,  a  Court  of  Equity  will  give  the  plain- 
tiff relief  against  the  defendants  in  the  second  suit,  only  represcuited 

1  .See  1  F>q.  Ca.  Ab.  72.  2  gee  48th  Equity  Rule  of  the  Uaited 

States  Supreme  Court. 


276 


OF    rARTIES    TO    A    SUIT. 


("11.  V.  ?  '2. 


Kiilo  as  (o 
briiiijiiii;  all 
ttrri-liniin(s 
lu'foro  the 
Court, 
dispensed 
villi  ill  eases 
ot'  eharities. 


Wliere  elaim 
of  absentees 
is  not  homo- 
geneous with 
those  present, 
rule  applies. 


Creditors 
under  trust 
deed. 


by  tlidsi'  in   tlu'  first.     I  fcol  a  strong  inclination  that  a  decree  of 
the  saiiu'  nature  may  l)c  made  in  this  ease."  ^ 

In  the  aliove  case  of  Adair  v.  77ie  JVcio  Hiver  Conqxiny^  T^ord 
EUlon  laid  down  as  a  rule,  that  Avherever  a  rent-charge  is  granted, 
all  jii'rsons  whose  estates  are  lialtle  must  be  brought  before  the 
Court.'-  This  rule,' however,  is  liable  to  an  exception  in  the  case 
of  charities,  Avhich  are  considered  entitled  to  greater  indulgence  in 
matters  of  |)leading  and  ])ractice  than  ordinary  j)arties.''  Thus,  in 
Attorney- General  v.  tShel/y,*  it  was  held,  that  in  the  case  of  a  char- 
ity it  is  not  necessary  that  all  the  terre-tenants  should  be  brought 
before  the  Court,  because  every  part  of  the  land  was  liable,  and 
the  chai'ity  ought  not  to  be  put  to  this  difliculty.  The  same  ex- 
cejjtion  to  the  general  rule  Avas  admitted  to  the  case  of  Attorney- 
General  V.  Wyburyh.^ 

It  is  to  be  observed,  that  the  rule  laid  down  by  Lord  Eldon,  in 
Adair  v.  The  JVew  Hiver  Company,  applies  only  to  cases  where 
there  is  one  general  right  in  all  the  parties  concerned ;  "^  that  is, 
where  the  character  of  all  the  parties,  so  far  as  the  right  is  con- 
cerned, is  homogeneous,  as  in  the  case  in  suits  to  establish  a  modus, 
or  a  right  of  suit  to  a  mill ;  and  that,  not\vithstanding  the  incon- 
venience arising  from  numeroiis  ])artics,  there  are  some  cases  in 
which  they  cannot  be  dispensed  with,  as  in  the  case  of  a  bill  tiled 
to  have  the  benefit  of  a  charge  on  an  estate,  in  which  case  all  per- 
sons must  be  made  parties  who  claim  an  interest  in  such  estate. 
Thus,  where  estates  had  been  conveyed  to  trustees,  in  trust  for 
such  creditors  of  the  grantor  as  should  execute  the  conveyance, 
and  one  incund)rancer,  some  of  whose  incumbrances  were  prior 
and  some  subsequent  to  the  trust  deed,  filed  a  bill  praying  that  his 
rights  and  interests  under  his  securities  might  be  established,  and 
the  priorities  of  himself  and  the  other  incumbrancers  declared  ; 
and  alleging  that  the  deed  was  executed  by  thirty  creditors  of  the 
grantor,  and  amongst  others  by  two  individuals  who  were  named 
as  defendants,  and  charging  that  such  creditors  wei'e  too  numer- 
ous to  be  all  made  parties  to  the  suit,  and  that  he  was  ignorant  of 
the  priorities  and  interests  of  such  parties  and  of  their  residences, 
and  Avhether  they  were  living  or  dead,  save  as  to  the  two  who  were 
named ;  a  jdea  by  some  of  the  defendants,  setting  out  the  names 


1  See  ace.  Biscoe  v.  The  Undertakers  of 
the  Lai  d  LJanU,  cited  in  Cuthljeit  y.  West- 
wood,  Vin.  Ah.  tit.  Party,  B  255,  I'l.  5^; 
see  Story  I'-q.  PI.  §  116  tt  seq. 

2  All  per:-i)iis,  who  are  afTected  by  a 
conrimoii  cliarfje  i  r  burden,  must  be  made 
pMTties.  not  oi.ly  lor  the  purpose  of  asccr- 
tiiiiiinf?  and  cni. testing  the  right  or  title 
to  it,  but  also  for  the  purjiose,  if  it  sliould 
be  established,  of  a  cojitribiition  towards 
its  discharge  among  themselves.     Story 


Eq.  PI.  §§  133,  162;  Coleman  v.  Barnes, 
5  Alien,  b74 ;  Skei'l  u.  Spraker,  8  Pai^e, 
1S:2;  ^hersf.  United  Guaranty,  &c.  Co., 
7  l)e  C;.',  M.  &  a.  112. 

3  Attorney-General  v.  Jackson,  11  "Ves. 
367. 

4  1  Siilk.  163. 

5  1  P.  Wms.  599;  and  see  Attorney- 
General  V.  Jackson,  11  Ves.  365;  Sti,ry 
Eq.  I'l.  §  93. 

ti  See  Story  Eq.  PI.  §§  120,  130  et  seq. 


PERSOXS    RESISTIXG    PLAINTIFF'S    DEMANDS.  277 

and  residences  of  the  persons  who  had  executed  the  deed,  and  Ch.  V.  §  2. 

alleging  that  they  were  living,  and  necessary  parties  to  the  suit,  ""^ y" ' 

was  allowed.^ 

With  reference  to  this  decision  it  may  be  observed,  that  it  is  the  Rule  as  to  in- 
general  and  most  universal  jjractice  of  the  Court,  in  suits  for  es-  ' 

tablishing  charges  upon  estates,  to  make  all  persons  entitled  to  a^  subse- 

incumbrances  subsequent  to  the  plaintiff's  charge,  parties  to  the  plaintiff's 

suit.     Thus,  in  the  case  of  a  bill  to  foreclose  a  mortgage,  all  per-  ^^'"'"  'P"'^?^ 

.       ^   •^   '  '  .         be  parties  m 

sons,  who  have  incumbrances  upon  tlie  estate  which  are  posterior  suits  to  estab- 
in  point  of  time  to  the  plaintiff's  mortgage,  must  be  made  de-  '^  ^  arges; 
fendants ;  ^  for  although,  if  there  are  many  incumbrancers,  some  as  in  suits  to 
of  whom  ai-e  not  made  parties  to  a  bill  of  foreclosure,  the  plaintiff 
may,  not'W'ithstanding,  foreclose  such  of  the  defendants  as  he  has 
brought  before  the  Court ;  ^  yet  such  decree  will  not  bind  the 
other  incumbrancers  who  are  not  parties,  even  though  the  mort- 
gagee at  the  time  of  foreclosure  had  no  notice  of  the  existence  of 
such  incumbrancers.*  This  rule  may  at  first  appear  inconsistent 
with  the  usual  ])rinciples  of  a  Court  of  Equity,  but  the  justice  of  it 
is  very  clearly  shown  in  the  report  of  Lord  Nottingham's  judgment 
in  Sherman  v.  Cox?  His  Lordship  says,  "  Although  there  be  a 
great  mischief  on  one  hand  that  a  mortgagee,  after  a  decree  against 
the  moitgagor  to  foreclose  him  of  his  equity  of  redemption,  shall 
never  know  when  to  be  at  rest,  for  if  there  be  any  other  incum- 
brances, he  is  still  liable  to  an  account,  yet  the  inconvenience  is 
far  greater  on  the  other  side  ;  for  if  a  mortgagee  that  is  a  stranger 
to  this  decree  should  be  concluded,  he  would  be  absolutely  with- 
out remedy,  and  lose  his  Avhole  money,  when,  perhaps,  a  decree 
may  be  huddled  uj)  purposely  to  cheat  him,  and  in  the  mean  time 
(he  being  paid  his  interest)  may  be  lulled  asleep  and  think  nothing 
of  it ;  whereas,  on  the  other  hand,  there  is  no  prejudice  but  being 
liable  to  the  trouble  of  an  account,  and  if  so  be  that  were  stated 
bona  fide  between  the  mortgagor  and  Tuortgagoe  in  the  suit  where- 
in the  decree  was  obtained,  that  shall  be  no  more  ravelled  into,  but 
for  80  long  sliall  slaixl  untuiiclied."  ^ 

1  Newton  I'.  Earl  ERmont,  5  Sim.  130;  6  3  Ch.  Ren.  83    [4(1];  S.  C.  Cockes  v 
and  .see  Harrison  v.  Stewardson,  2  Hare,  Sherman,  2  iMeein.  14. 
630;  aii'l    llolluid   V    Haker,  3  Mare,  <j8;  «  What  is  here  said  by  the  Lord  Chan- 
Story  E(|.  I'l.  §  \V)  tt  ftq.  cellor  on  the  sul>ject  of  tiie  account,  as 

■^  But  see  Smith   v.   Ciiapman,  4  Conn.  well   as  the  cnse  of  Needier  v.  l)eel)le,  1 

844;  Wil.sdii  v.  Havwarl,  6  hlorida,  171.  Cha.  Ca.  2'.)!i,  appeiirs  to  he  at   variance 

3  Draper  v.    Lord    Clarendon,  2    Vern.  with  llie  deci-iou  in  iMorret  v.   Westerns, 

618.  su/jrn.     Ir  secni<  to  he  in  conseciuence  of 

■•  Lomax  v   Hide,  2  Vern.  185;  Godfrey  the  role  ahove  laid  down,  that  the  prai'tice 

r.  Chad  well,  i/-.  001;  1   Eq    Ca.  Ab.  318;  prevails  of  intniduclns   an   interrngatory 

I'l.  7,  S.  C;  Morret  v.  Westeme,  2   Vern.  nitoa  hill  of  torechisure,  iiKiuirint;  whether 

603;  1   Kq.  Ch.  Ab.   104,  I'l.  7,  S.  C  ;   4  fhePMireanv  and  wlmt  iiicunihraiicesaft'ect- 

Kent  (llthed  ),  184,  185;  Haines  d.  liendi.  iii^rthe  e-ta'te  Iiesides  th.'it  nfilie  |il,iinliir,  in 

3  .John.   Cli.    4i)'.t-,    L>(in   r.    Sjuellord,    .I  order  lliai,  if  the  answr  sdifes  any,  the 

(^onn.  .')44;   l.'enwick  r.  .Miici.mli,  1  llopk.  owners   of  sncli    inennihrance-i    he  "nnide 

277;  Story  Eq.  I'l.  §  lSi3,  and  notes.  parties.     Storv  Kij.  I'l.  §  \'.):i,  note. 


278 


OF   PARTIES    TO   A    SUIT. 


rii.Y.  5  2. 


Rulo  extends 
to  all  cases, 
where  sale  or 
cbarjje  is  sub- 
sequent to 
plaintitl's 
claim; 


rule  in  cases 
of  sub-con- 
tracts for 
Bale. 


I^pon  the  .«!amc  grouutl  it  was  that  Lord  AlvaiUey  M.  R.  in  the 
liishop  of  Winchester  v.  Heavor^  ordered  a  bill  of  foreclosure  to 
stand  over  for  the  jnirjiose  of  making  a  judument  creditor  a  party. 
From  the  marginal  note  to  that  case,  a  doubt  apjiears  to  arise  as 
to  whether  the  Master  of  the  Ivolls  intended  to  adopt  the  general 
rule,  that  all  incumbrancers  must  be  i)arties  to  a  bill  of  foreclo- 
Bure ;  but  the  decision  rests  upon  the  rule  of  practice,  which  has 
been  stated,  and  it  cannot,  after  that  decision,  be  doubted  that  all 
incumbnnicers  whose  liens  appear  upon  the  answer,  must  be  made 
parties,  and  if  that  answer  be  a  sufficient  one  and  true,  it  must, 
according  to  the  practice  in  draAving  bills  before  stated,'^  appear 
upon  the  answer  who  such  incumbrancers  are.  At  all  events,  it  is 
evident,  from  the  cases  of  Loniax  v.  Hide^  Godfrey  v.  Chadwell^ 
Morret  v.  Westerne,  just  referred  to,  that  if  a  mortgagee  wishes  to 
obtain  an  undisputed  right  to  an  estate  by  foreclosure,  he  must 
make  all  incumbrancers  upon  the  estate,  of  whose  liens  he  has 
notice  (whether  appearing  uj5on  the  answer  or  not),  parties  to  his 
suit.^ 

The  rule  which  requires  all  incumbrancers  upon  the  equity  of 
redemption  to  be  brought  before  the  Court  in  cases  of  foreclosure 
extends  to  cases  in  which  the  subject  of  the  litigation  has  been  sold, 
or  charged  subsequently  to  the  date  of  the  plaintiff's  claim, 
whether  such  sale  or  charge  has  been  by  legal  instrument,  or  only 
by  agreement,  or  whether  it  extends  to  the  Avhole  or  only  partial 
interests.  Therefore,  where  an  estate  had  been  sold  in  lots  subject 
to  an  equitable  charge  in  favor  of  the  plaintiff,  it  was  held  that  all 
the  purchasers  were  necessary  parties  to  a  bill  by  him  to  realize 
his  security.^  And  where  a  bill  w^as  filed  by  a  lessee  to  compel  a 
landlord  to  give  his  license  to  the  assignment  of  a  lease  to  a  pur- 
chaser, on  the  ground  that  he  had  by  certain  acts  waived  the  right 
to  withhold  it,  which  had  been  reserved  to  him  by  the  original 
lease,  the  purchaser  was  held  to  be  a  necessary  party.**  And  so  if 
a  man  contracts  with  another  for  the  purchase  of  an  estate,  and 
afterwards,  before  conveyance,  enters  into  a  covenant  with  a  third 
person  that  the  vendor  shall  convey  the  estate  to  such  third  person, 
the  vendor,  if  he  have  notice  of  the  subsequent  contract,  cannot 
with  safety  convey  the  estate  to  the  vendee  without  the  concur- 
rence of  the  third  person,  who  in  that  case  will  be  a  necessary 
party  to  a  bill  by  the  purchaser  against  the  vendor  for  a  specific 
performance ;  but  if  A.  contracts  with  B.  to  convey  to  him  an  es- 
tate, and  B.  enters  into  a  sub-contract  with  C,  that  he,  B.,  w^ill 
convey  to  him  the  same  estate,  then  if  B.  files  a  bill  against  A.,  C. 
will  not  be  a  necessary  ]»arty,  because  A.  is  in  that  case  in  no  raan- 


1  3  Ves.  314. 

2  See  note  6,  on  p.  277. 

8  KuUeston  v.  Morton,  1  Dr.  &  W.  171. 


349. 


Peto  V.  Hammond,  29  Beav.  91. 
Maule  V.  Duke  of  lieaufort,  1  Buss. 


PERSONS    RESISTING    PLAINTIFF'S    DEMANDS. 


279 


ner  affected  by  the  sub-contract,  which  his  conveyance  to  B.  wonld 
ratlier  promote  than  injure.^  And  whei-e  a  bill  was  filed  by  credit- 
ors to  set  aside  a  purchase  on  the  ground  of  fraud,  and  it  appeared 
that  the  purchaser  had,  since  his  purcliase,  executed  a  mortgage 
of  the  estate,  the  mortgagee  was  considered  a  necessary  party.^ 
But  where,  since  his  jiurchase,  judgments  had  been  entered  up 
against  the  purchaser,  the  judgment  creditors  were  held  to  be  un- 
necessary parties  to  a  bill  for  specific  performance.^ 

The  rule  which  requires  all  subsequent  incumbrancers  to  be 
parties,  extends  only  to  cases  in  which  the  subsequent  charges  or 
incumbrances  are  specific ;  and  Ave  have  before  seen,  that  in  most 
cases  where  estates  have  been  conveyed  to  trustees  to  pay  debts  or 
legacies,  the  trustees  may  sustain  suits  respecting  the  trust  property, 
without  those  claiming  under  the  trust  being  parties  to  it.*  It  is 
also  unnecessary  that  persons  having  prior  mortgages  or  incum- 
brances should  be  parties,  because  they  Avill  have  the  same  lien 
upon  the  estate  after  a  decree  as  they  had  before  ;  *  for  this  reason 
it  has  been  held,  that  in  a  bill  for  a  partition,  a  mortgagee  upon 
the  wliole  estate  is  not  a  necessary  party,  though  a  mortgagee  of 
one  of  the  undivided  jiortions  would  be.^  And  so,  where  a  bill 
was  brought  by  a  mortgagor  against  a  mortgagee,  prajdng  a  sale 
of  the  mortgaged  estate,  persons  who  had  annuities  prior  to  the 
mortgage  were  held  unnecessary  parties,  and  notwithstanding  they 
appeared  at  the  hearing  and  consented  to  a  sale,  Lord  Kenyon  M. 
R.  dismissed  the  bill  as  to  them  with  costs,  and  said  that  the  estate 
must  be  sold  subject  to  their  annuities.''  It  must  have  been  upon 
the  same  principle,  that  the  case  of  Lord  Ilollis,*  wherein  it  was 
held  that  a  third  mortgagee  Iniying  in  the  first,  need  not  make  a 
second  mortgagee  a  party,  was  decided;  otherwise,  it  is  not  easy 
to  reconcile  that  case  with  the  other  principles  which  have  been 
laid  down.  It  cannot  be  supposed  that  it  was  meant  to  be  decided 
that  a  third  mortgagee  buying  in  the  first  mortgage,  could  by  that 


1  V.  Wulford,  4  Kuss.  372;  see  also 

Alfxaiider  v.  Cana,  I  I)e  G.  &  S.  415; 
Clia'lwick  V.  Madcn,  9  Hiire,  188;  Hacker 
V.  Mid  KcMil  Kailwav  Coinpniiy,  11  Jur. 
N.  S.  G34,  V.  C.  S.  \Vher('  the  owner  of 
land  wtiTcc,"  in  writiiip  to  convey  it  to  an- 
othiT,  and  afterwards  convej's  it  to  a  dif- 
ferent person,  with  notice  of  the  prior 
aprepmciit,  the  trustee  will  hold  the  title 
as  trustee  of  the  first  purchaser;  and  in  a 
bill  bv  such  first  purchaser,  to  enforce 
specihc  performance,  the  second  purchaser 
is  a  nrcessiir}'  pai  ty.  Stone  v.  IJuckner,  12 
Sm.  &  M.  72. 

2  O.pis  r.  Mi.ldleton,  2  Mad.  410.  So 
where,  in  such  a  case,  it  appe;irs  that  the 
del)tor  chiirtjed  with  the  fraudulent  con- 
veyance is  dearl,  his  a'lniinistrat'ir  should 
be  made  a  partv.  Coatesr.  l)iiy, !( .Mi^sou. 
315.    Whether  the  debtor  himself,  if  living, 


should  be  niiide  a  part}',  8ee  Wright  v. 
Cornelius,  10  Missou.  174. 

8  Petre  v.  Duncombe,  7  Hare,  24. 

4  I.d.  Ked.  175. 

''  Itose  V.  I'afje,  2  Sim.  471 ;  Hogan  v. 
Walker,  14  How.  U.  S.  37;  Wilson  v.  Bis- 
coe,  6  Kng.  41. 

8  Swan  V.  Swan,  8  Pri.  518;  Whitton  v. 
Whitton,  38  N.  H.  134,  136.  But  in  Har- 
wood  V.  Kirby,  1  I'aige,  4(!ft,  it  was  held, 
that  ail  iiicunilirancer,  upon  tiie  share  of 
one  tenant  in  coiiitiion,  cannot  be  made  a 
party  to  a  bill  for  partition,  and  flie  parti- 
tion does  not  aflect  his  rights;  but  his  in- 
cuinbr:ince  continues  u[ion  the  shiiro  set 
off  to  the  p'lrfy  who  created  the  lien;  sec 
Sebring  i'.  Mersereiiu,  1  llopk.  fiOl. 

^  Delaficre  r.  Norwimd,  3  Swmu.  Ill,  n.; 
Hogan  V.  Walker,  14  Mow.  U.  S.  37. 

8  Cited  3  Ch.  Kep.  86. 


Ch.  V.  §  2. 


Judgment 
creditors  of 
purchaser 
unnecessary, 
in  suit  for 
specific  per- 
formance. 
Rule  confined 
to  specific  in- 
cumbrances. 


Persons  hav- 
ing prior 
charges  un- 
necessary. 


2S0 


OF   PARTIES   TO   A    SUIT. 


Oil.  V.  5  'J. 


Mortgagee 
when  made 
a  jwrty,  is 
entitled  to  be 
redeemed. 


Second  mort- 
gagee may 
redeem  lii-st, 
without  sub- 
sequent in- 
cumbrancer. 


Inciunbran- 
cers  or 

Eurchasers, 
ecoming 
such  at^er 
bill  tiled. 


]ir(HH'ss  at'qtiiro  tlio  ri<;-1it  to  Ibroclose  llio  seeoml,  -without  bring- 
iiio-  him  bc'tofothe  Cotirt,  ami  giving  him  an  opportunity  to  re- 
deem. 

It  is  riglit  to  remark  here,  tliat  in  all  cases  where  u  mortgagee 
is  made  a  jiarty  to  a  suit  b.y  the  moi'tgagor  or  those  chiiming 
under  him,  he  is  entitled  to  be  redeemed ;  ^  and  tliat,  therelbre, 
unless  a  second  mortgagee  or  other  incumbrancer  is  prepared  to 
redeem  him,  lie  will  be  an  improjier  ])arty  to  a  suit  by  such  mort- 
gagee or  incumbrancer,  where  the  object  is  merely  to  foreclose 
the  equity  of  redemption.^ 

It  is  also  to  be  observed,  that  a  second  incumbrancer  may  file 
a  bill  to  redeem  the  first,  without  making  a  subsequent  incum- 
brancer a  party ;  and  that  if  he  brings  him  before  the  Court  for 
the  mere  purpose  of  having  his  incmnbrance  postponed,  and  not 
to  foreclose  him,  the  bill  will  be  dismissed  against  him  with  costs.' 
But  a  bill  for  redemj)tion  cannot  be  sustained  by  a  party  having 
a  partial  interest  in  the  equity  of  redemption,  in  the  absence  of 
the  other  parties  interested  in  it.^ 

With  respect  to  incumbrancers  or  purchasers  becoming  such 
after  a  bill  has  been  filed  and  served,^  and  registered  as  a  lis 
pendens^  they  will  be  bound  by  the  decree,  and  need  not  be  made 
pai'ties  to  the  suit,  whether  the  plaintiff  have  notice  of  theiii  or 
not ;  for  an  alienation  pending  a  suit  is  void,  or  rather  voidable.'' 


1  Drew  V.  O'Hara  2  B.  &  B.  562,  n.; 
Chohnley  v.  Countess  of  Oxford,  2  Atk. 
267. 

2  S^e  Story  Eq    PI.  §  186  et  seq. 

8  Shepherd  v.  Gwinnett,  3  Swhh.  151,  n. ; 
see  Story  F.q   PI.  §  193,  and  n"tes. 

4  Ileiilev  V.  Stone,  3  Beav.  355;  see 
Storv  Eq.'Pl.  §  185;  Cliappell  v.  Rees,  1 
De  G..  M.  &  G.  393;  16  ,Jur.  415.  OfTer 
to  redi'em  not  necessary  in  bill  by  judg- 
ment creditor  against  trustees  and  mort- 
gagees to  establish  his  charge,  and  for 
payment  out  of  rents.  .Jeft'ervs  v.  Dick- 
son. L  R.  1  Ch.  Ap.  183  ;  12"  Jur.  N.  S. 
281,  L.  C  In  Massachusetts,  when,  during 
the  pendency  of  a  suit  for  redemp'ion,  it 
appears  that  any  other  person  is  interested 
therein,  the  Court  may  cause  him  to  be 
made  a  p:irty  thereto  upon  sucli  terms  as 
they  shall  think  proper;  suid  mny  order  a 
summons  of  a  sulipoena  to  be  issued  and 
served  on  him  in  such  marmer  as  they  shall 
direct;  and  he  shall  thereupon  be  allowed 
and  required  to  appear  and  answer  to  the 
suit.     (ienl.  Sts.  c.  140,  §  31 

5  Powell  V.  Wright,  7  IJcav.  444;  Hum- 
ble r.  Shore.  3  Hare.  119;  see,  however. 
Drew  V.  Earl  of  Norburv,  3  Jo.  &  Lat.  267 ; 
Sugd.  V.  &  P   758. 

6  2  Vic.  c.  11.  §  7. 

T  Walker  v.  Smalwood,  Amb  C7C;  Gas- 
kill  r.  Durdin.  3  B.  &  B  167;  Jloore  v. 
M'XarnarM,  1  B.  &  R.  309;  Gentle  v.  Ward, 
2  Atk   175;  Metcalfe  i-.  Pulvertoft,  2  V.& 


B.  207;  and  see  Massy  v.  Bntwell,  4  Dr.  & 
War.  68;  Long?;.  IJowiritig,  lO.Tur  N.S.668; 
12  W.  R.  972,  M.  K.  Generally  speaking, 
an  a-^signee  under  a  voluntary  assignment, 
pendente  lite,  need  not  be  made  ii  party 
to  a  bill,  or  be  brought  before  the  (-oiirt; 
for  every  person,  purcbasinsr^je/if/cn^e  Ule,  is 
treated  as  a  pnrcliaser  with  notice,  and  is 
Ruliject  to  all  the  equities  of  the  persons 
under  whom  he  cbiims  in  privity.  Story 
E(|.  PI.  §§  156,351;  1  Story  Eq  Jur.  §  406; 
Sediiwick  ?;  Cleveland,  7  Piiige,  287;  Van 
Hook  V.  Throckmorton,  8  Paige,  33;  Cook 
V.  Mancius,  5  Joiin.  Ch.  93;  Murr«y  v. 
Barlow,  1  John.  Ch.  577,  581;  MurraV  v. 
Lylburn,  2  .lohn.  Ch.  441,  445;  2  Story' Eq. 
Jur.  §  908;  Hoxie  v.  Carr,  1  Sumner,"  173; 
Brainlen  v.  Cabine«s,  10  Abi.  155;  Law- 
rence V.  Lane,  4  Gihnan,  354  ;  Kern  v. 
Ilarbriffg,  11  Ind.  443;  Mouhlen  v.  Lan- 
ahan,  29  Md.  200.  It  is,  however,  other- 
wise where  the  assignment  is  bj-  opera- 
tion of  law,  OS  in  cases  of  bankruptcy, 
or  assignments  under  the  insolvent  acts. 
Sedgwick  v.  (Cleveland,  7  Paige,  2^-8;  Deas 
V.  'I'liorne,  3  John.  543;  Story  Eq.  PI.  §  342, 
not".  §  351,  note;  Storm  v.  Davenport,  1 
Sandf.  Ch.  135.  And  an  assignee  under 
a  voluntary  assignment  may  be  mad"  a 
party,  when  desirable,  at  the  election  of 
the  plaintitf.  Stor}'  ICq.  PI.  156,  and  cases 
in  note  ;  see  Longwortli  v.  Taylor,  1  Mc- 
Lean, 395. 


PERSONS    EESISTING    PLAINTIFF'S    DEMANDS.  281 

If,  therefore,  after  a  bill  filed  by  the  first  mortgagee  to  foreclose,  Ch.  V.  §  2. 
the  mortgagor  confesses  a  judgment,  executes  a  second  mortgage,  "  '<  ^ 
or  assigns  the  equity  of  redemption,  the  plnintiflf  need  not  make 
the  incumbrancer,  mortgagee,  or  assignee  parties,  for  they  Avill  be 
bound  by  the  suit ;  and  can  only  have  the  benefit  of  a  title  so 
gained,  by  filing  an  original  bill  in  the  nature  of  a  cross-bill,  to 
redeem  the  mortgaged  property;^  and  where  a  purchaser  took  an 
exception  to  a  title,  because  two  mortgagees,  who  became  such 
after  the  bill  was  filed,  were  no  parties  to  the  foreclosure,  the 
exception  was  overruled  Avith  costs ;  ^  and  it  has  been  held,  that 
where  one  of  several  plaintiffs  assigned  his  equitable  interest, 
pendente  lite,  the  suit  might  be  heard  as  if  there  had  been  no  such 
assignment;^  where,  however,  a  sole  plaintiff  assigned  all  his 
equitable  interest  absolutely,*  and  where  all  the  adult  plaintiffs 
assigned  their  equitable  interest  by  way  of  mortgage,^  the  assign- 
ees were  held  necessary  parties.  But  in  cases  where  a  change  in 
the  ownership  of  the  legal  estate  takes  place  pending  the  suit,  by 
alienation  or  otherwise,  the  new  owner  must  be  brought  before 
the  Court  in  some  shape  or  other,  in  order  that  he  may  execute  a 
conveyance  of  the  legal  estate.® 

If  a  person,  pendente  lite,  takes  an  assignment  of  the  interest  Assignee 
of  one  of  the  parties  to  the  suit,  he  may  if  he  pleases  make  himself  (^f^j/fife  *  ^' 
a  party  to  the  suit  by  supplemental  bill;'  but  he  cannot  by  peti-  siipplemental 
tion  pray  to  be  admitted  to  take  a  part  as  a  party  defendant ;  ^  all 
that  the*  Court  will  do  is  to  make  an  order  that  the  assignor  shall 
not  take  the  property  out  of  Court  without  notice.® 

We  now  come  to  the  consideration  of  those  cases  in  which  it  is  Persons 

.  ,  ,     .      aganistwhom 

necessary  to  make  persons  defendants  to  a  suit,  not  because  tlien-  aetendanthas 

rights  may  be  directly  affected  by  the  decree,  if  obtained,  but  ^J^^'^'^^^  ^^ 

because,  in  the  event  of  the  i)laintiff  succeeding  in  his  object  parties, 
against  the  principal  defendant,  that  defendant  will  thereby  ac- 

1  Storv  I'q.  PI.  §  351;  Mitford  Eq.  PI.  v  Mnwntt.  1  Ed.  Ch.  9;  Steele  v.  Taylor, 
73;  LninlxTi  v.  Lafnl.ert,  •'S2  Miiine.  544.  1  Min.  274      Hut  it  seems  he  nriy  bo  mntle 

2  BislKpp  Winchester  v.  Paine,  11  Ves.  a  nnrly  liy  tlie  express  consent  of  the  plani- 
JQ9.  tift'.     Steele  r.  Taylor,  suprn. 

aV/ides  V.  Harris.  1  Y   &  C.  2-30;  Storv  »  Fosl.-r  v.  l)e:non,  6  Mad.  50;  Story 

Eo.  Jiir    §  156;  iinU\  V.s\K  and  note  and  Eq    PI.  §  342  and  notes.  §348;  S.-ilgwick 

caset)  rifed   to  this  point  of  a"ifrnmf"'t9  r  Cleveland,  7  l'!iif,'e,  200;  Deas  »'.  Thome, 

pmihnif  lilf  ;  2  St<,rv  F.q.  .I<ir  §  0o8  3  .John.   544;   see.    however.  Rrnndon  v. 

*  Jol.n'.on  1,-.  Th.  himh,  11  He:iV.  5(il.  IJrandon.  3  N.  \\.  2H7.  V.  C    K..  where  a 

6  Solomon  tv  Solomon,  13  Sim.  510.  supplemental  order  wa^^  made  fo  l.rnif,'  hc- 

6  !)aly  V.  Kelly.  4  Dow,  435;  Bi-hop  of  fore  the   Court   moi  tjr„p.i.s  o(  shans  alter 

WlncheHter  »'   Paine.  (ii//>r^( ;  Storv  Kq    PI.  deciee;  and   Toosey  v.  Mmehell.  .I.m-.  159, 

§  351.     A«  to  the  eff-ct  of //«  pviiilfn*  cen-  v/here.  on  j.etition.  the  f'onrl  ordered  tliat 

er  illv.  fee  Hellamv  »'.  Sahine,  1  l)e  (J.  &•!.  the  pnrcliM-er  should  he  at  liherty  to  attend 

6«6:'  Ivler  v.  Tliomn.s,  25  Heav.  47;  Sugd.  inquiiies  in  the  Master's  olhee,  and  have 

V.  &  P   759.  notice  of  all  iiroeeedings.  on  pavmglhe  m- 

T  Morvlvi.  Pl.§351;  Mitford  Eq.  PI  73;  cidentaj  costs.    The ( '.unl  will  uMially  I'ow, 

see  Stei-'e  )•    Tavior.  1  Min.  274.  on  sumni  n-,  give  the  pnicliaser  lilerly  to 

8  See  Lawrence  v   Lane,  4  Uilman.  354  ;  attend  the  proceeding.-  at  his  own  expense. 

Cook  p.  Mancius,  5  John.  Ch.  89;  Carow 


282 


OF   PARTIES    TO    A    SUIT. 


Ch.V.  §2.     (juiiv  a  vijxlit  to  call  upon  liim  oitlior  to  rciinlmrso  him  the  whole 
^        r        '    or  j)art   of  the  phiintiff's  demantl,   or  to   do  some  act  towards 
roinstatiug  the  defendant  in  tlie  situation  he  wouhl  have  been  in 
but  for  the  success  of  tlie  phiintitf's  chiini.     In  such  cases  the 
Court,  in  order  to  avoid  a  multii)licity  of  suits,  requires  that  the 
parties  so  consequentially  liable  to  be  aftected  by  the  decree,  shall 
be  before  the  Court  in  the  first  instance,  in  order  that  their  liabil- 
ities may  be  adjudicated  upon  and  settled  by  one  proceedina;.^ 
Thus,  where  a  defendant  in  his  answer  insisted  that  he  was  entitled 
to  be  reimbursed  by  A.  what  he  might  be  decreed  to  pay  to  the 
jilaintiff,  and  therefore  that  A.  was  a  necessary  party,  the  Court, 
at  the  hearing,  directed  the  cause  to  stand  over,  with  liberty  to 
Personal  rep-  the  plaintiff  to  amend  by  adding  parties.^     And  so,  where  an  heir- 
in  a  suit  by      at-hiAv  brought  a  bill  against  a  widow,  to  compel  her  to  abide  by 
heir  to  compel  ij^r  election,  and  to  take  a  legacy  in  lieu  of  dower,  it  was  held  that 

widow  to  . 

elect.  the  personal  re}?resentative  was  a  necessary  party ;  because,  m  the 

event  of  the  plaintiff's  succeeding,  she  was  entitled  to  satisfaction 
for  her  legacy  out  of  the  personal  estate ;  and  the  plaintiff  had 
leave  to  amend,  by  making  the  executor  a  paily,^ 
In  suits  by  Ui^on  the  Same  principle  it  is,  that  in  suits  by  specialty  creditors 

creditors.  for  Satisfaction  of  their  demands  out  of  the  real  estate  of  a  person 
deceased,  it  is  required  that  the  personal  as  well  as  the  real  repre- 
sentative should  be  brought  before  the  Court ;  because  the  personal 
estate,  being  the  primary  fund  for  the  payment  of  debts,  ought  to 
go  in  ease  of  the  land,^  and  the  heir  has  a  right  to  insist  that  it 
shall  be  exhausted  for  that  pjurpose  before  the  realty  is  charged ; 
so  that,  if  a  decree  were  to  be  made  in  the  first  instance  against 
the  heir,  he  would  be  entitled  to  file  a  bill  against  the  personal 
representative  to  reimburse  himself.^  The  Court,  therefore,  in 
order  to  avoid  a  multiplicity  of  suits,  requires  both  the  executor 
and  heir  to  be  before  it,  in  order  that  it  may,  in  the  first  instance, 
do  complete  justice,  by  decreeing  the  executor  to  pay  the  debt,  as 
far  as  the  personal  assets  will  extend ;  the  rest  to  be  made  good 
by  the  heir  out  of  the  real  assets.'^  Upon  this  principle  it  was, 
that  where  a  man  covenanted  for  himself  and  his  heirs  that  a 

1  Story  Eq.  PI.  §  173  et  seq.,  §  180;  Wi-  2  Greenwood  v.  Atkinson,  5  Sim.  419; 

ser  V.  Blachlv,  1  John.  Ch.  437 ;  Ericlcson  see  also  the  case  of  Green  v.  Poole,  5  Bro. 

V.  Nesniith,  46  N.  H.  371,  374;  Htidley  v.  P.  C.  504. 

Russell,  40  N.  H.  109;  New  England,  &c.  8  Lesquire  v    Lesquire,  Rep.  t.  Finch, 

Bank  V.  Newport  Steam  Factor}',  6  R.I.  134;  see  also  Wilkinson  v.  Fowkes,  9  Hare, 

154;  see  Shotwell  v.  Taliaferro!!  25  Miss.  193. 

105.     In  a  suit  against  the  representatives  ■*  Madox  ?;.  Jackson,  3  Atk.  406. 

of  a  deceased  partner  to  recover  a  partner-  6  Galton  v.  Hancock,  2  Atk.  434. 

ship  debt,  in  which  the  insolvency  of  the  6  Knight  v.  Knight,  3  P.  Wms.  333. 

surviving  partner  is  stated,  he  is,  neverthe-  7  Knight  v.   Knight,   3   P.    Wms.  333; 

less,  a  proper  party  as  to  the  other  defend-  Story  Kq.  PI.  §  173  el  seq.  ;  see  Co.-by  v. 

ants,  who  cannot  demur  to   the   hill   for  Wii'klifi'c,  7  B.  Mon.  120;  Galton  v.  Han- 

mi'-joinder,   on   account  of  the  joinder  of  cock,  2  Atk.  434. 
such  survivor.     Butts  v.  Genung,  5  Paige, 
254. 


PERSONS    RESISTING   PLAINTIFFS    DEMANDS. 


283 


jointure  house  should  remahi  to  the  uses  in  a  settlement,  and  the 
jointress  brought  a  bill  against  the  heir  to  compel  him  to  rebuild 
and  finish  the  jointure  house,  and  to  make  satisfaction  for  the 
damage  which  she  had  sustained  for  want  of  the  use  thereof, 
Lord  Talbot  allowed  a  demurrer,  on  the  ground  that  the  executor 
ought  to  be  a  party;  because  the  Court  woiild  not,  in  the  first 
instance,  decree  against  the  heir  to  perform  his  covenant,  and  then 
put  the  heir  upon  another  bill  against  the  personal  representative 
to  reimburse  himself  out  of  the  personal  assets.^ 

A  bill  of  discovery  of  real  assets  might,  however,  be  brought 
against  the  heir,  in  order  to  preserve  a  debt,  -vvnithout  making  the 
administrator  a  party,  where  it  is  suggested  that  the  representa- 
tion is  contested  in  the  Ecclesiastical  Court ;  ^  and  where  the  heir 
of  an  obligor  would  not  himself  administer,  and  had  opposed  the 
plaintiif,  who  was  a  ])rincipal  creditor,  in  taking  out  administra- 
tion, a  demurrer  l)y  him,  because  the  administrator  was  not  a 
party,  was  overruled.^ 

Where  the  nature  of  the  relief  prayed  is  such  that  the  heir-at- 
law  has  no  remedy  over  against  the  personal  estate,  the  personal 
representative  is  an  unnecessary  party;  thus,  in  the  case  of  a  bill 
filed  by  a  mortgagee  against  the  heir  of  a  mortgagor  to  foreclose, 
the  executor  of  the  mortgagor  is  an  unnecessary  party,  because  in 
such  a  case  the  mortgagee  has  a  right  to  the  land  pledged,  and  is 
not  in  any  ways  bound  to  intermeddle  with  the  personal  estate,  or 
to  run  into  an  account  thereof;  and  if  the  heir  would  have  the 
benefit  of  any  2')ayment  made  by  the  mortgagor  or  his  executor, 
he  miist  prove  it.*  And  it  makes  no  difference  if  the  mortgage 
be  by  demise  for  a  term  of  years,  provided  the  mortgagor  was 
seised  in  fee ;  in  such  case  the  executor  is  an  unnecessary  party, 
and  if  made  one,  the  l)ill  against  him  will  be  dismissed  Avith  costs.^ 
And  where  a  term  of  1000  years  had  been  granted,  but  conditioned 
to  sink  and  be  extinguished  upon  payment  of  an  annuity  for 
forty-two  years,  and  at  the  expirati(jn  of  the  time  a  bill  was 
Ijrought  by  the  heir  of  the  giantor  for  a  surrender  of  the  residue 
of  the  term,  it  was  held  that  the  personal  representative  of  the 
grantor  necfl  not  be  a  party.® 

Where,  however,  the  mortgagee  mixes  together  liis  character  of 


Ch.  V.  §  2. 


Where  repre- 
sentation 
contested  in 
Ecclesiastical 
Court. 


In  foreclosure 
against  heir 
of  mortgagor. 


1  Knight  t'.  Knit'ht,  3  V.  Wins.  333;  mid 
Bee  I'r'-Hsenilen  r.  UecreetH,  2  (Jh.  Ca.  i'Jl. 

'^  I'liinket  V.  I'euHon,  2  Atk.  51;  Story 
Eo.  I'l.  §  !.l. 

<•  I)'Aru!i(la  «.  Whittinf^ham,  Mos.  84; 
Storv  K<|.  I'l  ^§  175,  IHfi,  19G;  see  4  Kent 
(Utii  cd.).  IH4-l>-ti  and  notes. 

*  DiMKoirdie  r.  Hiin-ley,  3  P.  Wins.  833, 
notes;  l-'ell  v.  Brown,  2"  Hro.  C.  C.  279; 
ijti.ry  Kn.  PI.  §§  HiR,  200. 

6  hraiUliaw  y.  Outrain,  13  Ves.  234.    If 


the  mortgage  was  of  a  chattel  interest,  of 
course  the  execulor,  and  not  the  heir, 
would  lie  the  proper  party;  and  iff'reehold 
and  leasehold  cstntes  urii  lioth  cimiprised 
in  the  sauK'  inortgiige,  hoth  the  heir  and 
executor  will  he  necessary  piirties  to  a  bill 
of  foreclosure.  Kohins  v.  Hodgson,  Holls, 
15  F<-li.,  17!i4. 

"  Hainiiiield  v.  Vaughun,  Kept.  t.  Finch, 
104. 


Where  heir 
sought  sur- 
render of 
term. 


Where  mort- 
gagee seeks 
relief  as  a 
general 
creditor. 


284 


OF    TAKTIES    TO    A    SUIT. 


Cii.  V.  5  2. 


Right  of 
mortgagee  to 
pmvo  against 
pi'ivonalty  lor 
■whole  ttei>t, 
and  to  realize 
his  seciirity. 


"When  sale 
directed, 
instead  of 
foreclosiu'e. 


Ti\orfp;:t<2,eo  aiul  gcMiernl  creditor,  ;in(l  seeks  relief  beyoiitl  that  to 
whieli  his  position  of  iiiortgMgee  by  itself  wouhl  strictly  entitle 
him,  then  it  would  appear  that  tlie  personal  representative  of  the 
niortg'agor  must  be  a  party  to  the  bill,  and  there  must  be  an  ac- 
count of  the  ])ersonal  estate.  It  may  hei-e  be  observed,  that  the 
doubt  whicli  formerly  existed  whether,  when  the  mortgaged  estate 
is  insufficient  to  satisfy  the  amount  charged  upon  it,  and  the  per- 
sonalty is  also  inadequate  to  pay  all  the  debts,  the  mortgagee  was 
entitled  to  proA'e  against  the  personalty  for  the  whole  of  his  debt, 
or  only  for  the  residue,  after  deducting  what  he  has  received  from 
bis  security,^  has  now  been  removed  by  the  decision  of  Lord  Cotten- 
hani,  in  the  case  of  3Iason  v.  JBogg,^  where  it  was  determined,  that 
a  mortgagee  may  prove  for  the  whole  debt,  and  then  realize  liis  se- 
curity, and  afterwards  take  a  divi<lend  on  the  whole  debt;  i)rovided, 
of  course,  that  the  amount  of  tlie  dividend  is  not  more  than  the 
unpaid  balance.^  In  suits  of  this  description,  the  Court  will  decree, 
not  a  foreclosure,  but  a  sale  of  the  estate,*  a  decree  to  which  a  mort- 
gagee is  not  ordinarily  entitled  upon  a  bill  filed  by  him,  without 


1  Mason  r.  Bogg,  2  M.  &  C.  443;  Green- 
wood V.  Taylor,  1  R.  &  M.  185;  Greenwood 

V  Firth,  2  Hare,  241,  n. ;  Tipping  v.  Power, 
1  H:ire,  405;  Marsliall  v.  Jlacartney,  3  Dr. 
«&  W.  232;  I^pxfer  v.  Arnold,  1  Sumner, 
109;  Mar-hall  v.  McAravey,  3  Dr.  &  War. 
232.  A  mortgagee,  who  lias  entered  for 
condition  broken,  may  have  an  action  on 
the  liond,  and  lie  will  recover  the  ditlerence 
between  tlie  value  of  the  land  and  the 
amount  of  the  principal  and  interest  on  the 
bond  Aniory  r.  Fairbanks,  3  Mass.  562; 
Newall  V.  Wright.  3  Muss.  150;  4  Kent 
(11th  ed.),  li'4;  Tooke  v.  Hartlev,  2  Bro. 
C.  C  (Ferkin.s's  ed  )  126,  127,  ai  d  notes; 
Perry  v.  Haiker,  8  Sumner's  Ves.  527, 
Perkins's  note  (n),  and  cases  cited;  Hatch 
V.  White,  2  Gall.  152;  Globe  Ins.  Co.  v. 
Lansing,  5  Cowen,  380;  Omaly  v.  Owen,  3 
Mason,  474;  Lansing  ».  Goeiet.  9  Gowen, 
346;  Lowell  v.  Leiand,  3  Vt.  581;  Cnllum 
V.  I'^manuel,  1  Ala.  N.  S.  23.  The  value 
ol  tlie  land  may  be  ascertained  eitlier  by  a 
sale,  or  by  estimate,  and  proof  of  the  value 
of  tiie  property  mortgaged.  See  4  Kent 
(11th  eil.),  182";  Tooke  u.  Hartlev,  2  Hro. 
C.  C.  (Perkins's  ed.)  120,  127,  and  notes; 
Hodge  V.  ILdmes,  10  Pick.  380,381 ;  Amory 

V  Fairbiinks,  3  JMass.  562  ;  Newall  v. 
Wright,  3  Mass  150;  Brigfrs  t».  Itichmond, 
10  Pick.  396  ;  West  v.  Chamberlain,  8 
Pick.  336;  Hart  v.  Ten  Kyck,  2  John.  Ch 
62;  Wiley  v.  Angel,  1  Clarke,  217;  >>uf- 
fern  i'  .Johnson.  1  I'a'ge,  450;  Downing  v. 
Palmateer,  1  Monroe,  66;  M'CJee  w.  l>avie, 
4  .1.  .1.  M:ir.^h.  70;  Bank  of  Ogdensburg  v. 
Arnold,  5  Paige.  38. 

■2  2  .M.  &  C.  443;  iJur.  330;  Armstrong 
V.  Storer,  14  Ueav.  535,  538;  Tucklev  v. 
Thomi)son,  IJ.  &  H.  126,  130;  Rhodes  v. 


Moxhav,  10  W.  R.  103,  V.  C.  S.;  Dighton 
V.  Withers,  31  Beav.  423. 

3  The  rule  is  settled  otherwise  in  Massa- 
chusetts, where  it  is  held  that  the  mort- 
gagee couM  not  prove  for  his  whole  debt 
and  yet  n^tain  his  mortgage;  and  that  if 
he  does  prove  his  whole  debt,  and  accept 
a  dividend  on  his  whole  debt,  he  thereby 
waives  his  mortgage.  An)ory  v.  Francis, 
16  Mass.  .308;  Hooker  v.  Olmstead,  6  Pick. 
481;  lowle  V.  Bannister,  16  Pick.  255; 
Middlesex  Bank  v.  Minot,  4  Met.  325; 
Farnum  v.  Boutelle,  13  Met.  159.  If  the 
mortgagee  elects  to  retain  his  security,  its 
value  must  be  ascertained  and  deducted, 
and  he  can  only  prove  the  remainder  the 
value  of  the  mortgaged  property  may  for 
this  purpose  be  fixed  by  consent  of  parties, 
or  ascertained  by  a  side;  or  it  may  be  de- 
termined by  a  jury,  whenever  it  properly 
comes  before  that  tribunal.  Haverhill  Loan 
Fund  Association  v.  Cronin,  4  Allen,  141, 
144. 

4  Daniell  v.  Skipwith,  2  Bro.  C.  C.  155; 
see  also  Christopher  v.  Sparke,  2  .J.  &  W. 
229;  King  i;.  Smith,  2  Hare,  239,  242;  7 
Jur.  694;  Seton,  289,  e<  .w/  ,•  2  Storv  Eq. 
Jur.  §§  1025,1026,  1027;  4  Kent  (lltfied.), 
146,  215.  It  is  not  a  matter  of  course,  on  a 
bill  fir  foreclosure  and  sale,  to  order  the 
whole  of  the  mortgaged  premi-^esto  be  s(jld. 
Under  certain  circumstances  no  more  will 
be  sold  than  enough  to  pav  the  debt  and 
co-ts.  Delabij^arre  v.  I'.u-h,  2  John.  490; 
Sutfern  w.  Johnson,  1  Paige,  450;  Biinker- 
hotf ».  Thalhimer,  2  John.  Ch.  486.  The 
premises  may  be  sold,  either  together  or  in 
parcels,  as  will  be  best  calculated  to  pro- 
duce the  highest  sum.  Suffeinw  .)ohu-on, 
1  Paige,  450 ;  Campbell  v.  Macomb,  4  John. 
Ch.  534. 


PERSONS    RESISTING    PLAINTIFFS    DEMANDS. 


285 


reference  to  his  rights  as  a  general  creditor.^  Where  the  bill  is 
filed  to  redeem  a  mortgage  against  the  heir  of  a  mortgagee,  the 
personal  rei^resentative  must  also,  as  the  party  entitled  to  the 
money,  be  made  a  pai'ty  to  the  suit,^  because,  although  the  mort- 
gagee upon  i^aying  the  principal  money  and  interest  has  a  right  to 
a  reconveyance  from  the  heir,  yet  the  heir  is  not  entitled  to  receive 
the  money ;  and,  if  it  were  paid  to  him,  the  personal  representative 
would  have  a  right  to  sue  him  for  it.^ 

Where  a  man  contracts  for  the  purchase  of  an  estate,  and  dies 
intestate  as  to  the  estate  contracted  for,  before  the  completion  of 
the  contract,  the  A-endor  has  a  right  to  file  a  bill  against  his  i)er- 
sonal  representative  for  payment  of  the  purchase-money  ;  but  if  he 
does,  he  must  make  the  heir-at-law  a  party,  because  the  heir  is  the 
person  entitled  to  the  estate.  And,  for  the  same  reason,  where  the 
vendee,  after  the  cause  was  at  issue,  died,  having  devised  the  estate 
which  was  the  subject  of  the  suit  to  infant  children,  and  the  plain- 
tiff" revived  against  the  personal  representatives  only ;  it  was  held, 
that  the  infant  devisees  were  necessary  parties,  and  the  suit  was 
ordered  to  stand  over,  in  order  that  they  might  be  brought  before 
the  Court.'' 

Upon  the  same  princi])le,  if  a  vendor  were  to  file  a  bill  against 
the  heir,  the  heir  would  liave  a  right  to  insist  upon  the  personal 
representative  being' brought  before  the  Court,  because  the  pur- 
chase-money is,  in  the  first  instance,  payable  out  of  the  i)ersonal 
estate.^  But  whore  a  bill  stated  that  an  estate,  purchased  in  the 
defendant's  name,  was  so  purchased  in  trust  for  the  plaintiff's 
ancestor,  who  paid  tlic  purchase-money,  and  prayed  a  reconvey- 


Ch.  V.  §  2. 


In  redemp- 
tion suits, 
personal  rep- 
resentative 
a  necessary 
party  as  well 
as  heir. 


Heir-at-law 
of  purchaser 
in  suit  for 
specific  per- 
formance. 


Where  ven- 
dee dies, 
ptiidtnte  lile. 


Personal  rep- 
resentatives 
of  purchaser. 


1  The  rases  in  which  a  mortgagee  may 
have  a  sain  instead  of  a  forecio-ure,  are, — 
1,  wlnTu  tlie  estate  is  deticient  to  p  ly  tiie 
inciiinUrunce;  2,  where  the  mortgage  is  of 
a  dry  reveision;  3,  where  the  niort;,'agee 
die«  ;ind  theefjuity  uf  redeinfition  di'scends 
upon  an  i.fiiit;  4,  wlicre  tiie  morivage  is 
ol  a.i  ailvow.>o  I ;  5,  where  V>c  mortgag  ir 
hccoun.'s  a  liaiikrupt;  aiil  6,  where  a  mort- 
gage is  of  an  estate  in  Ireliiiid.  See  '2 
ro-vfll  on  M((rtgagcs,  by  (Joventry,  lOliJ, 
n.  T. ;  2  Storv  \:<\-  Jur.  §  lU2tJ.  It  is  now 
enacted  by  V,  &  Ui  Vic.  c.  h«,  §  48,  that 
'"it  s'.a  i  be  lawful  for  the  <-'ourt  in  iiny 
sun  for  the  ii>reclo>ure  of  the  "•(|iijty  of  re- 
demption in  any  mortgaged  properly,  u|)on 
the  ri'cpK'st  «f  the  mortgagee,  or  of  any 
sub^<e<|uerlt  incunihrancer,  or  of  the  nuirt- 
gag  ir,  or  any  person  claiming  under  them 
re  pcctively,  to  direct  a  -ale  (^cc  llursi  t'. 
llur.-t,  I'i  l{' av.  :{72;  VVayn  v  Lewis,  1 
Dm  487)  of  ~uch  piri[)iTty.  instead  of  a 
foreclo-ure  of  such  ('(luity  of  rcdem|)ti()n, 
on  such  terms  ms  the  (Joiirt  mav  think  tit 
to  direct,  an  1  if  I  he  Couit  should  so  tuiuk 
(it,  without  previously  iletcrniiniiig  the 
priorities  of  mcumbrauccs,  or  giving  the 


usual  or  any  time  to  rejieem."  This  .sec- 
tion aso  provides  security  for  parties 
whose  interests  may  be  atl'ecied  in  certain 
cases. 

•2  Dexter  v.  Arnold,  1  Sumner,  109;  Hil- 
ton V.  Lothrop,  4(5  Maine,  "il'T,  'J,'M. 

3  Ante,  Vj.i. 

*  lowii^end  v.  Champernovvnc,  9  Pri. 
130  ;  see  Cox  v.  Sproie,  2  Hiblj,  376; 
Fisher  v.  Kay,  2  Hibb,  434  ;  Ilu-ton  t'. 
M'Cia:tv,  3  Lift.  274;  Morga  i  v.  Moivan, 
2  Whca't.  !tO  ;  Story  Kq.  1*1.  §§  100,  177; 
Champion  v.  IJrown,  C  .lolm.  i'ii.  402.  To 
a  hi. I  to  enfon-e  s|iecilie  perf  inn:ince  of  a 
contract  for  the  sale  of  hind  mMde  by  a 
pi'rson  who  has  di'ce;i«ed,  all  the  heirs  of 
such  ilecea.sed  person  should  be  made  i)ar- 
ties.  Duncan  v.  VVicklill'e,  4  Scum.  452; 
see  House  v.  Dexter,  'j  .\licli.  240. 

5  See  Story  Kq.  I'l.  §  177  ;  Cocke  v. 
Ev:ins,  9  Verger,  2^7.  I'pon  a  bid  (or  tlio 
rescissi'in  of  a  cuitrMct  forlml,  for  defect 
of  lille  in  the  vendor,  the  he fs  of  the  ven- 
dee niu.-sl  be  made  parties.  Huston  o.  No- 
ble, 4  .1.  .1.  Mar-h.  130;  sec  Harding  v. 
Handy,  11  Wtieat.  104. 


/ 


286  OF    PAllTIES    TO    A    SUIT. 

Cn.  Y.  § ;}.     anoo,  :i  doTnunor,  on  the  grouiul  that  the  executor  of  tlie  ancestor 

'— — r '    was  not  u  party,  was  overruled  ;  because  the  purchase-money  hav- 

ini;  been  paid,  it  was  quite  clear,  that  no  decree  could  have  been 
made  against  the  personal  representative.^ 
Old  rulo.  as  Ui)on   the   same  ])riiu'iple  formerly,  the   Courts  in  the  case  of 

amHoinr        Sureties,  and  of  joint  o))ligors  in  a  bond,  comi)elled  all  who  were 
obligors.  bound,  or  tlu'ir  representatives,  to  be  before  the  Court,  in  order  to 

avoid  the  multiplicity  of  suits  wdiich  would  be  occasioned  if  one  or 
more  were  to  be  sued  without  the  others,  and  left  to  seek  contribu- 
tion from  their  co-sureties,  or  co-obligoi-s  in  other  i)roceedings ;  but 
we  have  seen  that,  in  this  respect,  the  3'2d  Order  of  August,  1841, 
has  altered  the  practice.'^ 


Sectiok  III.  —  Of  Objections  for  want  of  Parties. 

How  taken.  Having  endeavored  in  the  preceding  sections  of  this  chapter,  to 

point  out  the  parties  who  ought  to  be  brought  before  the  Court  by 
the  plaintiflf,  in  order  that  complete  justice  may  be  done  in  the  suit ; 
the  next  step  is  to  show  in  what  manner  an  objection,  arising 
from  the  omission  of  any  of  these  parties  in  a  bill,  is  to  be  taken 
advantage  of  by  the  defendant,  and  how  the  defect  arising  from 
such  omission  is  to  be  obviated  or  remedied  by  the  plaintiif.^ 

And  here  it  is  necessary  to  remark,  in  the  first  instance,  that  no 
persons  are  considered  as  parties  to  a  suit,  except  the  plaintiflfs  and 
persons  against  whom  the  bill  prays  either  the  writ  of  subpoena,  or 
that  upon  being  served  with  a  co})y  of  the  bill  they  may  be  bound 
by  the  proceedings  in  the  cause  ;  *  but  the  mere  naming  a  person  as 
a  defendant  does  not  make  him  a  party .^ 

1  Astley  V.  Fountain,  Rep.  t.  Finch,  4.  Ilopk.  555;  and  thej'  only  are  parties  de- 

2  See  ante,  p.  267;  Genl.  Ord.  VII.  2.  fendant  against  wliom  pioce.ss  is  prayed, 
8  See  ante,  280,  note  4.  or  who  are  specifically  named  and  de- 
<  Story   Eq.  PI.  §  44;  1  Smith  Ch.  Pr.  scribeil  as  defendants.     Tiilmage  v.  Pdl,  9 

(2d  Am. "ed.)  86;  Walker  v.  Hallett,  1  Ala.  Paige,  410;    Lucas  v.   Bank  of  Darien,  2 

(N.  S.)  379;  Lucas  v.  Bank  of  Darien,  2  Stesvart,  280;  (Jreen  v.  McKenney,  6  J.  J. 

Stewart,  280;  Lvle  ^'.  Bradford,  7  Monroe,  Marsti.  193;    Moore  v.  Anderson,  1  Ired. 

113;   Huston  v.  M'Clarty,  3  Litt.  274;  De  Ch.  411;  Harris*  Carter,  3  Stewart,  233. 

Wolf  )•.  Mallett,  3  Dana,  214;    Taylor  v.  Where  a  minor,  a  necessary  party,  was  not 

Bate,  4  Monroe,  267.    In  New  York  parties  named  in  the  bill,  he  cannot  be  considered 

may  be  treated  as  defendants,  by  a  clear  a  defendant,  although  an  answer  is  filed 

statement  in  tiie  bill  to  that  effect,  without  for  him  by  bis  guardian  ad  litem.     Di.xon 

praving  the  subprznn.     The  reason  given  is  v.  Donaldson,  6  J.  J.  Marsh.  575. 

that,  in  th:it  Stiite,  the  S!/6/Jffna  is  issued  of  ^  Windsor    v.    Windsor,   2    Dick.    707; 

course,  and  that  a  formal  prayer  is  unnec-  Carey  v.  Hillhouse,  5  Geo    251;   Cassiday 

essary   to   entitle  the  plaintiff  to  process.  v.  .McDaniel,  8    B.  Mon.  519.     To  make 

Brasher  t;.  Corthindt,  2  John.  Ch.  245;  El-  him   such,   process    must    lie   issuci    and 

mendorf.  Delancv,!  Hopk.5.55;  Verplanck  served  upon  him.     Bond  v.  Hendricks,  1 

r.  Mercant.  Ins.  (Jo  ,  2  Paige,  438.   But  un-  A.  K.  Marsh.  594;  White  v.  Park,  5  J.  J. 

less  the  plaintiff,  either  in  the  prayer  for  Marsh.  603;  Estill  v.  Clay,  2  A.  K.  Marsh, 

process  or  bv  allegation  in  the  bill,  dcsig-  497;    Huston   v.    M'Clarty,   3    Litt    274; 

nates  those  "who  are  made  defendants,  the  Archibald  v.  Means,  6  Ired.  Eq.  230. 
omission  is  fatal;  Elmendorf  v.  Delancy, 


OF   OBJECTIONS   FOR   WANT    OF   PARTIES. 


287 


A  defect  of  parties  in  a  suit  may  be  taken  advantage  of  either     Ch.  V.  §  3. 
by  demurrer,  plea,  answer,^  or  at  the  hearing.^  " 1 ' 

Whenever  the  deficiency  of  parties  appears  on  the  face  of  a  bill,  By  demurrer; 
the  want  of  proper  parties  is  a  cause  of  demurrer.^  There  appears 
to  be  some  doubt  whether  a  demurrer  of  this  nature  can  be  par- 
tial, and  whether  it  must  not  extend  to  the  whole  bill.  And  in 
the  case  of  The  East  India  Company  v.  Coles^^  Lord  Thurlow 
was  inclined  to  thmk,  that  there  could  not  be  a  partial  demurrer 


1  See  Clark  v.  Long,  4  Rand.  451 ;  Story 
Eq.  PI.  §  236.  Where  the  defect  of  wmt 
of  piirties  is  formal,  or  technicnl  merely, 
the  objection  must  be  made  by  demurrer, 
plea,  or  answer.  Postlethwaite  v.  Howes, 
3  Clrtrke  (Iowa),  365;  Storv  v.  Livingston, 
13  Peters,  359;  Sayles  v.  TibbiUs,  5  Pv.  L 
79;  Kean  v.  Johnson,  1  Stockt.  (N.  J.) 
401;  Chapman  v.  Hamilton,  19  Ala.  121; 
Smith  V.  Mitchell,  6  Geo.  458.  So  where 
a  party  omits  to  object,  either  by  demur- 
rer, plea,  or  answer,  for  want  of  parties 
who  are  only  necessary  to  protect  himself, 
the  Court  may  refuse  to  sustain  the  objec- 
tion at  the  hearing.  Dias  r.  Bouchard,  10 
Paige,  445;  L<jrillard  v.  Coster,  5  I'aige, 
172;  Lainhart  v.  Iteilly,  3  Desaus.  570; 
Gilbert  v.  Sutliff,3  Ohio  (N.  S),  129;  Mc- 
Maken  i'.  McMaken,  18  Ala.  576;  Cutler  v. 
Tattle,  4  C.  K.  Green  (N.  J.),  549,  556. 

2  When  it  is  maiiife.-t  that  a  decree  will 
have  the  effect  of  depriving  third  parties 
of  their  legal  rights,  it  is  incumbent  on  the 
Court  to  notice  the  fact  at  the  hearing, 
and  cause  them  to  be  brought  in ;  and  the 
proper  course,  in  such  case,  is  to  order  the 
cause  to  stand  over  to  enable  the  plaintiff 
to  bring  such  necessary  parties  belbre  the 
Court.  Shaver  f.  Brai'nard,  29  Barb.  (N. 
Y.)  25;  Herrington  f.  Hubbard,  1  Scam. 
669;  Clark  v.  Lon;:,  4  Band.  451;  Hussey 
V.  Hole,  24  Maine,  20;  O'Brien  v.  Heene^, 
2  Edw.  (Jli.  242;  (Gannon  v.  Norton,  14  \  t. 
178;  Miller  v.  M'Crea,  7  I'aipe,  45'.i;  Kelch 
V.  Hooper,  20  Maine,  159;  Nash  v.  Smith, 
6  Conn.  421 ;  Bugbee  v.  Sargent,  23  Maine, 
2C9;  Lord  v.  I'r.derdutick,  1  Sandt.  Ch. 
140;  Postlethwaite  f.  Howes,  3  Cliirkc 
(lowa)i  365;  Prentice  v.  Kimball,  19  ill. 
320;  .^Iorse  r.  Machias  VN'ater  Power  Co., 
42  Maine,  119;  Per  Wayne  J.  in  Lewis  v. 
Darling,  16  How.  U.  S.  1,  8,  9;  Winnipi- 
Bftogee  Lake  Com[)any  v.  Worster,  29  N. 
H.  433;  Miller  v.  Uhiltier,  33  Maine,  621; 
Davis  r.  Kogers,  33  Maine,  22U;  Bailey  v. 
Myrick,  36  Maine,  50;  Beals  r.  Cobb,  51 
Maine,  351;  Pierce  f.  Faunce,  47  Maine, 
607,  513;  Schwoerer  i;.  BoyMon  Market 
Association,  99  Mh.ss.  285,295;  Webber  v. 
Tayb.r,  6  .Jones  Kq.  (N.  C  )  86;  Hue  v. 
Wilsf>n,9  Wallace  U.  S.  601;  Woodward 
c.  Wood,  19  Ala.  213. 

'Ihis  course  will  he  adopted  where  it  is 
found  that  an  efl'eciual  decree  cannot  be 
made,  binding  upon  all  persons  in  inlert'st, 
for  want  of  [iri'per  j)anifs,  altliotigh  the 
objection  has   not  been    raised  by  cither 


party.  O'Brien  v.  Heeney,  2  Edw.  Ch. 
242;  Herrinjrton  v.  Hubbard,  1  Scam.  569; 
McMaken  r.  McMaken,  18  Ala.  576;  Good- 
man V.  Barbour,  16  Ala.  625;  Booraem  v. 
Wells,  4  C.  E.  Green  (N.  J.),  87,  95 ;  Brown 
V.  Johnson,  53  Maine,  251;  Beals  v.  Cobb, 
51  Maine,  348,  351;  Pierce  v.  Faunce,  47 
Maine,  507,  513;  Schwoerer  v.  Boylston 
Market  Association,  99  Mass.  295 ;  Hoe  v. 
Wilson,  itbi  supra.  A  bill  should  not  be 
dismissed  for  want  of  necessary  parties,  as 
they  can  either  come  in  voluntarily,  or 
mav  be  summoned  in.  Potter  v.  Holdeu, 
31  'Conn.  385;  Thomas  v.  Adams,  30  111. 
37.  But  if  after  objectii  m  is  made  for  want 
of  necessary  parties,  the  plaintitl"  neglects 
or  refu.ses  to  bring  them  belore  the  Court, 
the  bill  will  be  oismis^ed.  Singleton  v. 
Gavle,  8  Porter,  270;  Hunt  v.  Wicklifte,  2 
Porter.  201;  Bailev  v.  Myrick,  36  Maine, 
50,  54';  see  St.  Mass.  1862,  c.  218,  §  9. 
But  such  dismissal  should  be  without  pre- 
judice. Huston  V.  M'Clurty,  3  Litt.  274; 
Kovce  V.  Tarrant,  6  J.  J.  Marsh.  567; 
Caldwell  v.  Hawkins,  1  Litt.  212;  Ilack- 
with  V.  Damron,  1  Monroe,  239;  Van  Eppa 
r.  Van  Deusen,  4  Paige,  64;  Payne  v. 
Richardson,  7  J.  J.  Marsh.  240;  Harris  v. 
Carter,  3  Stewart,  233.  So  a  bill  must  be 
dismissed,  when  persons,  who  are  neces- 
sary parties,  refuse  to  appear,  and  the 
Court  has  no  power  to  reach  them  by  its 
process,  and  compel  them  to  become  par- 
ties; Picquet  V.  Swan,  5  Mason,  561;  but 
without  prejudice.     Ibid. 

A  motion  to  be  admitted  as  a  defendant 
to  a  suit  is  irregular.  Harrison  v.  Morton, 
4  Hen.  &  M.  483.  But  persons  whose  in- 
terest is  ai)parent,  if  not  made  parties, 
may  be  allowed  to  bring  forward  their 
claim  by  petition.  Birdsong  r.  Bird^ong, 
2  llt;ail\Tenn.),  289;  Morris  v.  Barclay,  2 
J.  J.  Marsh.  374;  Smith  v.  Br;tton,  2  P.  & 
H.  (Va.)  124;  Phillips  v.  Wessirn,  16  Geo. 
137  ;  see  fui/e,  280. 

8  Mitchell  V.  Lenox,  2  Paige,  281;  Rob- 
inson V.  Smith,  3  I'aige,  222;  Crane  v. 
Deming,  7  Conn.  387  ;  Story  Fq  PI.  §  541; 
White  V.  Curtis,  2  Gray,  472;  Neely  v. 
Anderson,  2  istrobli.  Kq.  •i62.  And  in  such 
case,  if  tlie  delect  is  merely  formal  the 
objection  should  be  taken  hy  demurrer. 
Chapman  «.  Hamilton,  19  Ala.  Vl\\  Allen 
r.  Turner,  11  (Jray,  4.36;  Schwoerer  v. 
Bovlston  Market  A.ssociation,  99  Mass.  295. 

^  3  Swan.  142,  n.;  see  also  Lumsden  t>. 
Eraser,  1  .M.  &  C  689,  602. 


288 


OF    rAllTIES    TO    A    SUIT. 


On.  V.  5  3. 


objection 
obviated  by 
showing 
cause  for 
omission. 


Demurrer 
must  show 
proper 
parties. 


lor  waul  of  jtartu's;  biil  upon  Mr.  jNtitfofd  inoiitioiiiiig  some  cases/ 
wlieroin  sucli  partial  dcnuirri'i-s  had  been  allowed,  the  case  was 
ordered  to  stand  over  to  the  next  day  of  deiunrrers;  in  tlie  mean 
time,  liowever,  the  plaintiff's  counsel,  thinking  it  better  for  his 
client,  amended  the  bill. 

It  is  to  be  observed,  that  if  a  sufficient  reason  for  not  bringing 
a  necessary  party  before  the  Court  is  suggested  by  the  bill,''  as,  if 
the  bill  seeks  a  discovery  of  tlie  ])ersons  interested  in  the  matter 
in  question,  for  the  purpose  of  making  them  parties,  and  charges 
that  they  are  unknown  to  the  plaintiff,  a  demurrer  for  want  of  the 
necessary  parties  Avill  not  hold.^  Upon  the  same  principle,  where 
it  was  stated  in  a  bill  that  the  defendant,  who  was  the  next  of  kin 
of  an  intestate,  had  refused  to  take  out  letters  of  administration, 
and  that  the  plaintiff  had  ai)j)lied  to  the  Prerogative  Court  for 
administration,  but  having  been  opposed  by  the  defendant,  was 
denied  administration,  because  he  could  not  prove  that  the  intes- 
tate had  left  bona  notabilia ;  and  that  he  had  afterwards  applied 
to  the  Consistory  Court  of  Bath  and  Wells,  where  he  likewise 
failed,  because  he  could  not  prove  that  the  intestate  had  died  in 
the  diocese ;  and  that  the  defendant  had  refused  to  discover  where 
the  intestate  had  died  ;  a  demurrer  for  want  of  proper  parties, 
because  the  personal  representative  of  the  intestate  was  not  before 
the  Court,  was  overruled.* 

A  demurrer  for  want  of  parties  must  show  who  are  the  proper 
parties;  not  indeed  by  name,  for  that  might  be  impossible;^  but 
in  such  a  manner  as  to  point  out  to  the  plaintiff  the  objection  to 
his  bill,  so  as  to  enable  him  to  amend  by  adding  the  necessary 
persons.®  Some  doiibt  lias  been  thrown  upon  the  correctness  of 
this  rule,  in  consequence  of  an  observation  by  Lord  Eldon  in  Pyle 
V.  Price?     His  Lordship  is  there  reported  to  have  said,  "that 


1  Astley  V.  Fountain,  Finch,  4;  Attvvood 
V.  Hawkins,  Finch,  113;  Bressenden  v. 
Decreets.  2  (Jiia.  Ca.  197. 

2  In  Whire  y.  Curtis,  2  Gray,  467,  it 
was  held  that  tlie  omission  to  join,  as  a 
delei.dant  in  a  bill,  the  admiiiiRtnitor  nf 
oi  e  whose  death  is  alleged  in  the  bill, 
cani/Ot  be  iiiken  advantage  of  by  demur- 
rer, wln-n  it  do' s  nut  ii[)pear  by  the  bill 
that  there  is  imy  such  ailininistndor.  It 
does  not  appear  to  have  l)een  rejiarded,  in 
this  ciise,  as  necessary,  that  any  leai-on 
should  be  siaiea  why  the  adimni-trator 
•was  not  appointed.  But  the  Court  stated 
that  the  necessity  or  proprieiy  ol'  intio- 
ducing  the  adminis'rator  was  not  api>arent 
from  tlie  averments  in  the  bill. 

8  Ld  lied.  li-.O;  Towle  t'.  fierce,  12  Met. 
328;  see  Gilnian  v.  Cairnes,  1  Bri  ese, 
124;  Coe  V.  Beckwith,  .31  Barb.  (N.  Y.) 
339;  Davis  v.  Hooper,  3-3  Miss.  (4  Cieoige) 


17.3;    Ue   Wolf  v.  De  Wolf,  4   II.   I.  450; 
Bailey  v.  Mnrj;an,  13  Texas,  342. 
'i  D'Aranda  v.  Whittinghatn,  Mos.  84. 

5  Tourtoii  V.  Flower,  3  P.  Wms.  SCO. 

6  L(i.  lied.  Ifel;  Attornev-tJeneral  v. 
Jackson,  11  Ve=.  3«9;  Lund  y.  Bbinsbard, 
4  Hare,  23;  and  see  Biatt».  Keith,  10  ,Iur. 
N.  S.  305;  12  \V.  R  3>J4,  V.  C.  K..  where 
the  defendniit  was  allowed,  by  deinurrer 
ore,  taivi,  to  specify  the  parties.  Story 
Eq.  1*1.  §  541  anil  notes;  McElwain  v. 
Willis,  3  I'aige,  505;  l.nidley  v.  Uiavens, 
2  Blackf.  42ti;  .latneson  v.  Deshieds,  3 
Grattan,  4;  Ctiapman  v.  Hamilton,  It)  Ala. 
121;  Hightower  v.  Mu.stitii,  »  Geo.  506; 
Keelv  V.  Aiidosun,  2  Strobli.  Kq.  262; 
see  Ib-rrison  v.  liowan,  4  Wash.  C.  C.  202; 
Arun<le!l  v.  Black w.ll,  Dev.  Kq.  354; 
Gieenleaf  v.  (,>ueen,  1  Peters,  138. 

7  6  Ves  7fel;  au'l  .'-ee  Att'Tney-Getieral 
V.  Corp'ratii  II  of  Poole,  4  M.  &  C.  17,  32; 
2  Jur.  934,  1080. 


OF    OBJECTIONS    FOR   WANT    OF    PARTIES. 


289 


beside  the  objection  wliicli  had  been  mentioned  at  the  bar,  to  the 
rule  which  required  the  party  to  be  stated,  it  might  appear  that 
the  plaintiff  knows  the  party,"  and  then  to  have  observed,  "per- 
haps there  is  not  a  general  rule  either  way."  It  is  submitted 
however,  that  this  observation  of  Lord  Eldon  does  not  at  all 
shake  the  rule  which  has  been  laid  down,  as  to  the  necessity  of 
pointing  out  who  the  necessary  party  is,  but  merely  refers  to  the 
observation  made  at  the  bar,  that  there  was  no  rule  requiring  a 
demurrer  to  state  the  parties,  that  is,  hy  name,  as  it  might  be  out 
of  the  power  of  the  defendant  to  do  so ;  and  that  it  does  not  refer 
to  the  necessity  of  calling  the  plaintiff's  attention  to  the  descrip- 
tion or  character  of  the  party  required,  in  order  to  enable  him  to 
amend  his  bill,  without  putting  him  to  the  expense  of  bringing 
his  demurrer  on  for  argument,  which  he  might  otherwise  be 
obliged  to  do,  in  order  to  ascertain  who  the  party  required  by  the 
defendant  is. 

Where  a  demurrer  for  want  of  parties  is  allowed,  the  cause  is 
not  considered  so  much  out  of  Court  but  that  the  plaintiff  may 
afterwards  have  leave  to  amend,  by  bringing  the  necessary  parties 
before  the  Court.^  And  where  tlie  addition  of  the  party  would 
render  the  bill  multiftirious,  the  plaintiff  will  be  alloAved  to  amend 
generally.^  And  where  the  demurrer  has  been  ore  terms,  such 
leave  will  be  granted  to  him  without  his  paying  the  costs  of  the 
demurrer ;  though,  if  he  seeks,  under  such  circumstances,  to  amend 
more  extensively  than  by  merely  adding  parties,  he  must  j)ay  the 
defendant  the  cost  of  the  demurrer.^ 

Upon  the  allowance,  however,  of  a  demurrer  for  want  of  parties, 
the  plaintiff  is  not  entitled  as  of  course  to  an  order  for  leave  to 
ameufl.  AVhen  it  is  said  that  a  bill  is  never  dismissed  for  want  of 
parties,*  nothing  more  is  meant  than  that  a  plaintiff,  who  would 
be  entitled  to  relief  if  proper  parties  were  before  the  Court,  shall 
not  liave  his  bill  dismissed  for  want  of  tliem,  but  shall  have  an 
opportunity  aflbrded  of  bringing  them  belbre  the  Court;''  but  if, 
at  the  hearing,  tlie  Court  sees  that  the  plaintiff  can  have  no  relief 
under  any  circumstances,  it  is  not  bound  to  let  the  cause  stand 
over  that  tlie  plaintiff  may  add  parties  to  such  a  record.® 


Ch.  V.  §  3. 


Amendment 

after 

demurrer. 


Leave  to 
amend  may 
be  refused. 


1  Bressenden  v.  Decreets,  2  Cli.  Ca.  197; 
see  aho  Lloyd  v.  Loaring,  B  Ves.  773; 
Story  Kq.  I'l.  §  543  and  not'>,  in  which  is 
a  form  of  demurrer  f^r  want  of  ncce-^sary 
parties.     Allen  r.  'I'unier,  11  (irny,  436. 

2  Lumsden  v.  Fraser,  1  M.  &  C.  589, 
602;  Attorney-General  v.  Merchant  Tai- 
lors' Co.,  1  }>\.  Si.  K.  1H9,  1!I4. 

8  Newton  V.  Lord  J'^gmont,  4  Sim.  585. 

*  IJut  see  (inlf,  287,  note,  to  this  point, 
and  Nash  ?;.  Smith,  G  Conn.  422.  The 
bill  is  Hometini'!'!  disinis-ed  for  wiint  of 
proper  pirtien,  hut  without  |)rejudice  to 
the  plaintdr»  right  to  bring  a  new  suit. 
YOU   I. 


Miller  v.  M'Crea,  7  Paige,  452;  Huston  v. 
M'Clarty,  3  Litt.  274;  Steele  v.  Lewis,  1 
Monroe,  49;  Hovse  v.  Terriint,  6  J.  J. 
Marsh.  667  ;  Story  Eq.  PI.  §  541 ;  2)0sl,  293- 
295,  note;  ante,  note  to  p.  287. 

^  See  Potter  v.  Holden,  31  Conn.  385; 
Thomas  v.  Adams,  30  111.  37 ;  ante,  287, 
note. 

6  Tyler  v.  Bell,  2  M.  &  C.  110;  sec 
Story'lv].  PI.  §541,  and  note;  Husscdl  v. 
Clarke,  7  Cranch,  09,  90;  Lund  »).  Hlan- 
shard,  4  lliire,  9,  T',\  1  C.  P.  C^op.  t.  Cott. 
39;  Lister  v.  Meadowcrofi,  ib.  372. 


19 


290 


OF   PARTIES    TO   A    SUIT. 


Cn.  V.  5  3. 


\W  j.lea. 


Not  allowed 
if  sullioient 
excuse  al- 
lowed by  bill ; 


unless  plea 
controvert  it. 


Amendment 
after  plea. 


Objection  by 
answer. 


Tr  (he  (lofcH't  of  j)artios  is  not  ap]):iroiit  uj)()ii  the  face  of  the  bill, 
(he  tlcfcct  may  be  brought  before  the  Court  by  plea,  which  must 
aver  the  matter  necessary  to  show  it,^  A  ])lca  for  want  of  proper 
jiarties  is  a  plea  in  bar,  and  goes  to  the  whole  bill,  as  well  to  the 
discovery  as  to  the  relief,  Avhere  relief  is  prayed  ;'^  though  the  want 
of  ])arties  is  no  objection  to  a  bill  for  discovery  merely.'* 

Where  a  sufficient  reason  to  excuse  the  defect  is  suggested  by 
the  bill,*  where  a  personal  representative  is  a  necessary  party,  and 
the  bill  states  that  the  rei)resentation  is  in  contest  in  the  Eccle- 
siastical Court;  ^  or  where  the  party  is  resident  out  of  the  juris- 
diction of  the  Court,  and  the  bill  charges  that  flict ; "  or  where  the 
bill  seeks  a  discovery  of  the  necessary  parties,'  a  plea  for  want  of 
parties  will  not,  any  more  than  a  demurrer  for  the  same  cause,  be 
allowed,  unless  the  defendant  controverts  the  excuse  made  by  the 
bill,  by  })leading  matter  to  show  it  false.*  Thus,  in  the  first  in- 
stance above  put,  if  befox'e  the  filing  of  the  bill  the  contest  in  the 
Ecclesiastical  Court  had  been  determined,  and  administration 
granted,  and  the  defendant  had  showed  this  by  his  plea,  the  objec- 
tion for  want  of  })arties  would  not  in  strictness  have  been  good. 

Upon  arguing  a  plea  of  this  kind,  the  Court,  instead  of  allowing 
it,  generally  gives  the  plaintiff  leave  to  amend  the  bill,  upon  pay- 
ment of  costs ;  a  liberty  which  he  may  also  obtain  after  allowance 
of  the  plea,  according  to  the  common  course  of  the  Court,  for  the 
suit  is  not  determined  by  the  allowance  of  a  plea.^ 

The  defendant  may  also  by  his  answer  object  that  the  bill  is 
defective  for  Avant  of  parties,  in  which  case  the  plaintifi"  is  now, 
under  the  39th  Order,"  of  August,  1841,  within  fourteen  days  after 

1  Ld.  Red.  280;  Ilamm  v.  Stevens,  1 
Vern.  110;  2  Atk.  51;  Robinson  v.  Smith, 
3  Paige,  222;  Story  Eq.  PI.  §  236;  Gamble 
V.  John'^on,  9  Missou.  605. 

2  Plunkett  V.  Penson,  2  Atk.  51;  Hamm 
V.  Stevens,  1  Vern.  110. 

3  Sangosar.  Kast  India  Companj',  2  Eq. 
Ca.  Ab.  170,  PI.  28. 

*  Oilman  v.  Cairns,  Breese,  124. 

6  Plunkett  r.  Penson,  2  Atk.  51;  Carey 
tr.  Hoxey,  11  Geo.  645.  But  in  order  to 
make  the  pendency  of  litigation,  touching 
the  representation  of  a  decea'^ed  purty,  a 
pood  excuse,  the  Court  must  be  fully  ad- 
vised of  the  nature  and  condition  of  the 
litigation,  by  the  allegations  in  the  bill  or 
bv  proofs.  Carey  v.  Hoxev,  supra;  see 
Martin  v.  McUryde,  3  Ired.  Oh.  531. 

6  Cowslad  V.  Cely,  Prec.  Cli.  83;  Dar- 
went  V.  Walton,  2  Atk.  510;  Milligan  v. 
Milledge,  3  Cranch,  220;  Martin  v.  Mc- 
Brvde,  3  Ired.  Ch.  531  ;  Parkman  v. 
Aicardi,  34  Ala.  393;  Mallow  v.  liinde,  12 
Wheat.  193;  Spivey  v.  .Jenkins,  1  Ired. 
Ch.  126;  Ashmead  v.  Colby,  20  Conn.  287; 
Carey  v.  Hoxey,  11  Geo.  045;  West  v. 
Smith,  8  How.  U.  S.  409;  Krickson  v. 
Kesmith,46N.H.  371;  Story  Eq.  PI.  §  78; 


Adams  v.  Stevens,  49  Maine,  362;  see 
Moodie  v.  Bannister,  19  Eng.  Law  &  Eq. 
81.  But  the  Court  will  not  proceed  to 
take  an  account  in  the  absence  of  a  neces- 
sary party,  though  he  is  out  of  the  juris- 
diction. Hogan  V.  Walker,  14  How.  U.  S. 
46;  Wilson  v.  City  Bank,  3  Sumner,  422; 
Greene  v.  Sisson,  2  Curtis  C.  C.  176,  177; 
see  Shields  v.  Barrow,  17  How.  U.  S.  130; 
StorvEq.  PI.  §  78;  Towle  v.  Pierce,  12 
Met."  332;  ante,  150,  151,  216,  217,  note; 
266,  note;  Lawrence  v.  Rokes,  53  Maine, 
110;  Mudgett  «.  Gager,  52  Maine,  541. 
'  Bowyer  v.  Covert,  1  Vern.  95. 

8  Ld.  Red.  281. 

9  Ld.  Red.  281;  ante,  287,  note;  Harri- 
son V.  Rowan,  4  Wash.  C.  C.  202;  Story 
Eq.  PI.  §§  885,  886,  and  note,  in  which 
is  inserted  the  rules  of  the  Supreme 
Court  of  the  United  States  on  the  subject 
of  amendments,  adopted  January  Term, 
1842. 

10  This  39th  Order  is  now  abolished  in 
England  by  the  15  &  16  Vic.  c.  86,  §  43, 
whereby  the  practice  in  existence  be- 
fore 1841  is  restored;  see  Mootlie  r.  Ban- 
nister, 17  .Jnr.  520,  V.  C.  K.  No  costs  are 
given  wliere   the  defect  arises   from   an 


OF    OBJECTIONS    FOR   WANT    OF    PARTIES.  291 

ans\^er  filed,  at  liberty  to  set  down  the  cause  for  argument  upon     Ch.  V.  §  3. 
that  objection  alone.     If  he  does  so,  the  objection  is  argued,  the  r       ^ 

plaintiff  commencing.  After  the  argument,  the  Court  makes  an 
order,  declaring  its  opinion  upon  the  record  as  it  then  stands ;  but 
the  objection  cannot  finally  be  disposed  of  until  the  hearing,  be- 
cause it  is  impossible  at  the  beginning  of  a  cause  to  declare  who 
will  be  necessaiy  parties  at  the  end.^  If,  on  the  other  hand,  the 
plaintiff  does  not  set  down  the  cause  upon  the  objection  for  want 
of  parties,  he  subjects  himself  to  the  penalty,  that  he  will  not  at 
the  hearing  be  entitled,  as  of  course,  to  an  oi-der  to  amend  by  > 

adding  parties ;  he  would  still,  however,  be  at  liberty  to  make  out 
a  special  case  for  the  exercise  of  the  discretion  of  the  Court  in  his 
favor,  and  the  Court  would  then  have  to  decide  whether  his  bill 
should  be  dismissed  for  want  of  parties,  or  retained  with  liberty 
either  to  amend,-  or  to  file  a  supplemental  bill  for  the  purpose  of 
bringing  the  proper  parties  before  the  Court.  It  is  to  be  observed, 
that  the  Order  only  allows  fourteen  days  after  answer  for  the 
plaintiff  to  set  down  his  cause  upon  the  objection  for  want  of 
parties,  but  the  V.  C.  of  England  has  decided,  that  this  only 
means  that  the  cause  may  be  set  down  within  this  period  as  a 
matter  of  com*se,  but  that  afterwards  the  leave  of  the  Court  may 
be  obtained.^  Previously  to  the  Orders  of  1841,  when  an  objection 
for  want  of  parties  was  taken  at  the  hearing,  the  rule  with  respect  Rule  as  to 
to  costs  was,  that  if  the  objection  for  want  of  ])arties  had  been  ^°^^^ 
taken  by  the  defendant's  answer,  or  if  it  arose  upon  a  statement 
of  the  bill,  then  the  liberty  to  amend  or  file  a  supplemental  bill, 
was  not  given  to  the  jilaintiff,  exce})t  upon  the  terms  of  his  ])aying 
to  the  defendant  the  costs  of  the  day;  but  if  the  objection  de-- 
ftended  upon  a  fiict  within  the  defendant's  knowledge,  and  was 
not  raised  by  his  answer,  the  order  would  be  made  without  pay- 
ment of  costs  of  the  day."* 

event  occurrinp  after  tlie  cause  is  at  issue;  673;  2  Jur.  N.  S.  76;  Feltham  v.  Clark,  1 

see  Fiissell  v.  Elwiii,  7  Hare,  2'J;    13  .Jur.  De  G.  &  S.  207.     Assignees  of  a  bankrupt 

833.     For  form  of  order  on  cause  standing  were  directed  to  be  served  with  a  copy  of 

over  with  leave  to  amend  on  p:iyment  of  a  decree  miulein  their  absence.   Dorsett  v. 

costH  of  the  day,    see  Seton,  1113,  No.  1.  Dorsett,  8  .Jur.  N.  .S.  146,  147. 

I'lidor  the  jiresent  practice  of  the  Court  in  '  Uradstock  v.  WhatlvY,  6  Reav.  451. 

Kii;;l;ind,  obji'ctions  for  want  of  pirtii',.s  are  -  3'Jth  Oriler,  Aug.,  1841,  and  S.  C. ;  Has- 

of  conipiiraiively  rare  occurrence;   in  the  kell  r.  Hilton,  30  Maine,  421. 

fir.st  [>l  ice,  b'icause  in  many  cases  persons  <•  Cockhurn  ;■.  Thompson,  13  Sim.  188. 

who  were  formerly  necessary  parties  are  *  Mitchell  v.   IJailej",  3  Mad.  61 ;  Furze 

now  no  longer  so;  and  secondly,  becatise  v.    Sharwood,  5  I\l.  &  C.    96;    Altoruey- 

the  Cnnrt  is  now  enabled  to  make  a  decree  General   r.  Hill,  3  M.  &  C.  247;  Mason  v. 

between    the   parties    befire    it,   although  Franklin,  V.  &  C.  242;  Kirwan  v.  Daniel, 

there  are  other  p'irties  not  before  it  who  7    Hare,   347,  3.'.1;    I'erkin   r.    HrMdIey,   1 

are  interested  in  the  question  to  be  det(!r-  Hare,  21!i,  where  notice  of  disclaimer  bad 

niiiii'<l.     l.'>  &  16  Vic.  c.  86.  §  61 ;  see  also  bi;en  given  to  the  objecting  defendant ;  as 

Orler  XXHI.  II;  and  see  Meddowcroft  m.  to  the  amount  of  costs,  see  S.^th  Ord.  1828; 

Campli'dl,  i;{  Deav.  184;   see  also  Mav  v.  Genl.  Grd.  XI>.  22;  Seton,  1117;  s'-e  Olt 

S.dbv,  1  Y.  &C.  C.  C.  235.  238;  6Jur."52;  t'.    l.asnier,  3  Cowen,  320;  Story  Kii-  I'l. 

Faulkner    r.    Daniel,   3    Hare,    199,   213;  §  541.     When  the  objection  is  taken  by 

Diiubu/.  l^  I'eel,  1  C.  F.  Coop.  t.  Cott.  365;  demurrer,  and    sustained,    the  (lel'cndant 

Maybcry  i".  IJrookIng,  7  De  G  ,  M.  &  G.  will  be  entitled  to  his  costs;  but  when  it 


2i)2 


OF    TARTIES    TO    A    SUIT. 


('II,  V.  §  ■■]. 


in  what  cases. 


Leave  to 
ainenrl  not 
given,  it' 
nature  of  case' 
made  by  bill 
will  be 
changed. 


Objection 
ought  to  be 
taken  at  the 
opening; 


Tlir  rociMil  Orders  do  not  appoav  directly  to  h;vvc  affected  tliis 
rule  concerning  costs  in  such  cases,  but  the  40th  Order,  of  August, 
1841,  ])rovides,  tliat  if  tlio  defendant  shall  at  the  liearing  of  a 
cause  object  that  a  suit  is  defective  for  want  of  parties,  not  having 
by  ])lea  or  answer  taken  the  objection,  and  therein  s])ecitied  by 
name  or  (U\scrij)tion  the  jiarties  to  Avhom  the  objection  a])plies,  the 
Court,  if  it  shall  think  fit,  may  make  a  deci'ce  saving  the  rights  of 
the  absent  jiartios.^ 

The  discretion  given  to  the  Court  by  this  Order  will  only  be 
exercised  in  cases  Avhere  tl\c  rights  of  the  absent  party  can  be 
protected  by  the  decree  as  if  ho  were  present;  or  at  all  events 
where  the  rights  cannot  be  prejudiced  by  a  decree  made  in  their 
absence.-  Consequently,  in  a  suit  for  the  execution  of  a  trust 
created  for  the  benefit  of  creditors,  against  the  trustees.  Sir  James 
Wigram  V.  C.  refused  to  make  a  decree  in  the  absence  of  the 
person  who  created  tlie  trust,  or  his  personal  representative.^ 

The  Court  will  not,  at  the  heai'ing,  give  leave  to  the  plaintiff  to 
amend  by  adding  parties,  if  by  so  doing  the  nature  of  the  case 
made  by  the  bill  will  be  changed;*  an  order  was  however  made 
at  the  hearing,  that  the  plaintiffs  should  be  at  Hberty  to  amend 
their  bill  by  adding  parties,  as  they  should,  be  advised,  or  by 
showing  why  they  were  unable  to  bring  the  proper  parties  before 
tlie  Coiu't.^ 

Tiie  proper  time  for  taking  an  objection  for  want  of  parties  is 
upon  opening  the  pleadings,  and  before  the  merits  are  discussed ;  ^ 
but  it  frequently  happens  that  after  a  cause  has  been  heard,  the 
Court  has  felt  itself  compelled  to  let  it  stand  over  for  the  purpose 
of  amendment.'' 


is  taken  at  the  hearing  only,  the  defendant 
is  usually  not  entitled  to  his  costs.  Story 
Eq.  PI.  §541. 

1  Story  Eq.  PI.  §  2.36,  note.  The  same 
rule  has  been  adopted  by  the  Supreme 
Court  of  the  United  States,  53d  Equity 
Rule  of  S.  0.  of  U.  States,  .January  Term, 
1842.  See  Clvmer  v.  James,  Ilalst.  Dig. 
168;  post,  294",  295,  note;  Story  Eq.  PI. 
§  332;  Greene  v.  Sisson,  2  Curtis  G.  C. 
171,  177. 

-  See  Greene  v.  Sisson,  2  Curtis  C.  C. 
171,  177;  V/ilson  v.  City  Bank,  3  Sumner, 
422;  llogan  v.  Walker,  14  How.  U.  S.  36; 
RlcCall  V.  Yard,  1  Stockt.  (N.  J.)  358. 

3  Eimber  v.  Ensworth,  1  Hare,  293,295; 
6  Jur.  165 ;  see  also  May  v.  Selby,  1  Y.  & 
C.  237 ;  and  Faulkner  v.  Daniell,  3  Hare, 
199. 

4  Denistoii  v.  Little,  2  Sch.  &  Lef  11  n. ; 
ands.e  Watts  v.  Ilydo,  2  Phil.  406,  411; 
11  .Jur.  979;  Bellamy  v.  Sabine,  2  Phil. 
425,  427. 

5  Milligan  v.  Mitchell,  1  M.  &  C.  511; 
Story  Eq.  PI.  §  541,  note. 

6  Jones  «.  .Jones,  3  Atk.  Ill;  Alderson 
f.  Harris,  12  Ala.  580;  Van  Doren  u.Iiob- 
inson,  1  C.  E.  Green  (N.  J.),  256. 


"!  Jones  V.  Jones,  3  Atk.  11 ;  mite,  287, 
note.  An  objection  for  want  of  p'lrties 
may  betaken  on  the  hearing  of  an  appeal. 
Holdsworth  v.  Holds  worth,  2  Dick.  799; 
and  see  Magdalen  College  v.  Sibthorp,  1 
Russ.  154;  see  Felch  v.  Hooper,  20  Maine, 
163,  164;  Hussey  v.  Dale,  24  Maine,  20; 
New  J^ondon  Bank  v.  Lee,  11  Conn  112; 
Winnipi^eogee  Lake  Co.w.  Worcester,  29 
N.  H.  433;  Clark  v.  Long,  4  Rand.  451; 
Miller  v.  M'Can,  7  Paige,  452;  Cabeen  v. 
Gordon,  1  Hill  Ch.  53;  R.  O wing's  case,  1 
Bland,  292;  Story  Eq.  PI.  §541;  Robinson 
V  Smith,  3  Paige,  222;  Mitchell  v.  Lenox, 
2  Paige,  281;  Evans  v.  Chism,  18  Maine, 
223;  Clifton  v.  Haig,  4  Desaus.  331.  But 
in  Ferguson  v.  Fisk,  28  Conn.  511,  it  was 
held,  that  no  objection  for  want  of  par- 
ties could  be  made  after  a  hearing  on  the 
merits,  either  before  the  Court  or  its  com- 
mittee. See  Chipman  v.  City  of  Hartford, 
21  Conn.  489;  New  London  Bank  v  Lee, 
11  Conn.  120.  The  ordinary  course  in 
Chancery,  where  a  want  of  proper  parties 
appears  at  the  hearing,  is  for  the  cause  to 
stand  over  in  order  that  they  may  be  added. 
Colt  V.  Lasnier,  3  Cowen,  320. 


or    OBJECTIONS    FOR    WANT    OF    PARTIES.  293 

The   objection   for  want   of  parties   ought  to  proceed  from  a     Cn.V.  §3. 

defendant ;  for  it  has  been  decided  that  the  plaintiff  bringing  liis   "* y ■' 

cause  to  a  hearing  without  proper  parties,  cannot  put  it  off  with-  and  ought  to 
out  the  consent  of  the  defendant.^  Cases  of  exception  may  defendant?™ 
occur,  where,  for  instance,  the  plaintiff  was  not  aware  of  the 
existence  of  persons  whose  claims  could  touch  the  interests  of 
those  who  were  upon  the  record ;  but  that  ought  to  be  clearly 
established ;  and  the  plaintiff  ought  to  apply  as  soon  as  he  has 
obtained  that  knowledge."-^ 

A  ]>laintiff  may  at  the  hearing  obviate  an  objection  for  want  of  PlaintifF  may 
a  particular  party,  by  waiving  the  relief  he  is  entitled  to  against  against Vb- 
such  party ;  *  and  where  the  evident  consequence  of  the  establish-  sent  parties, 
ment  of  the  rights  asserted  by  the  bill,  might  be  the  giving  to  the 
plaintiff  a  claim  against  persons  who  are  not  parties,  the  jilaintiff 
by  waiving  that  claim  may  avoid  the  necessity  of  making  those 
persons  parties.*     This,  however,  cannot  be  done  to  the  prejudice 
of  others/ 

In  some  cases,  the  defect  of  parties  has  been  cured  at  the  hear-  or  undertake 
ing  by  the  undertaking  of  the  plaintiff  to  give  full  effect  to  the  t°  fileiV 
utmost  rights  which  the  absent  party  could  have  claimed ;  those  rigiits. 
rights  being  such  as  could  not  affect  the  interest  of  the  defendants. 
Thus,  where  a  bill  was  filed  to  set  aside  a  release  which  had  been 
executed  in  pursuance  of  a  family  arrangement,  in  consequence  of 
which  a  sum  of  stock  was  invested  in  the  names  of  trustees  for 
the  benefit  of  the   plaintiff's  wife   and   unborn   children,  which 
Ijenefit  would  be  lost  if  the  release  was  set  aside.  Sir  John  Leach 
M.  R.  held,  that  the  trustees  of  the  settlement  Avere  necessary 
f»arties,  in  order  to  assert  the  right  of  the  children ;  but  upon  the 
plaintiff's  counsel  undertaking  that  all  the  moneys  to  be  recovered 

1  Inne=<  v.  Jackson,  16  Ves.  356;  for  the  nonjoinderormisjoinderof  some,  an  objec- 
circum'^fanfcs  uniler  which  the  defendant  tion  on  that  account  will  not  be  allowed  to 
mu-t  siipprirt  Ills  objection  bv  evidence,  see  prevail.  White  v.  Delschneider,  1  Oregon, 
Campbell  V.  Dickens,  4  Y."&  C.  17,  Kx.  254. 

R.;  Barker  v.  ICailton.  11  L    J.  N.  S.  372.  6  Lr].  R^d.  jgO;  Dart  v.  Talmer,  1  BaVb. 

The  objection    of    nii.-joiiider  of   p.irties,  Ch.  92.     If  tlie  case  nui'l(i  by  the  bill   en- 

a**  ilefeiidaiits  in  a  bill,  !•<  a  mere  personal  titles  the  p!;iititi(rioparticularreliefiij:niist 

privilege,  and  conse(|uently  those  only  can  the  defendant,  and  would  also  entitle  him 

demur  tor  tiiat  cause  wlio  are  improperly  to  further  relief  were  the  necessary  parlies 

joined,     (iartlaiicl  v.  Nunn,  6  Eng.  720.  '  before  the  Court,  and  the  prnyerof  the  bill 

2  Fniies  r  Jackson,  mpra;  see  Thomp-  specilicaHy  asks  lor  the  nvire "extended  re- 
son  r  I'eeble,  6  Dana,  3!J2.  lief,  to  which  the  plain'ifl'  is  not  entitled  in 

^  I'a.vlet  V.  The    Bishop  of  Lincoln,  2  con'^equence  of  \\\<'.  defect  of  |)arties,  the 

Atk.  2W.  defeiulant  mav  demur  to  the  wlidle  bill  for 

<  \A  Red.  179;  Story  Eq.  Pi.  §§  127,  want  of  parties.  Dart  v.  I'almer,  1  Barb. 
129,  213,  214,  228.  So,  in  some  ca^e",  Ch.  92.  A  Court  can  make  no  decree  in 
when  all  the  parties  are  not  before  the  an  Equity  suit,  in  which  the  interests  of  a 
Court,  the  merits,  as  between  those  par-  person  not  a  p:irty  are  so  involved,  that 
lies  who  are  before  the  Court,  may  bo  complete  justice  cannot  be  done  between 
decided  iit  their  r-'ipiest.  See  Wieklilf"  v.  tlie  parties  to  the  suit,  without  alfecting 
(;iay,  1  DiiU!!,  103.  B"  the  Court  can  make  the  rij;hts  of  the  person,  not  a  p.-irty,  who.so 
a  ileeree,  at  the  lie:iring,  which  will  do  interests  are  s<i  involveil.  SliieUW  r.  Bar- 
entire  justice  to  all  the  parties,  and  not  row,  17  How.  U.  S.  130;  ajj^c,  2b7,  note. 
prejudice  their  rights,  notwithstanding  the 


21)4 


OF    PARTIES    TO    A    SUIT. 


Cit.  V.  §  .r 


How  parties 
added. 


l)v  the  suit  should  be  settled  upon  the  same  trus.t,s  for  tlic  benefit 
of  tlie  |)laintirt*'s  wife  and  eliildrcn,  liis  Honor  permitted  the  cause 
to  ])rocecMl  williout  tlie  trusltu's,  and  ultimately,  upon  the  under- 
taking of  the  plaiutilV,  declared  that  the  plaintiffs  were  not  bound 
by  the  release.'^ 

As  a  deeree  made  in  the  absenee  of  ])ropcr  parties  may  be 
reversed,  and  at  all  events  will  not  bind  those  who  are  absent,  or 
those  claiming  under  them; ^  great  care  should  be  taken  to  have 
the  necessary  parties  before  the  Court  at  the  lu'aring,*  because,  as 
we  have  seen  before,  he  cannot  then  apply  for  leave  to  add  parties 
without  the  consent  of  the  defendant. 

The  most  usual  way  of  adding  ])arties  is  by  amendment  of  the 
original  bill,  though  sometimes  it  is  done  by  sup})lemental  bill,  or 
order,  and  the  Court  will  suffer  the  jjlaintiff  to  amend  his  bill  by 
adding  parties  at  any  time  before  the  hearing,  but  if  the  amend- 
ment is  made  after  the  expiration  of  the  time  for  gi^^ng  notice  for 
the  cross-examination  of  witnesses,  the  evidence  cannot  be  read 
against  the  new  parties.* 


1  Harvev  v.  Cooke,  4  Russ.  35 ;  and  see 
Walker  v.  Jefferies,  1  Hare,  296,  and  341, 
356;  Storv  Eq.  PI.  §  220. 

2  Prac.'ReK.  299;  Story  Eq.  PI.  §236; 
Whiting  V.  Bonk  of  U.  S.  13  Peters,  14; 
Springi'.  Jenkins,  1  Ired.Eq.  128;  Shields 
V.  Barrow,  17  How.  U.S.  130;  Stat.  U.  S. 
Feb.  28,  1839,  5  Stats,  at  Large,  321;  47th 
Equity  Rule  of  the  Supreme  Court  of  the 
United  States. 

3  For  cases  in  which  the  defect  of  parties 
has  been  remedied  by  the  voluntary  ap- 
pearance at  the  hearing,  see  ante,  Joy  v. 
Wirtz,  1  Wash.  C  C.  517. 

4  Goodwin  v.  Goodwin,  3  Atk.  370; 
Pratt  V.  Barker,  1  Sim.  1.  A  person  in 
interest,  who  has  never  appeared,  or  been 
cited  to  appear,  may,  upon  motion,  and 
■without  a  supplemental  bill,  at  the  hearing 
upon  bill,  answer,  and  proof,  be  summoned 
in  and  made  a  party.  Miller  v.  Wliittier, 
33  Maine,  521.  \Vhere  new  parties  are 
adtled  in  a  case  after  the  testimony  is 
t-.iken.  the  cause  should  be  heard  on  bill 
and  answer  as  to  such  new  deleudiints. 
Smith  V.  Baldwin,  4  liar.  &  J.  331. 

In  respect  to  amemlments  as  to  parties, 
the  Courts  are  more  liberal  tlian  as  to  other 
amendments.  Courts  of  Equity  will  not 
dismiss  bills  absolutely,  for  want  of  proper 
parties,  the  jJaintiti'  showing  enough  to 
give  color  to  his  claim  for  relief  against  the 
parties  not  before  the  Court.  In  such  case 
the  Court  may  properly  give  the  plaintiff 
leave  to  amend,  and  make  the  proper  par- 
ties. Allen  V.  Smith,  1  Leigh,  331;  Storv 
Eq.  PI.  §  230;  Hutchinson  v.  Reed,  1  Hoff. 
Ch.  31C";  Hayden  r.  Marmaduke,  19  Mis. 
(Bennett)  40.3;  Franklin  v.  Franklin,  2 
Swim  (Tenn.),  521;  Potter  ?'.  Holden,  31 
Conn.  385;  Thomas  v.  Adims,  30  111.  37. 
If  the  objection  of  the  want  of  the  proper 


parties  is  taken  by  plea  or  demurrer,  it  is 
a  matter  of  course  to  dismiss  the  plaintiff's 
bill  upon  the  allowance  of  a  plea  or  demur- 
rer, unless  the  plaintiff  takes  issue  on  the 
plea,  or  obtaiiis  leave  to  amend  on  the 
usual  terms.  Van  Epps  v.  Van  Deusen,  4 
Paige,  64,  76.  If  the  defendant  makes  no 
objection  for  want  of  proper  parties,  either 
bv  plea,  answer,  or  demurrer,  and  raises 
that  objection  for  the  first  time  at  the  hear- 
ing, the  bill  should  not  be  dismissed,  where 
the  defect  can  be  remedied  by  an  amend- 
ment or  a  supplemental  bll,  provi'led  the 
plaintiff  elects  to  bring  the  proper  parties 
before  the  Court  within  a  reasonable 
time.  76.  p  76;  Harder  y  Harder,  2  Sandf. 
(Jh.  17;  Peterson  v.  Poignard,  6  B.  Mon. 
570.  The  only  exception  to  the  rule  arises 
where  it  appears  that  the  necessary  parties 
have  been  left  out  of  tlie  bill  bv  the  fraud 
or  bad  faith  of  the  plaintiff.  Van  Epps  v. 
Van  Deusen,  supra;  see  Rowland  v.  Gar- 
man,  1  J.  J.  Marsh.  76 ;  Barberry  v.  Gornm, 
3  Bibb,  108;  Cabeen  v.  Gordon,  1  Hill  (S. 
C),  Ch.  53;  Hutchinson  v.  Reed,  1  Hoflf. 
Ch.  320;  Clifton  ».  llaig,  4  Desaus.  331; 
New  London  Hank  v-  Lee,  11  Conn.  112; 
Malin  v.  Malin,  2  John.  Ch.  338;  Nash  v. 
Smith,  0  Conn.  422;  Rogers  v.  liogers,  1 
Ilopk.  515;  S.  C.  1  Paige,  188;  S.  C.  2 
Paige.  467;  Bland  v.  Wyatt,  1  Hen.  &  M. 
43;  Sears  )).  Powell,  5  .lohn.  Cb.  259; 
Bowen  v.  Idler,  6  Paige,  46;  Ensworth  v. 
Lambert,  4  John.  Ch.  605;  Smith  v.  Tur- 
rentine,  8  Ired.  Eq.  185. 

If  the  bill  is  dismissed  for  want  of  the 
proper  parties,  it  should  not,  where  it  has 
equity,  be  dismissed  absolutely,  but  with- 
out prtju'lice  to  the  right  of  the  plaintiff  in 
anv  future  litigation.  See  (.Iraig  v.  Bar- 
bour, 2  .1.  J.  Marsh.  220;  Tlnimpson  v. 
Clay,  3  Monroe,  361;   Van  Epps  «.  Van 


OF   THE    JOINDER    OF   PARTIES. 


295 


An  order  to  amend  by  adding  parties  allows  of  the  introduction     Ch.  V.  §  i. 
of  apt  words  to  charge  them ;  but  it  seems  that  the  plaintiff,  if  it 
is  necessary,  should  apply  for  liberty  to  add  allegations  applicable  Form  of 
to  the  case  of  the  proposed  new  parties,  as  this  is  not  included  in  *^^  ^^' 
the  liberty  to  amend  by  adding  parties ;  ^   and  under  an  order 
giving  liberty  to  add  parties  by  amendment  or  supplemental  bill, 
a  plaintiff  may  do  both.'^     A  plaintiff  is  not  obliged,  in  adding 
parties  by  amendment,  to  make  them  defendants ;  he  may,  if  he 
pleases,  apply  for  leave  to  make  them  co-plaintiffs,  and  he  has  defendants 
been  pennitted  to  do  so  by  special  motion  after  the  defendants 
have  answered  the  original  bill.^     It  is  to  be  observed,  however, 
that  after  answer,  the  addition  of  a  co-plaintiff  is  not  a  matter  of 
course ;  and  that,  in  such  case,  the  granting  or  refusing  of  an  order 
to  amend  by  adding  parties  as  plaintiffs,  is  in  the  discretion  of  the 
Court." 


New  parties 
may  be  co- 
plaintifts  or 


Section  IV.  —  Of  the  Joinder  of  Parties  who  have  no  Interest  in 

the  Suit. 


It  has  been  before  stated,  that  no  one  should  be  made  a  party  Aa  defend- 
to  a  suit  against  Avhom,  if  brought  to  a  hearing,  there  can  be  no  ^"*^' 
decree;^  thus,  an  agent  for  the  purchase  of  an  estate,  is  not  a  Agents; 


Deusen,  4  Paige,  76;  Miller  v.  M'Can,  7 
Paige,  452;  Huston  v.  M'Clartv,  3  Litt. 
274;  Steele  v.  Lewis,  1  AFonroe,  49;  Story 
Eq.  PI.  §  236;  West  v.  Kendall,  2  Mason, 
181;  Mechanics'  H:ink  of  Alexandria  v. 
Setons,  1  I'eters,  306;  Hunt  v.  WicklifFe, 
8  Peter-,  215;  Patrick  v.  Wliite,  G  H. 
Men.  330;  nnle,  287,  note;  Jameson  v  De- 
Bbields,  3  (itatian,  4;  Kirkpatrick  v-  IJu- 
ford,  21  Ark.  268.  Hut  iltlie  plaintiirshows 
no  rijilit  to  relief  against  the  parties  before 
the  Court,  and  his  l>ill  is  dismissed,  the 
Appellate  Oiurt  will  not  reverse  tiie  decree 
toenuhle  him  to  introduce  new  (larties,  and 
thereby  m;ike  ii  new  case  upon  the  mc^rits. 
Jameson  r.  De.sliields,  3  (Jraitaii,  4.  Under 
the  presi'ut  Knglish  j)ritcti((.',  limitini;  the 
number  of  parties  neces-^ary  to  a  decree, 
Rule  7  provides,  that  in  the  casi-s  lidling 
within  the  rcgiilatloMs  of  the  si.\  preceding 
rules,  "the  (>ourt,  if  it  shall  see  lit,  iniiy 
require  any  other  person  or  persons  to  be 
made  a  party  or  pirties  to  the  suit,  and 
may,  if  it  shall  see  (it,  give  the  condn<t  of 
tliesuit  toHoch  person  as  it  may  dcein  prop- 
er, and  may  make  such  order,  iti  nny 
particular  case,  as  it  iTiav  d(!em  just  fi^r 
placing  the  dc'cnd  iiit  on  the  record  on  tlio 
Bamo  foiling,  in  regard  to  (!osts,  us  other 
parties  havini;  a  common  interest  with  him 
in  the  m.itters  in  qucsti^in." 

1  Haml.  77;  I'nlk  v.  Lord  fllinton,  12 
Ves.  M<\  Mason  v.  Franklin,  1  V.  &  (J  2:i9, 
242;  Gibson  r.  Ingo,  5  Hare,  15il;  Hale- 
man  V.  ALirgi;rison,6  Hare,  502;  and  cases 


referred  to,  1  C.  P.  Coop.  t.  Cott.  35,  SCi 
37;  Harlow  v.  M'Murrav,  L-  R.  2  F,q.  420; 
12  Jur.  N.  S.  5Ut,  V.  C.  S.  When  the 
plaintiff  is  allowed  to  amend  on  account 
of  the  want  of  proper  parties,  he  possesses 
the  incidental  right  to  amend  by  cluirging 
all  such  matters,  as  constitute  the  equity 
of  his  case,  against  the  new  parties.  Ste- 
phens V.  Frost,  2  Y.  &  C.  207 ;  Story  Eq. 
i'l.  §  541,  and  note.  If  a  necessary  party 
be  added  to  a  bill,  it  is  to  him  as  an  original 
bill,  and  he  is  entitled  to  the  same  time  to 
plead,  answer,  &c.,  as  an  original  defend- 
ant. Hoxey  u.  Carey,  12  Geo.  534;  Van 
Leonard  v.  Stocks,  12  Geo.  546;  see  Mc- 
Dougald  V.  Dougherty,  14  Geo.  674. 

■■2  Minn  v.  Stant,  15  lieav.  129;  15  Jur. 
1095. 

"*  Hichens  i'.  Congreve,  1  Sim.  500;  see 
Milligan  v.  Milchell,  1  l^L  &  C.  433,  442, 
443;  Miller  v.  M'Can,  7  Paige,  451. 

■<  The  practice  rchiling  to  the  addition 
of  parties  by  amendment  is  treated  of  in 
the  chapter  concerning  "  The  Amending 
of  Hills." 

6  DetJolIsr.  Ward,  3  P.  Wins.  311,  n. 
1;  Todd  V.  Sterrett,  6  .].  J.  Marsh.  432; 
Story  ICq.  PI.  §  231  and  notes  and  cases 
cited.  It  is  a  good  ground  of  demurrer  to 
the  whole  bill,  tint  a  person  who  has  no 
interest  in  the  suit,  and  has  no  eipiity 
against  the  defendant,  is  iinpriipcrly  joined 
as  a  party  pbiintiff.  Clarkson  r.  De  Pev.s- 
ter,  3  I'aige,  330;  Little  v.  Huie,  5  .bines 
Eq.  (N.  C.)  10;  King w.  Galloway,  6  Jones 


206 


OF   PARTIES    TO   A    SUIT. 


Cm.  V.  §  4. 


Hcsiiliinry 


Biiukrupts; 


MiR>  wit- 
ucsses; 


but  members 
and  ollicers  of 
corporations 
may  be  made 
dct'endants  for 
discover}-. 


necessary  party  to  a  bilP  against  his  cni])loyer  for  a  specific  per- 
tbnnance,  although  lie  signed  the  memorandum  for  the  purchase 
in  his  own  name; ^  and  so  a  residuary  legatee  need  not  he  made  a 
party  to  a  hill  against  an  executor  for  a  deht  or  legacy ;  and  for 
the  same  reason  in  a  bill  brought  by  or  against  the  assignees  of  a 
bankru])t  or  insolvent  in  respect  of  the  property  vested  in  them, 
under  the  bankruptcy  or  insolvency,  the  bankrupt  or  insolvent 
should  not  be  a  party  ;^  and  in  a  suit  to  ascertain  the  property  in 
a  certain  share  in  a  banking  comi)any,  litigated  between  two 
claimants,  the  company  is  not  a  necessary  party.*  Upon  the  same 
])rinciple,  persons  who  are  mere  witnesses,  and  may  be  examined 
as  such,  ought  not  to  be  made  defendants;^  even  though  the 
object  of  the  bill  is  to  obtain  a  discovery  in  aid  of  an  action  at 
LaAV  in  which  then-  discovery  would  be  more  effectual  than  their 
examination.® 

This  rule  is,  however,  liable  to  exceptions ;  thus,  in  cases  where, 
under  certain  circumstances,  a  discovery  upon  oath  is  desirable 
from  individual  members  of  a  corporation  aggregate,  or  from  the 
officers  of  a  corporation,  such  members  or  officers  may  be  made 
defendants.''  With  respect  to  this  exception  from  the  general 
rule,  it  has  been  observed  by  Lord  Eldon,  that  "the  principle 
upon  which  the  rule  has  been  adopted  is  very  singular :  it  origi- 
nated with  Lord  Talbot,^  who  reasoned  thus  upon  it :  that  you  can- 
not bave  a  satisfactory  answer  from  a  corporation,  therefore,  you 


Eq.  (N.  C.)  128 ;  see  Wriaht  v.  Santa  Clara 
Miningj  Association  of  Baltimore,  12  Md. 
443;  Westlall  v.  Scott,  20  Geo.  233.  A  bill 
for  contribution  by  one  stockholder  of  a 
manufacturing  corporation,  who  has  paid 
debts  of  the  corporation  under  \Qff\\  pro- 
cess, is  open  to  a  demurrer,  by  a  defendant 
■vv-ho  did  not  appear  ever  to  have  been  a 
stockholder  in  tlie  corporation.  Heath  v. 
Ellis,  12  Cush.  601,  604.  One  defendant 
cannot  object  that  another  defendant,  hav- 
ing no  intere'^t  in  the  subject-matter  of  the 
suit,  is  improperly  madf  a  piirtv.  Cherrj' 
V.  Monro,  2  Harb.  Ch.  618. 

1  Story  Eq.  ri.  §  231;  Boyd  v.  Vander- 
kemp,  1  Barb.  Ch.  273 ;  Garr  v.  Bright,  1 
Barb.  Ch.  157;  Lyon  v.  Tevis,  8  (>'larke 
(Iowa),  7'J;  Avers' i-.  Wright,  8  Ired.  Eq. 
229;  see  Aliin'f.  Hall,  1  A.  K  Marsh.  527; 
Orkey  v.  Bend,  3  Kdw.  Ch.  4&2;  .Jones  v. 
Hart,"  1  Hen.  &  M.  470;  Davis  v.  Simpson, 
5  Har.  &  J.  147.  If  an  agent,  selling  land, 
binds  liim.'-eif  individually,  he  sliould  be  a 
party  to  a  suit  touching  the  sale.  Alexan- 
der v.  Lee,  3  A.  K.  Marsh   484. 

2  Kingley  v.  Young,  Coop.  'Ir.  PI.  42. 

8  See  an(e,  Bankrupt  Defendants  Par- 
ties. 

*  Scawin  v.  Scawin,  1  Y.  &  C.  68. 

5  Plummer  v.  May,  1  Ves.  426;  How  v. 
Best,  5  Mad.  19;  I'ootman  v.  Prav.  It.  M. 
Charlt.  291;  Story  Eq.  PI.  §§234,  734; 
Etlton  V.  Hughes,  7  bumner's  Ves.  287, 


Perkins's  note  (a)  and  cases  cited;  New- 
man V.  Godfre}',  2  Bro.  0.  C.  (Perkins's 
ed.)  332;  2  Story  Eq.  Jur.  §  1499;  Wig- 
ram  Discovery  (Am.  ed.),  p.  165.  §  235; 
Hare,  65,  68,  73,  76;  Reeves  v.  Adams,  2 
Dev.  Ch.  192;  Y'atest;.  Monroe,  13  HI.  212. 

6  Fenton  v.  Hughes,  7  Ves.  288 ;  see  next 
preceding  note,  and  ante,  145,  note. 

7  See  ((?i?e,  CorjioratioMS,  145;  Fenton  t>. 
Hughes,  7  Sumner's  Ves.  287,  Perkins's 
note  {(t)  and  cases  cited  to  thisi)oint;  cmte, 
145,  and  note;  Kennebec  and  Portland 
K.R.  Co.  V.  Portland  and  Kennel)ec  K.U. 
Co,  54  Maine,  184;  United  States  of 
America  v.  Wagner,  L.  Kep.  2  (Jh.  Ap. 
582,  5>'7,  588.  A  suit,  to  restrain  the  mis- 
appropriation of  a  fund  held  hy  a  corpora- 
tion in  trust,  cannot  be  maintained  against 
the  trustees  appointed  by  the  corporation 
to  hold  and  manage  the  f  un<l,  without  mak- 
ing the  corporation  a  party,  'i'ibbsills  v. 
Bidweli,  1  Gray,  399.  To  obtain  the  spe- 
citic  perforniairce  of  a  contract  with  a  cor- 
poration f'T  the  sale  of  re;d  estate,  the 
tru.stee  wlio  In  Ids  the  legal  title  to  the 
corporation  lands  should  be  made  a  co- 
defendant  witli  the  corporation.  Morrow 
V.  Lawrence,  7  Wi.s.  574. 

8  Wych  V.  Meal,  3  P.  Wms.  210;  see 
United  States  of  America  v.  Wagner,  L. 
i:  2  Cn.  Ap.  582,  587;  S.  G.  L.  K  3  Eq. 
72 1 ;  Pridleau  v.  Uiited  States  and  Andrew 
Johnson,  L.  K.  2  Eq.  659. 


OF    THE    JOINDER    OF    PARTIES.  297 

make  the  secretary  a  party,  and  get  from  him  the  disco veiy  you  Ch.  V.  §  4. 
cannot  be  sure  of  having  from  them ;  and  it  is  added,  that  the  ^— — y~"— ' 
answer  of  the  secretary  may  enable  you  to  get  better  information." 
"  The  first  of  these  principles,"  continues  his  Lordship,  "  is  ex- 
tremely questionable,  if  it  were  now  to  be  considered  for  the  first 
time ;  and  as  to  the  latter,  it  is  very  singular  to  make  a  person  a 
defendant  in  order  to  enable  yourself  to  deal  better,  and  with  more 
success,  with  those  whom  you  have  a  right  to  put  upon  the  record ; 
but  this  practice  has  so  universally  obtained  Avithout  objection, 
that  it  must  be  considered  established."  ^ 

Other  persons  are  mentioned  by  Lord  Eldon  as  affording  excep-  Agents  to 

tions  to  the  rule  before  laid  down,  that  mere  witnesses  cannot  be  ^^J'  ^?^^*°°" 

'  eers,  &c. 

made  parties  to  a  suit,  viz.,  agents  to  sell,  auctioneers,  &c.,  who 

have  been   made  defendants  without   objection;'^   his   Lordship, 

however,  appears  to  have  thought  that  the  practice  of  making  such 

persons  parties  arose  originally  from  their  having  some  interest, 

such  as  holding  deposits,  Avhich  might  entitle  the  plaintiff  to  relief 

against  them ;  and  it  has  been  since  held,  that  an  agent  who  bids 

at  an  auction  for  an  estate,  and  signs  the  memorandum  in  his  own 

name  for  the  purchase,  need  not  be  made  a  co-defendant  with  his 

emjiloyer  to  a  bill  for  the  specific  performance  of  such  agreement.^ 

In  Dummer  v.  TJie  Corporation  of  Chippenham,'^  Lord  Eldon  also 

mentions,  as  cases  of  excej^tion  to  the  general  rule  above  referred 

to,  those  of  arbitrators  and  attorneys.     With  respect  to  arbitrators.  Arbitrators; 

however,  it  is  a  rule,  that  in  general  an  arbitrator  cannot  be  made 

a  jjarty  to  a  bill  for  the  purpose  of  inn)eaching  an  award,  and  that, 

if  he  is,  he  may  demur  to  the  bill,  as  well  to  the  discovery  as  to 

the  relief.^     In  some  cases,  nevertheless,  where  an  award  has  been 

irapeaelied  on  the  ground  of  gross  misconduct  in  the  arbitrators, 

and  they  have  been  made  parties  to  the  suit,  the  Court  has  gone 

80  fir  as  to  order  them  to  pay  the  costs.®     In  such  cases.  Lord 

Jledesdale  considers  it  probable  that  a  demurrer  to  the  bill  would 

not  have  been  allowed ;  ^  and  in  Lord  Lonsdale  v.  LMtledale,^  a 

demurrer  by  an  arbitrator  to  a  bill  of  this  nature  was  in  fact  over- 

niU'il ;  though  Jiot  ex])ressly  upon  the  ground  of  the  impropriety 

of  making  an  arbitrator  a  party,  but  because  the  bill  charged  cer- 

1  7  VfiH.  2S9.  of  discovery,  as  to  all  nets  done  by  him  be- 

2  Ihi'l. ;   (iurtl.'ind  V.  Niinn,  6  Eng.  720.        fore  his  insolvency,  and  the  assigtinient  of 
Wh<Ti^  one  of  two  [)!irtii(T-<,  after  a  dissolu-        hiw  property,"  p.  80. 

tion,  co'i(tif;iied  propi-rly  to  ;in   asent  for  ^  (Juoti.  Tr.  1'.  42. 

6;ile.  tlie  procei'dit  to  bi"  a|iplied  If)  the  pay-  *  14  Ves.  252. 

in>;nt  of  a  [>artni;rsliipdelit,  in  a  liill  against  ''  Steward  v.   K.  I.   Company,  2  Vern. 

the  iigcnt  by  th.-  other  partner,  the  partner  380;  L.l.  Red.  102;  Story  Iv).  I'l.  §  231. 

by  whom  till- coimignnieiit  WHS  made,  hav-  "  Chicot  r.  I.cqtiesne,  2   Yes    .'515;    I,in- 

irg  become  iiisolvenf,  he  and  his  assignee  pood   r.  Croiieher,  2    Atk.   .3'J5,   !*50;    seo 

were  properly  made  defendants.     Hartlctt  Hamilton  »!.  Hiinkin,  .3  I)e  G.    &   8.   782; 

t'   Park-,  1  Oush.  H2.     Wilde  J.  said  that  Story  Ko   I'l.  §  2.i2  and  notea. 

the  iiinolvent  partner,  "  if  not  interested,  '  Ld.  Ited.  102. 

may  well  be  made  a  party  for  the  purpose  *  Ves.  J.  451. 


298 


OF   PARTIES    TO   A    SUIT. 


Cit.  V.  §  4. 


may  plead  to 
discover)', 

but  must  an- 
swer charges 
of  corruption, 


and  may  be 
made  to  pay 
costs. 


Attorneys. 


Agents  in 
fraudulent 
transactions. 


Form  of  bill. 


tain  specific  acts  Avhicli  showed  combination  or  collusion  between 
him  and  one  of  the  parties,  and  made  him  the  agent  for  such 
party,  and  whicli  the  Court  therefore  thought  recjuired  an  answer.^ 
But  althougli  arbitrators  may  be  made  ])arties  to  a  bill  to  set 
aside  their  award,  they  are  not  bound  to  answer  as  to  their  motives 
in  making  the  award,  and  they  may  plead  to  that  part  of  the  bill 
in  bar  of  such  discovery ;  ^  but  it  is  incumbent  upon  them,  if  they 
are  charged  with  corruption  and  partiality,  to  su])port  their  i)lea 
by  showing  themselves  incorrupt  and  impartial,  or  otherwise  the 
Court  will  give  a  remedy  against  them  by  making  them  pay  costs.' 

From  the  j)receding  cases  it  may  be  collected,  that  arbitrators 
can  only  be  made  i)arties  to  a  suit  where  it  is  intended  to  fix  them 
with  the  payment  of  costs  in  consequence  of  their  corrupt  or 
fraudulent  behavior,  and  in  such  cases  it  is  apprehended  that  the 
bill  ought  specifically  to  pray  that  relief  against  them. 

The  same  rule  also  applies  to  the  other  case  of  exception  before 
alluded  to,  as  having  been  mentioned  by  Lord  Eldon,  namely,  that 
of  attorneys;  who  can  only  be  made  parties  to  a  suit  in  cases 
where  they  have  so  involved  themselves  in  fraud,  that  a  Court  of 
Equity,  although  it  can  give  no  other  relief  against  them,  will 
order  them  to  pay  the  costs.*  Thus,  where  a  solicitor  assisted  his 
client  in  obtaining  a  fraudulent  release  from  another,  he  was  held 
to  be  properly  made  a  party,  and  liable  to  costs  if  his  ])rincipal 
was  not  solvent.^ 

The  same  rule  applies  to  any  other  person  acting  in  the  capacity 
of  agent  in  a  fraudulent  transaction,  as  well  as  to  an  attorney  or 
solicitor ;  ®  and  it  Avas  said  by  Sir  James  Wigram  V.  C,  in  Mar- 
shall V.  Sladdon!^  that,  "  as  far  as  his  researches  had  gone,  the 
Court  had  never  made  a  decree  against  a  mere  agent  except  upon 
the  ground  of  fraud." 

It  is  to  be  observed  that,  in  such  cases,  if  an  attorney  or  agent 
is  made  a  party,  the  bill  must  pray  that  he  may  pay  the  costs,  and 
must  distinctly  allege  the  circumstances  constituting  the  fraud, 
and  that  the  defendant  was  a  party  concerned,  and  had  a  knowl- 
edge of  the  fraudulent  intention;^  otherwise  a  demurrer  will  lie. 


1  2  Stor)',  Eq.  Jur.  §  1500,  and  cases 
cited. 

2  Anon.,  3  Atk.  644. 

3  Lin<;ood  v.  Croucher,  supra. 

*  Story  Eq.  I'l.  §  232;  Lyon  v.  Tevis,  8 
Clarke  (lowii),  99. 

6  liowles  V.  Stewart,  1  Sch.  &  Lef.  227. 
A  solicitor  wlio  had  intermeddled  with  a 
trust  was  held  a  proper  party.  Hardy  v. 
Calev,  33  Beav.  36.5. 

6  Hulklev  r.  Dunbnr,  1  Anst.  37;  Story 
Eq.  PI.  §  b38;  Gartland  v.  Nunn,  6  Eng. 
720.  But  where  a  judgment  debtor  seeks 
relief  against  the. judgment,  in  Equity,  the 
attorneys  of  the  plaintiff  in  the  judgment 


ought  not  to  be  made  parties,  no  fraud  being 
charged  upon  them,  or  relief  sought  as  to 
them.  Kenan  v.  Miller,  2  Kelly,  325.  In 
a  cas-e,  however,  where  a  person  is  charged 
with  fraudulently  procuring  the  execution 
of  a  will  in  favor  of  an  infant,  such  person 
is  a  proper  party  to  a  bill  filed  for  the  pur- 
pose of  setting  aside  such  will,  although 
he  has  no  interest;  and  he  may  be  liable 
to  costs.  Brady  v.  McCosker,  1  Comst. 
214. 

7  7  Hare,  428,  442;  14  Jur.  106;  Reynell 
V.  Sprve,  8  Hare,  222,  271;  Innes  t>.  Mitch- 
ell, 4  brew.  57;  3  Jur.  N.  S.  756. 

8  Kelly  V.  Rogers,  1  Jur.  N.  S.  514,  V. 


OF    THE    JOINDER    OF    PARTIES.  ^''^ 

In  Te:cier  v.  The  3Iargravine  of  Anspach,^  one  of  the  questions  Cn.  V.  §  4. 
before  the  Court  was,  whether  a  married  woman  could  be  made  a  "^  v  ' 
party  to  a  suit  on  the  allegation,  that  in  certain  contracts  which  Mamed 
were  the  subject  of  litigation  she  had  acted  as  the  agent  of  her 
husband,  and  that  she^ad  vouchers  in  her  possession  the  discovery 
of  which  might  assist  the  plaintiff  in  his  case.  The  bill  Avhich  did 
not  pray  any  relief  against  the  wife,  had  been  demurred  to ;  and 
Lord  Eldon  allowed  the  demun-er  on  the  ground  that  she  was 
merely  made  a  defendant  for  the  purpose  of  discovery,  and  that 
no  relief  was  prayed  against  her.  His  Lordship  said :  "  I  give  no 
judgment  as  to  what  would  have  been  the  effect  if  the  bill  had 
prayed  a  delivery  to  the  plaintiff  of  those  vouchers  which  are 
charged  to  be  in  the  hands  of  the  wife ;  it  is,  however,  simply  as 
far  as  relief  goes,  a  bill  against  the  husband  only,  and  against  the 
wife  a  bill  for  discovery  only.  The  consequence  is  that,  inde- 
pendent of  her  character  as  wife,  the  case  must  be  considered  as 
one  of  those  in  which  the  Court  does  sometimes  allow  persons  to 
be  made  parties  against  whom  no  relief  is  prayed,  and  the  only 
case  of  that  kind  is  that  of  the  agent  of  a  corporation." 

With  respect  to  the  propriety  of  making  an  attorney  or  agent  a  Attorneys  or 
party,  merely  because  he  has  deeds  or  other  documents  in  his  pos-  g°^^\f  J" 
session,  Lord  Eldon,  in  Fenijcick  v.  Reed^-  observed  that,  generally  of  deeds,  &c. 
speaking  ^\\({  prima  facie,  it  is  certainly  not  necessary  to  make  an 
attorney  a  party  to  a  bill  seeking  a  discovery  and  production  of 
title  deeds,  merely  because  he  has  them  in  his  custody ;  ^  because 
the  possession  of  the  attorney  is  the  possession  of  his  client ;   but 
cases  may  arise  to  render  such  a  proceeding  advisable,  as  if  he 
withliolds  the  deeds  in  his  possession,  and  Avill  not  deliver  them  to 
his  client  on  his  applying  for  them.* 

Wliere  a  person  who  lias  no  interest  in  the  subject-matter  of  ^fp^^^^  ^  de- 
the  suit,  and  against  whom  no  relief  is  prayed,  is  made  a  party  to  a  [l^'^^^^^^^};^^"^ 
suit  for  the  mere  ]>uq)0se  of  discovery;  the  proper  course  for  him  may  demur. 
to  adopt,  if  lie  wishes  to  avoid  the  discovery,  is  to  demur!'     If, 
however,  the  bill  states  that  the  defendant  has  or  claims  an  inter- 
est, a  demurrer,  which  admits  the  bill  to  be  true,  will  not  of  course 
hold,  though  the  defendant  has  no  interest,  and  he  can  then  only 
avoid  answering  the  l)ill  liy  pica  or  disclaiiuer.® 

C.  W.;  Gilbert  v.  Lewis,  1  De  G.,  J.  &  S.  make  such  tliird  person  a  party  defendant. 

39.  49,  60;  9  .Jur.  N.  S.  187;  and  see  Att-  Morlev  )'.  Green,  11  Paige,  '240. 

wood  V.  Small,  6  CI.  &  Fin.  352;  Sugd.  «  Ld.  Hed.  189. 

Law  Prop.  (J.'JO,  032.  ^  /6i'/- ;  Plummer  v.  May,  1  Vca.  426. 

>   ir.  Ves.  K4.  Where  a  suit  becomes  useless  against   a 

2  1  Mcr.  1'2.'5.  pnrticiilar  defendant,  it  is  a  laudMlile  course 

8  W.ikeman  r.  Pailcv,  3  IJnrb.  Cli.  4R2.  for  the  plaintiff  to  di-miss  the  hill  aira;nst 

<   1  Smith,  Ch   Pr  (2d  Am.  ed.)  077,  <;7K.  him,  ami  he  may  incur  cen-nro  if  he  brings 

Where   th"   plaintiff  wishes  to  obtain  the  the   suit  to  a  hcarinz  withmif  dninR  tins. 

custody  of  books  and  papers  in  possession  Wright  v.  liarlow,  8  Eng.  Law  &  \'.<\.  125. 

of  a  third  person,  the  proper  course  is  to 


300 


OF   PARTIES    TO   A   SUIT. 


Cii.  V.  §  4. 


Wliotlior  a. 
ilolV'iuiaiit 
■who  is  ii  mere 
wituoss  can 
proU'ct  him- 
self from 
discovery 
bv  answer. 


Semble,  he 
eamiot. 


Tho  (Question  wlietlior  a  party  who  is  a  mere  witness  can  by  afi- 
.sv/'f  /•  ]>rotcct  liiniself  from  the  discovery  required,  appears  to  have 
given  rise  to  some  difference  of  o])inion.  In  Coo/cson  v.  Ji^lUson^ 
the  plaintiff  made  a  person  defendant  wlio  Avas  merely  a  witness, 
and  might  have  been  examined  as  such,  anct  therefore  should  have 
demurred  to  the  bill.  Instead  of  demurring,  however,  the  defend- 
ant put  in  an  answer,  Avhich,  not  having  satisfied  the  plaintiff  as  to 
one  interrogatory,  an  exception  was  taken,  and  the  Master  reported 
the  answer  sufficient ;  but  upon  the  case  coming  before  Lord  Thur- 
low,  upon  exception  to  the  Master's  report,  his  Lordship  held,  that 
as  the  defendant  had  submitted  to  answer,  he  was  bound  to  answer 
fully.  In  a  subsequent  case  of  Newman  v.  Godfrey^  however. 
Lord  Kenyon  M.  R.  appears  to  have  entertained  a  different  o))inion. 
In  that  case  the  defendant,  who  was  a  mere  clerk,  was  alleged  in 
the  bill  to  be  a  party  interested  in  the  property  in  litigation,  and 
in  support  of  such  allegation  various  statements  Avere  made,  show- 
ing in  what  manner  his  interest  arose  ;  he  put  in  an  answer  deny- 
ing all  the  statements  upon  which  the  allegation  of  his  being 
interested  was  founded,  and  disclaiming  all  personal  interest  in 
the  subject-matter ;  and  to  this  answer  exceptions  were  taken  by 
the  plaintiff,  because  the  defendant  had  not  answered  the  subse- 
quent parts  of  the  bill,  which  exceptions  were  disallowed  by  the 
Master;  and  upon  the  question  coming  on  before  Lord  Kenyon, 
upon  exceptions  to  the  Master's  reports,  he  thought  the  Master 
was  right  in  disallowing  the  exceptions ;  because  the  defendant 
had  reduced  himself  to  a  mere  witness,  by  denying  his  interest  and 
disclaiming ;  so  that,  even  supposing  he  had  an  interest,  he  could 
not,  having  disclaimed,  have  availed  himself  of  it.  These  contra- 
dictory decisions  have  been  remarked  upon  by  Lord  Eldon  in  two 
subsequent  cases ;  ^  and  his  Lordship's  observations  in  those  cases 
have  been  considered,  as  approving  of  Lord  Thurlow's  decisions  in 
Cookson  V.  EUison.^  Nothing,  however,  can  be  collected  from 
what  Lord  Eldon  has  said  in  either  of  these  cases,  as  indicating 
an  opinion  either  one  way  or  the  other;  and,  at  the  period  when 
they  Avere  before  him,  the  doctrine  that  a  jiarty  answering  must 
ansAver  fully  does  not  appear  to  have  been  so  strictly  adhered  to 
as  it  has  has  been  subsequently ;  ^  but  that  doctrine  is  now  well 
established,  and,  it  is  conceived,  includes  the  case  above  dis- 
cussed.® 


1  2  Bro.  C.  C.  252. 

2  2  Bro.  C.  C.  332. 

8  Fenton  »  Hushes,  7  Ves.  288;  Baker 
c.  Mellish,  11  Ves.  75,  76. 

4  2  Bro  0.  C.  252. 

6  See  Dolder  v.  Lord  Tluntinefield,  11 
Ves.  283;  Fauldery.  Stuart,  z/a  206;  Shaw 
V.  Ching,  ib.  303,  and  ixjii.  Answer;  see  a 


discussion  of  this  subiect  in  Wigram  Dis- 
covery (Am.  ed.),  I'l.'  148,  149,  &c.  p.  86, 
87,  ti &eq. 

8  Laiic.ister  v.  Evors,  1  Phil.  349;  8  Jur. 
133;  Swinborne  v.  Nelson,  16  IJeav.  416; 
Great  Lu.\emburg  HailA'av  Comp;mv  v. 
Magiiay,  23  Beav.  646;  4  .lur.  N.  S.  839; 
KeacJe  v.  Woodroffe,  24  Beav.  421. 


OF    THE    JOINDER    OF    PARTIES.  301 

When  a  plaintiff  finds  that  he  has  made  unnecessary  parties  to     Cn.  v.  §  4. 

his  bill,  he  may  either  dismiss  his  bill  as  against  them,  or  apply  to   '- y ■' 

the  Court  for  leave  to  amend  his  bill  by  striking  out  their  names ;   How  plaintiff 
in  either  case,  however,  the  order  will,  if  the  defendants  have   un,[efessafy°^ 
appeared,  only  be  made  on  payment  of  their  costs ;  ^  because,  by  parties, 
striking  them  out  as  defendants,  the  jilaintiff  deprives  them  of  the 
opportunity  of  applying  for  their  costs  at  the  hearing.- 

The  preceding  observations,  with  regard  to  the  joinder  in  the  As  co-plain- 
suit  of  persons  who  have  no  interest,  beneficial  or  otherwise,  in  ^'^^' 
the  subject-matter,  refer  to  cases  where  they  are  made  parties  de-   co-plaintiffs 
fendants.     The  rule,  however,  that  persons  who  have  no  interest  of  persons 

,        .    .       T   .  .         -11  11  either  unin- 

in  the  litigation,  cannot  be  joined  m  a  suit  with  those  who  have,  terested  or 
applies  equally  to  prevent  their  being  joined  as  co-plaintiffs.^  dfstinft  and 

But  although  persons  ha\dng  no  interest  in  the  subject-matter  several 
of  a  suit,  cannot,  as  we  have  seen,  be  joined  as  co-plaintiffs,  yet  improper. ^^ 
where  persons  having  at  the  time  a  joint  interest  file  an  original 
bill,  and  afterwards  one  of  the  co-plaintiffs  parts  with  his  interest, 
such  co-plaintiff  may  afterwards  join  in  a  supplemental  bill  filed  in  supple- 
for  the  purpose  of  bringing  additional  matter  before  the  Court ;  "^^ntal  bills. 
because,  although  he  may  have  parted  with  his  interest  in  the 
subject-matter,  he  is  still  interested  in  the  suit  in  respect  of  his 
liability  to  costs.  Thus,  where  a  bill  Avas  filed  in  the  Excliequer 
by  certain  persons  on  behalf  of  themselves  and  other  members  of 
a  Joint-Stock  Company,  to  which  an  answer  was  put  in  and  a 
decree  made,  setting  aside  certain  contracts  between  the  plaintiffs 
and  the  defendant,  and  directing  various  accounts  and  inquiries, 
and  afterwards  a  supplemental  bill  was  filed  in  the  name  of  the 
same  plaintiffs  against  the  same  defendant,  seeking  amongst  other 
things  a  lien  on  a  part  of  the  purchase-money,  which  had  been 
paid  to  the  defendant,  to  which  a  plea  was  put  in  by  the  defend- 
ant on  the  ground  that  one  of  the  plaintiffs  in  the  supplemental 
bill  had,  previously  to  the  filing  of  it,  parted  with  all  his  interest 
in  the  jiartncrship,  &c.,  Lord  Lyndhurst  C.  B.  overruled  the  plea, 
being  of  opinion  that  the  sup])l('nK'ntal  bill  was  nothing  more 
than  a  continuation  of  tlie  original  bill,  and  liis  Lordship's  decision 
W!is  afterwards  confirmed  by  Lord  Abinger  C.  B.  upon  a  rehear- 

ing.* 

It  is  to  l)e  observed,  that  the  common  case  of  joining  an  auc-   Aurtioneer 
tionoer  and  the  vendor  in  a  bill  agauist  a  purcliaser,  is  no  exception   ""'^  ^''^"*  °'"' 

1  f'ovenhoven  v.  Sliiiler,  2  Paige,  122;  4  Russ.  244;  King  of  Spnin  v.  Macbado,  4 
Bee  Wright  v.  I'mrUiw,  8  Kng.  Law  &  K(|.  liuss.  22y;  I'age  c.  Towiisend,  6  Sim.  3ii5; 
125;  Mamiiiig  r.  (lloiiccstfr,  ti  I'ick.  0,  17,  Ulvn  r.  Soares,8  M.  .Si  K.  450,  4GK;  (Jriggs 
18;  Dai.n  r.  Valentine,  5  Met.  12,  13.  f.  Staplee,  2  De  (;.  &  8.  572;  13  Jur.  2'J; 

2  Wilkinson  r.  I'.dshfr,  2  JJro.  V,.  ().  111.        GiiHith  )'.  Vnnhevtiiuvscn,  9  Hare.  85;  15 
8  Miiyor  and    Ald-rnien   of  Colchester       Jur.  421;  Story  Va\.  I'i.  §§  3'JO    509,  544, 

p.   ,    1    I'.    Wnis.  695;    Troughtnn        551 ;  Chirkson  y.  De  I'ey.stcr,  3  Taige,  336; 

t).  Gettev,    1  Dick.  382;    Cuff  r.    IMatell,        Cla.son  w.  Lawrence,  3  Kd.  Cii.  48. 
4   Kus»."242;    Makepeace   u.   Ilaythoriie,  4  Small  v.  Altwood,  1  Y.  &  C.  39. 


302 


or   PARTIES   TO   A    SUIT. 


Cn.  V.  §  4. 


Misiioinder 
of  plaintifT?, 
how  taken 
advantage  of. 


to  the  rule  above  referred  to,  because  the  auctioneer  lias  an  inter- 
est in  the  contract,  and  may  bring  an  action  upon  it ;  he  is  also 
interested  in  being  ]"»rotected  from  the  legal  liability  which  he  has 
incurred  in  an  action  by  the  purchaser  to  recover  the  deposit.^ 
Nor  does  the  circumstance  of  the  assignor  and  the  assignee  of  a 
chose  in  action  being  capable  of  suing  together  constitute  an  ex- 
ception, because,  although  the  assignor  has  parted  with  his  bene- 
ficial interest  in  the  subject-matter,  he  still  is  interested  as  the 
owner  of  the  legal  estate.'^ 

If  the  fact  of  one  of  the  plaintiffs  having  no  interest  in  the  suit, 
appears  on  the  bill,  advantage  must  be  taken  of  it  by  demurrer.^ 
If  the  fact  does  not  appear  upon  the  bill  it  may  be  brought  for- 
ward by  plea,'*  and  where,  at  the  hearing,  the  claim  of  one  of  two 
co-plaintiffs  failed  entirely  whilst  that  of  the  other  succeeded,  the 
V.  C.  of  England  dismissed  the  bill  as  against  both  plaintiffs,  but 
without  prejudice  to  the  right  of  the  one  who  had  succeeded  to 
file  a  new  bill.^ 

Upon  a  similar  principle,  in  cases  where  all  the  plaintiffs  have  an 
interest  in  the  subject  of  the  siiit,  but  their  interests  are  distinct 


1  But  in  a  suit  in  Equity  by  a  purchaser 
for  relief  against  a  sale  at  auction,  in  which 
the  auctioneer  used  fraud  to  enhance  the 
price,  it  was  held  that  it  was  not  necessary 
to  make  the  auctioneer  a  party.  Veazie  v. 
Williams,  8  How.  U.  S.  134.  But  if  the 
auctioneer  is  made  a  party  he  cannot  de- 
mur, in  such  a  case,  on  the  ground  that  he 
is  a  mere  witness.  Schmidt  v.  Ditericht,  1 
Edw.  Ch.  119. 

2  Ryan  V.  Anderson,  3  Mad.  174;  see 
Story  Eq.  PI.  §  153  and  notes;  ante,  198, 
et  seq.,  and  notes. 

3  Outf  V.  ri:\tell,  4  Russ.  242;  King  of 
Spain  V.  Machado,  4  Kuss.  225;  Page  v. 
Townsend,  5  Sim.  395 ;  Delondre  v.  Shaw, 
2  Sim.  237;  Story  Eq.  PI.  §§  541-544; 
Bowie  V.  Jlinter,  2  Ala.  (N.  S.)  406;  Tal- 
mage);.  Pell,  9"Paige,  410;  Gossett  r.  Kent, 
19  Ark.  G02. 

*  ^Iake[)eace  v.  Haythorne,  4  Russ.  244; 
Doyle  r.  Muntz,  5  Hare,  509;  lO.Iur.  914. 
In  VVatert'iwn  v.  Cowen,  4  Paige,  510,  it 
wa.s  held  too  late  to  take  a  mere  formal  ob- 
jection of  tliis  kind  for  the  first  time  at  the 
hearing.  See  Dickinson  v.  Davis,  2  Leigh, 
401 ;  Sheppard  v.  Starke,  3  Muiif.  2:t ;  Mayo 
V.  Murchie,  ib.  358;  Story  Eq.  PI.  §§  232, 
236,509,  544;  Harder?;.  Harder,  2  Sandf. 
Ch.  17;  Bowman  v.  Burnley,  2  McLean, 
376;  Story  v.  Livingston,  13  Peters,  359; 
Bowie  V.  Minter,  2  Ala.  406;  Schwoerer  v. 
Boylston  Market  As.sociation,  99  Mass.  295, 
297.  If  the  misjoinder  is  of  parties  plain- 
tiffs, all  the  defendants  may  demur;  such  a 
misjoinder  is  a  proper  ground  of  objection. 
Canimeyer  v.  United  German  Lutheran 
Churches,  2  Sandf  Ch.  186.  If  the  mis- 
joinder is  of  parties  as  defendants,  those 
only  can  demur  who  are  improperly  joined. 


Toulmin  v.  Hamilton,  7  Ala.  362.  But  if 
a  person  is  improperly  joined  as  a  defend- 
ant, who  is  without  the  jurisdiction,  and  is 
therefore  a  party  only  b}^  virtue  of  the  usual 
prayer  of  process,  such  misjoinder  will  not 
affect  the  cause;  for  untd  he  has  appeared 
and  acted,  no  decree  can  be  had  against 
him.  And  in  cases  of  misjoinder  of  plain- 
tiffs, the  objection  ought  to  be  taken  by 
demurrer;  for  if  not  so  taken,  and  the  Court 
proceeds  to  a  hearing  on  the  merits,  it  will 
be  disregardeii,  at  least  if  it  does  not  mate- 
riallv  affect  the  propriety  of  the  decree. 
Story  Eq.  PI.  §  544,  and  notes. 

^  Cowley  V.  Cowley,  9  Sin>.  229;  Pad- 
wick  V.  Piatt,  11  Beav.  603;  Pulham  v. 
M'Carthy,  1  H.  L.  Ca.  703;  see  also  Blair 
V.  Bromley,  5  Hare,  542,  553;  Moore  v, 
Moore,  17  Ala.  631.  It  seems,  however 
that  in  general  an  objection  of  tliis  kind, 
if  not  raised  upon  the  pleadings,  will  not 
be  allowed  at  the  heariog.  Eades  v.  Harris, 
2  Y.  &  C.  230;  Kaffety  v.  King,  1  Keen, 
601;  Cashell  v.  Kelly,  2  Dr.  &  W.  181; 
Louis  V.  Meek,  2  Greene  (Iowa),  65;  Mur- 
ray V.  Hay,  1  Barb.  Ch.  69.  But  the  Court ' 
may  in  its  discretion,  and  under  circum- 
stances, in  such  a  case,  dismiss  the  bill  as 
to  all  the  plaintiffs,  or  only  as  to  those  who 
are  improperly  joined.  Myers  w.  Karring- 
ton,  18  Ohio,  72.  Where  a  person  is  made 
a  co-plaintiff  improperly,  without  his  priv- 
ity or  consent,  the  proper  motion  is  that 
his  name  be  stricken  out,  not  that  the  bill 
be  dismissed  even  as  to  him.  So.  Life  Ins. 
&  Trust  Co.  V.  Lanier,  5  Florida,  110.  It 
seems  the  objection  of  misjoinder  of  plain- 
tiffs cannot  be  taken  in  a  rehearing.  Fow- 
ler V.  Kevnal,  3  M'N.  &  G.  500,  611;  15 
Jur.  1019,  1021. 


OF    THE    JOINDER    OF   PARTIES. 


303 


Present 
practice. 

Statutory 
provision 
tliat  suit  is 
not  now  to  be 
dismissed  for 
misjoinder 
of  plaintifFa, 


and  several,  they  will  not  be  allowed  to  sue  together  as  co-plain-  Cn.  V.  §  4. 
tiffs  ;  ^  thus,  in  Hudson  v.  Maddison^  where  a  bill  was  filed  by  five 
several  occupiers  of  houses  in  a  town,  to  restrain  the  erection  of  a 
steam-engine,  alleging  that  it  would  be  a  nuisance  to  each  of  them, 
the  V.  C.  of  England  dissolved  an  injunction  obtained  in  the  suit, 
upon  the  ground  that  each  occtipier  had  a  distinct  right  of  suit, 
and  therefore  that  they  could  not  sue  as  co-plaintiffs.^ 

Now,  however,  the  consequences  of  a  misjoinder  are  by  no 
means  so  serious  as  they  were  formerly ;  for,  by  the  Chancery 
Amendment  Act  of  1852,  it  has  been  provided  that  "  no  suit  in 
the  said  Court  shall  be  dismissed  by  reason  only  of  the  misjoinder 
of  persons  as  plaintiffs  therein,  but  whenever  it  shall  appear  to  the 
Court  that,  notwithstanding  the  conflict  of  interests  in  the  co- 
plaintiffs,  or  the  want  of  interest  in  some  of  the  plaintiffs,  or  the 
existence  of  some  ground  of  defence  affecting  some  or  one  of  the 
plaintiffs,  the  plaintiffs,  or  some  or  one  of  them,  are  or  is  entitled 
to  relief,  the  Court  shall  have  power  to  grant  such  relief,  and  to 
modify  its  decree,  according  to  the  special  circumstances  of  the 
case,  and  for  that  purpose  to  direct  such  amendments,  if  any,  as 
may  be  necessary,  and  at  the  hearing,  before  such  amendments 
are  made,  to  treat  any  one  or  more  of  the  jjlaintifts,  as  if  he  or  they 
was  or  were  a  defendant  or  defendants  in  the  suit,  and  the  remain- 
ing or  other  plaintiff  or  plaintiffs  was  or  were  the  only  plaintiff  or 
plaintiffs  on  the  record  ;  and  where  there  is  misjoinder  of  plaintiffs, 
and  the  plaintiff  having  an  interest  shall  have  died,  leaving  a 
plaintifl'on  the  record  without  an  interest,  the  Court  may,  at  the 
hearing  of  the  cause,  order  the  cause  to  stand  revived  as  may 
appear  just,  and  proceed  to  the  decision  of  the  cause,  if  it  shall  see 
fit,  and  give  such  directions,  as  to  costs  or  otherwise,  as  may 
appear  just  and  expedient." - 

The  provision  of  the  Act  is  imperative,  and  docs  not  leave  it  to  is  imperative. 
the  discretion  of  the  Court  whether  to  dismiss  the  bill  or  not."^ 


1  Hudson  V.  Maddison,  12  Sim.  416;  5 
Jur.  1104;  and  nee  I'owell  v.  Cockerell,  4 
Hare,  5.07,  W>'1\  10  .Jur.  243,  where  tlic  ob- 
jection was  disallowed  ;  iind  .Miles  r.  Durn- 
ford,  2  Sim.  N.  S.  'IM\  21  L.  .1.  Cli.  667, 
L.  .J.I.;  where  the  plaiiiliflTilleil  two  cliar- 
acters,  in  one  <if  whieli  he  could  not  sue. 
For  a  case  since  1')  &  16  \'ic.  c.  ><0,  see 
Bcecliiti^  V.  Lloyd,. 3  Drew.  227.  .See  Morrill 
C.Lake,  16  Ohio,  37;);  Ohio  r.  KIlis,  10  Ohio, 
450;  I'ovnes  i;.  ( 'reaj^h,  2  Irish  Kq.  I'JO; 
Beaty  «.'.ludv,  1  Dana,  10:5;  liovd  i>.  Ilovt, 
6  PaiRC,  65;  ".Stnry  Kq.  I'l.  §§  279,  o.'JO.  531 ; 
Yeaton  v.  Lenox,  8  Peters,  123;  Harrison 
V.  lli>Ki;,  2  Vesev  .1.  323,  328;  I'.riiikerholT 
t>.  r>nmn,6  .John  Ch.  13!),  150-153;  < 'iark- 
Kon  V.  I)e  I'eyster,  3  I'aifje,  320;  Leiitilhon 
t>.  Moffat,  1  Kdw.  (Jh.  451;  lliillett  v.  Hal- 
lett,2  I'lii^'e,  16;  K^'iertr.  Woods,  3  Pnise, 
617;  Van  Cleef  v.  bickles,  6   I'aigc,  605; 


Raily  v.  Bruton,  8  Wendell,  339 ;  Kny  v. 
.Jones,  7  J.  .1.  Marsli.  37;  Biirliiigame 
«.  Hobbs,  12  Graj-,  307,  372;  Kmaiis  v. 
Emans,  2  Beaslcy  (N.  J.),  205. 

2  12  Sin).  416. 

8  But  it  has  been  held  that  two  or  more 
persons,  havinj;  separate  and  distinct  tene- 
ments which  are  injured  or  rendered  unin- 
habitable by  a  comninn  nui>ance,  or  wliicli 
are  rendered  less  valuable  by  a  ])rivato 
nuisance,  which  is  a  common  injur}'  to  the 
tenements  of  both,  mny  join  in  a  suit  to 
restrain  such  nuisance.  MinTay  v.  Hay,  1 
Barb.  VA\.  59;  I'utnam  v.  Sweet,  1  (Jhand. 
(Wis.)2S6.  The  ('■nut  e.xcrciscs  a  sound 
discretion,  witli<inl  jidherin;;  to  an  indexible 
rule,  in  deteiininini;  whether  there  has  been 
a  misjoinder  of  parties  in  iCquity. 

♦  15  &  1«  Vic.  c.  b6,  §  4!t. 

6  Clements  v.  Bowes,  1  Drew.  084;-  SCO 


class  suits. 


304  OF   PARTIES   TO    A    SUIT. 

Cu.y.  §4.  Tlie  Act  applies  to  tlie  case  where  a  plaintiir  sues  on  behalf  of 
"— — Y  •  --'  himself  and  the  others  of  a  class;  ^  thus,  Avhere  a  hill  was  liled  hy 
Act  applies  to  die  member  of  :i  company  on  behalf  of  himself  and  all  others, 
except  the  defendants,  praying  an  account  of  the  receipts  and 
payments  of  the  defendants  on  behalf  of  the  company,  and  pay- 
ment of  what  should  be  found  due  to  the  i)laintiir,  and  it  a])pcared 
that  there  were  circumstances  which  made  the  interest  of  some  of 
the  persons  purporting  to  be  represented  by  the  plaintifl"  diftereut 
from  liis,  it  was  held,  that  the  Court  could,  under  the  above- 
mentioned  section,  treat  the  absent  plaintiffs  as  defendants,  and 
determine  whether  a  decree  should  be  made ;  and,  accordingly, 
the  Court  decreed  an  account  giving  liberty  to  some  of  the  share- 
holders whose  interest  differed  from  the  plaintiff's  to  attend  the 
proceedings  in  chambers.^ 

It  has  been  held,  that  a  misjoinder  of  plaintiffs  is  now  no  objec- 
tion to  a  motion  for  an  injunction  and  receiver,  to  ])rotect  property 
in  danger  of  being  lost  pending  litigation.^ 

also,  for  cases  of  misjoinder  since  the  Act,  see  Williams  v.  Page,  24  Beav.  C69;  4  Jur. 

Carter  v.  Sanders,  2  Drew.  248;  Upton  v.  N.  S.  102;  Evans  v.  Coventry,  5  De  G.,  M. 

Vanner,  10  W.  K.   99,  V.  C.  K. ;    Burdick  &  G.  911;  2  Jur.  N.  S.  557;  see  also  Stu- 

V.  Garrick,  L.  R.  5  Ch.  Ap.  233.     In  Bar-  part    v.  Arrowsmith,  3    Sm.   &    G.    176; 

ton  V.  Barton,  3  K.  &  J.  512;  3  Jur.  N.  S.  Williams  v.  Salmond,  2  K.  &  J.  463;    2 

808,  the  bill   was  not  dismissed  for  mis-  Jur.  N.  S.  251;    Gwatkin  v.  Campbell,  1 

joinder,  but   for  want  of  interest  in   the  Jur.  N.  S.  131,  V.  C.  W. 

plaintiffs;  and  the  marginal  note  in  3  K.  2  Clements  v.  Bowes,  1  Drew.  634. 

&  J.  512  appears  to  be  incorrect  iu  this  ^  Evans  v.  Coventry,  5  De  G.,  M.  &  G. 

respect.  911;  2  Jur.  N.  S.  557. 
1  Clements  v.  Bowes,  1  Drew.  634;  and 


CHAPTER  VI. 


THE    BILL. 

Section  I,  —  The  different  sorts  of  Bills. 

It  lias  been  before  observed,  that  a  suit  on  tlie  Equity  side  of  Q^^jinan' 
the  Court  of  Chancery  is  generally  commenced,  on  behalf  of  a  mode  of  coin- 
subject,  by  preferring  what  is  termed  a  bill ;  ^  and  that  if  com-  "iit""^ 
menced  by  the  Attoniey-General  on  behalf  of  the  Crown,  or  of 
those  partaking  of  its  prerogatives,  or  under  its  protection,  the 
suit  is  in:<tituted  by  information.^     The  form  of  this  bill  and  in- 
fonnation  is  now  regulated  by  statute  and  by  the  orders  of  the 
Court,  but  the  mode  of  commencing  proceedings  in  Chancery  has 
been  by  bill  since  the  earliest  times.^ 

Bills,  if  they  relate  to  matters  which  have  not  previously  been  original  bills, 
brought  before  the  consideration  of  the  Court,  arc  called  original 
bills,  and  form  the  foundation  of  most  of  the  proceedings  before, 
what  is  termed,  the  extraordinary  or  equitable  jurisdiction  of  the 
Court  of  Chancery.*  The  same  form  of  instituting  a  suit  is  also  in 
use  in  all  other  equitable  jurisdictions  in  the  kingdom  except  the 
county  courts. 

Besides  original  bills,  there  are  other  bills  in  use  in  Courts  of  -gji]^  ^^^ 

E<juity,  wliich  were  formerly  always,  and  are  still  sometimes,  nee-  original. 

essury   to  be  ])referred,  for  the  purpose  of  sup])lying  any  defects 

wliich  may  exist  in  the  foi-m  of  the  original  bill,  or  may  have  been 

produced  by  events  subsequent  to  the  filing  of  it.     Bills  of  this   pj,,^  j^^  jj^^ 

description  are  called  bills  which  are  not  original.     Sometimes  a   miture  of 

'  ^  originiU  bills. 

1  Story  V.(\.  I'l.  §  7.     In  Massachusetts,  is  prayed  for.     Tlic  prayer  for  relief  gives 

ca«et  ill    K(|uity  may  be  cominenced    by  jurisiliction  of  the  action,   and   tiierefore 

bill  or  petition  with  a  writ  of  HiibpnTia,  ac-  no  afliduvit  for  tliat  purjjose  is  necessary, 

cording  to  the  nsuai  course  of  proceedings  Its  character  is   tiiat  of  a  suit  in  lujuity. 

in  Iviuity,  or  inserted  in  an  original  writ  Stockbridge  Iron  Company  r.  Cone  Iron 

of  siiniiiions,  or  of  summons  and  attacii-  Works,  'JIJ  Mass.  408;  see  Irvin  c.  Gregory, 

ment.  or  by  a  declaration  in  an  action  of  13  (iray,  iil^i ;  Stiit.  Muss.  IhG.j,  c.  17y,  §  IJ. 

contract  or  tort,  as  the  case  may  be,  SiC.  Ily  .Statute  in  Miiiiie  a  bill  in  Kquity  may 

If  a  discovery   is  sought,    it  may  be   by  be  inserted  in  a  writ  to  be  .'•erved  as  other 

such  bill  or  pellti -n,  or  by  being  made  part  writs.     Stephenson  v.  Davis,  60  Maine,  7!3, 

of  such  declaration,  or  by  interrogatories.  70. 

Genl.  SLh.  c.  1  V-i,  §§  .'J,  4.     See  Belknap  v.  -i  Ante,  p.  2;  Story  Eq.  I'l.  §  8. 

Stone,  1  Aden,  i'l'i.     The  jurisdictinn  of  8  l.d.  !{•  d.  8. 

the  Supreme  .Judicial  Court  is  exdu'-ive  ^  Story  Eq.  I'l.  §§  10,22. 
over  all  actions  in  which  relief  in  Kquity 

VOL.  I.  20 


306 


THE   BILL. 


Cn.  VI.  $  2. 


Division 
original 


of 
bills 


Praying 
relief. 


Praying 
relief. 


Course 
proposed. 


person,  not  a  party  to  tlic  original  suit,  seeks  to  bring  the  pro- 
I'oedings  and  decree  in  the  orininal  suit  belbre  the  Court,  for  the 
])urpose  either  of  obtaining  the  benefit  of  it,  or  of  procuring  the 
reversal  of  the  decision  which  lias  been  made  in  it.  The  bill 
■which  he  jirefers  for  this  jmrjtose  is  styled  a  bill  in  the  nature  of 
an  original  bill.^ 

Ix'sides  the  different  divisions  of  the  bills  here  enumerated, 
original  bills  are  usually  divided  into :  1.  Original  bills  praying 
relief;  and  2.  Original  bills  not  praying  relief.^ 

Original  bills  praying  relief  are  again  subdivided  into  three 
heads:  1.  Original  bills,  praying  the  decree  of  the  Court  touching 
some  right  claimed  by  the  2)erson  exhibiting  the  bill,  in  o])])osition 
to  rights  claimed  by  the  person  against  Avhom  the  bill  is  exhibited ; 
2.  Bills  of  interpleader;  and,  3.  Certiorari  bills.^  Original  bills 
not  praying  relief,  are  of  two  kinds:  1.  Bills  to  per]ietuate  the 
testimony  of  witnesses ;  and,  2.  Bills  of  discovery.*  The  simplic- 
ity of  modern  proceedings,  however,  renders  the  foregoing  sub- 
division of  bills  in  Chancery  comparatively  unimportant. 

As  original  bills  of  the  first  kind  are  those  most  usually  exhib- 
ited, the  reader's  attention  Avill,  in  the  present  chapter,  be  jjrin- 
cipally  directed  to  them.  The  other  descriptions  of  bills  will  be 
more  particulai-ly  considered,  when  we  come  to  treat  of  the  i^ractice 
of  the  Court  applicable  to  the  particular  suits  of  which  they  are 
the  foundation.  Bills  wdiich  are  not  original,  or  which  are  merely 
in  the  nature  of  original  bills,  will  be  separately  considered  in  a 
future  i^art  of  the  work ;  but  it  may  be  here  observed,  that  simple 
and  economical  modes  of  supplying  the  defects  of  original  bills 
have  been  provided,  which  will  be  stated  in  the  proper  place,^  and 
which  have  rendered  bills  which  are  not  original  of  rare  occurrence. 


Section  II.  —  The  Authority  to  file  the  Bill. 


Authority 
need  not  be  in 
writing ; 


The  first  step  to  be  taken  by  a  party  who  proposes  to  institute 
a  suit  in  Chancery,  unless  he  intends  to  conduct  the  suit  in  j^erson, 
is  to  authorize  a  solicitor  practising  in  the.  Court  to  commence  and 
conduct  it  on  his  behalf  It  does  not  seem  to  be  necessary  that 
such  authority  should  be  in  writing,"  although  it  would,  perhaps, 


1  Srorv  Eq.  PI.  §§  16,  20,  21. 

2  Ld.  "Ked.  34,  37,  51;    Story  Eq.  PI. 
§§  17-19. 

3  Ld.  Ked.  34,  37,  48,  50. 

4  l,d.  lied.  51,  03,  54. 

5  Po«/,  cbap.  XXXIII.;  and  see  15 &  16 
Vic.  c.  86,  §§  5-2,  .03 

6  Lord  V.  Kellett,  2  M.  &  K.  1.     As  to 
revocation  of  the  authority,  see  Freeman 


V.  Fairlie,  8  L.  J.  Ch.  44,  V.  C.  E.  For  the 
autliority  required  in  the  ca^e  of  a  bill  by  a 
public  company,  see  East  Pant  Mining 
Company  v.  Mcrrv weather,  10  Jur.  N.  S. 
1231;  13' W.  K.  216,  V.  C.  W.;  2  H.  &  M. 
2o4;  Extter  &  Crciliton  Kailwnj'  Co.  v. 
Buller,  5  l'ailw;iy  Co.  211.  For  forms  of 
authority  to  sue  or  defend,  see  Vol.  III. 


AUTHOEITY    TO    FILE    THE    BILL. 


307 


be  better  that  a  solicitor,  before  he  commences  a  suit,  should  be 
in  possession  of  some  written  authority  for  that  j^urpose ;  as  if  he 
is  not,  the  onus  of  the  proof  of  the  authority  will  be  cast  on  him.^ 
In  order  to  warrant  a  solicitor  in  filing  a  bill,  the  authority,  be  it 
in  writhig  or  hy jyai'ol,  ought  to  be  special;  and  it  has  been  held 
that  a  general  authority  to  act  as  solicitor  for  a  party,  will  not  be 
sufficient  to  wan-ant  his  commencing  a  suit  on  his  behalf:-  al- 
though, under  a  general  authority,  a  solicitor  may  defend  a  suit 
for  his  client.' 

The  rule  which  requires  a  solicitor  to  be  specially  authoiized  to 
commence  a  suit  on  behalf  of  his  client,  applies  as  well  to  cases 
where  the  party  sues  as  a  co-plaintiff,*  as  to  cases  where  he  sues 
alone ;  and  even  to  cases  where  his  name  is  merely  made  use  of 
pro  forma.  In  Wilson  v.  'Wilson^^  Lord  Eldon  said,  "I  cannot 
agree  that  making  a  person  a  plaintiff  is  only/>ro  forma,  and  I 
am  disposed  to  go  a  great  way  in  such  cases :  Tor  it  is  too  much 
for  solicitors  to  take  upon  themselves  to  make  persons  j^arties  to 
suits  without  a  clear  authority;  there  are  very  great  mischiefs 
arising  fi-om  it."  Now,  as  we  have  already  seen,  before  the  name 
of  any  person  is  used  in  any  suit  as  next  friend  of  any  infant, 
manied  woman,  or  other  party,  or  as  relator  in  any  infoi-mation, 
such  pei-son  must  sign  a  written  authority  to  the  solicitor  for  that 
purpose,  and  such  authority  must  be  filed  with  the  bill  or  in- 
fo nuation,® 

If  a  solicitor  files  a  bill  in  the  name  of  a  person  without  having 
a  proper  authority  for  so  doing,  the  course  for  such  person  to  pur- 
sue, if  he  wislies  to  get  rid  of  the  suit,  and  is  the  sole  plaintiff,  is 
to  move  that  the  bill  may  be  taken  oif  the  file,''  or  dismissed  ^  with 
costs,  to  be  paid  by  the  plaintiff";  and  that  the  solicitor  who  filed 
the  bill  without  authority  may  be  ordered  to  pay  to  the  defendants 


Ch.  YI.  §  2. 


but  must  be 
special, 


and  from  all 
the  plaintiffs. 


"Written  au- 
thority to  use 
name,  as  next 
fi-iend  or  rela- 
tor, must  be 
filed  with  the 
bill  or  infor- 
mation. 


Bill  filed 
without  au- 
tliority,  how 
repudiated  by 
plaintif}': 

Motion  by 
sole  plaintiff; 


1  I'innerr.  Knif^hts,  6  lieav.  174;  Hood 
V.  I'liillip-i,  ih.  170;  Maries  v.  Maries,  23  L. 
J.  Ch.  154.  V.  C.  \V. 

2  WiiH.n  f.  Wilson,  1  J.  &  W.  457;  see 
also  I^und:iH  r.  Dutens,  1  Ves.  .J.  I'jG,  200; 
2  Cox,  235,  241;  IJligh  v.  Tredf^ett,  5  De 
G.  &  S.  74;  15  .Jur.  1101;  liowley  v.  Sev- 
mour,  14  Jur.  21.'J,  V.  C.  li. ;  Re  .Manby,  3 
.)ur.  N.  S.  250;  S.  C.  ho/«.  Norton  r.  C'lop- 
er,  3  Sm.  &  G.  375;  and  s<-e  Solk-y  v. 
Wood,  10  Heav.  370,  where  it  was  held 
th:it  iin  authority  given  to  a  country  so- 
licitor iis  siillicient  to  warrant  his  town 
agent  in  filing  a  bill. 

«  Wright  V.  Ca.stle,  3  Mer.  12;  1  Smith, 
Ch.  I'r.  (2d  Am.  ed  )  100,  107. 

*  Where  a  suit  is  coninienced  in  the 
name«  of  several  per-ons  1j_v  theirsolicitor, 
tlie  C"urt  will  not  inquire  whether  such 
suit  was  authorized  by  all,  unless  some  of 
thcni  ol)j<-ct  to  the  [noceedings,  or  the  ad- 
verse party  shows  afhrmatively  that  the 
suit  is  commenced  and  curried  on  in  the 


names  of  some  of  the  parties  without  au- 
thority.    Bank  Commissioners  v.  Bank  of 
Bufiaio.  6  I'aige,  497. 
6  IJ.  &  W.  458. 

6  15  &  16  Vic.  c.  86,  §  11,  ante,  pp.  13, 
69,  110.  In  a  pressing  case,  an  informa- 
ti'ii  was  a  l<wed  to  be  filed  without  the 
authority,  on  the  undertaking  of  tlic  so- 
licitor to  file  it  the  ne.xt  day.  Attorney- 
General  V.  Murray,  13  W.  1.'.  05,  V.  C.  K. 
As  to  tiie  liability  nf  a  person  whose  name 
is  U'-ed  as  next  friend  wiihouL  authority, 
whether  originally  or  in  the  place  of  one 
deceased,  see  Bligh  i'.  Tredgett,  5  De  G.  & 
S.  74;  16  Jur.  1101;  Ward  v.  Ward,  0 
Bear.  251. 

7  .lerdein  t).  Bright,  10  W.  R.  3S0,  V.  C. 
W.;  I'uimerr.  Walesby,  L.  U.  3  Ch.  Ap. 
732. 

B  Wright  V.  Castle,  3  Mer.  12;  Allen  v. 
Bone,  4  IJeav.  403;  Crosslev  i'.  Crowther, 
9  Hare,  3f-4;  Atkinson  v.  Abbot,  3  Drew. 
251. 


308 


THE    BILL. 


I'm  VI  5  2 


bv  i'0-iil;iill- 
tiffs. 


Must  he  sup- 
ported by 
plaintiirs 
artidavit. 


Notice  of  the 
motion:  to 
whom  given. 


Motion 
should  be 
made  as  soon 
as  possible. 


their  costs  of  the  suit,  or  to  rejiay  sueh  costs  to  tlio  jilniiitifTin  case 
lie  ]>:iys  them;  and  may  he  also  ordered  to  pay  the  ]ilaiiitiir''s  costs 
of  the  a]>])lication,  and  his  incidental  expenses,  as  between  solicitor 
and  client.^  The  same  course  should  be  pursued  where  there  are 
several  plaiiititVs,  and  all  repudiate  the  suit.  But  where  one  or 
more  of  several  j)laintitfs  desire  to  withdraw  from  the  suit,  tliey 
should  move  that  their  names  may  be  struck  out  of  tlie  bill,  and 
that  the  solicitor  who  has  unauthorizedly  used  their  names  may 
be  ordered  to  j^ay  their  costs  of  the  suit,  and  tlie  costs  of  the 
ap]ilication.- 

The  motion  in  either  case  must  be  supjiorted  by  an  affidavit  of 
the  respective  aj)plicants  themselves,  that  the  bill  has  been  iiled 
without  any  authority  from  them.^  To  avoid  the  efFect  of  such 
an  application,  the  solicitor  against  whom  it  is  made  must  sliow 
distinctly,  uj)on  affidavit,  that  he  had  a  special  authority  from  the 
party  moving-  to  institute  the  suit ;  and  it  will  not  be  sufficient  to 
assert  generally,  in  opposition  to  tlie  plaintiff's  affidavit,  tliat 
authority  had  been  given.  In  Wright  v.  Castle,*'  the  affidavit  of 
the  plaintiff  was  met  by  another  on  the  part  of  the  solicitor,  stating 
that  an  action  had  been  brought  by  the  defendant  against  the 
2)laintiff,  on  certain  promissory  notes :  to  restrain  proceedings  in 
which  action  the  bill  had  been  filed,  although  not  by  the  express 
directions  of  the  plaintiff,  yet  in  the  course  of  business,  and  by 
virtue  of  a  general  authority,  as  the  plaintiff's  solicitor ;  but  Lord 
Eldon  did  not  consider  such  authority  sufficient. 

Notice  of  the  intended  motion  must  be  given  to  the  solicitor 
who  filed  the  bill ;  and  wliei-e  one  or  more,  but  not  all,  the  plain- 
tiiis  move,  notice  must  also  be  served  on  the  co-plaintiffs,  and  on 
the  defendants,  whose  costs  of  appearance  are  usually  ordered  to 
be  paid  by  the  solicitor,  if  the  motion  succeeds.^  Where  the  sole 
plaintiff  applies,  service  on  the  defendants  is  urmecessary,  at  least 
before  decree ;  and  in  a  recent  case  their  costs  of  appearing,  where 
improperly  served,  had  to  be  borne  by  the  plaintiff  personally.^ 

The  motion  should  be  made  as  soon  as  possible  after  the  plain- 
tiff has  become  acquainted  with  the  fact  of  the  suit  liaving  been 
instituted  in  his  name:  for  although,  as  between  him  and  the 
solicitor,  the  mere  fact  of  the  plaintiff  having  neglected  to  move  that 


1  Wright  V.  Cattle,  3  Mer.  12;  Pnlmer 
V.  Wak-sby,  L.  K.  3  (Jh.  Ap.  732  ;  and  see 
the  order  in  Alk'n  v.  Bone.  Seton,  852,  No. 
1;  1  Smiih  Ch.  \'r.  (2d  Am.  ud.)  107.  For 
form  of  iiotice  of  motion,  see  Vol.  III. 

■■^  Tabbernor  v.  Tabberiior,  2  Keen,  679. 
For  the  nrdi-r  in  that  ca-e,  s-ee  Seton,  853, 
No.  2;  and  see  Wilson  v.  Wilson,  1  J.  & 
\V.  457;  Pinner  1'.  Knights,  6  Beav.  174; 
Hood  V.  I'hiili|is,  ib.  176  ;  see  h1«o  Malins 
V.  Greenway,   10  Beav.  5G4;  12  Jur.  60, 


319,  where  a  solicitor  was  ordered  to  pay 
the  costs  of  unauthorized  proceedinfjs  in 
the  iMaster"s  oflice,  on  behalf  of  creilitors. 
For  form  of  notice  of  motion,  see  Vol.  III. 
^i  For  form  of  affidavit,  see  Vol.  III. 

4  3  Mer.  12. 

5  Tabbernor  v.  Tabbernor,  2  Keen,  679; 
Seton,  85:5;  Hood  v  Phillips,  6  Beav.  170: 
Pinner  v.  Knights,  ib.  174. 

6  Jerdein  v.  Bright,  10  \V.  R.  380,  V.C. 
W. 


AUTHORITY    TO    FILE    THE    BILL. 


309 


his  name  should  be  struck  out  from  the  record  will  not  exonerate    <^h-  ^^  §  2- 

the  solicitor ;  ^  yet,  as  between  the  plaintiff  and  the  other  parties, 

the  Court,  if  there  has  been  delay  on   his  part  in  making  such 

api)lication,  will  not  generally  dismiss  the  bill,  but  will  so  frame 

the  order  as  not  to  prejudice  any  of  the  parties  to  the  cause."^    The 

last  observation  appUes  more  especially  to  cases  where  the  person 

Avhose  name  has  been  used  without  due  authority,  is  co-plaintiff 

with  others :  for  it  can  scarcely  happen,  where  he  is  sole  plaintiff, 

that  defendants  should  have  an  interest  in  resisting  an  application 

to  dismiss  the  bill  with  costs  (except  indeed  after  decree) ;  but 

where  he  is  co-plaintiff,  it  frequently  happens  that  dismissing  the 

bill  would  interfere  with  the  interest   of  the  other  plaintiffs,  or 

diminish  the  security  of  the  defendants  for  costs :  in  such  cases, 

the  motion  will  usually  be   saved  to  the  hearing,  and  then  the 

solicitor  will  be  ordered  to  pay  all  the  costs  and  expenses  of  the 

[larty  whose  name  has  been  used  without  authority.^     And  further 

than  that,  the  solicitor  was,  in  the  case  of  Dundas  v.  Dittetis,* 

ordered  to  pay  to  the  defendants  the   difference  between  taxed 

costs  and  their  costs  and  expenses. 

Where  a  co-plaintiff  was  not  apprised  that  his  name  had  been   where  plain- 
made  use  of  without  his  authority  till  after  the  bill  had  been  dis-  |.'"^™f  after'' 
missed  Avith  costs,  and  he  was  served  with  a  suhp(jina  to  pay  them,   decision. 
Lord  El<ton,  upon    motion,  ordered  the   solicitor   to  pay  to  the 
defendant  the  costs,  which  had  been  ordered  to  be  paid  by  the 
j.laintiffs  to  the  defendant;  and  also  to  pay  to  the  plaintiff  who 
made  the  ap])lication  his  costs  of  the  application,  as  between  so- 
licitor and  client.^     By  the  order  made  upon  that  occasion,  the 
solicitor  was  ordered  to  pay  the  whole  costs  to  be  paid  by  all  the 
plaintiffs  to  the  defendants ;  but  he  was  to  be  at  liberty  to  make 
any  a]i]ilicati(m  as  to  those  costs,  as  against  the  otluT  jilaintiffs, 
as  he  should  be  advised.® 

As  connected  with  this  subject,  it  may  be  noticed  here,  that  in  when  previ- 
certain  cases  it  is  necessary,  before  a  suit  is  conmienced,  to  obtain   °"(.o;".'('^,J"" 
the  sanction  of  the  Court  to  its  institution.     The  cases  in  wliicli   essary; 
this  is  most  usually  done,  are  those  in  which  the  suit  contemjilated 

1  Hall  V.  Laver,  1  Hare,  571 ;  '>  Jiir  241 ;  friend,  hiis  applied  to  be  relieved  from  or- 
oee  iilso  Uiir^'e  v.  Hrutten,  2  Hare,  37.'5;  7  ders  for  piiyiiiciil  liy  tiicin  of  money  or 
Jur.  'JH«,  !iB  to  tlu'  lien  of  a  solicitor  upon  costs,  witlioiit  liicir  knowledge  of  tlie  suit, 
a  fund  recovered  in  the  cause.  He  Hood  v.  I'liillijis  «  lJ,-av.  176;  Ward?;. 

2  I  itrerton  r.  Dshorne.  1  Dick.  350;  and  Ward,  \l>.  251 :  l{lif,di  »'.  Tredtcett.  5  He  G. 
dee  Tarhtick  r.  Turbuck,  6  IJeav.  134;  &  S.  74 ;  15  Jur.  1101;  /(;»  .Manby,  3  Jur. 
I'inner  iv  Knit:li|».  il>.  174;  Hood  ».  Phd-  N.  S.  25!t;  S.  (J.  wmi.  Norton  i'.  Cooper,  3 
li|.s,  ih.  17'i;  HIiLdi  v.  Tredgett,  5  De  (j.  &  Sm.  &  (i.  375.  In  Hall  «.  U."nnett.2  .S.  & 
S.  74;  15  .lur.  1101.  S.  78,  where  the  l)ill  had  been  dismissed 

^  .See   DundiH  r.    Dutens,   2   Cox,  2;i5,  with  costs   for   want   of  prosecution,   tho 

241;  1  Yes  .1.  VM\.  pliiinlitrs  solicitor  was  onli-rcl  to  piiy  the 

■•  1  Ves.  .1.  200.  defeii'lant's  costs:  tin-  plainiilV  hiivinn  hI)- 

6  Willie  v.  Sianlev,  1  .1.  &  W.  674.  Pconded  before  suit,  and  never  authorized 

»  S.  C.  HeR.  Lib.'H.  1819,  fo.  1835.    For  or  sanctioned  it. 
Other  cases  where  a  pluintii)',  or  a  next 


310 


THE    BILL. 


Cn  VI   $  2. 


whoro  assets 
in  course  of 
administra- 
tion in  Court; 


whore 

receiver 

appointed. 


In  case  of 
infants. 


is  for  the  benefit  of  an  estate  wlucli  is  already  tlie  subject  of  a 
proeeedini;  in  Court,  and  the  expenses  of  wliieh  are  to  be  paid  out 
of  sueli  estate.  Thus,  where  there  is  a  suit  pendinuj  for  the  a(buin- 
istration  of  assets,  and  it  beeontes  necessary,  in  order  to  get  in 
the  estate,  tliat  a  suit  shouhl  be  instituted  against  a  debtor  to  the 
estate,  it  is  usual  for  the  j)ersoual  representative,  previously  to 
filing  a  bill,  to  apply,  in  the  administration  suit,  for  tlie  leave  of 
the  Court  to  exhibit  a  bill  for  that  ])urpose.  And  so  Avhere  a  suit 
has  been  instituted  for  winding  up  partnership  accounts  u])on  a 
dissolution,  and  a  receiver  has  been  appointed  to  collect  the  out- 
standing effects :  if  it  is  necessary,  in  order  to  recover  a  debt  due 
to  the  i)artnership,  that  the  receiver  should  institute  a  suit  for 
that  purpose,  application  should  be  made  to  the  Court,  on  the  part 
of  some  of  the  parties,  that  the  receiver  may  be  at  liberty  to 
file  the  necessary  bill  in  the  names  of  the  partners.  It  is  to  be 
observed  that,  in  all  such  cases,  the  Court  would  not  formerly  di- 
rect the  institution  of  such  a  suit  upon  motion,  although  support- 
ed by  affidavits,  without  previously  referring  it  to  the  Master  to 
inquire  whether  it  would  be  for  the  benefit  of  the  parties  at  whose 
joint  expense  it  was  to  be:  unless  the  other  parties  interested, 
being  of  age,  and  competent  to  consent,  chose  to  waive  such  refer- 
ence.^ Now,  however,  the  proper  mode  of  application  for  orders 
of  this  description  is  by  summons  at  Charabers,^  supjwrted  by 
affidavit  or  other  evidence  of  the  facts  from  which  the  Judge  can 
determine  whether  the  proi)Osed  suit  is  proper  to  be  instituted ; 
and  the  opinion  of  an  Ecpiity  barrister,  in  actual  practice,  is  usually 
reqtiired,  that  there  is  a  good  ground  of  suit. 

In  the  same  manner,  where  the  j)roperty  of  an  infant  is  the 
subject  of  a  suit  already  depending,  and  it  becomes  necessary  that 
another  suit  should  be  instituted  on  behalf  of  the  infant,  it  is 
usual,  before  any  steps  are  taken  in  it,  to  obtain  in  Chambers,  on 
summons,'^  an  order  sanctioning  such  contemplated  proceedings 
as  being  for  the  benefit  of  the  infant.^  It  is  to  be  observed,  how- 
ever, that  such  order  can  only  be  made  where  the  property  of  the 
inftmt  is  already  subject  to  the  control  and  disposition  of  the 
Court  in  another  suit;  and  that  in  ordinary  cases,  where  a  person 
commences  an  original  pi'oceeding  on  behalf  of  an  infant  as  his 
next  friend,  he  is  considered  as  taking  upon  himself  the  whole 
responsibility  of  it ;  nor  will  the  Court,  either  before  or  after  the 
•commencement  of  the  proceeding,  direct  an  inquiry  whether  it 
will  be  for  the  infant's  benefit,  at  the  instance  of  the  next  friend 
himself  (unless  in  cases  where  there  are  two  or  more  suits  brought 
by  different  next  friends  for  the  same  object) :   although,  as  we 


1  Mussrave  v.  Medex,  3  V.  &  B.  107. 

2  For  forms  of  summons,  see  Vol.  III. 


3  See  ante,  p.  feO. 


BY    WHOM    PREPARED.  311 

have  seen,  it  will  sometimes  do  so  at  the  instance  of  other  par-    Ch.  vi.  §  3. 

It  has  been  before  stated,  that  the  committee  of  the  estate  of  Committees 
an  idiot  or  lunatic  ought,  previously  to  instituting  a  suit  on  his 
behalf,  to  obtain  the  sanction  of  the  Lord  Chancellor  or  Lords 
Justices  to  the  proceeding ;  ^  and  that  in  the  case  of  suits  by  the 
assignees  of  bankrupts,  it  is  necessary,  pre^'iously  to  instituting  Assignees  of 
the  suit,  to  procure  the  sanction  of  the  Court  of  Bankruptcy.^     ^    ™P*^' 
And  in  like  manner,  before  a  suit  can  be  instituted  on  behalf  of 
a  charity,  unless  by  the  Attorney-General,  the  sanction  of  the 
Charity  Commissioners  must  be  obtained.* 

It  is  to  be  observed  that,  with  respect  to  all  the  aboA'e-mentioued  Omission  to 
cases,  in  which  it  is  stated  to  be  right,  previously  to  the  institution  tioncamiotbe 
of  a  suit,  to  obtain  the  proper  sanction,  the  omission  to  obtain  taken  advan- 

tti*^e  01  by 

such  sanction  is  not  a  ground  upon  which  a  defendant  to  the  suit  defendant, 
can  object  to  its  proceeding.^ 


Section  III.  —  By  tohom  Prepared. 

The  solicitor  being  duly  authorized,  the  next  step  in  the  in-  strictiv 
stitution  of  a  suit  is   to   have   the   bill  properly  i)rei)ared.     The  prepared  by 

solicitor  ■ 

duty  of  drawing  the  bill  ought,  strictly,  to  be  peiformed  by  the 

solicitor,  who  is  allowed  a  fee  for  so  doing ;  "^  but  as  the  rules  of 

Court  require  that  the  draft  should  be  signed  by  counsel,''  and  as  usually  by 

counsel. 

1  Ante,  pp.  71,  80.  suit,  in  the  manner  in  which  it  is  framed  " 

2  Ante,  p.  85.  Where  a  corporation  is  plaintift",  the  bill, if 
8  Ante,  p.  65.  not  a  sworn  one,  is  drawn  in  the  name  of 
*  10  &  17   Vic.  c  137,  §   17:  see  post,       the  corporation,  hy  its  chartered  title,  und 

Chnp.  XLV.  §  2,  Chfiritiihlt  Trusts  Acts.  signed    by   counsel.     In   cases  where  the 

5  Having  regard  to  the  wor'Isof  the  17th  bill  is  to  be  sworn  to,  it  should  be  signed 
section  of  the  Charitable  Trusts  Act  above  by  the  ofhcer  making  the  OMth.  1  Holf. 
refirred  to,  it  would  seem  doiilitl'iil  whether  Ch.  I'r.  96;  1  Barlxmr  Cli.  Vr.  44.  The 
the  want  of  sanction  would  imt  be  an  ob-  bill  need  not  be  under  the  corporate  seal; 
jection  wiiich  a  d<fendant  might  take  to  tliat  it  is  the  bill  of  the  corporation  is  suf- 
the  suit's  proceeding.  ficiently  vouched  for  by  the  signature  of 

6  Hcffid.  to  Ord.  2d  .Sched.  the  solicitor,  whose  nutlioritv  need  not  be 

7  ()r<t.  Vllt.  1,2;  .Storv  Eq.  PI.  §§  47,  exhil)ited.  Ceorge's  Creek  Co.  iv  Dclniold, 
269;  1  Smith  Ch.  I'r.  (2d  Am.  ed  )  106;  1  Md.  Ch.  Dec.  371.  If,  however,  the 
Ayckliourn  (;h.  I'r.  (I.ond.  ed.  lf^44)  5,  0;  plaintilf  manages  his  cau'c  in  person,  as 
Coop.  Kq.  ri  IH;  Dwiglit  ?'.  IIum(ihreys,  lie  may,  the  hill  must  be  signed  l>y  him ; 
3  AIcLean.  104;  Davis  v.  Davis.  4  ('.  E.  an<I,  in  such  case,  it  would  appear  that  a 
fJroen  (N.  .J  )  180;  Wright  v.  Wright,  4  bill  need  not  be  signed  by  counsel.  See  1 
IlaNt.  Ch  (N.  J.).  153;  Chancery,  Uule  1,  Holf.  Ch.  Pr.  !t7.  The  rules  inc'ude  infor- 
of  New  .ler-ey.  2  McCarter,  513;  IlMtch  r.  mafion.s,  .see  I'rcl.  Ord  10(4)  The  siguii- 
Eusfaphievp,  1  Clarke.  03;  see  I'.clknap  ture  of  the  Atiorney-tJenend  is  reiinired  to 
t'.  Ston<*,  1  .Allen,  572,574 ;  Hiirns  i".  Lyu'le.  an  information,  and  to  an  amendment  of 
6  Allen,  305.  The  signing  on  the  hack  it,  in  addition  to  the  signature  of  the 
of  the  bill  is  sudicient.  Dwight  »■.  Hum-  counsel  who  settles  the  dr.ilt.  In  Atfornev- 
phrey.M,  3  McLean,  104.  The  24'h  Equity  General  r.  Fellows,  1  .1.  &  W.  254,  I'ln 
Rule  of  the  I'nit'-d  States  Supreme  Court  amendol  inforuiMtion  was  ordered  to  ho 
exprfssly  re(|uir<-s  the  signature  of  counsel  taken  od'  the  tile,  because  it  had  not 
to  the  bill,  "  wliich  shall  be  considered  as  hec^n  siitictioiied  by  the  Altoriiey-tieneral, 
an  Hflirmaion  on  his  pirt,  that  upon  the  though  he  had  signed  the  ori;;inal  inforina- 
instriK^tiooH  given  to  him,  iind  the  case  tion.  For  forms  of  notice  ofninlion  in  such 
laid  before  him,  there  is  good  ground  for  case,  see  Vol.  III. 


312 


THE   BILL. 


rii.  VI.  § .-!. 


Must  be 
signed  by 
counsel. 

Objection  for 
want  of  sig- 
nature may 
be  taken  by 
demurrer ; 


or  by  motion 
to  take  tlie 
bill  oil'  the 
file. 


Forgery  of 

counsel's 

name. 


Tiiucli  of  (ho  success  of  the  suit  luay  depend  upon  the  manner  in 
which  tlie  bill  is  iVamed,  it  Ims  been  found  more  convenient  in 
practice  that  the  bill  shouhl  be  ])re])ared  as  Avell  as  siuiied  by 
ooiuisel ;  and  accordingly,  except  in  particular  cases,  instead  of  the 
draft  of  the  bill  being  prepared  by  the  solicitor,  and  laid  before  coun- 
sel for  his  ]>erusal  and  signature,  the  instructions  to  prepare  the  bill 
are  generally,  in  the  first  instance,  laid  before  the  cotnisel,  who 
])re])ares  the  draft  from  those  instructions,  aiul  afterwards  affixes 
his  signature  to  it.-^  If  neither  the  draft  of  the  bill  nor  the  print 
or  engrossment  of  it  be  signed  by  counsel  before  the  bill  is  filed, 
or  the  hand  be  counterfeit  or  disowned,  the  bill  will  be  dismissed 
on  the  defendant's  demurrer  or  motion."  Thus,  in  Kirldey  v. 
Burton^  a  demurrer  was  allowed  to  an  amended  bill,  because  the 
name  of  counsel  did  not  ajipear  to  the  bill;  and  if,  upon  inspection 
of  the  record  or  an  office  copy,  the  name  of  counsel  does  not 
a]i]iear  subscribed  to  the  bill,  the  Court  will,  of  its  own  accord, 
order  it  to  be  taken  off  the  file.* 

The  usual  course,  however,  in  such  a  case,  appears  to  be  for  the 
defendant  to  move  that  the  bill  may  be  taken  off  the  file,  and  that 
the  costs  may  be  paid  by  the  plaintiff.^  If,  upon  such  a  motion 
any  doubt  arises  whether  the  draft  of  the  bill  was  signed  by 
counsel  or  not,  the  Court  may  direct  an  inquiry  into  the  fact ;  and 
if  it  appears  that  it  was  not  signed  by  counsel,  the  bill  "will  be 
ordered  to  be  taken  off  the  file,  and  the  plaintiff  directed  to  pay 
the  defendant  his  costs.^  A  motion  to  take  the  bill  off  the  file, 
Avith  costs,  may  also  be  made  where  the  draft  has  been  altered 
after  it  was  signed  by  counsel.''' 

Where  it  appeared  that  a  solicitor  had  forged  a  counsel's  name 
to  a  pleading,  he  was  fined  20?.,  and  committed  till  the  fine  was 
paid ;  the  party  for  whom  he  acted  Avas  also  fined  100?.* 


1  The  bill  must  be  signed  In'  counsel. 
The  mere  signature  of  counsel  by  another 
person  is  nut  a  compliance  with  tlie  rule, 
either  in  spirit  or  letter.  Counsel,  before 
annexing  his  nsime  to  a  bill,  shoulil  have 
perused  it,  or  been  iiitiirmed  of  its  eon- 
tents  in  such  manner  as  would  satisfy  him 
that  he  misht  certify  that  the  l)iil  stilted  a 
c:Hse  on  which  the  plaintitf  might  be  en- 
titled to  relief,  set  forth  with  so  much  re- 
gard to  the  essential  rules  of  pleading,  and 
prayirg  relief  in  such  manner  as  to  entitle 
it  to  the  consideration  of  the  Court.  Per 
Chiincflliir  Zabriskie,  in  Davis  v.  Davis,  4 
C.  E.  Green  (N.  .1.),  180,  181;  see  Rule  24 
of  the  Krjuity  Rules  of  the  United  States 
Suj)rcme  <  'iiurt. 

'■i  Wright  V.  Wright,  4  Ilalst.  Ch.  (N.J.) 
1-53:  Davis  v.  Davis.  4  (J.  K.  fireen  (N.  .1. ), 
180  ;  Carey  f.  Hatch,  2  Kdw.  Ch.  190; 
Partridge  v.  Jack--on,  2  Kdw.  Ch.  520. 
It  cannot  be  signed  afterwards  without  an 


order  of  Court.  Partridge  v.  Jackson,  2 
Edw.  Ch.  620.  The  want  of  the  signature 
of  counsel  is  a  defect  which  requires  an 
amendment.  Wright  v.  AV right,  4  Ilalst. 
Ch.  (N.J.)  153. 

8  5  Mad.  378. 

■1  French  v.  Dear,  5  Vesey,  547,  550. 
Where  the  plaintiff  discovers,  before  ap- 
peariince,  that  counsel's  name  has  been 
omitted  to  the  bill  as  filed,  he  should  obtain 
an  order  of  course,  on  motion  or  petition, 
to  amend,  and  then  add  the  name  to  the 
bill.  As  to  an  omissioiito  print  the  signa- 
ture, see  Coppeard  i;.  Ma^'hew,  22  L.J.  Ch. 
408,  M.  R. 

^  Por  form  of  notice  of  motion,  see  Vol. 
III. 

6  Dillon  V.  Francis,  1  Dick.  68;  Pitt  v. 
Macklew,  1  S.  &  S.  136,  n. 

7  Troup  ».  Ricardo.  13  W.  R.  147,  L.  C 

8  Whitlock  V.  Marriot,  1  Dick.  16;  and 
see  Bull  v.  Griffin,  2  Anst.  503. 


MATTER    OF    TIIE    BILL. 


313 


"Where  the  same  counsel  who  signed  the  draft  of  the  ong-hial  Ch.  VI.  §  4. 

bill  amends  his  foi-mer  draft,  which   has   his  signature,  it  is  not  '        ^       ^ 

necessary  that  he  should  sign  the  draft  again,  as  the  signature  will  Unnecessary 

be  a])plied  as  well  to  the  amendment    as  to  the  lorraer  dratt ;  inai  draft 

nor  is  it  necessary  that  there  should  be  a  second  signature  to  the  ;^f;y^;jj^g 

record.      But  if  the  amendments  are  made  by  another  counsel,  bill; 

then  it  is  necessary  that  there  should  be  a  second  signature.^    The  unless 

,  .      -  1   .         n  .  •        xi,       amended  by 

usual  practice,  however,  is  for  counsel  m  all  cases  to  re-sign  the  another  coun- 
draft,  whenever  he  amends  it.^  ^^^' 

By  one  of  the  orders  of  the  Court,  it  is  ordered,  that  no  counsel  Order  of 
shall  sign  any  bill,  answer,  or  other  pleading,  unless  it  be  drawn,  p^ru^'und 
or  at  least  perused,  by  himself,  before   it   is  signed;    and  that  signature  of 
counsel  shall  take  care  that  deeds,  writings,  or  records  be  not  brevity' and 
unnecessarily  set  out  therein,  in  hcec  ve?'ba ;  but  that  so  much  of  scandal. 
them  only  as  is  pertinent  and  material  be  set  out  or  stated,  or  the 
effect  and  substance  of  so  much  of  them  only  as  is  pertinent  and 
material  be  given,  as  counsel  may  deem  advisable,  without  need- 
less prolixity ;  and  that  no  scandalous  matter  be  inserted  therein.^ 


Section  lY.  —  The  flatter  of  the  Bill 
An  orii^nnal  bill  in  Chanceiy  is  in  the  nature  of  a  declaration  at  General  na- 

■  ,  -      1.-.,         Ti,  •        •       I       ci'-i      i/~i        ii    ture  of  bill  in 

Common  Law,*  or  of  a  libel  and  allegation  in  the  bjmitual  Courts.-'  Equity. 

It  was,  in  its  origin,  nothing  but  a  petition  to  tlie  King,  wliich, 

after  being  presented,  was  referred  to  the  Lord  Chancellor,  as  the 

keeper  of  liis  conscience ;  ®  and  a  bill  still  continues  to  be  framed 

in  the  nature  and  style  of  a  petition :  though  it  is  now,  in  the 

first  instance,  generally  addressed  to  the  Lord  Chancellor,  Lord 

Keeper,  or  Lords  Commissioners    for   the  custody  of  the  Great 

Seal.^ 

Where  a  bill   ]irays   llie   decree  of  the    Court,  touching  rights   what  it  must 

claimed  by  the  person  exhibiting  it,  in  o])position  to  rights  clninied   ^o"t^""- 

by  the  jterson   against  whom  it   is   exhibited,  it  must  contain   a 

statement  showing  the  rights  of  the  plaintiff  or  person  exhibiting 

the  l»ill,  by  whom  and  in  what  manner  he  is  injured,  or  in  what  he 

wants  the  assistance!  of  the  Court,*  and  in  all  cases,  the  bill  must 

1  Webster  v.  Thrcifall,  1  S.  &  S.  IS");  E.  (ireen  (N.  .J.),  180,  181;  Hood  r  Irwin, 

I!railliwaitu'»  I'r.  304;  -uf,  liowever,  Hurch  4  .loiin.Ch.  437;  24lli.  2fitli.  and  27lli  I'.qiiity 

I'.  iJicli.  1  H.  &  M.  15f>,  158.  liules  of  the  United  States  Supreme  Court, 

Where  the  amendments  proposed  to  wtated  in  note  to  Story  Kq.  I'l.  §  20(3. 
he  mad'-  in  th«!  bill  nre  merely  "f  clerical  *  3  HI.  Com.  442. 

error-*  in  natno,  dati's.  or  sun'm,  >md  "ucli  6  3  IM.  Com.  442;   Ciilh.  For.  Rom.  44. 

errors  are  "pcilied  Ml  the  order  aiithorizinj;  •'•  See  1  Spencn,  E(|    Jur.  335.  et  s<-i/  ;  1 

the  nmeiidni'mts.  the  si>;nafure  of  counsel  Lil.  Camp.  Chancellors,  Intro,  ib.  20(3,  342. 
to   siicli    iimi-ii  linents    i.^    not    required;  '  Cooj).  E(|.  I'l    3. 

I'.rnithwaite's  i'r.  304.  »  See /;".t',  "  stating'  part"  in  this  chap- 

•»  Ord.  VIII.  2;  Hce  I)avi.s  v.  Davis,  4  C.  ter.     A  bill  m:iy  be  drawn  with  a  doulde 


3U 


THE    BILL. 


Must  show 

plaintitt''s 

ri-lit. 


Cii.VI.  §  4.  oont:iin,  ns  coiu-isoly  as  may  be,  a  nai-i;ilivc>  oC  tlio  material  facts, 
matters,  aii<l  circumstances  on  -wlucli  tlic  plaint itV relies,^  and  must 
])ray  specifically  for  the  relief  the  plaintiff  may  conceive  himself 
entitled  to,  and  also  for  general  relief.'^  This  statement  and 
prayer  form  the  substance  and  essence  of  every  hill ;''  and  before 
entering  more  in  detail  into  the  consideration  of  the  form  of  a 
bill,  the  reader's  attention  should  first  be  drawn  to  ceitain  general 
rules  and  ])rinciples  by  which  persons  framing  bills  ought  to  bo 
guided  in  the  performance  of  their  task. 

In  the  first  place  it  is  to  be  observed,  that  every  bill  must  show 
clearly  that  the  plaintiff  has  a  right  to  the  thing  demanded,  or 
such  an  interest  in  the  subject-matter*  as  gives  him  a  right  to 
institute  a  suit  concerning  it.^  It  would  be  foreign  to  the  purpose 
of  this  work  to  attempt  the  enumeration  of  the  various  cases  iu 
which  bills  have  been  dismissed,  because  filed  by  parties  having  no 
interest  in  the  subject-matter,  or  no  right  to  institute  jiroceedings 
concerning  it:  to  do  so,  indeed,  would  necessarily  lead  to  the 
consideration  of  the  general  principles  of  Equity,  and  would  be 
more  fitting  for  a  treatise  upon  the  equitable  jurisdiction  of  the 
Court  than  for  a  book  upon  its  practice.  All  that  need  now  be 
said  upon  this  subject  is,  that  if  it  is  not  shown  by  the  bill  that 
the  party  suing  has  an  interest  in  the  subject-matter,  and  a  proper 
title  to  institute  a  suit  concerning  it,  the  defendant  may  demur;® 


Omission  to 
show  plain- 
tilTs  right,  is 
ground  of 
demurrer. 


aspect;  so  that,  if  one  ground  fiiil,  the 
plaintiff  may  relv  upon  another.  McCon- 
neil  V.  J[cCoi:neii.  11  Vt.  21t0;  Murphv  v. 
CI  irk,  1  Sm.  &  M.  221:  Baines  v.  McGee, 
1  Sm.  &  M.  208;  LigMH  v.  Ilpnderson,  1 
Bland,  236;  Mills  r.  Aletcalf,  1  A.  K.  Marsh. 
477;  Birnettu.  Wo 'ds,  2  Jones  Eq.  (N.C.) 
198.  A  hill  framed  with  a  double  aspect 
must  he  consistent  with  itself  Hart  v. 
McKeese,  Walker  Ch.  417. 

i  The  rule  in  Massachusetts  by  Statute 
is,  that  the  material  facts  and  circumstan- 
ces shall  be  stated  with  brevity,  omitting 
immaterial  and  irrelevant  matters.  Genl. 
Sta's.  c.  113,  §  3;  Mhss.  Ch.  Pr.  Rule  4. 
The  rules  of  Chancery  Practice  in  Maine 
require  the  bill  to  set  forth  clearly,  succinct- 
ly, au'l  precisi'ly,  the  facts  and  causes  of 
comp'aint.  Boynton  v.  Barstow,  38  Maine, 
577.  As  to  the  remedy  for  verboseness 
in  H  bill,  see  Williams  v.  Sexton,  19  Wis. 
42. 

2  15  &  18  Vic.  c.  86,  §  10. 

8  An  application  to  the  Court  for  relief 
in  Efjiiity,  which  does  not  contain  a  pra3-er 
for  process  to  be  served  on  the  defendant, 
or  conclu  le  with  a  general  interrogatory, 
ma}'  be  regarded  a<  a  bill ;  and,  if  properly 
amended,  relief  may  be  granted  upon  it. 
Belknap  v.  Stone.  1  Allen,  572. 

*  The  subject-matter  should  be  properly 
described.  A  bill  for  the  foreclosure  of  a 
chattel  mortgage  should  show  of  what  the 


property  consists,  the  mortgagor's  title  or 
claim  of  title  to  ir,  and  that,  it  is  within  the 
jurisdiction  of  the  Court.  Chapman  i>. 
Hunt,  1  McCarter  (N.  -J.),  149.  152. 

5  Ld.  Red.  154  ;  and  see  Jeredein  v. 
Bright,  2  .F.  &  H.  325;  Nokes  v.  Kish,  3 
I  )rew.  735  ;  Columbine  v. Chichester,  2  I'hil. 
27;  1  C.  P.  Coop  t.  Cott.  295;  10  .lur.  G26; 
Kennebec  &  Portland  R.R.  Co.  v.  Portland 
and  Kennebec  R.U.  Co.,  54  Maine,  173, 
185;  Storv  Eq.  I'l.  §  23;  Cruger  y.  Ilali- 
da3',  11  Paige,  314;  Bailey  v.  Rvder,  10 
N.  Y.  (6  Selden)  363  ;  Waltiiall  «.  Hives, 
34  Ala.  91.  It  is  a  fundann-ntal  rule  in  all 
cases  of  bills  in  Equity,  that  they  must 
state  a  case  within  rhe  appropriate  juris- 
diction of  a  Court  of  Equity.  Story  Eq. 
PI.  §§  10,  34;  Chase  v  Palmer,  25  Maine, 
341;  Mav  v.  Parker,  12  Pick  34:  Stephen- 
son V.  Davi-i,  56  Maine,  73,  74.  In  all  bills 
in  Equity,  in  the  Courts  of  the  United 
States,  the  cilizimship  should  appear  on 
the  fac'^  of  tlie  bill  to  entitle  the  Court  to 
take  jur-sdiction  ;  otherwise  the  bill  will 
be  dismissed.  Dodge  v.  Perkins,  4  Mason, 
435;  Storv  Eq.  PI.  26,  note;  Bingham  v. 
Cabot,  3  Dall.  382;  .Jackson  v.  Ashton,  8 
Peters,  148;  Storv  Eq.  PI.  §  492  ;  Vose  v. 
Phill)rook,  3  Storv,  -335;  see  Louisville 
and  R.U.  Co.  v.  Stetson,  2  How.  U.S.  497. 

6  E'l.  Red.  154;  Story  Eq.  PI.  §§  260, 
261,  508,  509. 


MATTER    OF    THE    BILL.  315 

thus,  where  a  plaintiif  claims  under  a  will,  and  it  appears  upon  the  Ch.  VL  §  4. 
construction  of  the  instrument,  that  he  has  no  title,  a  demurrur  ""—  y — —^ 
will  be  allowed.  In  Jiroicnsioord  v.  Edioards^"^  Avhich  is  the 
case  referred  to  in  Lord  Redesdale,  in  support  of  the  above 
proposition,  Lord  Hardwicke  is  reported  to  have  said,  upon  the 
argument  of  a  demurrer,  that  if  the  Court  had  not  been  satisfied, 
and  had,  therefore,  been  desirous  that  the  matter  should  be  more 
fully  debated  at  a  deliberate  hearing,  the  demurrer  would  have 
been  overruled,  without  prejudice  to  the  defendant's  insisting  on 
the  same  matter  by  Avay  of  answer;  but  in  a  note  to  his  treatise,^ 
Lord  Redesdale  observes,  that  "  perhaps  this  declaration  fell  from 
the  Court  rather  incautiously:  as  a  dry  question  upon  the  con- 
struction of  a  will  may  be  as  deliberately  determined  upon  argu- 
ment of  a  demurrer,  as  at  the  hearing  of  a  cause  in  the  ordinary 
course,  and  the  difference  in  expense  to  the  parties  may  be  con- 
siderable." Of  the  truth  of  this  obseiTation  there  can  be  no 
doubt ;  and  it  is  much  to  be  wished  that,  in  cases  of  this  descrip- 
tion, where  the  right  of  the  plaintiff  in  the  subject-matter  of  the 
suit  dej^ends  upon  a  simple  point,  such  as  that  of  the  construction 
of  a  will,  the  practice  of  demurring  to  the  bill  were  more  frequent- 
ly resorted  to,  as  by  such  means  considerable  expense  might  fre- 
quently be  saved :  for  if  it  appears  at  the  hearing  that  the  party 
filing  the  bill  is  not  right  in  the  construction  he  ])uts  upon  the 
instrument,  the  bill  must  be  dismissed:  which,  if  the  plaintiff's 
bill  had  been  demurred  to  in  the  first  instance,  would  have  been 
the  result,  without  the  additional  expense  caused  by  the  other 
proceedings.^ 

Tlie  rule  that  a  plaintiff  should  show  by  his  bill  an  interest  in  Rule  not 
the  subject-matter  of  the  suit,  applies  not  to  one  plaintiff  only,  but  contined  to 
to  all  the  jdaintiffs;  and  if  several  persons  joined  in  filing  a  bill, 
and  it  appeared  that  one  of  them  had  no  interest,  the  bill  Avas 
formerly  ()[)en  to  demurrer:*  though  it  a])])earcd  that  all  the  other 
jtlaintiffs  had  an  interest  in  the  matter,  and  a  right  to  institute  a 
suit  concerning  it.     This,  as  we  have  seen,  is  no  longer  so;  but 

1  2  Ves.  S.  243,  247;  and  see  Mortimer  11  W.  R.  206,  V.  C.  K.;  Nesbitt  v.  Rpr- 

r.  Hartley,  3  Do  (J.  &  S.  316;  Rvans  r.  ridge,  9  Jiir.  N.  S.  1045;  11  W.  R.  446.  AL 

Kvaiis,   I«  .Iiir    660,   L.  .J.I.;  Cochrane  «.  R. ;  Godfrev  v.  Tucker,  9  Jur.  N.  S.  11S8; 

Willis,  10  .Iiir.  N.  S.  102,  F,  JJ.;  Cnlling-  12  W.  K.  33,  M.   U.;  and  see  Sanders  v. 

wo..(|  r.  Knsscll,  10  Jur.  N.  S.  1002;  13  W.  Benson,  4  Heav.  350,  357. 
J{.  03,  L.  .I.F.;  l.autoiirr.  Att'Tncv-fJcneral,  *  See  tlie  Mav^r  and  AMermen  of  Cfl- 

11  .Jur.  N.  S.  4H;  13  \V.  H.  305,"L..J.J.  Chester  i'.  ,"l  I'.  VVms.  595;  Trouffiiton 

■•2  I.rl.  H.-d.  154.  n.  (p).  V.    Gcttey,  1  Dick.   382  ;    Cufl"  r.  I'jiitcli, 

3  Hut  wIfitc  flic  det'enflnnt  allows  tlie  4   Ku"s.   242  :    Makepeace  v.    naytlionic, 

cauH."  to  l>c  lirou<;lit  to  a  hearing  in  such  a  4  Huss.  244 ;  K'Uf;  nf  Spnin  v.  Macliado,  4 

ca«e,  the  pniclice    is    to    di'-niiss    the    bill  Russ.  225;   hclondre  i'.  .Shiiw,  2  .^im.  237 ; 

witliout  co'ts.     Hill  I'.  Kcardon,  2  S.  &  S.  Vi\\t<'  v.  Town-end,  5  Sim.  395;  Sorv  Kq. 

431.  439;   .Foties  »■.   Davi.ls,  4  Huss.  278;  I'l.  §§  509,  541,  544  :  (.'birksou  r.  DcPcvster, 

Mollin-i-worih  I'.  Sliakeslial'l,  14  Heav.  4!t2;  3   I'ai^'e,  336;    Manning  v.  Gloucester,  0 

Webb  ,-.  Kiinlanil,  2;»  Meav.  44;  7  .lur.  N.  I'ick.  6. 
S.  153;  Krncst  v.  \Vi.se,  9  Jur.  N.  S.  145; 


316 


THE    BILL. 


Cii.TI.  §  4. 


Plaintiff's 
interest  must 
be  existiiiir: 


Presumptive 
devisee, 


or  next  of 
kin, 


cannot  sue. 


Nor  can 
contiiifjent 
remainder- 
man, for 
inspection  of 
title  deeds, 


but  may  to 
secure  trust 
property. 


Bill  by  tenant 
in  tail  in 
remainder 
and  his  chil- 
dren, to 
perpetuate 
testimony  to 
his  marriage, 
cannot  be 
supported; 


till'  Court  may  Tiiakc  siu-li  onlor,  on  tlic  hcariiiu:,  as  justice 
ro(iuiros:^  it  must  not,  howevcM-,  be  supposed  tliat  it  is  not  still 
important  to  avoid  joining  a  jilaintifl' who  has  no  interest  in  the 
bill. 

The  plaint itVs  in  a  suit  must  not  only  show  an  interest  in  the 
subjeet-matter,  but  it  must  be  an  actual  existing  interest:  a  mere 
possibility,  or  even  probability,  of  a  future  title  will  not  be 
sufficient  to  sustain  a  bill;^  therefore,  Avhere  a  plaintiff,  claim- 
ing as  a  devisee  in  the  will  of  a  person  who  was  living,  but  a 
lunatic,  brought  a  bill  to  perpetuate  the  testimony  of  witnesses  to 
the  will,  against  the  presumptive  heir-at-law,*  and  where  per- 
sons, who  would  have  been  entitled  to  the  personal  estate  of  a 
lunatic,  if  he  had  been  then  dead  intestate,  as  his  next  of  kin, 
supposing  him  legitimate,  brought  a  bill  in  the  lifetime  of  the 
lunatic  to  perpetuate  the  testimony  of  witnesses  to  his  legitimacy, 
against  the  Attorney-General,  as  supporting  the  rights  of  the 
Crown,*  demurrers  were  allowed.  For  the  parties  in  these  cases 
had  no  interest  which  could  be  the  subject  of  a  suit:  they  sus- 
tained no  character  under  which  they  could  afterwards  sue ;  and 
therefore  the  evidence,  if  taken,  would  have  been  Avholly  nugatory .^ 
Upon  the  same  principle,  it  has  been  held,  that  a  bill  cannot  be 
sustained  by  a  purchaser  from  a  contingent  remainder-man  of  his 
interest  in  the  property,  against  a  tenant  for  life,  for  insjiection  of 
title  deeds  :  although  a  bill  would  lie  for  that  purpose  by  a  person 
entitled  to  a  vested  remainder.^  But  it  must  not  be  supposed 
that  contingent  remainder-men  can,  in  no  case,  be  plaintiffs :  for 
in  many  cases  (such  as  suits  for  the  administration  of^  or  to  secure, 
the  trust  property  to  which  they  are  contingently  entitled),  such 
persons  may  properly  be  plaintiffs ;  "^  and  orders  have  been  made 
at  the  suit  of  such  persons,  for  the  payment  of  trust  funds  into 
Court.8 

A  bill  filed  by  a  person  who  filled  the  character  of  tenant  in 
tail  in  remainder,  and  his  children,  to  perpetuate  testimony  to  the 
marriage  of  the  tenant  in  tail,  could  not  be  supported :  because 
the  father,  being  confessedly  tenant  in  tail  in  remainder,  could 
have  no  interest  whatever  in  proving  the  fact  of  his  own  marriage, 


1  15  &  16  Vic.  c.  86,  §  49,  ante,  p.  303. 

2  Ld.  Red.  156;  and  see  observations  of 
Lord  Cottenliam,  in  Finden  v.  Stephens,  2 
Phil.  148;  1  C.  P.  Coop  329:  10  .lur.  1019; 
Davis  V.  Angel,  31  Beav.  223;  8  Jur.  N.S. 
709,  1024. 

3  Snckvill  V.  Avleworth,  1  Vern.  105;  1 
Eq.  Ca.  Ab.  234,' pi.  3;  see  also  2  Prax. 
Aim.  500,  where  the  form  of  demurrer  is 
set  out. 

*  Smith  V.  Attornev-General,  cited  Ld. 
Bed.  157;  1  "Vern.  105,  n.,  ed.  Kaithby;  6 
Ve3.  255,  260;  15  Ves.  136. 


5  Story  Eq.  PI  §  301,  and  cases  citorl;  2 
Story  Eq.  .Jur.  §  1511 ;  Dursley  v.  Berkley, 
6  Sumner's  Ves   251,  and  notes. 

6  Noelu.  Ward,  1  Mad.  322.  329;  and 
see  Davis  v.  Earl  of  Dj-sart,  20  lieav.  405; 
1  .Jur.  N.  S.  743,  and  cases  there  cited,  for 
instances  of  vested  reiuiiinder-men. 

7  Roberts  v.  Roberts,  2  De  G.  &  S.  29;  2 
Phil.  534. 

**  Ross  V.  Ross,  12  Beav.  89 ;  Governesses' 
Benevolent  Institution  v.  Rusbridger,  18 
Beav.  467. 


MATTER    OF    THE    BILL. 


317 


the  remainder  in  tail  being  vested  in  liira ;  and  the  other  plaintiifs 
(the  chiklren)  were  neither  tenants  in  tail  nor  remainder-men  in 
tail,  but  the  issue  of  a  j^erson  who  was  de  facto  and  de  jure  tenant 
in  remainder  in  tail,  having  the  whole  interest  in  him ;  and,  con- 
sequently, the  children  had  no  interest  in  them,  in  respect  of 
which  they  could  maintain  their  bill.^  Upon  the  same  prin- 
ciple, wliere  the  dignity  of  Earl  was  entailed  upon  an  individual 
who  died,  leading  tAvo  sons,  the  eldest  of  whom  inherited  the 
dignity :  upon  a  bill  filed  by  his  eldest  son,  in  his  lifetime,  against 
the  second  son  of  the  first  Earl,  and  the  Attorney-General,  to 
perpetuate  testimony  as  to  his  father's  marriage,  a  demurrer  was 
allowed.- 

Where  the  plaintiflT  does  not  show  an  existing  interest  by  his 
bill,  the  disclaimer  or  waiver  of  one  defendant  in  his  favor  ^vill 
not  sustain  the  bill  against  the  other  defendants.^ 

Where,  however,  a  party  has  an  interest,  "it  is  perfectly  imma- 
terial how  minute  the  interest  may  be,*  or  how  distant  the  possi- 
bility of  the  possession  of  that  minute  interest,  if  it  is  a  present 
interest.^  A  present  interest,  the  enjoyment  of  which  may  depend 
upon  the  most  remote  and  improbable  contingency,  is,  nevertheless, 
a  present  estate ;  and,  as  in  the  case  uj^on  Lord  Berkeley's  will,® 
though  the  interest  may,  with  reference  to  the  chance,  be  worth 
nothing,  yet  it  is  in  contemplation  of  law  an  estate  and  interest, 
upon  which  a  bill  may  be  supported."  "^ 

But,  althougli  a  plaintiff  may  have  a  present  estate  or  interest, 
yet,  if  his  interest  is  such  that  it  may  be  barred  or  defeated  by  the 
act  of  the  defendant,  he  cannot  support  a  bill ;  as  in  the  case  put 
by  Lord  Eldon,  in  Lord  Dursley  v.  Fitzhardinge^  of  a  remainder- 
man filing  a  bill  to  perpetuate  testimony  against  a  tenant  in  tail. 
To  such  a  bill  it  seems  the  tenant  in  tail  might  demur,  uj)on  the 
gi'ound  that  he  may  at  any  time  bar  the  entail,  and  thus  deprive 
the  ]>laintiff  of  his  interest.® 

A  i)laintiff  must  not  only  show  in  his  bill  an  interest  in  the 
subject-matter  of  the  suit,  but  he  must  also  make  it  appear  that  he 
has  a  projter  title  to  institute  a  suit  concerning  it;"  for  it  very 


Ch.  VI.  §  4. 


nor  bill  by 
eldest  son  of 
heir  in  tail 
of  a  dignity. 


Disclaimer  of 
one  defendant 
in  favor  of 
plaintiff 
when  insuf- 
tlcient. 

Minuteness 
or  remoteness 
of  existing 
interest 
immaterial, 


if  incapable 
of  beinpf 
defeated. 


Bill  must 
show  a 
proper  title. 


1  Allan  V.  Allan,  15  Ves.  130,  135. 

■^  Karl  of  liellast  v.  Chichester,  2  J.  &  \V. 
43;>,  4»9,  452. 

8  GrilKth  w.  Hicketts,  7  Hare,  305  ;  14 
Jur.  lotj,  325  ;  Ihjlliiigsworth  v.  Sliake- 
Bhaft,  14  Heav.  4H2. 

■•  See  .Seaton  v.  Grant,  L.  IJ.  2  Ch.  Ap. 
45'J,  403.  4tj5. 

fi  Story  Kq.  I'l.  §  301. 

''  Loril  Uuisley  v.  Fitzhardinge,  6  Ves. 
251. 

7  Per  Lord  F,ld'>n,  in  Allan  v.  Allan,  15 
Ves.  135 ;  see  al.'^o  Davis  v.  Angel,  31  Ueav. 


223;  8  .Jur.  N.  S.  709,  1024;  2  Story  Eq. 
Jur.  §  1511. 

1  G  Ves.  202;  see,  however,  Butcher  v. 
.Jackson,  14  Sim.  444,  and  the  observations 
of  Sir  L.  Shiidwell  V.  C.  at  p.  455. 

8  It  would  be  a  fruitless  exercise  of 
power  to  enterlaiii  a  bill  to  perjietuate  evi- 
dence in  such  a  case.    Story  {•a\.  1*1.  §  301. 

1"  Ld.  Red.  155.  It  is  not  essential  that 
the  pbiintiirs  title  should  be  e.xpliriily 
averred.  It  is  sullicient  that  it  may  (liily 
be  interred  from  the  facts  stated.  U'ehbi-r 
V.  Giige,  3!»  N.  II.  1H2;  St"ry  Kq.  I'l.  §  730; 
Clapp  V.  Shc])liar.l,  23  I'ick.  22S. 


318 


THE    BILL. 


Cii.  VI.  5  4. 


Kxoi'utor 
suing,  must 
stato  he  liiis 
provod  tho 


will ; 


unless  bill  is 
tiled  to  pro- 
toet  property 
poiuliu{:C 
grant  ot" 
probate. 

How  jiroof  of 
wills  alleired. 


Executor, 
tiling  a  bill 
before  pro- 
bate, must 
prove  before 
hearing. 


Same  rule 
applies  to  ad- 
ministrators ; 


often  h:ij>i>ons,  tliat  a  pt'rsou  may  have,  an  intoivst  in  the  subject- 
matter,  and  yet,  fur  want  of  coini)liance  witli  st)me  requisite  forms, 
he  may  not  bo  entitled  to  institute  a  suit  reUiting  to  it.  Thus, 
for  instance,  the  executor  of  a  deceased  person  has  an  interest  in 
all  the  })ersonal  ]»ro])erty  of  his  testator;  but,  till  he  has  proved 
the  will,  he  cannot  assert  his  right  in  a  Court  of  Justice ;  if,  there- 
fore, a  man  files  a  bill  as  executor,  and  does  not  state  in  it  that  he 
has  proved  the  will,  the  bill  will  be  liable  to  demurrer.^ 

An  executor  may,  however,  it  seems,  pending  an  application  for 
probate,  file  a  bill  to  jjrotect  the  estate,  by  obtaining  an  injunction 
or  otherwise :  although  he  alleges  in  the  bill  that  he  has  not  yet 
obtained  probate.^ 

Formerly,  it  was  necessary  to  allege  that  the  will  w^as  proved  in 
the  proper  Ecclesiastical  Court,  though  it  was  not  necessary  to 
mention  in  what  Court;"  and  this  still  applies  to  all  wills  proved 
before  the  constitution  of  the  Court  of  Probate ;  *  but  since  that 
date,  it  is  conceived  that  it  is  sufficient  simply  to  allege  that  the 
w411  has  been  proved :  though  in  practice  it  is  usual  to  allege  that 
it  has  been  proved  in  Her  Majesty's  Court  of  Probate,  or  that  it 
has  been  duly  j^roved.  Formerly  questions  often  arose,  w^hether 
the  will  had  been  proved  in  the  proper  Court  :'^  whether,  for 
instance,  a  prerogative  probate  was  necessary;*'  but  these  ques- 
tions are  removed  by  the  constitution  of  the  present  Court  of 
Probate,  except  as  to  wills  proved  before  the  11th  January, 
1858J 

If  an  executor,  before  probate,  file  a  bill,  alleging  that  he  has 
proved  the  will,  such  allegation  will  obviate  a  demurrer ;  ^  he  must, 
however,  prove  the  will  before  the  hearing  of  the  cause,  and  then 
the  probate  w^ll  be  sufficient  to  support  the  bill,  although  it  bear 
date  subsequently  to  the  filing  of  it.^ 

In  like  manner,  a  plaintiff  may  file  a  bill  as  administrator  before 
he  has  taken  out  letters  of  administration,  and  it  will  be  sufficient 
to  have  them  at  the  hearing.^" 


1  Humplireys  v.  Ingledon,  1  P.  Wms. 
752;  Storv  Eq.  I'l.  §  625  ;  Champion  v. 
Parish,  3  Edw.  Ch.  581. 

2  Newton  V.  Metropolitan  Railway  Com- 
pany, 1  Ur.  &  Sm.  5«;i;  8  Jur.  N.  S.  738; 
see  liawlings  V.  Lambert,  1  J.  &  H.  458; 
Steer  v.  Steer,  13  \V.  K.  225,  V.  C.  K. ;  2 
Dr.  &  Sm.  311;  Overiiigton  v.  Ward,  34 
Beav.  175;  and  also  pust,  Cliap.  XXXIX. 
§  1,  as  to  obtaining  receivers  pending  liti- 
gation as  to  probate. 

8  Humphreys  v.  Ingledon,  1  P.  Wms. 
752. 

4  20  &  21  Vic.  c.  77. 

5  T..urton  v.  I'lower,  3  P.  Wms.  3G9,  370; 
but  see  .Jol^saullle  v.  Abbot,  15  Sim.  127. 

6  Thomas  v.  Uavies,  12  Ves.  417;  Cliall- 
nor  V.  Murhall,  6  Ves.  118  ;   >sewman  v. 


Hodgson,  7  Ves.  409;  Metcalfe ».  Metciilfe, 
1  Keen,  74,  79;  McMahon  ».  Rawliugs,  16 
Sim.  429. 

'  20  &  21  Vic.  c.  77,  §  1;  Ord.  in 
Council  of  2d  Dec,  1857;  3  Jur.  N.  S.  Pt. 
II.  479. 

8  Humphreys  v.  Ingledon,  1  P.  Wms. 
752. 

y  Humphreys  v.  Humphreys,  3  P.  Wins. 
349. 

10  Fell  V.  Lutwidge,  Barn.  320;  Hum- 
phreys V.  Humphreys,  3  P.  Wms.  351 ;  Hor- 
ner V.  Horner,  23  L.  J.  Ch.  10,  V.  0.  K. ; 
see  Call  V.  Ewiiig,  1  Blackf.  301;  Lanjidon 
V.  Potter,  11  Ma-s.  313;  Savage  v.  Mer- 
riam,  1  Blackf  17G;  Caller  v.  Dade,  Minor, 
20;  Axers  v.  Musselman,  2  Browne,  115. 


MATTER    OF    THE    BILL. 


319 


It  is  to  be  observed  that,  although  an  executor  or  administrator 
may,  before  probaie  or  administration  granted,  file  a  bill  relating 
to  tlie  property  of  the  deceased,  and  such  bill  will  not,  on  that  ac- 
count, be  demurrable,  provided  the  granting  of  probate  or  of  letters 
of  administration  be  alleged  in  the  bill,  yet  a  defendant  may  take 
advantage  of  the  fiict  not  being  as  stated  in  the  bill,  by  plea  ;  thus, 
in  /Simons  v.  MUman,^  where  letters  of  administration  had  been 
granted  to  the  defendant  under  the  idea  that  the  deceased  had  died 
intestate,  whereas,  in  fact,  he  had  made  a  will  and  appointed  the 
plaintiflT  his  executor,  who,  before  probate,  filed  a  bill,  for  the  pur- 
pose of  recovering  ])art  of  the  assets  of  the  testator  from  the  de- 
fendant, alleging  that  probate  of  the  will  had  been  granted  to  him, 
to  which  bill  the  defendant  put  in  a  plea  stating  that  such  was  not 
the  fact :  Sir  Lancelot  Shadwell  V.  C.  allowed  the  plea. 

But  although  an  executor,  tiling  a  bill  before  probate,  must,  as 
we  have  seen,  allege  in  it  that  he  has  proved  the  will,  it  is  not  nec- 
essary that  in  a  bill  against  an  executor  such  a  statement  should  be 
made :  for  if  executors  elect  to  act,  they  are  liable  to  be  sued  before 
probate,  and  cannot  afterwards  renounce.^  It  also  seems,  that  if  a 
party  entitled  by  law  to  take  out  administration  to  a  deceased  per- 
son, does  not  do  so,  but  acts  as  if  he  were  administrator,  and  re- 
ceives and  disposes  of  the  property,  he  will  be  liable  to  account  as 
administrator ;  but  in  both  cases  it  is  necessary  to  have  a  duly  con- 
stituted legal  personal  representative  before  the  Court.^ 

It  may  be  here  observed,  that  if  it  appears  to  the  Court  that  the 
probate,  or  the  letters  of  administration,  bear  a  stamp  applicable 
to  a  less  sum  than  that  which  is  sought  to  be  recovered  in  the 
cause,  no  decree  can  be  obtained  until  the  defect  has  been  remedied, 
and  the  party  can  shoAv  that  he  represents  the  estate  to  an  amount 
suHioient  to  cover  liis  claim.* 

Where  it  appears  that,  in  order  to  comj^lete  the  plaintiff's  title 
to  tlie  subject  of  tlie  suit  or  to  the  relief  he  seeks,  some  i:>relimi- 
nary  act  is  necessary  to  be  done,  tlie  performance  of  such  jirelimi- 
nary  act  ought  to  be  averred  u])on  the  bill,  and  the  mere  allegation 
that  the  title  is  complete,  without  such  averment  will  not  be  sufii- 
cient ;  thus,  where  a  plaintiff  claimed  as  a  shareholder  by  jtur- 
chasc,  of  certain  shares  in  a  Joint-Stock  Company  or  Association, 
alleging  in  liis  Ijill  that  he  had  purcliased  sucli  shares  for  a  valuable 
consideration,  and  luid  ever  since  held  the  same,  but  it  appeared 


Ch.  VI.  §  4. 


Bill  not 
demurrable 
because  no 
probate  or  ad- 
njinistration 
granted ; 

but  defendant 
may  plead 
that  fact. 


Not  neces- 
sary to  state 
prol)ate  as 
takt'ii  out,  in 
bill  against 
executor. 

Adminis- 
trator de  son 
tort  may  be 
sued: 

but  legal  per- 
sonal repre- 
sentative 
must  be  a 
party. 

Where  pro- 
bate or  ad- 
ministration 
is  insufficient- 
ly stamped. 


All  prelimi- 
nary acts 
necessary  to 
complete 
plaintiff's 
title,  must  be 
averred. 


I  2  Sim.  241;  .Story  Kq.  PI  §  727;  see 
I'x/lloat  V.  M'Tse,  2  ilayw.  l.'i",  and  see 
'l'en<|(i'st  r.  ]a)vA  Cauioys,  1  \V.  2s'.  16; 
14  U.  li   .■{2t;,  .M.  U. 

•'!  r.lcwiit  r.  Mlnwitt,  Younge,  JA\\  Cie- 
land  r  Cieiaiicl,  I'rcc.  (Jli.  64;  see  Story 
Eu.  I'l.  §  HI. 

«  ('roasor  v.  Robinson,  14  Henv.  689;  15 
Jur.  104'J,  and  the  cases  there  referred  to. 


*  .lones  V.  Ilowells,  2  Hare,  342,  353; 
Cliristian  v.  Devcreu.x,  12  Sim.  264,  273; 
Howard  v.  Prince,  10  lU-av.  312,314;  and 
see  Killock  t".  (ircgg,  cileiJ  2  Hare,  346, 
364;  Hiirpcrr  Ikaveiiliill,  rami.  140;  Rob- 
erts V.  Madocks,  16  .Sim.  66;  Smith  v. 
Creagh,  Batty,  3b4;  Nail  d.  I'uutcr,  5  Sim. 
563. 


320 


THE    BILL. 


Cn.  YI.  §  4. 


riaintiff 
claiming:  as 
heir  need  not 
state  pedi- 
gree. 

Where  plain- 
tirt"  chiims  by 
privity  or 
contract : 


in  suits  be- 
tween mort- 
gagor and 
mortgagee ; 


between 
lessor  and 
lessee ; 


between 
principal 
and  agent. 


in  another  ])art  of  the  bill,  that,  by  the  rules  of  the  company  or 
association,  no  transfer  of  shares  couUl  be  valid  in  Law  or  Equity 
unless  Ihe  ])urchaser  was  approved  by  a  board  of  directors,  and 
signed  an  instrument  binding  him  to  observe  the  regulations: 
Lord  Brougham  allowed  a  demurrer,  on  the  ground  that  the  per- 
formance of  the  ride  above  pointed  out  was  a  condition  precedent, 
and  ought  to  have  been  averred  upon  the  bill,  and  that  the  allega- 
tion of  the  plaintiff  having  purchased  the  sliares  and  being  a  share- 
holder, although  admitted  by  the  demurrer,  was  not  sufKcient  to 
cure  the  defect,^ 

When  a  plaintiff  claims  as  heir-at-law,  it  was  formerly  considered 
that  lie  must  state  in  his  bill  how  his  title  arose ;  ^  but  it  is  now 
settled,  that  an  allegation  that  he  is  heir  is  sufficient.^ 

Where  there  is  a  privity  existing  between  the  plaintitf  and 
defendant,  independently  of  the  plaintiff's  title,  which  gives  the 
plaintiff  a  right  to  maintain  his  suit,  it  is  not  necessary  to  state  the 
plaintiff's  title  fully  in  the  l)ill ;  thus,  where  a  plaintiff's  claim 
against  the  defendant  arises  under  a  deed  or  other  instrument, 
executed  by  the  defendant  himself,  or  by  those  under  whom  he 
claims,  which  recites,  or  is  necessarily  founded  upon,  the  existence, 
in  the  j)laintiff,  of  the  right  w^hich  he  asserts,  it  is  sufficient  to 
allege  the  execution  of  the  deed  by  the  j^arties.  In  like  manner, 
in  the  case  of  a  bill,  by  a  mortgagor  in  fee,  against  a  mortgagee, 
to  redeem  the  mortgage,  it  is  sufficient  merely  to  state  the  mort- 
gage deed,  without  alleging  that  the  mortgagor  was  seised  in  fee ; 
or  if  the  mortgagor  has  only  a  derivative  title,  it  is  not  necessary 
to  show  the  commencement  of  such  derivative  title,  or  its  continu- 
ance :  because  the  right  of  the  plaintiff  to  redeem,  as  against  the 
defendant,  does  not  depend  upon  the  title  under  which  he  claims, 
but  u2:)on  the  proviso  for  redemption  in  the  mortgage  deed.  Upon 
the  same  2>rinciple,  where  a  defendant  holds  under  a  lease  fi'oni  the 
plaintiff"  the  plaintiff  need  not  set  out  his  title  to  the  reversion  : 
the  fact  of  the  defendant  having  accepted  a  lease  from  the  plaintiff 
being  sufficient  to  preclude  his  disputing  the  title  under  which  he 
holds.*  In  like  manner,  where  a  man  employs  another  as  his  bailiff 
or  agent,  to  receive  his  rents  or  tithes,  the  right  to  call  upon  the 
baililf  or  agent  for  an  account  does  not  depend  upon  the  title  of 
the  emi)loyer  to  the  rents  or  tithes,  but  to  the  privity  existing  be- 


1  Walburn  v.  Ingilby,  1  M.  &  K.  61,  77; 
see  hIso  iMorr.s  v  Keli}',  1  J.  &  W.  481; 
Colburn  V.  Duncombe,  y  Sim.  151,  154;  2 
Jur.  054;  Kichardson  v.  Gilbert,  1  Sim.N. 
S.  336;  15  Jur.  369;  Story  Eq-  PI.  §§  257, 
257  a,  258,  and  Cassell  v.  Stift',  2  K.  &  J. 
279,  as  to  tiie  title  to  be  shown  to  copy- 
right. 

^  Lord  I>igl)y  v.  Meech,  Bunb.  195; 
Baker  v.  Harwood,  7  Sim.  373. 


3  Barrs  v.  Feukes,  10  Jur.  N.  S.  4GG;  12 
W.  K.  tiOG,  V.  C  W.;  and  see  Delorne  v. 
Hollingswortli,  1  Cox,  421,  422;  Ford  v. 
Peering,  1  V'es.  J.  72. 

*  Iftiie  plaintiff  claims  as  heir,  or  under 
a  derivative  title  Irom  the  mortgagor  or 
lessor,  he  must,  as  in  other  cases,  show 
how  he  makes  out  his  title. 


MATTER    OF    THE    BILL. 


321 


tween  him  and  his  bailiiF  or  agent ;  the  employer  may,  therefore, 
maintain  a  bill  for  an  account,  without  showing  any  title  to  the 
rents  or  tithes  in  question. 

Wliere,  however,  the  plaintiff's  right  does  not  depend  upon  any 
particular  i)rivity  between  him  and  the  defendant,  existing  inde- 
pendently of  his  general  title  to  the  thing  claimed,  there  it  will  be 
necessary  to  sliow  his  title  in  the  bill.^  Thus,  where  a  bill  is  filed 
by  the  lessee  of  a  lay  impropriator  against  an  occupier,  for  an  ac- 
count of  tithes,  there  the  right  of  the  jjlaintiff  to  the  account 
depends  solely  upon  his  title  :  he  must,  therefore,  deduce  his  title 
regvdarly,  and  show  not  only  the  existence  of  the  lease,  but  that 
the  person  from  whom  it  is  derived  had  the  fee.- 

In  like  manner,  where  a  plaintift'  in  a  bill  for  specific  jierform- 
ance  intends  to  rely  on  a  waiver  of  title  by  the  defeudant,  it  is  not 
suflicient  to  allege  upon  his  pleadings  the  facts  constituting  the 
waiver :  lie  must  show  how  he  means  to  use  the  facts,  by  alleging 
that  the  title  has  been  Avaived  thereby.^ 

The  same  precision  which  is  required  in  stating  the  case  of  a 
plaintiff",  is  not  necessary  in  showing  the  interests  of  the  defendant 
against  whom  the  relief  is  sought:^  because  a  plaintiff'  cannot 
always  be  sujjposed  to  be  cognizant  of  the  nature  of  a  defendant's 
interest,  and  the  bill  must  frequently  proceed  with  a  view  to  obtain 
a  discovery  of  it ;  thus,  where  a  bill  was  filed  by  a  lessee  for  years, 
for  a  jKirtition,  and  the  plaintiff",  after  stating  his  own  right  to  one 
undivided  tenth  i)ait,  Avith  precision,  alleged  that  the  defendant 
was  seised  in  fee-simple  of^  or  otherwise  well  entitled  to,  seven  other 
tenth  parts,  a  demurrer,  on  the  ground  that  the  plaintiff  had  not 
set  out  the  defendant's  title  with  sufficient  certainty,  was  over- 
ruled.'' And  even  where  it  is  evident,  from  the  nature  of  the  case, 
that  a  plaintiff"  must  be  cognizant  of  the  defendant's  title,  and  sets 
out  tlie  same  informally,  yet,  if  he  alleges  enough  to  phow  that  the 
defendant  lias  an  interest,  it  will  be  sufficient.  Thus,  where  a  bill 
was  filed  to  redeem  a  mortgage,  but  the  conveyance  was  so  stated 
that  it  did  not  show  that  any  legal  estate  had  passed  to  the  de- 
fendant, a  demurrer  was  overruled  :  because  the  defendant  could 
not  ]>(i  permitted  to  disj)Ute  his  own  title,  which  was  admitted  by 
the  plaintiff  to  be  good.'' 

Ill  all  cases,  however,  a  bill  must  show  that  a  defendant  is  in 
some  way  liable  to  tiie  j)laintiff's  demand,'  or  that  he  has  some 
interest  in  the  subject  of  the  suit :  *  otherwise  it  will  be  liable  to 


cii.  ^n.  §  4. 


WTiere  claim 
depends  only 
coi  title,  it 
must  be 
staled : 
bill  by  lessee 
for  tithes. 


Suit  for  spe- 
citic  perform- 
ance, where 
waiver  of  title 
insisted  on. 


Stating  case 

against 

defendant. 


'  See  Humphrey  v.  Tate,  4  Ircd.  Eq. 
220;  Smilh  i;  I'uriier,  4  Ired  Ecj.  i'.i-i; 
I'eck  V.  .Mallows,  10  N.  Y.  6i)i>. 

■■*  I'cnny  v.  Iloper,  Bunb.  115;  liurwcll 
V.  Coates,  ilj.  \2'J. 

3  Clive  /•.  iJeaumont,  1  De  G.  &;  S.  397; 
13  Jur.  22ti. 


I'lMintilTniui't 
show  <l('fend- 
ant  lia.s  uii 
interest. 


21 


*  iStorv  Eq.  I'l.  §  255;  Morgan  t".  Smith, 
11  111.  l'J4. 

6  I'.Mriiig  V.  Nash,  1  V.  &  B.  551,  552. 

0  l(<il)url.'i  »'.  Clayton,  3  Anst.  716. 

V  1,(1.  lied.  n;:t. 

8  l.d.  Ited.  KiU;  riiimber.  Pliiml)C,  4  Y. 
&  C.  Ex.  345,  300;  St..ry  K<|.  i'l.  §  202  eC 
seq.;  Humphreys  v.  lute,  4  Irud.  Eq.  220. 


322 


THE    BILL. 


('II.  VI.  §  4. 


Exception  in 
case  of  mem- 
bers or  officers 
of  corpora- 
tions. 


Arbitrators, 
attorneys,  or 
agents. 


Pri^■^ty  be- 
tween plain- 
tiff and 
defendant 
must  be 
shown : 


(lotmirror.  Thus,  where  a  bill  was  hrouoht  Ly  the  ohligee  in  a 
boiul,  against  the  lieir  of  the  obligor,  alleging  that  the  heir,  having 
assets  by  deseent,  ought  to  satisfy  the  bond,  a  demurrer  was  al- 
lowed, because  the  plaintilf  had  not  expressly  alleged  in  the  bill 
that  the  lieir  was  bound  in  the  bond  :  although  it  Avas  alleged  that 
the  heir  ought  to  })ay  the  debt ;  ^  so,  where  a  bill  was  brought 
against  an  assignee  touehing  a  breaeh  of  covenant  in  a  lease,  and 
the  covenant,  as  Stated  in  the  bill,  appeared  to  be  collateral,  and 
not  running  with  the  land,  and  did  not,  therefore,  bind  assignees, 
and  was  not, stated  by  the  bill  expressly  to  bind  assignees,  a 
demurrer  by  the  assignee  was  allowed.^  Upon  the  same  prin('ij)le, 
Avhere,  in  a  bill  against  A.  and  B.,  the  ])laintiff  stated  a  circumstance 
which  was  material  in  order  to  charge  B.,  not  as  a  fact,  but  as  an 
allegation  made  by  A.,  a  demurrer  by  B.  was  allowed.^ 

And  here  it  may  be  observed  that,  although  it  is  generally 
necessary  to  show  that  the  plaintiff  has  some  claim  against  a 
defendant,  or  that  a  defendant  has  some  interest  in  the  subject- 
matter  in  litigation,  yet  there  are  cases  in  which  a  bill  may  be 
sustained  against  defendants  who  have  no  interest  in  the  subject, 
and  who  are  not  in  any  manner  liable  to  the  demands  of  the 
plaintiff.  The  cases  alluded  to  are  those,  which  have  been  before 
referred  to,  of  the  members  or  officers  of  a  corporation  aggregate, 
who,  as  we  have  seen,  may  be  made  parties  to  a  suit  against  the 
cori)oration  for  the  purposes  of  discovery.  With  respect  to  the 
other  persons  who  are  generally  included  amongst  the  exceptions 
to  the  rule,  that  persons  who  have  no  interest,  or  against  whom 
no  decree  can  be  pronounced,  cannot  be  made  parties  to  a  suit, 
namely,  arbitrators,  attorneys,  or  agents,  it  will  be  seen,  upon 
reference  to  what  has  been  before  stated  upon  this  subject,^  that 
the  right  to  make  them  parties  is  confined  to  cases  where  relief  is, 
in  fact,  prayed  against  them,  viz.,  where -they  are  implicated  in 
fraud  or  collusion,  and  it  is  specifically  asked  that  they  may  pay 
the  costs ;  or  where  they  are  the  holders  of  a  ])articular  instru- 
ment, which  the  jjlaintiff  is  entitled  to  have  delivered  up.^ 

A  bill  must  not  only  show  that  the  defendant  is  liable  to  the 
plaintiff's  demands,  or  has  some  interest  in  the  subject-matter, 
but  it  must  also  show  that  there  is  such  a  privity  between  him 
and  the  plaintiff  as  gives  the  plaintiff  a  right  to  sue  him  :®  for  it  is 
frequently  the  case,  that  a  plaintiff  has  an  interest  in  the  subject- 


1  Cro^seinp  '"•  Honor,  1  Vern.  180. 

2  Lord  l.'xbriilge  v.  Staveland,  1  Yes.  S. 
56;  Storv  Eq.  I'l.  §§  255,  256,  267. 

3  vVliite  V.  Smale,  22  Beav.  72;  Clark 
V.  Lord  Rivers,  L.  K.  5  llq.  91,  95-97; 
I'on^fovd  V.  Hankey,.3  De  G.,  F.  &  J.  544; 
7  Jur.  N.  S.  929. 

*  Ante,  pp.  297-299. 


6  Ante,  p.  298. 

6  Ld.  lU'd  158;  Story  Kq.  PI.  §§  178, 
227,  514;  Long  v.  Majestre,  1  John.  Ch. 
305;  Elinslie  v.  M'Aiilay,  3  liro.  C.  C. 
(Perkins's  ed.)  624,  Dote  (1),  627,  note  (a), 
and  cases  cited;  Eden  Itijunct.  (2d  Am. 
ed.)  354,  and  cases  in  note  (a). 


MATTER    OF   THE    BILL. 


123 


matter  of  the  suit  which  may  be  in  the  hands  of  a  defendant,  and    Cn.  Yi.  §  4. 

yet,  for  want  of  a  proper  privity  between  them,  the  plaintiff  may   ""^ > ' 

not  be  the  person  entitled  to  call  upon  the  defendant  to  answer 
his  demand.  Thus,  though  an  unsatisfied  legatee  has  an  interest  Lej-atee  or 
in  the  estate  of  his  testator,  and  a  right  to  have  it  applied  in  a  due  "^fsue  debtor 
course  of  administration,  yet  he  has  no  right  to  institute  a  suit  to  testators 
against  the  debtors  to  his  testator's  estate  for  the  purpose  of  com- 
pelling them  to  pay  their  debts  in  satisfaction  of  his  legacy :  ^ 
for  there  is  no  pri^'ity  between  the  legatee  and  the  debtors,  who 
are  answerable  only  to  the  personal  representative  c^f  the  testator. 
Upon  the  same  principle,  where  a  bill  was  filed  by  the  creditors 
of  a  person  who  was  one  of  the  residuary  legatees  of  a  testator, 
against  the  personal  representative,  for  an  account  of  his  personal 
estate,  it  was  held  to  be  impossible  to  maintain  such  a  bill.^  And 
60,  where  a  creditor  of  a  testator,  who  had  previously  been  a 
bankrupt,  and  had  obtained  his  certificate,  brought  a  bill  against 
the  executor  for  an  account,  and  made  the  assignees  under  the 
testator's  bankruptcy  parties,  for  the  purpose  of  compelling  them 
to  account  to  the  executor  for  the  surplus  of  the  bankrupt's  estate, 
a  demuiTer  by  the  assignees  was  allowed.^ 

It  is  to  be  obsei-ved,  however,  that,  in  cases  of  collusion  between  Exception  in 
the  debtor  and  the  executor,  or  of  the  insolvency  of  the  executor,  f^^l? 
bills  by  creditors  or  residuary  legatees  against  debtors  to  a  testa- 
tor's estfite  will  be  entertained ;  *  and  in  the  case  of  Barker  v. 
Birch^  which  was  a  bill  by  universal  legatees  under  a  will,  for 
an  account  against  a  debtor  to  the  testator's  estate.  Sir  J.  L. 
Knight  Bruce  V.  C,  under  the  circumstances,  made  a  decree  for 
an  account,  although  collusion  was  not  established  between  the 
debtor  and  the  personal  representative,  and  there  Avas  not  any 


1  Bii'klv  V.  Dorrington,  cited  \A.  Red. 
Iu8,  II.  (/(");  Barn.  3-J;  6  Ves.  74'J;  Monk 
f.  I'oiiitVet,  cited  Ld.  Ked.  108,  n.  (A). 

2  KliDslie  r.  M'Aulay,  3  Bro.  C.  C.  624, 
626. 

3  Utterson  v.  Mair,  4  Bro.  C.  C.  270, 
276:  2  Ves.  J.  'Jo,  '.»7 ;  6  Yes.  74'J;  Bickly 
r.  Dorrington,  cited  Ld.  Hed.  158,  n.  {h)\ 
Barn.  82;  6  Ves.  749. 

<  Utterson  v.  Mair,  4  Bro.  C.  C  270, 
276;  see  also  Doran  v.  Simpson,  4  Ves. 
6.t1,  66.0;  Al.sager  v.  Rowley,  6  Ves.  748; 
Trougliton  V.  llinkes,  \b.  .07U,  575;  Ben- 
fielJ  r.  S'llomonH,  'J  Ves.  86;  IJurrowes  v. 
(iore.  6  II.  \.  ('a.  907;  4  Jur.  N.  S.  1245; 
Jerdein  r.  Bright,  2  .J.  &  \\.  325,  where 
the  b.li  was  lileil  against  tiie  trustee  of 
a  cre'lit"r"s  dei-d,  iiii<l  a  piircliaser  from 
liim:  Bonck  r.  Bnuck,  I..  It.  2  Kq.  1!»; 
1  Mi.iil  K(i.  I'i.  45,  46,  note  (a);  2  Mont. 
\'j\  I'i.  Ml;  Ld.  Ked.  15H,  1.09;  .Storv 
i:*!  I'I  §  514,  and  note,  §§  178,  227,  2.32 
note;  Ivlen  Injnnct.  (2d  Am.  ed  )  354,  and 
ca^ofi  in  note  (  <t)\  KIm'lie  u.  M'Auliiy, 
3  Bro.  C.  C.  (I'erkins'B  ed.)  627,  note  (a.) 


A  special  case  must  be  made  out  to  author- 
ize a  bill  by  a  creditor  against  an  ailniin- 
istrator  of  the  deceased  debtor,  and  a  third 
person  having  assets  of  the  deceased,  to 
subject  those  assets  to  the  payment  of  his 
debt;  it  is  not,  however,  necessary  to 
charge  collusion  between  the  defendants; 
it  iseuougii  that  the  thinl  person  holds  all 
the  property  of  the  deceased  undera  secret 
trust  in  fraud  of  creditors;  insists  on  re- 
taining' the  |)roperty  to  his  own  use,  and 
that  tlie  adniiiiistr;itiir  has  not  proceeded 
iigain-t  iiiin  for  the  space  of  about  two 
years,  and  resists  the  bill  by  relying  on 
thestatute  of  limitations.  Ilagati  r.  \Valk- 
er,  14  How.  U.  S.  '.iy,  34,  .'55;  Long  v. 
Maji^stre,  1  .lohn.  Ch.  306;  see  Harri.son 
V.  Righter,  3  Stockt.  (N.  J.)  389;  Goblc  «. 
Andross,  1  (Jrceii  Cli  66.  A  single  credit- 
or of  an  insolvent  estate  cannot  sustain  a 
bill  aguinst  a  debtor  of  siu-h  estate  without 
joining  other  parties.  Isaacs  »;.  Clark,  13 
Vt.  6.57. 
6  1  DeG.  &  S  376;  11  Jur.  881. 


324 


THE    BILL. 


Cii.  VF.5  4. 


^r 


or  possossion 
of  speciric 
assets; 


and  in  cases 
of  partner- 
ship. 


General  alle- 
gation of 
fraud  insuf- 
ficient. 


eviilenoc  of  insolvency  on  the  p:vrt  of  the  personal  rcpresentntive, 
or  of  his  refusal  to  sue  for  the  debt,  other  than  his  omission  to 
institute  proceedings  for  a  considerable  period.^ 

It  seems  also,  that  when  persons  other  than  the  personal  repre- 
sentative of  the  testator  have  possessed  specific  assets  of  the  testa- 
tor, such  ])ers(ms  may  be  made  ]>arties  to  a  suit  by  a  creditor."'^  So 
also,  where  it  is  desirable  to  have  the  account  of  the  personal  estate 
entire,  a  creditor  may  make  the  surviving  partner  of  a  deceased 
debtor  a  defendant  to  his  bill,  though  no  fraud  or  collusion  is  al- 
leged ;  ^  and  it  seems  that  a  joint  creditor  may  maintain  a  suit 
against  the  representatives  of  a  deceased  ])artner,  for  satisfaction 
of  his  entire  demand  out  of  the  assets,  although  the  surviving  part- 
ner is  not  alleged  to  be  insolvent,  and  is  made  a  party  to  the  bill.* 
In  IDov'sher  v.  WatJcins,^  it  Avas  determined,  that  residuary  legatees 
may  sustain  a  bill  for  an  account  against  the  executor  and  surviving 
partners  of  the  testator,  though  collusion  between  the  executor 
and  the  surviving  partners  is  neither  charged  nor  proved,®  but  it 
must  be  shown  that  the  executors  have  neglected  their  duty  of 
themselves  suing.'' 

It  seems,  that  where  it  is  necessary  to  allege  fraud  or  collusion, 
a  general  allegation  of  it  in  the  bill  will  not  be  sufficient  to  shut 
out  a  demurrer ;  but  that  the  facts  upon  which  such  allegation  is 
founded  must  be  stated,  as  there  is  great  inconvenience  in  joining 
issue  upon  such  a  general  charge,  without  giving  the  defendant  a 
hint  of  any  fact  from  which  it  is  to  be  inferred.^ 


1  See  Rolton  v.  Powell,  14  Beav.  275; 
2  De  G.,  M.  &  G.  1;  16  Jur.  24;  Saunders 
V.  Druce.  3  Drew.  140. 

2  New  land  r.  Champion,  1  Ves.  S.  105; 
see  also  the  report  of  this  case,  2  Cell.  46; 
and  see  Conceit  v.  Bell,  1  Y.  &  C.  C.  C. 
569;  6. Jur.  869;  Slorv  Kq.  PI.  §§  178,227, 
514. 

3  Ibid. ;  see  also  Gefige  v.  Traill,  1  R.  & 
M.  281,  n  ;  Story  Eq.  PI.  §§  167,  178; 
Long  !)■  .M;ijestre,  1  John.  (Jli.  306;  Harri- 
son V.  liighter,  3  Stockt.  (N.  .J.)  389. 

■*  Wilkinson  v.  Henderson,  1  M.  &  K. 
582,588;  Hills  v.  M'Kae,  9  Hiire,  297;  15 
Jur.  766;  Slorv  Kq.  I'l.  §§  167,  178. 

6  1  U.  &  .M."277,  283;  see  also  Law  v. 
Law,  2  (Jull.  41 ;  9  Jur.  745,  on  appeal,  11 
Jur.  463;  TrMvis  v.  Milne,  9  Hare,  141; 
Stainton  v.  Carron  Company,  18  Beav. 
146;  18  Jur.  137;  and  see  L)avie<  v.  iJavies, 
2  Keen,  534,  and  the  observations  of  Lord 
Langdiile,  p  539.  on  Howsher  v.  Watkins. 

6  See  Collyer  Piirtn.  §  366. 

T  Stainton  v.  Carron  Company,  and 
Travis  v.  .Milne,  ubi  sup.  Where  an  exec- 
utri.x  negli'cted  to  defend  a  suit,  leave 
was  given  to  the  plaintiff,  in  a  suit  for  the 
adniinistr:it!on  of  the  estate,  to  do  so  in  her 
name.    Olding  v.  Poulter,  23  Iie:iv.  143. 

"  benfieM  v.  Solomons,  9  Ves.  86;  Mim- 
day  V.  Knight,  3  Hare,  497,  and  cases  cited 


in  note,  p.  501;  8  .Jur.  904;  Bothomley  v. 
Squire,  1  Jur.  N.  S.  694,  V.  C.  K. ;  Moss 
V.  Bainbrigge,  3  Jur.  N.  S.  58,  V.  C.  W.; 
Gilbert  v.  Lewis,  1  De  G.,  J.  &  S.  38,  49, 
50;  9  Jur.  N.  S.  187;  liingtrold  ('.  Stone, 
20  Ark.  520 ;  Biyan  v.  Spruili,  4  Jones  Eq. 
(N.(!.)27;  Farn-.imv.  Brooks, 9  Pick. 212; 
Bull  V.  J5ull,  2  Root,  476;  Elston  v  Blan- 
cliarii,  2  Scam  420;  Moore  v.  Greene,  19 
How.  U.  S  69;  Small  v.  Bou'liuot,  Uoiidi- 
not  V.  Small,  1  Stockt.  (N.  J.)  381;  Ue 
Louis  V.  Meek,  2  Grt'ene  (Iowa),  5.5;  U'ea- 
ther^po  ai  v.  Carmicliael,  6  jred.  Eq.  143; 
Frazer  v.  Hovt,  2  Strobh.  Eq.  250;  Hard- 
ing V.  Handy,  11  Wheiit.  103.  l\'  fraud  is 
relied  nporj,  it  must  be  substantially 
chiirgeil  in  th".  bill.  Crocker  v.  Hi_'!;ins,  7 
Conn.  342;  IlngMu  v.  Buroett,  37  Mi-s.  (8 
George),  617;  llowe!l  v.  Sebrina:  1  Mc- 
Carter  (.\.  J.),  84,  90;  Par-oiisr.  l!eston,3 
Stockt.  (N.  J.)  150;  Storv  Eq.  I'l.  §  28; 
Grove  v.  Kentch,  26  Md.  367.  377  In 
Other  V  Snturthwaite,  L.  K.  5  Eq.  437,441, 
Sir  W.  Pa^e  Wo.-d  V.  C.  (Lorl  Hatlier- 
ley)  said:  "On  behalf  of  the  p:aiiitifr  it  is 
said  that  he  is  not  bound  to  let  the  defend- 
ants know  beforehand,  or  give  th<'m  any 
chance  of  knowing  beforeliand,  what  he 
contemplates  proving.  But  if  tli'-re  be  any 
one  thing  more  contrary  to  the  course  of 
our  proceedings  in  Equity  than  auotiier,  it 


MATTER    OF    THE    BILL. 


325 


Employment 
of  agents  or 
brokers  will 
not  destroy 
privity. 


TVith  reference  to  the  subject  of  privity  between  the  plaintiff  Ch.  VL  §  4. 
and  defendant,  it  is  to  be  observed,  that  the  employment  of  agents 
or  brokers  in  a  transaction  does  not  interfere  with  the  privity 
between  the  principals,  so  as  to  deprive  them  of  their  right  to  sue 
each  other  immediately.  Thus,  where  a  principal  transmits  goods 
to  a  flictor,  he  may  sue  the  person  who  buys  of  the  factor ;  and 
where  a  bill  was  brought  by  some  merchants  against  the  defend- 
ant, to  discover  what  quantity  of  straw  hats  he  had  purchased  of 
their  agents,  and  for  payment  to  them,  and  not  to  the  agents,  a 
demurrer  was  overruled :  ^  and  so,  where  a  merchant,  acting  upon 
a  dd  credere  commission,  became  bankrupt,  having  sold  goods  of 
his  principals  for  which  he  had  not  paid  them,  and,  shortly  before 
his  bankruptcy,  drew  bills  on  the  vendees,  which  he  delivered  to 
some  of  his  own  creditors  to  discharge  their  demands,  they  know- 
ing his  insolvency,  a  suit  by  the  principals  against  the  persons  who 
had  received  the  bills,  for  an  account  and  payment  of  the  produce, 
was  sustained.^ 

A  bill  must  not  only  show  that  the  plaintiff  is  entitled  to  or  Bill  must 
interested  in  the  subject-matter  of  the  litigation,  and  is  clothed 
with  such  a  character  as  entitles  him  to  maintain  the  suit,  and 
that  the  defendant  is  also  liable  to  the  relief  sought  against  him, 
or  is  in  some  manner  interested  in  the  dis])ute,  and  that  there  is 
such  a  privity  between  him  and  the  plaintiff  as  gives  the  j)laintiff 
a  title  to  sue  him,  but  it  must  also  pray  the  Court  to  grant  the 
proper  relief  suited  to  the  case,  as  made  by  the  bill ;  *  and  if,  for 


pray  proper 
relief. 


is  the  takinz  an  opponent  by  surprise.  If  I 
were  to  rtiid  the  defendant  t;iken  by  sur- 
prir^e.  I  shoiil'l  certainlv  direct  the  case  to 
stand  over,  in  order  iliat  lie  njij^lit  have 
an  opportunity  of  ineetinf;  the  case  made 
fl;;Minst  him.  Althoufjh  it  is  fraud  tiiiit  is 
cliaif^ed,  fraud  must  be  distinctly  charj^od 
find  properly  proved.  So  far  (rom  its  bi  ing 
the  principle  that  a  defendant  U  ti)  be  al- 
li<w>-d  to  be  tiiken  by  surpri-e,  iind.  with- 
out liny  prepiralion,  is  to  be  called  npon 
to  meet  .s  'iiiethiuf;  which  a  witness  n\:\y 
a.s8Prt,  no'hin;;  is  more  settled  tl  an  the 
doctrine  thHt  when  you  charge  fnuid  vou 
must  slate  the  facts  upon  which  you  alfese 
fraud,  ami  (irovc  fhcm  strictlv."  ^ee  Mc- 
I/ine   I'.  .Manning,  1   Wins.  (N   C. )  No.  2 

(i;.i )  60. 

'   l.is-ett  V.  Keave,  2  Atk.  394. 

2  NeuniMn  V.  (Jodfrey,  cited  Ld.  Red. 
100;  2  Hio.  (;.<;.  .3.'V2;  see  Story  Agency, 
§  418  ft  ti-q.,  §  40.3  tt  »(■'/■;  f.everick  v. 
Meigs,  1  C.wen,  G4.'),  W-i,  C04,Ci;r>;  mite, 
hit,,  n.  tes;  2  Kent  (lllh  ed.),  022-02.0. 
Ordiriari!}',  the  principal  c  innot  iiviiil  him- 
self, by  suit  in  his  own  name,  of  a  written 
contract,  made  between  his  agent  iind  a 
third  pers'.n,  m  the  name  of  the  ngent;  for 
it  is  treated  a*  n  contract  miTelv  between 
the  piirlies  named  in  it,  altliongh  the  agent 
is  ku'Wii  t')  be  a'-ting  in  thiif  cbMr.icter. 
I'nit-  il  States  v.  Panntde.  1  I'ainf  f'.  C. 
202;  Clark  v.  Wilbon,  3  Wash.  C.  C.  560;. 


Newcomb  ».  Clark,  1  Denio,  226;  Finney 
V.  Bedford  C/ni.  In*.  Co,  8  Met.  348; 
Coliyer  I'artn.  (Perkins's  ed.)  §§  412,  663; 
Dunlap's  PhIi-v's  Agenev,  324,  note;  Harp 
V.  Osgood,  2  Hill,  210;  Chitty's  Conlr  (^th 
Am.  ed  )  207,  in  note.  I  here  are,  how- 
ever, exceptions  to  this  rule,  as  well  estab- 
lished as  the  rule  itself.  As  in  case  of  a 
written  confr;ict  by  a  factor  in  his  own 
name  fur  the  purchiisc  or  sale  of  poods  for 
his  principal.  So  in  case  of  a  |)olicy  of 
insunmce  procured  hyan  ;igent  in  his  own 
name  for  the  benefit  of  his  principal,  the 
agent,  as  well  as  the  princip  d,  may  sue 
thereon.  .See  Story  Agenev,  §§  100,  161, 
162,  418  el  seq  .  §§  270,  272;  Brewster  v. 
Lnnt.  8  Louis.  2'JO. 

3  Story  K(i.  I'l.  §§  40,  41,  42.  The 
priyer  of  a  bill  in  ( 'hancery  is  an  essen- 
tial part,  and  without  its  insertion  no 
decree  can  be  rendered  for  a  plaintitf. 
Driver  v.  Tatner,  5  Porter,  10;  gee  Smith 
V.  Smith,  4  Hand.  Uf>;  see  aho  /tnst,  "  'I'lie 
Prayer  for  Relief,"  in  tliis  chapter.  If  the 
pliiintitf  jiray*  for  relief  in  a  certain  ca- 
pacity, this  will  be  a  test  of  the  ground 
on  wdiich  he  seeks  the  aid  of  the  Court. 
Sayles  v.  Tibbitts.  5  K.  I.  79.  If  the 
Rllegiitinns  of  a  bill  refer  to  the  condition 
of  things  Ml  the  tinn-  the  t)ill  !■*  tiled,  the 
rebel  allonled  must  be  limited  to  that  stMte 
of  facts.  Wiiniiniseogee  Lake  Comi)any 
V.  Young,  40  N.  ti.  420. 


32G 


THE   BILL. 


Til.  VI.  §  4. 


Statutory 
provision  as 
to  prayer. 


Other  requi- 
sites to  bills : 


Everj'thinfj 
to  be  proved 
must  be 
stated. 


nnv  reason  founJcil  on  tlic  snl>st:incc  of  the  case  as  stated  in  the 
liill,  the  ithiintitt'  is  not  entitled  to  the  relief  he  prays,  either  in 
the  whole  or  in  }iart,  the  defendant  may  demur.  In  some  of  the 
most  aneient  bills,  as  ajj^ears  hy  the  records,  the  plaintifl'  does  not 
expressly  ask  any  relief,  nor  any  process,  but  prays  the  Chancellor 
to  send  for  the  defendant  and  to  examine  him ;  in  others,  where 
relief  is  prayed,  the  ])rayer  of  process  is  various :  sometimes  a 
/labtits  corjms  cum  caiisd^  sometimes  a  suhpcana^  and  sometimes 
•other  writs.^  Afterwards,  the  bill  a])})ears  to  have  assumed  a 
more  regular  form,  and  not  only  to  have  prayed  the  subpoena  of 
the  Court,  but  also  suitable  relief  adapted  to  the  case  contained  in 
the  statement:  ^  which  is  the  general  form  of  all  bills  in  modern 
use ;  except,  that,  since  the  late  Act,  the  prayer  for  suhpcma  is 
omitted.  But  although  it  was  the  general  practice,  previously  to 
the  late  Ac.t,  in  all  cases  where  relief  Avas  sought,  to  specify  par- 
ticularly the  nature  of  such  relief,  yet,  it  seems  that  such  special 
prayer  Avas  not  absolutely  necessary,  and  that  praying  general 
reUef  was  sufficient ;  ^  and,  in  Partridge  v.  Haycraft^^  Lord  P^ldon 
said,  that  he  had  seen  a  bill  Avith  a  simple  prayer  that  the  defend- 
ant might  answer  all  the  matters  aforesaid,  and  then  the  general 
prayer  for  relief. 

By  the  Act  to  amend  the  practice  of  the  Court  of  Chancery  it 
is  now  provided,  that  the  plaintiif  shall  pray  specifically  for  the 
relief  which  he  may  conceive  himself  entitled  to,  and  also  for 
general  relief.^ 

The  requisites  above  set  out  are  necessary  in  every  bill  Avhich 
is  filed  in  a  Court  of  Equity  for  the  purpose  of  obtaining  relief 
There  are  other  requisites  appertaining  to  bills  adapted  to  particu- 
lar ])urposes,  which  will  be  hereafter  pointed  out,  as  Avell  as  those 
distinctive  properties  Avhich  belong  to  bills  not  filed  for  the 
pur))Oses  of  relief.  But  besides  those  points  Avhich  are  generally 
necessary  to  be  attended  to  in  the  frame  of  all  bills,  as  each  case 
must  depend  upon  its  own  particular  circumstances,  matters  must 
be  introduced  into  every  bill  Avhich  will  occasion  it  to  differ  from 
others,  but  Avhich  it  is  impossible  to  reduce  under  any  general 
rules,  and  must  be  left  to  the  discretion  of  the  draftsman.  Care, 
how^ever,  must  be  taken  in  framing  the  bill  that  every  thing  Avhich 
is  intended  to  be  proved  be  stated  upon  the  face  of  it :  otherwise, 
evidence  cannot  be  admitted  to  prove  it.*'     This  is  required,  in 


1  Jud.  Auth.  M.  R.  91,  92;  see  1  Spence 
Eq.  Jur.  308  ti  ten. 

2  .Jud.  Auth.  M.  R.  91,  92;  see  1  Spence 
Eq.  Jur.  308  tl  seq. 

3  Cooi<  V.  .Martyn,  2  Atk.  3;   Grimes  v. 
French,  ib.  141. 

*  11  Ves.  .574. 

6  15  &  16  Vic.  c.  80,  §  10. 


6  Gordon  v.  Gordon,  3  Swanst.  472; 
Miller  v.  Colfon,  5  Geo.  341 ;  Parker  v. 
Beavans,  19  Texas,  406;  Bailev  v.  Hyder, 
10  N.  Y.  363;  Rowan  v.  Bowles,  21  III.  17; 
Laud  V.  Cownn,  19  Ala.  297;  Chaffin  v. 
Kimball,  23  III.  36;  The  Camden  and 
Amboy  R.li.  Co.  v.  Stewart,  4  C.  E. 
Green  (N.  J.),  343;   Hewett  r.  Adams,  60 


MATTEK    OF   THE    BILL. 


327 


order  that  the  defendant  may  be  aware  of  what  the  nature  of  the  Ch.  VI.  §  i 
case  to  be  made  against  him  is.  Tlie  necessity  of  obser\-ing  this 
rule  was  strongly  insisted  on  by  the  L.  C.  B.  Richards,  in  the  case 
of  JIall  V.  Maliby}  And  in  Montesquieu  v.  Sandys^  the  principle 
upon  which  it  is  founded  is  strongly  illustrated  ;  in  that  case,  a 
bill  was  filed  to  set  aside  a  contract  entered  into  by  an  attorney 
for  the  purchase  of  a  reversionary  interest  from  his  client,  on  the 
ground  of  fraud  and  misrepresentation ;  the  evidence  adduced  in 
support  of  the  allegation  of  fraud,  did  not,  in  Lord  Eldon's  opinion? 
substantiate  the  case  as  laid  in  the  bill :  a  transaction,  however, 
was  disclosed  in  the  evidence  which  his  Lordship  appeared  to 
think  would  have  raised  S,  question  of  considerable  importance 
in  favor  of  the  plaintiff,  if  it  had  been  properly  represented  upon 
the  pleadings;  but  as  it  had  not  been  stated  in  the  bill,  he 
thought  it  would  be  far  too  much  to  give  relief  upon  circum- 
stances which  were  not  made  a  ground  of  complaint  upon  the 
record. 

It  is  to  be  observed  in  this  place,  that  not  only  will  it  be  im- 
possible to  introduce  evidence  as  to  facts  Avhich  are  not  2)ut  in 
issue  by  the  bill,  but  that  even  an  inquiry  will  not  be  directed,  laid  for  it  in 
unless  ground  for  such  inquiry  is  laid  in  the  pleadings.^  Thus,  *  ^^  ^'  ^'^'^  '"^''" 
where  a  bill  was  filed  for  a  foreclosure,  and  a  motion  was  made  for 
a  reference  to  the  Master,  under  the  7th  Geo.  11.  c.  20,  to  inquire 
into  the  amount  due  u])on  the  mortgage,  and  it  was  insisted  that 
the  Master  ought  to  be  directed  to  take  an  account  of  the  costs 


IiKiuin'  not 

directed 
unless  ground 


Maine,  271,  276;  Storj'Eq.  Pl.§  24;  Lovell 
V.  Farrinprton,  50  Maine,  2.39;  Ashton  v. 
Atlantic  I?ank.  3  AIIhii,  217:  Howell  v. 
Sebrinp,  1  McCarter  (N.  J.),  84;  Badger 
«.  l{adger,2  Wallace  U.  S.  87.  No  facts 
are  properly  in  issue,  unl'^ss  charged  in  the 
bill ;  and  of  course  no  proofs  can  generally 
be  offered  of  facts  not  in  the  hill;  nor  can 
relief  he  granted  for  matters  not  charged, 
although  iliey  maybe  apfinreiit  fiom  other 
parts  of  the  pleadings  and  evidence;  fi)r 
the  (.'oiirt  pronounces  its  decision  stimulnni 
aUttjnla  tl  prub'ilii.  Story  Kq.  PI.  §  2.">7 ; 
Crocket  v.  Lee,  7  Wheat  .')22;  .Jackson 
V.  Asliton,  11  I'eters,  229;  .lames  v.  Mc- 
Kernon,  '<  .lohn.  o<i4;  M.irraque  v.  .Manual, 
2  Eng.  510;  Challiu  r.  Kimball,  i<u/>rii. 
A  trustee  Ih  not  to  be  hcM  for  any  ne^ilcct 
or  breach  of  duty,  which  is  not  charged  in 
the  bill.  Page  v.  Olcoft,  28  Vt.  4ti5.  I5ut 
the  plaintiff  need  not,  and  indeed  ^Jlould 
not,  state  in  the  bill  any  matti^rs,  of  which 
llie  Court  is  hound  judicially  to  tak(!  notice, 
or  is  suppf)sed  to  jio^sess  full  knowledire. 
Many  of  those  matters  an^  ennmrTu'ed  by 
Mr.  Ju-ticc  .Story,  in  Story  Kq.  PI.  §  24. 
So  also  by  Mr.  dreeideaf,  in  his  work  on 
Evidence,  vol.  1,  §§  4,  5,  6.  In  a  bill  to 
restrain  an  infringement  of  u  patent,  an 
express  averment  of  the  novelty  of  the 
invention  protected  by  the  j/atent  is  not 
necessary.    Amory  v.  IJrown,  L.  It.  8  Kq. 


663.  The  allegation  of  the  praiit  and  pro- 
duction of  the  letters-])Mtent  throw  upon 
the  defendant  the  onus  of  disputing  the 
novelty.  The  objection  tliat  the  invention 
was  not  novel  is  one  that  the  defenlaiit 
should  have  raised  bj'  his  answer,  in  which 
it  was  open  to  him  to  deny  the  novelty  of 
the  invention.  Amory  v.  Hrown,  supra. 
It  is  no  longer  necessary  to  charge  tlieevi- 
d(^nce  relied  on,  excejit  for  the  purpose  of 
procuriiiir admissions,  per  Sir  \V  P.  Wood 
V.  C,  Mansell  v.  Keeney,  2  .1.  &  11.  313, 
318.  A  bill  should  not  set  out  the  evidence, 
whether  oral  or  written,  by  which  the 
facts  are  to  be  proved.  The  Canulon  and 
Amboy  K  II.  Co  v.  Stewart,  4  V,  E. 
(Ireeii  (N..I.),  343;  Wiiiebroiiner  v.  ( ;(dder, 
43  Penn.  St.  244. 

1  6  Pri.  240,  259. 

■■i  18  Ves.  302,  314;  see  also  Powys  v. 
Mansfield,  6  Sim.  5fi5. 

a  Holloway  V.  Millard,  1  Mad.  414.  421; 
Scarf  1!.  Soufl.y,  1  M'N.  &  (J.  304,375;  see, 
however,  Paker  v.  Pradlev,  7  De  (i..  M.  & 
(;.  597;  2  .lur.  N.  S.  99;"2  Sm.  i*!:  (J.  531; 
1  .Jur.  N.  S.  489;  and  pee,  for  cases  where 
inquiries  have  been  directed  on  sugi;es- 
fioiis  in  answer,  M'Mahon  ?'.  liurchell,  2 
I'hd.  127,  132;  I'.arrett  v.  Stockton  ami 
Darlington  llailwav  ('ouipanv,  1  11.  L.  Ca. 
34;   11  CI.  &  V.  590. 


328 


THE    BILL. 


('II.  VI.  5  4. 


AVluTC  case  of 
t'raiul  inado, 
n-lii'i  I 'Illy 
j:;r.iiitoil  on 
that  caso. 


Kill  must  be 
tor  adc'nuate 
value; 


iiunirrcd  by  the  plaintiff  in  certain  proceedings  in  an  ejectment  at 
Law  Avhich  were  not  alluded  to  in  the  bill,  tlic  Court  held  that  no 
such  incjuiry  could  be  directed,  but  gave  the  jilaintifl"  leave  to 
amend  his  bill  in  that  respect.^ 

It  is,  moreover,  an  established  doctrine  of  the  Court,  that  wliere 
the  bill  sets  up  a  case  of  actual  fraud,  and  makes  that  the  ground 
of  the  prayer  for  relief,  the  ]>laintilf  is  not,  in  general,  entitled  to 
a  decree  by  establisliing  some  one  or  more  of  the  facts,  quite 
independent  of  fraud,  but  which  might  of  themselves  create  a  case 
under  a  distinct  head  of  Equity  fi-om  that  which  Avould  be  applica- 
ble to  the  case  of  fraud,  originally  stated.'^ 

It  is  right  here  to  observe  that,  independently  of  the  qualities 
which  have  been  above  pointed  out  as  necessary  to  bills  in  general, 
it  is  requisite  that  the  object  for  which  a  bill  is  brought  should 
not  be  beneath  the  dignity  of  the  Court:  for  the  Court  of 
Chancery  will  not  entertain  a  suit  where  the  subject-matter  of  the 
litigation  is  under  the  value  of  10/.;^  except  in  cases  of  charities,* 


1  Millnrd  v.  Mngor,  3  Mad.  433. 

2  I'rice  V.  Berringlon,  3  M'N.  &  G.  486; 
15  Jur.  999;  M:icqiiire  v.  O'lteill.y,  3  Jo.  & 
1  at.  224;  Ferraby  v.  Hohson,  2  I'liil.  255, 
258;  Gla-cott  v.  l.an;:,  ib.  310,  322;  Wilde 
t).  Gibs>  n,  1  il.  L.  Ca.  605;  Sugd.  Law 
Prop.  632;  Haker  v.  Rradlev,  ubi  sup.; 
Binde't  v.  Hav,  11  L-  T  N.  S.  259.  L.  C; 
Till  ngliast  t\  Chiiniplin,  4  R.  L  173; 
mount  Vernon  Bank  v.  St(.ne,  2  R.  I.  129; 
Masterson  v.  Finuepan,  ib.  316.  Ihe  rule 
applies  only  wliere  actu;il  or  moral,  as  dis- 
t.'ngni-hed"  from  constructive  fraud,  is 
charged;  but  it  is  sufficient  th.it  such 
actual  or  nmral  fraud  is  sub-t:intially 
charg' d,  whether  the  word  fraudulent  he 
used  or  not.  Tillii'ghnst  ti.  Ch miplin.  vhi 
supra;  see  Grove  v  I'entcli,  26  Md.  367, 
377.  The  facts  and  circumstances  of  the 
adetred  fraud  should  be  set  forth.  Castle  v. 
Bader,  23  Cal.  75. 

3  The  true  ground  of  tliis  rule  is,  that 
tlie  entertainment  of  sui's  of  small  value 
lias  a  tendency,  not  only  to  promote  ex- 
pensive and  mis<-hievous  litigation,  but 
also  to  consume  the  time  of  the  Court  in 
tmimportaiit  and  frivolous  coiitr"versie'^, 
to  the  manifest  injury  of  other  su  tors,  and 
to  the  subversion  of  the  public  policy  of 
the  land.  Moore  v.  Lvtlle,  4  .Jnlm.  Ch. 
183;  Story  Kij.  PI.  §  500;  Swede-borough 
Church  r.Sliivers,  1  C.  E.  (ireen  (N.  .1.), 
453,458.  This  rule  seems  to  have  been 
of  great  anti(juity  in  tlie  Court  of  Chan- 
cery. See  Story  Kq.  I'l.  §  501,  and  cases 
cited.  A  siiniliir  rule,  it  is  apprehended, 
prevails  in  the  Courts  of  K(|uiiy  in  .Vmeriia, 
so  far  as  they  have  been  called  upon  to  ex- 
nresH  anv  opinion  on  the  subj.ct.  Story 
Kq.  PI  §  502;  see  Williams  v.  Berry,  3 
S;ew.  &  P.  284  ;  Swed<sborougli  Church  v 
Shivers.  1  C.  E.  Gre<-n  ( N.  .1  ).  453.  It  was 
(ormcrly  held  m  New  York  that  the  Court 
of  Chancery  would  not    take  cognizance 


of  a  ca«e  where  the  amount  in  controversy 
was  below  10/,  sterling.  Moore  v.  Lyttle, 
4  John.  Ch.  185;  Fullerton  v.  .Fackson,  5 
John.  Ch.  276.  The  amount  was  aiter- 
wards  increased  in  that  State  by  statute  to 
the  sum  of  one  hundred  dollars;  2  Rev. 
Stilts.  New  York,  173,  §  37;  see  Vreden- 
burg  «.  Johnson,  1  Hopk.  112;  Mitchell  v. 
Tighe,  1  Hopk.  119;  Smets  v.  Williams, 
4  Paige,  364.  No  such  st;itute  exists  in 
Massachuse'ts,  but  a  simil  ir  princifile  is 
applied.  Cummings  v.  Barrett,  10  Cush. 
190.  The  value  of  the  matter  in  dispute 
should  appear  bv  the  record.  Watson  v. 
WelN,  5  Conn. '468.  But  a  bill  for  the 
specific  performance  of  a  contract  to  con- 
vey land  iieed  not  contain  an  averment 
that  the  va'ue  of  the  land  exceeds  $100. 
Church  ?J.  Ide,  1  Clarke,  494.  The  juris- 
diction of  the  (^ourt  does  not,  however,  de- 
pend upon  the  amount  that  may  ultimate- 
ly be  found  due  to  the  plaintiff,  but  upon 
the  claim  statid  bv  him.  Bradt  v.  Kirk- 
patrick,  7  PaiL'e,  62;  W'utecotton  »  Simp- 
son, 4  J.  J.   Mar-h.  12;  Jud<l  v.  Bushnell, 

7  Conn.  205;  Skinner  v.  Biilev,  7  Conn. 
496;  Wheat  r.  Griffin,  4  Dav,  419;  Douw 
V  Slield(^n,2  l'aii:e,323;   Bailej' v.  Burton, 

8  Wend.  395.  These  provisions  seem  to 
apply,  however,  only  to  ra^es  of  bills  lor 
rilief,  and  not  to  case'<  of  bills  for  disaivery 
merelr.  Goldey  t'.  Beeker,  1  Edw.  Ch. 
271;  Schrocppel  «.  Kedheld,  5  Paige.  245. 

At  the  piesent  time,  in  New  York,  there 
is  no  limitation  to  the  amount  in  coiitro- 
ver-y  required  to  give  juri-diction  in  ac- 
tions of  an  equitable  nature,  the  same 
having  been  aholished  by  construction  of 
the  Constiiution  of  1846,  and  the  code  of 
procedur'.  Sarsfield  v.  Van  Vaughner, 
15  Al).  Pr.  65. 

*  Parrot  v.  Paulet,  Cary,  103;  Anon.,  1 
Eq.  Ca.  Ab.  75,  margin. 


MATTER    OF    THE    BILL. 


329 


or  of  fraiKl,^  or  of  bills  to  establish  a  general  right,  as  in  the 
case  of  tithes,-  or  other  special  circumstances.^  It  is  said,  that 
the  Court  will  not  entertain  a  bill  for  land  under  the  yearly  value 
of  40.S. ;  *  but  instances  occur  in  the  books  where  bills  have  been 
entertained  for  the  recovery  of  ancient  quit-rents,  though  very 
small,  viz.,  2s.  or  35.  per  annum.^  It  seems,  that  if  a  bill  is 
brought  for  a  demand  Avhich,  by  the  rule  of  the  Court,  cannot  be 
sued  for,  the  defendant  may  either  demur  to  it,  on  the  ground 
that  the  plaintift''s  demand,  if  true,  is  not  sufficient  for  the  Court 
to  ground  a  decree  upon,®  or  he  may  (which  is  the  most  usual 
course)  move  to  have  the  bill  dismissed,  as  below  the  dignity  of 
the  Court.^  But  even  if  the  defendant  should  take  neither  of 
these  courses,  yet,  when  the  cause  comes  to  a  hearing,  if  it  appears 
that,  on  an  account  taken,  the  balance  due  to  the  plaintiff  will 
not  amount  to  the  sum  of  10?.,  the  Couit  will  dismiss  the  bill.^ 
Thus,  where,  upon  a  bill  being  brought  relating  to  tithes,  it  was 
clearly  admitted  that  the  plaintiff  had  a  right  to  some  tithes  of  the 
defendant,  but  the  tithes  which  were  due  appeared  to  be  only  of 
the  value  of  5?.,  Lord  Harcomt  dismissed  the  bill  at  the  hearing ;  ^ 
and  in  Brace  v.  7a)/Ioi\^°  a  similar  objection  was  taken,  at  the 
hearing,  and  allowed."  But  in  BecJcett  v.  Bilhroufjh^'^  the  suit 
was  held  to  be  sustainable,  although  the  sum  recovered  was  only 
9?.,  on  the  gi-ound  that  the  plaintiff,  Avhen  he  filed  his  bill,  must 
have  been  justified  in  supposing  that  a  larger  sum  would  be  re- 
covered ;  and  the  defendant,  who  knew  the  amount,  had  not  given 
any  intbrmation  respecting  it.^* 


Ch.  VI.  §  4. 


otherwise, 
defendant 
may  demur, 
or  move  to 
dismiss ; 


or  bill  may  be 
dismissed  at 
the  hearing. 


1  Rnnl).  17,  n. 

2  Griffith  r.  Lewis  2  Bro.  P.  C.  ed. 
Toml.  407.  If  a  suit  have  no  other  ohjcft 
flmii  the  mere  recovery  <if  a  sum  of  $1.75, 
tiie  1)11  r  will  be  disnii^seil;  hut  if  it  seeks 
to  estaliiisli  II  ritrht  nf  a  fx'nniinent  imd 
vaUiiil)le  nature,  it  falls  within  the  renop- 
nized  exceptions  to  tlie  (lenentl  |)ruicii)le, 
and  the  ('nuit  will  innintain  juri'^diction. 
Swi-d.jshnroM^jh  Cliurch  v.  Shivers.  1  V.. 
v..  Crei  n  (N.  .1.),  453,  458;  Story  Eq.  V\. 
§§  500.  501. 

2  (UA  W.  1.  In  Senton  v.  Grant,  L.  R.  2 
Ch.  Ap.  45!),  4(j.'5.  I.nrd  .Iiisticn,  Turner 
(laid:  "  Ano'her  ohiccion  that  h:t»  heen 
taken  i»  the  iiisit/niticance  of  the  plaintiirs 
iT,t<Test  in  the  suhj  ctniatti-r  <i(  the  suit. 
lie  if,  hiiw'vpr,  su  \vz  "ii  liclialf  of  himself 
and  111''  otli<r  HliurrholikT-  of  the  company, 
and  I  am  not  prepare<l  to  siiy  that  the 
ordinary  rule  as  to  suits  (or  a  "uhject-mnt- 
tcrof  iiVus  value  than  10/.,  applies  to  a  case 
of  this  kind." 

<  1  K<i.  ('a.  Ah.  75,  margin;  Almy  v. 
I'vc'oft,  (^arv,  lO.*}. 

"6  Cocki  r."  Folev.  1  Vert).  %m. 

«  Fox  r.  Frost,' I{ep   t.  Finch,  25.3. 

'  Mos.  47,  .35(5;  Huoh.  17;  .Swedes- 
borough  Church  V.  .Sliiver.t,  1  C.  E.  Green 
(N.  J.),  463,467. 


8  Coop.  Eq.  PI.  166;  Swede.sborongh 
Church  V.  Shivers,  1  C.  E.  Green  (N.  J.), 
453,  457. 

9  Cited  2  Atk.  253. 

10  2  Atk.  253. 

11  "If  it  appears  on  the  face  of  the  bill, 
that  the  mnlter  in  dispute,  exchi-iv  of 
costs,  does  I'ot  exceed  the  iimount  to  which 
the  jurisdiction  of  the  Court  i-;  limited,  the 
defendant  may  either  deinur,  or  move  to 
have  the  bill  liisinis-eil  with  costs;  or  if  it 
does  not  appear  on  the  (ace  of  the  bill,  it 
may  be  pleiided  in  bar  of  the  suit.  Smets 
V.  William".  4  Paifre,  364;  McElwiiin  v. 
Willis,  3  I'aiee,  505:  S.  V.  on  iippeiil,  9 
■\Veiul.548;  SchroR|ipel  v.  Hedfield  5  Piiifre, 
245;  Hnidtr.  Kirkpatrick,  7  rai?e,62.  Ry 
"  exclusive  of  costs,"  iibove,  is  mcunt  the 
otalu  of  the  suit  in  Clunicerv.  Van  Tyne 
V    Munce,  1  Fdw.  Ch.  5t-3. 

12  S  lliire.  1S8;   14  .Tiir.  238. 

I«  In  Smith  v  Matthews,  M.  B.  2  .Inly, 
1859.  the  usuiil  decree  was  iniide  to  ndniin- 
istcr  real  and  personal  cstnti-  on  a  bill  I'V  a 
creditor,  suin^c  on  liduilfol  "11  the  crcditom 
of  the  deceased  dchtov;  thoucli  lii-i  indi- 
vidual debt,  as  alletjed  in  the  hill,  was 
under  &/. 


THE    BILL. 


Cii.  VI.  §  4. 


Bill  must  be 
for  tho  whole 
matter. 


Not  for  one  of 
two  claims 
upon  same 
defendant, 


or  in  respect 
of  one  of  two 
mortgages, 


or  where 
mortgage  and 
bond. 


A  1)111  must  not  only  be  for  a  subject  which  it  is  consistent  with 
the  (lio-iiity  of  the  Court  to  entertain,  but  it  nnist  also  be  broutilit 
for  the  whole  subject.  Tlie  Court  will  not  ]iennit  a  bill  to  be 
brought  for  ])art  of  a  matter  only,^  so  as  to  expose  a  defendant 
to  be  harassed  by  repeated  litigations  concerning  the  same  thing; 
it,  therefore,  as  a  general  rule,  requires  that  every  bill  shall  be  so 
fi'amed  as  to  aiford  ground  for  such  a  decision  upon  the  whole 
matter,  at  one  and  the  same  time,  as  may,  as  far  as  possible, 
prevent  future  litigation  concerning  it.  It  is  upon  this  principle 
that  the  Court  acts,  in  requiring  in  every  case,  Avith  such  excep- 
tions as  we  have  noticed  above,  the  presence,  either  as  ])lMintiffs 
or  defendants,  of  all  parties  interested  in  the  object  of  the  suit. 
And  upon  the  same  principle,  it  will  not  allow  a  plaintiff  who  has 
two  distinct  claims  itpon  the  same  defendant,  or  to  which  the  same 
defendant  may  eventually  prove  liable,  to  bring  separate  bills  for 
each  particular  claim,  or  to  bring  a  bill  for  one  and  omit  tho 
other,  so  as  to  leave  the  other  to  be  the  subject  of  future  litiga- 
tion.^ Thus,  in  Purefoy  v.  Purefoy^  where  an  heir,  by  his  bill, 
prayed  an  account  against  a  trustee  of  two  several  estates,  that 
were  conveyed  to  him  for  several  and  distinct  debts,  and  after- 
wards would  have  had  his  bill  dismissed  as  to  one  of  the  estates : 
and  have  had  the  account  taken  as  to  the  other  only,  the  Court 
decided  that  an  entire  account  should  be  taken  of  both  estates : 
"for  that  it  is  allowed  as  a  good  cause  of  demurrer  in  this  Court, 
that  a  bill  is  brought  for  part  of  a  matter  only,  which  is  proper 
for  one  entire  account,  because  the  plaintiff  shall  not  sj)lit  causes 
and  make  a  multiplicity  of  suits."  And  so,  Avhere  there  are  two 
mortgages,  and  more  money  has  been  lent  upon  one  of  them  than 
the  estate  is  worth,  the  heir  of  the  mortgagor  cannot  elect  to 
redeem  one  and  leave  the  heavier  mortgage  unredeemed,  but  shall 
be  compelled  to  take  both,*  Upon  the  same  principle  it  is  held, 
that  "where  there  is  a  debt  secured  by  mortgage,  and  also  a 
bond  debt :  when  the  heir  of  the  mortgagor  comes  to  redeem,  he 
shall  not  redeem  the  mortgage  without  paying  the  bond  debt  too, 


1  Ld.  Red.  183. 

2  Story  Eq.  PI.  §  287.  So,  at  Law,  a 
plaintiff  cannot  split  an  entire  cause  of 
action,  so  as  to  maintain  two  suits  upon  it, 
without  the  defendant's  consent.  If  lie 
attempts  so  to  do,  a  recoverj'  in  the  first 
suit,  though  for  less  than  the  whole  de- 
mand, is  a  bar  to  the  second.  Ingrahara 
V.  Hall,  11  Serg.  &  K.  78;  Crips  v.  Tal- 
vande,  4  M'C'ord,  20;  Smith  «.  .lones,  15 
John.  220;  Wilhird  v.  Sperry,  16  John.  121; 
Avery  v.  Fitch,  4  Conn.  .362;  Vance  v. 
Lancaster,  3  Ilayw.  130;  Colvin  v.  Corwin, 
15  Wend.  557;  Strike's  case,  1  Bland, 
95;  James  v.  Lawrence,  7  liar.  &  J.  73; 
Stevens  v.  Lockwood,  13  Wend.  644;   see 


also  Guernsey  v.  Carver,  8  Wend.  492,  and 
the  remarks  on  it  in  Badger  v.  I'itcomb,  15 
rick.  415.  In  tiiis  last  case  it  was  said  thit 
"  as  the  law  is,  we  tliink  it  cannot  be  main- 
taineij,  that  a  ruimint:  account  for  goods 
sold  and  delivered,  money  loaned,  or  money 
had  and  received,  at  different  times,  will 
constitute  an  entire  demand,  unless  there 
is  some  agreement  to  that  effect,  or  some 
usage  or  course  of  dealing  from  which 
such  an  agreement  or  understanding  may 
be  inferred." 

8  1  Vern.  29. 

■*  Ibid. ;  Jlargrave  v.  Le  Hookc,  2  Vern. 
207. 


MATTER    OF    THE    BILL.  '  331 

in  case  the  heir  be  bound."  ^  The  ground  of  this  rule  is  the  Cn.  vi.  §  4. 
prevention  of  circuity  of  remedy :  for,  as  the  bond  of  the  ances-  '  t  -^ 
tor,  where  the  heir  is  bound,  becomes,  upon  the  death  of  such 
ancestor,  the  heir's  OTvn  debt,  and  is  payable  out  of  the  real 
estate  descended,  it  is  but  reasonable  that,  where  the  heir  comes  to 
redeem  the  estate  by  payment  of  the  principal  money  and  interest, 
he  should  at  the  same  time  be  called  upon  to  pay  oiF  the  bond :  as 
other^vise,  the  obligee  would  be  driven  to  sue  him  for  the  recovery 
of  the  bond,  which  in  the  result  might  be  payable  out  of  the  same 
property  that  the  heir  has  redeemed. 

When  it  is  laid  down  as  a  rule,  that  the  Court  will  not  entertain  Limitation  of 
a  suit  for  part  of  a  matter,  it  must  be  understood  as  subject  to  this  ^here^matter 
limitation,  viz.,  that  the  wliole  matter  is  capable  of  being  immedi-  [^P?^'^^^^ 
ately  disposed  of;  ^  for  if  the  situation  of  the  property  in  dispute  decision, 
is  such,  that  no  immediate  decision  upon  the  whole  matter  can  be 
come  to,  the  Court  will  fi-equently  lend  its  assistance  to  the  extent 
which  the  actual  state  of  the  case,  as  it  exists  at  the  time  of  filing 
the  bill,  Avill  Avarrant.  Upon  this  principle  Coiu-ts  of  Equity  act, 
in  permitting  bills  for  the  preservation  of  evidence  in  perpetuam 
rex  wemoriam  :  which  it  does  upon  the  ground  that,  from  the  cir- 
cumstances of  the  parties,  the  case  cannot  be  immediately  the  sub- 
ject of  judicial  investigation;  and  if  it  should  appear  upon  the  bill, 
that  the  matter  to  which  the  required  testimony  is  alleged  to  relate 
can  be  immediately  decided  upon,  and  that  the  witnesses  are  resi- 
dent in  England,  a  demun-er  would  hold.^  It  is  upon  the  same 
principle  that  tlie  Court  proceeds,  in  that  class  of  cases  in  which 
it  acts  as  ancillary  to  the  jurisdiction  of  other  Courts,  by  permit- 
ting suits  for  the  preservation  of  property  pending  litigation  in 
such  Courts ;  or  by  removing  the  impediments  to  a  fair  litigation 
before  trilnmals  of  ordinary  jurisdiction.  In  all  these  cases,  it  is 
no  ground  of  objection  to  a  bill  that  it  embraces  only  part  of  the 
matter,  and  that  the  residue  is,  or  may  be,  the  subject  of  litigation 
elsewhere.  The  ])reservation  of  the  property,  or  the  removal  of  the 
impediments,  is  all  that  the  Court  of  Equity  can  effect ;  the  bill, 
therefore,  in  seeking  this  descrij)tion  of  relief,  seeks  the  whole  re- 
lief wliich,  in  such  cases,  a  Court  of  Efjuity  can  give;  but  if  a  bill, 
praying  only  this  dcscnption  of  relief,  sliDuld   disclose  a  case  in 

1  Shnttleworth  ».  Laycock,  1  Vern.  245;  times,  is  divisible  initsnnture;  and  that 
Anon.,  2  ("h.  (jii.  104;  and  see  .Tones  «.  an  action  will  lie  lor  tlie  breach  of  any  one 
Smith,  2  Ves.  J.  370;  see  aNo  Klvy  v.  of  the  stipulations,  each  of  tliese  stipula- 
N'TWood.  '<  De  G.  &  S.  240;  16  .Inr.  493;  tions  beinf?  considered  as  a  separate  con- 
.Sincliiir  I'.  .laiksim,  17  Beiiv.  40r,;  Fisher  tract.  Bailgcr  »).  Titcomb,  15  Tick.  414. 
on  MorttraKf.  3hl ;  2  Story  \\(\.  .lur.  §  102.'),  3  L<1.  Hed.  150;  see  Story  Kfj.  I'l.  §  303, 
note;  .lones  r.  .Smith,  2  Sumner's  Ves.  and  note;  Moodelay  v.  Morton,  1  Hro.  C. 
372.  n.  (r)  and  cases  cited;  Lee  v.  Stone,  V.  (Perkins's  ed.)  4t')y.  and  notes;  jtott, 
1  Gill  &  .1.  1.  Chap.  XXXI  V.§  4,  Mtsloperjietitale  Tt»- 

2  The  principle  is  well  established,  that  timony. 
a  contract  to  do  several  things  at  several 


332 


THE   BILL. 


Cm.  ^^.  §  4. 


Whether  hills 
I'iin  ho  sus- 
tained tor 
partnersliip 
accounts, 
without 
seeking 
dissohition. 


which  a  Court  of  Equity  is  cnpnblo  of  talcinj];  upon  itself  tlic  whole 
decision  of  the  question:  in  sueh  a  case,  it  is  ai)prelu'n(le<l,  tholi)ill 
would  be  defective,  in  not  seeking  the  relief  Avhich  the  plaintilf  is 
entitled  to. 

With  reference  to  this  part  of  the  subject  may  he  noticed  tlie 
much  litigated  question,  to  what  extent  a  person  engaged  in  trade 
in  copartnership  can  have  relief  in  Ecpiity  against  his  partners, 
without  praying  a  dissolution  of  the  partnership ;  u])on  tliis  point 
the  decisions  were  very  conflicting.^  In  l^orman  v.  Jlomfray^ 
Lord  Eldon  said  he  did  not  recollect  an  instance  of  a  hill  tiled  by 
one  partner  against  another,  praying  tlie  account  merely,  and  not  a 
dissolution :  proceeding  on  the  foundation  that  the  partnershij)  was 
to  continue ;  and  observed  upon  the  inconvenience  that  would  re- 
sult if  a  partner  could  come  here  for  an  account  merely,  pending 
the  partnership,  as  there  seems  to  be  nothing  to  ])revent  his  com- 
ing annually ;  ^  and  in  Loscomhe  v.  Jiussell,*  Sir  Lancelot  Shadwell 
V.  C.  allowed  a  demurrer  to  a  bill  praying  the  account  of  a  partner- 
ship, because  it  did  not  pray  for  a  dissolution.  In  JIarriso7i  v. 
Armitage^  liowever,  a  contrary  opinion  was  expressed  by  Sir  John 
Leach  Y.  C. ;  and  in  liichards  v.  Davies,^  which  Avas  a  bill  by  one 
partner  against  another,  praying  for  an  account  of  what  was  due  to 
the  plaintiff  respecting  past  partnership  transactions,  and  that  the 
partnersliip  might  be  carried  on  under  the  decree  of  the  Court,  Ilis 
Honor  decreed  an  account  of  past  partnership  transactions,  l)ut 
said  that  he  could  make  no  order  for  can-ying  on  the  ])artnership 
concerns,  unless  with  a  view  to  a  dissolution.  In  pronoxmcing  his 
judgment  upon  that  case,  the  learned  Judge  observed,  that  a  part- 
ner, during  the  partnership,  has  no  relief  at  Law  for  moneys  due  to 
him  on  a  partnership  account ;  and  that,  if  a  Court  of  ICquity  re- 
fuses him  relief,  he  is  wholly  without  remedy:  which  would  be  con- 
pie  than  a  di=soUition  of  partnersliip. 
Waters  «.  Taylor.  15  Ves.  10.     Hut  it  is  to 


1  In  I  Stor}'  F.q.  Jur.  §  671,  Mr.  Justice 
Story  says:  "  Courts  of  Equity  may,  per- 
liaps,  interpose  aid  decree  an  account 
where  a  'lisvolutjon  of  paifnevship  has  not 
taketi  phice,fin'l  is  nutufked  for;  although, 
ordiii!inly,  tiiey  are  not  inclined  to  decr'e 
an  account,  un'ess  under  special  circuni- 
stani'e«,  if  tiiere  is  not  nn  actnai  or  con- 
teiiipla'ed  lii-solution,  so  that  all  the  affairs 
of  the  partnership  may  he  wound  np." 
See  ai-io  the  cases  cited  in  the  note  at  the 
place  ahov<i  ci'ed,  and  Waters  v.  Ta\lDr, 
15  .Sumner's  Ves.  10,  note  (h)  and  cases 
ci'ed;  .Judl  v.  Wilson,  6  Vt  185;  1  Smith 
Ch  I'r.  (2d  Am.  ed.)  89;  Collver  I'artn. 
(Perkins's  ed  )  §§  299,300,  1128  to  ll^.'J. 

2  2  V.  &  B.  329;  and  8ee  Marshall  v. 
Cohuan,  2  J.  &  W.  2e8;  Lindlev  Partn. 
762. 

3  It  is  paid  hv  one  of  the  learned  report- 
ers, in  a  note 'to  2  V.  &  B.  330.  that,  in 
the  case  of  tliea'res,  iliw  (,'ourt  lia^  refused 
to  take  jurisdiction  upon  any  other  princi- 


he  oh'^erved,  that  theatres  are  property  of 
a  very  pecul'ar  description,  and  tliat  :tny 
interference  with  the  mani?enient  of  them 
hy  the  Court  m  ght  he  productive  of  irre- 
parahle  damage  and  ruin  to  the  parties 
concerned,  and  that  it  is  upon  this  principle 
that,  in  Waters  v.  Taylor,  the  Court  hesi- 
tated to  interfi-re  during  tlie  existence  of 
the  partnership;  see  l-")  Ves  20.  It  was 
said  hy  the  Soliciior-tJeneral.  arf/verido  in 
Loscomhe  v.  Kussell,  that  it  appeared  from 
the  hrief  in  Forman  v.  lIomfr;iy,  that  the 
plaintiff  there  prayed  tor  an  account,  which 
was  to  h''  continued  imtil  the  end  of  the 
term  of  the  partnerslii|).    4  Sim.  9. 

4  4  Sim.  8,  10. 

''  4  .Mad.  143,  cited  in  Loscomhe  v.  Kus- 
sell,  v/ji  sup. 

''  2  \l.  Si  M.  347;  and  see  observations 
of  LonI  CottenI  am  in  VVsilworth  v.  licit,  4 
M.  &  C.  639,  ante,  pp.  234,  235. 


MATTER    OF    THE    BILL. 


333 


trary  to  the  plain  principles  of  justice,  and  cannot  be  the  doctrine 
of  equity.  With  respect  to  the  objection  that  the  defendant  might 
be  vexed  by  a  new  bill,  whenever  new  profits  accrued.  His  Honor 
said :  "  What  right  has  the  defendant  to  complain  of  such  new  bill, 
if  he  repeats  the  injustice  of  withholding  what  is  due  to  the  plain- 
tiff? Would  not  the  same  objection  lie  in  a  suit  for  tithes,  which 
accrue  de-anno  in  annum  f  "  It  is  to  be  observed,  that  in  the  last 
quoted  case  of  Richards  v.  Davies^  the  case  of  Chappie  v.  Cadell  ^ 
was  cited  in  argument,  and  is  referred  to  by  the  reporters  as  an 
authority  for  the  position  that  a  decree  may  be  made  for  partner- 
ship accounts  without  the  bill  having  prayed  a  dissolution ;  but, 
upon  reference  to  the  case  itself,  it  will  be  found  that  it  w^as  one  of 
a  very  peculiar  nature,  and  that  the  principal  object  of  the  suit 
was,  not  an  account  of  the  partnership  transactions,  but,  to  have  a 
declaration  as  to  the  eflect  of  a  sale  of  some  shares  in  a  partnership 
undertaking  (the  Globe  newspaper)  ;  and  that  the  account  of  the 
profits  AvhicK  was  decreed  was  merely  the  consequence  of  the  dec- 
laration of  the  Court  upon  that  point.  The  same  observation 
applies  to  Snowies  v.  Haufjhton^'  which  is  also  referred  to  in  liidh- 
ards  V.  Davies :  ^  there,  the  bill  Avas  filed  to  establish  a  partnership 
in  certain  transactions,  and  the  sole  question  in  the  case  was,  part- 
nership or  no  partnershi}) ;  and  the  Court  being  of  opinion  that  a 
partnership  did  exist  in  part  of  the  transactions  referred  to,  as  a 
necessary  consequence  decreed  an  account  of  these  transactions. 

In  Roberts  v.  Eberhardt,''  Sir  W.  P.  Wood  V.  C.  said :  "  It  is 
certainly  not  the  ordinary  practice  of  this  Coui-t  to  direct  an  ac- 
count between  partners,  except  upon  a  bill  for  the  dissolution  of 
the  partnership  concern.  It  is  true  that  it  is  not  now  necessary 
to  ask  for  a  dissolution  in  every  case  in  which  relief  is  sought 
respecting  partnership  affairs;  but  I  apprehend  that  when  a  bill 
seeks  an  account,  that  is  one  of  the  cases  in  which  a  dissolution 
must  be  prayed ;  unless  some  special  ground  is  raised  the  general 
accounts  cannot  be  taken,  without  asking  for  the  dissolution  of  the 
firm."  It  is  conceived  that  it  is  now  settled  that,  where  the  gen- 
eral accounts  of  the  partnership  are  sought,  the  bill  must  pray  for 
a  dissolution,  except  in  special  cases;  but  that  there  are  cases  in 
which  the  C<iurt  will  inter[)Ose,  to  suj)port  as  well  as  to  dissolve  a 
partnership:  as  l)y  aj>pointing  a  receiver,  where  the  conduct  of  the 
defendant  is  such  as  to  endanger  the  existence  of  the  partnership 
concern.'' 

In  endeavorintj  to  avoid  the  error  of  making  a  bill    not   .sutli- 


Cii.  YL  §  4. 


*  .lac.  537. 

2  II  Ves.  1G8. 
8  -L  |{.  &  M.  347. 

*  Kav,  14M,  l.jK. 

*  Fairtlioriie  v  Weston,  3  Flare,  .387, 391 ; 
8  Jur.  353;  Hull  v.  Hull,  3  M'N.  &  U.  7i>, 


83;  15  Jur.  3(j3,  ami  ca«es  cited  in  noto  to 
S.  C  VI  IJuuv.  4rj;  Uaii.y  r.  llu-  Hiriieu- 
lif'.'iil  Kailwiiy  C.'oinnany,  Hi.  43.'),  410;  6 
Hail.  Ca.  2.'>(i;  14  .lur.  ll!i;  ('roppcr  v. 
Col)urii,  2  (Jiirti-,  C.  C.  465,  473 ;  Uilliain- 
son  V.  Haycock,  11  Iowa  (3  With.),  40. 


Where  the 
general  ac- 
counts of  the 
partnership 
are  sought, 
bill  must  pray 
a  dissolution. 


Multifarious 
ucas, 


334 


THE    BILL. 


Cn.Vl.  §4.     ciently  extensive  to  answer  the  purpose  of  complete  justice,  care 

^ Y must  be  taken  not  to  run  into  the  op}>osite  defect,  viz.^  that  of 

attemptiuijj  to  embrace  in  it  too  many  objects  :  for  it  is  a  rule  in 
Equity,  that  tAVO  or  nu>re  distinct  subjects  cannot  be  embraced  in 
the  same  suit.    The  oft'ence  against  this  rule  is  termed  multifarious- 
ness, and  Avill  render  a  bill  liable  to  a  demurrer.^ 
explained:  According  to  Lord  Cottenham,  it  is  utterly  impossible,  upon  the 

authorities,  to  lay  down  any  rule  or  abstract  projiosition  as  to 
what  constitutes  multifariousness,  which  can  be  made  universally 
applicable.  The  cases  upon  the  subject  are  extremely  various; 
and  the  Court,  in  deciding  them,  seems  to  have  considered  what 
was  convenient  in  particular  cases,  rather  than  to  have  attem})ted 
to  lay  down  an  absolute  rule.^     The  only  way  of  reconciling  the 


1  Story  Eq.  PI.  §  271.  "  By  multifari- 
ousness in  a  bill,"  says  Mr.  Justice  Story, 
"  is  meant  the  improperly  joining,  in  one 
bill,  distinct  and  imlependent  matters,  and 
thereb}'  conlounding  them ;  as  for  example, 
the  uniting  in  one  bill  of  several  matters, 
perfectly  distinct  and  unconnected,  against 
one  defendant,  or  tlie  demand  of  several 
matters  of  a  distinct  and  independent 
nature  against  several  defendants  in  the 
same  bill."  Story  Kq.  I'l.  §  271;  West  v. 
Randall,  2  Mason,  201;  Fellows  v.  Fel- 
lows, 4  Cowen,  682 ;  Brinkenhoflf  r.  Brown, 
6  John.  Ch.  139 ;  Bedsole  v.  Monroe,  5  Ired. 
Eq.  313;  Boyd  v.  Hoyt,  5  Paige,  65; 
Richardson  «.  M'Kinson,Litt.  Sel.  Ca.  320; 
Jackson  v.  Forrest,  2  Barb.  Ch.  576; 
Ryan  v.  Shawneetown,  14  III.  20;  Metcalf 
V.  Cady,  8  Allen,  587  ;  Warren  v.  Warren, 
56  Maine,  360 ;  Newtand  v.  Rogers,  3  Barb. 
Ch.  432;  Kennebec  and  Portland  R.Ii. 
Co.  V.  Portland  and  Kennebec  K.R.  Co., 
54  Maine,  173;  Richards  v.  Pierce,  62 
ilaine,  560,  562;  Crane  v.  Faircliild,  1 
McCarter  (N.  J.),  76;  Emans  v.  Emans,  1 
McCarter  (N.  J.),  114.  To  render  a  bill 
multifarious,  it  must  contain  several  (juud 
distinct  grounds  of  suit  in  Equity,  which 
cannot  properly  be  joined  in  one  suit. 
Many  v.  Beekman  Iron  Co.,  9  Paige,  188; 
McCabe  v.  Bellows,  1  Allen,  269;  Varick 
V.  Smith,  5  Paige,  137 ;  Pleasant  v.  Glass- 
cock, 1  bm.  «&  M.  Cn.  17;  liedsole  v  Mon- 
roe, supra ;  Richards  v.  Pierce,  52  Maine, 
562;  Emans  v.  Emans,  1  McCarter  (N. 
J.),  114.  A  bill  asking  for  an  injunc- 
tion to  restrain  waste,  and  also  an  account 
lor  rent  due,  is  demurrable  on  the  grouiicf 
of  multifariousness.  Reed  v.  Reed,  1  C.  E. 
Green  (N.  J.),  248,  2.00;  see  Bed.sole  v. 
Monroe,  5  Ired.  Eq.  313.  If  a  joint  claim 
against  two  or  more  defendants  is  improp- 
erly joiried  in  the  same  bill  with  a  sep- 
arate claim  against  one  of  the  defendants 
only,  in  which  the  other  defen^lants  have 
no  "interest,  and  which  is  wholly  uncon- 
nected with  the  claim  agjiinst  them,  all  or 
either  of  the  defendants  may  dem\ir  to  the 
bill  for  multifariousness.  Swift  v.  Eckford, 
6  Paige,  22 ;   Boyd  v.  lloyt,  5  Paige,  65 ; 


Richards  v.  Pierce,  52  Maine,  562.  A  bill 
against  one  for  a  claim  against  him  in  his 
individual  character,  and  another  claim 
against  him  as  heir  for  the  debt  of  liis  ances- 
tor, may  be  olijected  to  for  multifariousness. 
Bryan  v.  BIytlie,  4  Blackf.  249;  see  Rob- 
inson V.  Guild,  12  JNIet.  323.  So  a  bill  is 
multifarious,  which  mixes  up  indepen- 
dentclaims  made  by  the  plaintiff  in  his  own 
right  with  others  made  b}-  him  as  adminis- 
trator. Carter  v.  Treadwell,  3  Story,  25, 
51,  52;  see  Robinson  v.  Guild,  12  Met.  323. 
A  bill  tiled  by  an  administrator,  in  conjunc- 
tion with  the  heirs  and  distributees  of  the 
intestate,  to  recover  personal  property  in 
the  hands  of  the  defendant,  and  to  divide 
and  distribute  it,  is  multifarious.  Thurman 
V.  Shelton,  10  Yerger,  383. 

If  a  bill  does  not  piay  for  multifarious 
relief,  it  cannot  be  objected  to  for  multifa- 
riousness, though  the  case  stated  would 
support  a  prayer  for  multifarious  relief. 
Dick  V.  Dick,  1  Hognn,  290. 

"  The  conclusion,"  says  Mr.  Justice 
Story,  "  to  which  a  close  survey  of  all  the 
authorities  will  conduct  us,  seems  to  be, 
that  there  is  not  any  ])ositive,  inflexible 
rule,  as  to  what,  in  the  sense  of  Courts  of 
Equity,  constitutes  multiiaiiousness,  which 
is  fatal  to  a  suit  on  demurrer."  Story  Eq. 
PI.  §  539;  Oliver  v.  Piatf,  3  How.  U.  S. 
333,  411,  412;  I'er  Wilde  .1.  in  Robinson 
V.  (iuild,  12  Met.  323,  328;  McLean  v. 
Lafayette  Bank,  3  McLean,  415.  For  a 
sur\'ey  of  the  positions  and  doctrines  held 
by  Courts  of  Equity  on  this  subject  in 
different  cases,  see  Story  ICq.  PI.  §§  271- 
2h9, 530,  540 ;  Bugbee  v.  Sargent,  23  Maine, 
269 ;  Robinson  v.  Cro'^s,  22  Conn.  587  ;  War- 
ren V.  W^irren,  56  Maine,  360;  Kennebec 
and  Portland  K.R.  Co.  v.  Portland  and 
Kennebec  R.U.  Co., 54  Midne,  173;  Abbot 
V.  Johnson,  32  N.  II.  9;  Chase  v.  Searls, 
45  N.  II.  511,  519-521;  Ci.rap  v.  Mills,  6 
Jones  Eq.  (N.  C.)274. 

'^  See  Carrol!  v.  HooseveU,  4  Edw.  Ch. 
211;  Einans  v.  Emans,  1  McCarter  (N.  J.), 
118,  119;  Warren  v.  Warren,  56  Maine, 
368;  Bowers  r.  Keesecher,  9  Iowa  (1  With.), 
422.     The    substance  of  the  rules  on  the 


MATTER    OF    THE    BILL. 


335 


authorities  upon  the  subject  is,  by  adverting  to  the  foct,  that 
although  the  books  speak  generally  of  demurrers  for  multifarious- 
ness, yet  in  truth  such  demurrers  may  be  divided  into  two 
distinct  kinds.  Frequently  the  objection  raised,  though  termed 
multifariousness,  is  in  fact  moi'e  properly  misjoinder  ;^  that  is  to 
say,  the  cases  or  claims  united  in  the  bill  are  of  so  difierent  a  char- 
acter, that  the  Court  will  not  permit  them  to  be  litigated  in  one 
record.-  It  may  be  that  the  plaintiffs  and  defendants  are  parties 
to  the  whole  of  the  transactions  which  form  the  subject  of  the  suit, 
and  nevertheless  those  transactions  may  be  so  dissmiilar,  that  the 
Court  will  not  allow  them  to  be  joined  together,  but  will  require 
distinct  records.  But  what  is  more  familiarly  understood  by  the 
term  multifariousness,  as  applied  to  a  bill,  is  where  a  party  is  able 
to  say  he  is  brought  as  a  defendant  upon  a  record,  with  a  large 
portion  of  which,  and  of  the  case  made  by  which,  he  has  no  con- 
nection whatever.*  Thus,  where  a  bill  was  exhibited  by  trustees 
under  a  trust  for  sale,  against  several  persons,  who  were  the 
purchasers  of  the  trust  estates,  which  had  been  sold  to  them  by 
auction  in  different  lots,  Sir  Thomas  Plumer  V.  C.  allowed  a  de- 
murrei-,  which  had  been  put  in  by  one  of  the  defendants,  on  the 
ground  that  the  bill  was  multifarious.  Ilis  Honor  said:  "This 
Court  is  always  averse  to  a  multii)licity  of  suits,  but  certainly  a 
defendant  has  a  right  to  insist  that  he  is  not  bound  to  answer  a 
bill  containing  several  distinct  and  separate  matters,  relating  to 
indivitluals  with  whom,  he  has  no  concern."  *  In  a  subsequent 
case,  where  an  information  and  bill  were  filed  for  the  purpose  of, 
setting  aside  leases,  granted  by  the  same  trustees  at  different 
times  to  different  })ersons,  the  same  learned  judge  held,  that,  if 
the  case  had  been  free  from  other  objections  it  would  have  been 


Ch.  VL  §  4. 
« ^ 


In  bill  by 
trustees  lor 
sale,  against 
several 
purchasers. 


To  rescind 
leases  to 
different  per- 
sons by  sama 
trustees ; 


subject  of  multifar'ousncss  appears  to  be, 
tiiat  each  case  is  lo  be  governed  by  its  own 
circnin«taiices,  and  must  be  left  in  a.  great 
measure  to  the  S'lUnd  discretion  ot  tlie 
Court.  Clegg  r.  Vamell,  18  lexas,  294; 
Gaines  v.  (Jli  w,  2  How.  U.  S.  019;  (Jliver 
f.  I'iatt,  'i  How.  U.  S  'M'-i;  liuller  v.  Spann, 
27  Mis.  (5  Cusli.)  2:54;  M:.rsliali  v.  Means, 
12  Geo.  (51;  Keiiiieliec  and  i'ort!;ind  Ji.K. 
C'k.  v.  I'ortiaixl  ati^l  KeiiiK-bec  ll.li.  Co., 
62  Maine,  IVa,  1*52;  Sior.v  Kq.  PI.  §  284; 
Chase  v.  Searls,  4o  N.  ll.  020;  Abljot  v. 
•lohiison,  a2  N.  I[.  20;  Warren  r  \\'arren, 
60  Mauie,  y08;  reople  v.  Morrill,  20  Cal. 
330;  (iaines  i'.  Chew,  2  How.  U.  S.  619, 
642.  To  dcteriiiine  whether  a  bill  is  niul- 
tit'ari'ius,  rrgurd  must  be  hud  to  ttie  stating 
]mn  111'  the  mil,  and  not  to  the  prayer  alone. 
II  iiniiiond  V.  Mxliigau  liank,  Walker  Ch. 
214. 

'  By  the  V,  &  10  Vic.  c.  80,  §  49,  nnlfl, 
j>.  303,()l)jiTtM)nsl()r  misji  iiilcr  olplaiiitid's 
are  uboli.'lied;  but  this  section  ajiplies  to 


misjoinder  of  parties,  and  not  to  the  mis- 
joinder of  subjects  mentioned  in  the  text. 

^  Kmans  v.  Emans,  1  McCarter(N.  J.), 
114,  118. 

»  Campbell  v.  Mackay,  1  M.  &  C.  618; 
Crow  t'.  Cross,  7  Jur.  N.  8.  1298,  V.C.'S. ; 
see  Turner  r  Baptist  Missionary  Union,  5 
McLean,  344;  8wayze  v.  Sway/.e,  1  Stnckt. 
(N.  J.)  273;  New  England,  <S:c.  Hank  v. 
Newport  Steam  Factory,  6  H.  1.  l')4. 
_  *  Brnokes  v.  Lord  Wliitworth,  1  Mad.  80, 
89;  nm  also  llayner  v.  .lulian,  2  Dick.  077; 
6  Mad.  144,  n.  Tlie  nnirgiiiiil  note  to  2 
Dick.  077  is  wrong;  and  see  liump  v. 
Grcenliill,  20  Boav.  512;  1  .lur.  N.  S.  123; 
Aber^'slwith,  &c.  Ii'ailway  Company  v. 
Piercv,  12  \V.  U.  lOuO,  V.  C  VV.;  2  H.  ^: 
M.  f/)2;  Hent  v  Vardlev,  4  N.  K.  5o,  V. 
C.  W.;  Hduck  r.  Bouck,  L.  li  2  Kn-  19 
M.  K.;  Crane  V.  Faircliild,  1  Mc<;nrtcr(N. 
.).),  70;  Meiciilt  v.  Cady,  8  Allen,  067; 
liobinson  v.  Cross,  22  Conn.  171. 


336 


THE    BILL. 


Cii.  vr.  §  4. 


Cases  of  ex- 
ception. 


In  hills 
against  per- 
sons with  dis- 
tinct interests 
in  same 
transaction. 


Estates  of  two 
different  per- 
sons may  be 
admirustercd 
in  -^ame  suit, 
if  the  parties 
interested  in 
both  estates 
are  the  same, 
and  the 
accounts  can- 
not be  taken 
separately. 


liable  to  the  charge  of  imiltirarioiisness.^  The  same  priiici])le  was 
atterwai'ds  acted  upon  by  Lord  Eldon,  in  Salvidge  v.  JL/de^-  wliere 
a  bill  had  been  tiled  tor  an  aceonnt  ot"  a  testator's  estate,  and  also 
to  set  aside  certain  sales  which  had  been  made  by  the  executor 
and  trustee  to  himself  and  another  person  of  the  nanie  of  Laying, 
a  demurrer  to  which  bill,  jnit  in  by  Laying,  had  bewi  overruled  by 
Sir  John  Leach  V.  C*  The  case  came  on  before  tlie  Lord  Chan- 
cellor, by  appeal:  when  his  Lt)rdshi{)  reversed  the  judgment  of 
the  Vice-Chancellor,  and  allowed  the  demurrer:  observing  that 
''  when  there  are  trustees  to  sell,  and  a  bill  is  filed  against  them,  it 
is  not  usual  to  make  the  purchasers  parties,  but  to  state  the  con- 
tracts and  pray  an  inquiry."  *  Ilis  Lordship,  however,  added,  that 
"there  may  be  cases  which  cannot  be  delayed  till  those  inquiries 
can  be  made,  on  account  of  injury  that  may  be  done  in  the  mean 
time." 

It  is  to  be  remarked  that  Sir  John  Leach,  in  pronouncing  his 
judgment  upon  the  above  demurrer  observed,  with  reference  to 
multifariousness,  that  "  in  order  to  determine  whether  a  suit  is 
multifarious,  or  in  other  words  contains  distinct  matters,  the  in- 
quiry is  not  whether  each  defendant  is  connected  with  every 
branch  of  the  cause,  but  whether  the  i)laintifF's  bill  seeks  relief  in 
respect  of  matters  which  are  in  their  nature  separate  and  distinct. 
If  the  object  of  the  suit  be  single,  but  it  happens  that  different 
jiersons  have  separate  interests  in  distinct  questions  Avhich  arise 
out  of  that  single  object,  it  necessarily  follows  that  such  different 
persons  must  be  brought  before  the  Court,  in  order  that  the  suit 
may  conclude  the  whole  subject."  ^  There  is  no  doubt  that,  in  the 
above  observation,  the  learned  judge  stated  the  principle  correctly; 
though,  in  his  application  of  it,  he  went,  in  the  opinion  of  Lord 
Eldon,  too  far.*^ 

Although  the  administration  of  the  estates  of  two  different  ])er- 
sons  cannot,  in  general,  be  joined  in  the  same  suit,  where  the  par- 
ties interested  in  such  estates  are  different,  yet,  where  the  same 
parties  claim  the  benefit  of  both  estates,  and  they  are  so  connected 
that  the  account  of  on3  cannot  be  taken  without  the  other,  the 
joinder  of  them  in  the  same  suit  is  not  multifarious.'' 

Attorney-General  V.  Moses,  2  Mad.  294,       R.  2  V.q.  19;  and  sec  Margetts  v.  Perks,  12 

VV.  K.  &17,  M.  R.;  Mar.-hall  v.  tiilliar,!,  1 
W.  N.  255;  12  Jur.  N.  S   483,  V.  C  S. 

V  Campbell  V.  Muckay,  1  .M.  &  C.  603, 
623;  Lewis  v.  Edmund,  6  Sim.  251,  254; 
liump  V.  Greeiiliill,  20  iJeiiv.  512;  1  Jur. 
N.  S.  123;  Attorney-General  v.  Crailock, 
3  M.  &  C.  85,93;  1  .Jur  556;  Younj^  v. 
Hodges,  10  Hare,  158;  Carter  v.  Ballour, 
r.)  Ala.  814.  The  estates  of  two  per-ons 
who  are  ji'int  debtors  nuiy  be  administered 
ill  the  same  suit.     Woods  v.  iSowerby,  14 

W.  U.  9,  V.  c.  w. 


305. 

■^  Jac.  151,  153;  and  see  Lund  v.  Blan- 
shard,  4  Hare,  9,  19;  Thomas  v.  liees,  1 
Jur.  N.  S.  19",  ^I.  li  ;  Noriis  t;  Jackson,  1 
J.  &  II.  319;  7  Jur.  N.  S.  540. 

3  5  .Mad.  138. 

«  St-ry  V.i\    I'l.  §  274. 

6  Saiv.d,<e  V.  Hvde,  5  Mad.  146. 

8  See  Turner  v.  'Hobin.son,  1  S.  &  S.  313, 
315;  S.  C.,  ?""/«.  Turner  v.  Uoubleday,  6 
MaJ.  94;  iJunn  r.  I>unn,  2  Sim.  329;  Mar- 
cos V.  Pebrer,  3  Sim.  400;  Jerdeiu  v. 
Bright,  2  J.  ic  U.  325 ;  Bouck  i;.  Bouck,  L. 


ness. 


MATTER    OF    THE    BILL.  337 

This  observation  leads  US  to  a  distinction  pointed  out  by  Lord  Ch.TI.  §4. 

Eldon^  in  the  case  of  Salvidge  v.  Hyde^  and  which  has  jjerhaps  '"^ y ■' 

been  extended  by  later  cases.     The  bill  in  that  case  was  filed  by  Bills  against 
persons  interested  under  a  will,  and  by  creditors  of  a  testator,  to  |^,^^  mider'"^" 
set  aside  two  contracts,  one  of  which  had  been  entered  into  by  the  sub-con- 
trustees  for  sale  of  an  estate  to  one  of  their  own  number,  and  the  multifarious, 
other  for  the  sale  of  another  estate  to  the  defendant  Laying ;  and 
Lord  Eldon,  althoiigh  he  thought  that  the  object  of  setting  aside 
the  contract  entered  into  with  Laying  could  not  be  embraced  in  a 
bill  to  set  aside  the  contract  entered  into  with  the  trustee,  yet 
held,  that  if  the  trustee  had  purchased  for  himself,  and  then  Lay- 
ing had  bought  the  same  estate  of  him,  the  case  would  have  been 
different.^ 

From  this  it  may  be  inferred,  that  an  objection  for  multifarious-  Defendant, 

ness  will  not  be  allowed,  whei-e  the  person  making  the  objection  case"vuth  ^ 

has  united  his  case  with  that  of  another  defendant,  against  whom  that  of  a 

the  suit  is  entire  and  incajjable  of  being  separated.*     And  so,  in  a<,^ainst  whom 

Benson  v.  Iladfield*  where  the  plaintiffs  had  a])i)ointed  A.,  B.,  and  ^'^^  suit  is 

''         '  '■  i  .  -i  J-  '       '  entire,  cannot 

C.  their  foreign  agents,  and  A.  had  retired,  whereupon  the  plain-  ohjcct  for 
tifis  had  appointed  B.,  C,  and  D.  their  agents,  and  then  filed  a  bill  '""itifonous- 
for  an  account  of  the  two  agencies,  A.,  the  retiring  party,  demurred 
for  multifariousness.  In  giving  judgment  upon  the  demurrer, 
Lord  Langdale  M.  R.  observed  :  "  I  can  very  well  conceive  a  case 
])roper]y  stated,  in  which  it  would  be  quite  necessary,  and  it  may 
ultimately  be  quite  necessary  in  this  case,  to  continue  any  person 
who  was  a  partner  in  one  of  those  agency  firms,  a  party  to  the 
cause  l>y  which  the  accounts  are  to  be  taken  ; "  ^  but,  u])on  perusal 
of  tlie  bill,  he  did  not  find  any  such  allegations  as  a2»})eared  to  ren- 
der it  necessary  to  continue,  as  parties  to  the  suit,  the  diflTerent 
persons  parties  to  the  transactions,  and  consequently  he  allowed 
the  demurrer.  In  the  case  of  the  Attorney- General  v.  The  Cor- 
poration of  ]*ooJe^'  where  the  case  against  one  defendant  was  so 
entire  as  to  be  incaj)al)le  of  being  prosecuted  in  several  suits,  but 
yet  another  defendant  was  a  necessary  party  in  respect  of  a  portion 
only  of  tliat  case,  it  was  decided,  that  such  otlier  defendant  could 
not  ol)ject  to  the  suit  on  tlie  ground  of  multifariousness.  And  in 
Campbell  \.  Maekuy^  J^oi-d  CoUi'iiliam  liel<l,  tli;il  wiicre  the  phiiu- 

1  Jac.  15L  Fin.  4U'.t,  nam.  I'lirr  r.  Att()riie_v-(;cMeral; 

2  Salvi(l(^e  v.  [lyde,  Jac.  163.  fui;  al.sx  Iiunan  r.  Weariiif,',  ;i  lie  (i.  &  S. 

3  Story  Kf].  I'i.  §  278,  a,  and  note.  Nor  72!J,  which  was  a  case  of  foreclosure  of  tlirce 
can  ailctcndant  "Icninr  tur  nitihilariousness  distinct  estates,  and  a  prayer  to  set  aside  a 
on  the  t^Mund  of  thi-  jdindcr  of  another  de-  sale  by  a  |)rior  mortgagee  of  one  of  them, 
feiidani,  who  does  not  object.     Warthcn  u.  as  improvident. 

Brantley,  5  Ijeo.  671;  W nitbeck  «.  Kdgur,  "  1  M.    &  (J.  00.3;    and  see  Attorne}-- 

2  Barb  "Ch.  lOt}.  General  i'.  Oadock,  .3  M.  &  0.  8.0,  ii.5;    1 

*  5  Ueav.  64«,  U'^%.  .hir.  6j">0;   Walsbain  v.  Stninton,  9  .lur.  N. 

6  Set;  \Vaith«-n  r.  Brantley,  G  Geo.  .'i71;  S.  I'itil;  IJ  W.  ii.  y;i,  L.  .1.1.;  1  !).•  (J.,  J. 
Story  l-:<|.  I'I.  §  'l-h  u,  iin>l  note.  &  S.  C7«,  overruling  S.  G.  1  II  &  M.  ifiS; 

0  4  M.  &  C.  17, 31 ;  'I  ,Jur.  1080;  8  CI.  &       llamp  y.  Kobinson,  3  Dc  G.,  J.  &  S.  87. 
VOL.  1.  22 


338 


THE    BILL. 


Cm.  VI.  §  4.  tills  have  a  common  iiitovost  np:;vinst.  all  the  defendants  in  a  snit  as 
to  one  or  more  of  tlie  questions  raised  by  it,  so  as  to  make  them 
all  necessary  parties  for  the  j)nrpose  of  enforcing  that  common  in- 
terest, the  circumstance  of  some  of  the  defendants  being  subject  to 
distinct  liabilities,  in  respect  to  diiferent  branches  of  the  subject- 
matter,  will  not  render  the  bill  multifarious.^  The  facts  of  that 
case  Avere  as  follow:  Sir  James  Campbell,  by  a  deed  of  settlement 
executed  on  his  marriage  with  Lady  D.  L.  Campbell,  had  vested  a 
fund  in  two  trustees,  A.  and  B.,  njion  trust  for  his  wife  for  life,  am\ 
after  her  decease  in  trust  for  the  sons  of  the  _mari-iage  who  should 
attain  the  age  of  twenty-one  years,  and  daughters  who  should  at- 
tain twenty-one  years  or  marry :  with  a  proviso  that  the  persons 
to  be  ajjpointed  guardians  of  the  children  by  his  will,  together 
with  the  trustees  of  the  settlement,  should  have  authority  to  a])])ly 
the  interest,  and  also,  in  certain  cases,  part  of  the  ca])ital,  of  the 
children's  presum])tive  shares,  towards  their  maintenance  and  ad- 
vancement during  their  respective  minorities.  By  a  second  deed, 
executed  after  marriage.  Sir  James  Campbell  vested  another  fund 
in  two  other  trustees,  C.  and  D.,  but  upon  similar  trusts  to  those 
of  the  first  settlement ;  and  by  his  will,  after  making  some  si)ecific 
bequests  to  his  wife,  he  bequeathed  his  property  to  A.,  B.,  and  C, 
uj^on  certain  trusts  for  the  benefit  of  his  children,  and  appointed 
A.,  B.,  and  C.  his  executors  and  guardians  of  his  infant  children, 
in  conjunction  Avith  their  mother.  After  the  death  of  Sir  James 
Campbell,  Lady  D.  L.  Campbell,  the  wife,  together  with  the  chil- 
dren of  the  marriage,  filed  a  bill  against  A.,  B.,  C,  and  D.,  for  the 
accounts  and  administration  of  the  proj^erty  comprised  in  the  two 
deeds  and  will,  to  which  bill  a  joint  demurrer  was  put  in  by  A.,  B., 
and  C,  on  the  ground  of  multifariousness.  The  demurrer  was, 
however,  overruled,  upon  argument,  by  Sir  Lancelot  Shadwell  V. 
C,  and  afterwards  by  Lord  Cottenham  ui:)on  ai>peal :  his  Lordshij) 
being  of  opinion,  that  the  result  of  the  principles  to  be  extracted 
li-om  the  cases  was,  that  where  there  is  a  common  liability  and  a 
common  interest,  the  common  liability  being  in  the  defendants, 

1  Where  the  purpose  of  the  bill  was  to  ants  is  a  necessary  party  to  some  part  of 

fnabh;  the  phxintiHto  {ibtainpati.sfactiouof  the  case  stated.     In  such  case  neither  of 

a  juclt;meiit  at  Law  out  of  the  property  of  tiie  defendants  can  demur  fur  niuhifarlous- 

his  debtor,  one  of  the  defendants;  and  to  ness,  or  for  mi.sjoinder  of  causes  of  action, 

this  end  the  plaintiff  souf^ht  to  remove  out  in  some   of  wliicli  he   has   no   interest." 

of  his  way  certain  fraudulent  conveyances  Way  v.   Bragaw,   1  C.  E.  Green  (N.  J.), 

and  incumbrances,  and  to  brjng  witliin  the  213,216;  Randolph  v.  Daly,  1  C.  K.  tireen 

reach  of  his  judgment  equitable  interests  (N.  J.),  313;  see  Huyd  v.  Ho.vt,  5  Paige, 

which  were  not  the  subjects  of  execution  7S;  Briiikerholfw.  Brown, 4  John.  Ch.  071 ; 

at  law,  it  was  held  to  he  no  objection  that  Fellowes  v.  Fellowes,  4  C'owen,  G82;  Story 

one  or  nmre  of  the  defendants,  to  whom  Kq.  I'l.  §  271,  b  ;  Hicks  v.  Campbell,  4  C. 

pans  of  the  property  had  been  frauiiulently  E.  Green  (N.  J.),  183;  Coleman  •«.  Barnes, 

conveyed,  had  nothing  to  do  with   other  5  Allen,  374;  Cuyler  v.  Moreland,  6  Paige, 

fraudulent  transaction.^.   Chancellor  Green  273;    liicliards  v.   Pierce,  52  Maine,  500; 

said:    "  I'he  case  against  the  debtor  is  so  Chase  v.  Searls,  45  N.  H.  511,  5iy,  et  seq. ; 

entire    that  it    cannot   be   pn^secuted  in  Morton  v.  Weil,  33  liarb.  30. 
several  suits,  and  yet  each  of  the  del'end- 


MATTER    OF    THE    BILL. 


339 


and  the  common  interest  in  the  plaintiffs,  different  grounds  of 
property  may  be  united  in  the  same  record.^ 

It  should  be  noticed  here,  that  where  the  right  of  a  person  to 
call  upon  the  Court  for  specific  relief  against  another  is  so  in- 
cumbered that  he  cannot  assert  his  own  right  till  he  has  got  rid  of 
that  incumbrance,  he  cannot  include  the  object  of  getting  rid  of 
the  incumbrance,  in  a  suit  for  the  specific  relief  which,  but  for  that 
incumbrance,  he  would  be  entitled  to  ;  and  that,  if  he  attempt  to 
do  so  by  tlio  same  suit,  his  bill  will  be  multifarious.  Thus,  it  was 
held  by  Lord  Eldon  that,  when  a  bill  is  filed  for  specific  perform- 
ance, it  should  not  be  mixed  up  with  a  prayer  for  relief  against 
other  persons  claiming  an  interest  in  the  estate  :  and  that,  if  there 
is  a  title  in  other  persons  which  the  plaintiff  is  bound  to  get  in,  he 
should  file  a  bill  for  specific  performance  only,  and  should  fortify 
the  defect  in  his  title,  by  such  means  as  he  can,  so  nn  to  be  enabled 
to  complete  it  by  the  time  Avhen  the  contract  will  have  to  be  en- 
forced.^ 

The  principle  which  renders  it  improper  to  mix  up,  in  the  same 
bill,  demands  against  different  persons  arising  out  of  distinct  trans- 
actions, renders  it  imj^roper  to  include  in  one  si\it  separate  infringe- 
ments of  the  same  j^atent,  by  different  defendants  ;  ^  and  for  the 
same  reason,  where  a  copyright  has  been  infringed,  bills  must  be 
filed  against  each  bookseller  taking  si»ui-ious  copies  for  sale.*  And 
so,  joint  and  separate  demands  cannot  be  united  in  the  same  bill ;  ® 

1  See  1  M.  &  C.  623.  A  bill  is  not  mul- 
tifarious wliicli  unites  several  matters  dis- 
tinct in  tiieniselves,  but  wliieli  tOiL^etiier 
make  up  tlie  plaintiff's  Kijuity,  and  are 
necessary  to  complete  relief;  nor,  on  tiie 
(rround  of  misjoinder  of  several  pl:iintiff-, 
where  either  of  them  would  not  be  entitled 
to  i)roceed  separ.itely  for  relief  without 
niakitif;  the  others  defenilaiits.  Hicks  v. 
(:ampb.ll,4(;.  E.  »irce:i  (N..J.),  163;  Ken- 
nebec and  Portland  It.K.  (.'o.  v.  Portland 
and  Kennebec  U.K.  Co.,  64  Maine,  173; 
f*ce  Coleman  v  Hurnes,  .5  Allen,  374;  Skeel 
V.  Spiaker,  8  I'aige,  1^2;  Myers  v.  Uniteil 
Cu.irantee,  &c.  (Jo.,  7  De  (i.,  .M.  &  (i.  112. 

-  .Mole  I'.  .Smith,  Jac.  4!t4;  Ma-on  v. 
Franklin,  1  Y.  Hi  C.  C.  C.  23'J,  241;  see 
also  Wh.dev  r.  Diiwson,  2  Sch.  &  Let.  367  ; 
and  mile,  p.'  230,  231 ;  .Storv  Kq.  I'l.  §  272; 
Whilten  v.  Whilten,  36  M."ll.  326.  So  a 
bill  by  a  mortj;ii(;ee  ai;ainst  the  mortgagor, 
and  an  adverse  clilimancol' the  lainl  would 
be  multifarious,  liinksr.  Wiilki-r,  2  Siinlf 
Ch.  344.  A  bill  allef;in>;  that  llie  j-l  lintiff 
and  one  of  the  de'endants  were  copartners, 
iind  praying  for  a  s<;ttlemcnt  of  thecopurt- 
nr-hip  coni-<Tns;  and  allegin^^  a  fraudu- 
h'nt  sale  of  nil  the  properly  ot  the  fiim  by 
the  said  defendant  Ui  a  liiird  party,  who 
was  the  other  defendant,  and  |>rayinK  that 
such  s  de  may  he  declared  vul,  "is  bad  for 
multifariousnes!).  Sawyer  v.  >ioble,  65 
Maine,  227. 


Cn.  VI.  S  4. 


8  The  plaintiff  should  not,  howPver,  file 
nn  unnecessary  number  of  bilN;  if  he  does, 
the  (Jourt  will  ccmsolidute  the  suits,  or 
make  some  equivalent  oider;  see  Foxwell 
V.  Webster,  10  Jur.  N.  S.  137;  12  \V.  K. 
186,  L.  C;  2  Dr  &  Sm.  250;  y  Jur.  N.  S. 
1189. 

4  Dillv  V.  Doig,  2Ves.  J.  486;  Story  Eq. 
PI.  §§  277,  27«. 

6  llarri-on  v,  Hogg,  t6.  323,  328;  Swift 
V.  Eckf-rd,  6  Paige.  22;  Story  Eq.  PI. 
§§  271,  279;  McLellau  v.  Osborne,  51 
Maine,  118, 120;  Emau.s  v.  Emans,  2  Heas- 
le3'  (N.  .1.),  205.  Thus  a  bill  praying  for 
an  account  of  two  distinct  firms,  made  up, 
in  fKrr,  of  the  same  persons,  was  held  had 
for  multifiriousness.  (jr  Hinr.  Merrill,  10 
Md.  264.  So  where  three  persons  had  >w- 
cessivi  ly  withdrawn  from  a  linn,  rcducinij; 
the  number  from  live  to  two,  a  hi  1  juayiiig 
for  an  aci'ouiil  and  settlement  ol  tlie  part- 
nership concerns  /(»;•  llie  wliole  time,  was 
held  to  lie  l>ad  for  multifariousness,  and 
was  di-mi^sed.  Wliiie  v  White,  5  (!ill, 
309.  So  a  prayer  in  a  bill  b^'one  ofseve'al 
part-owners  of  a  vessel  against  other  pirt- 
owners,  who  becaniu  such  nt  several  ilif- 
f'erent  times,  for  an  a' count,  during  that 
period  of  lime  whi  n  ail  were  owikm's,  wa* 
iu;ld  C'irrect;  if  the  prayer  were  not  thus 
limited,  the  bill  would  he  bad  for  mid- 
tifaiiousiie>H.  McEellan  t'.  (J-boriie,  51 
Maine,    lib;    see   Lulling    v    Lattiug,  4 


Bill  for  in- 
fringement of 
patent,  can- 
not include 
■infringement 
by  different 
defendants. 

Joint  and 
several  de- 
mands cannot 
be  united. 


340  THE    BILL. 

Cii.  VT.  §  4.  and  allhougli  tlio  deioiulaiits  may  1)0  liaLlo  in  respect  of  every  one 
oi'  the  demands  made  by  llie  bill,  yet  they  may  be  of  so  dissimilar 
a  rharac-tcr  as  to  rcndiT  it  imi)roper  to  include  them  all  in  one  suit. 
The  objection,  in  these  cases,  is  more  strictly  called  misjoinder,  and 
has  been  before  alluded  to  in  the  quotation  from  Lord  Ct)ttcnhani's 
jud<;inent  in  (\()}q)bdl  V.  3Iark(iy :  where  his  Lordship  observes,that 
the  distinction  between  misjoinder'and  multifariousness  is  clearly 
exhibited  in  the  case  of  Ward  v.  2^he  Duke  of  Northumberland} 
"  \n  that  case,"  said  his  Lordship,  "  the  plaintiff  had  been  tenant 
of  a  colliery  under  the  preceding  Duke  of  Nortlnnnberland,  and 
continued  also  to  be  tenant  under  his  son  and  successor,  the  then 
Duke ;  and  he  filed  a  bill  against  the  then  Duke  and  Lord  Bever- 
ley, who  were  the  executors  of  their  father,  seeking  relief  against 
them  in  respect  of  transactions,  part  of  which  took  place  in  the 
lifetime  of  the  former  Duke,  and  part  between  the  plaintiff  and  the 
then  Duke  after  his  father's  decease.  To  this  bill  the  defendants 
put  in  separate  demurrers,  and  the  forms  of  the  two  demurrers, 
which  were  very  different,  clearly  illustrate  the  distinction  above 
adverted  to.  The  Duke  could  not  say  there  was  any  portion  of 
the  bill  with  which  he  was  not  necessarily  connected :  because  he 
was  interested  in  one  part  of  it  as  owner  of  the  mine,  in  the  other 
as  representing  his  father.  But  his  defence  was,  that  it  was  im- 
pro])er  to  join  in  one  record  a  case  against  him  as  representative  of 
his  father,  and  a  case  against  him  arising  out  of  transactions  in 
which  he  was  jjersonally  concerned.^  The  form  of  his  demurrer 
was,  that  there  was  an  improper  joinder  of  the  subject-matters  of 
the  suit.  Lord  Beverley's  demurrer  again  was  totally  different :  it 
was  in  the  usual  form  of  a  demurrer  for  multifariousness,  and  \)ro- 
ceeded  on  the  ground  that,  by  including  transactions  which  occur- 
red between  the  plaintiff  and  the  other  defendant  with  transactions 
between  the  plaintiff  and  the  late  Duke  (Avith  the  latter  of  which 
only  Lord  Beverley  could  have  any  concern),  the  bill  was  drawn 
to  an  unnecessary  length,  and  the  demurring  i)arty  exposed  to  im- 
proper and  useless  expense.^  Both  demurrers  were  allowed,  and 
both,  it  may  be  said,  in  a  sense,  for  multifariousness ;  but  it  is  obvi- 
ous that  the  real  objection  was  very  different  in  the  two  cases.  In 
Harrison  v.  IIo(j(j*  which  was  also  more  properly  a  case  of  mis- 
join<ler,  the  plaintiffs  endeavored  to  unite  in  one  record  a  demand 
in  which  all  the  plaintiffs  jointly  had  an  interest,  with  a  demand  in 
which  only  one  of  them  had  an  interest;  and  the  demurrer  was 

Sandf.  Ch.  31;    as  to  suing  co-executors,  2  gge  Latting  v.  Lattiuj:,  4  Sandf.  Ch. 

separately    liable,    for    contribution,    see  31;  Van  Mater «.  Sickler,  1  Stockt.  (N.J.) 

Sinfileton  v.  Selwyn,  9  .lur.  N.  S.  1149;  12  463. 

\V.  H.  9^,  V.  C.  W  . ;  Micklettiwait  v.  Win-  3  gee  Turner  v.  Amer.  Bapt.  Missionary 

stMnley.  13  VV.  R.  210,  L.  .I.J.  Union,  5  McLean,  344. 

1  2  Anst.  409,476;  see  Einans  v.  I'^mans,  ^  2  Ves.  J.  323,  328. 
2  Beii>ley  (N.  J.),  205,207;  Boyd  v.  Hoyt, 
5  i'aige,  79. 


MATTER    OF   THE    BILL. 


341 


allowed  \ipon  the  ground  that  the  subject-matters  were  such  as,  in 
the  opinion  of  the  Court,  ought  not,  according  to  the  rules  of  plead- 
ing, to  be  included  in  one  suit.^  In  Saxton  v.  Davis,^  the  suit 
prayed  an  account  against  the  representatives  of  a  bankrupt's  as- 
signees, and  against  Davis,  a  person  Avho  claimed  through  those 
assignees,  and  also  against  a  person  who  had  been  his  assignee 
under  the  Insolvent  Debtors'  Act ;  and  there  also  the  bill  was  held 
to  be  bad  for  multifliriousness."  ^ 

It  is  to  be  observed,  that  this  objection  will  only  apply  where  a 
plaintiff  claims  several  matters  of  different  natures  by  the  same 
bill ;  and  that  where  one  general  right  only  is  claimed  by  the  bill, 
though  the  defendants  have  separate  and  distinct  interests,  a  de- 
muiTer  Avill  not  hold.*  As  where  a  person,  claiming  a  general  right 
to  the  sole  fishery  of  a  river,  files  a  bill  against  a  number  of  persons 
claiming  several  rights  in  the  fishery,  as  lords  of  manors,  occupiers 
of  lauds  or  othei-^vise ;  ^  so,  in  a  bill  for  duties,  the  city  of  London 
was  permitted  to  bring  several  of  the  ])ersons  before  the  Court, 
M'ho  dealt  in  those  thing-s  whereof  the  duty  was  claimed,  to  estab- 
lish the  plaintiffs'  right  to  it ;  ®  and  where  the  lord  of  a  manor  filed 
a  bill  against  more  than  thirty  tenants  of  the  manor,  freeholders, 
copyholders,  and  leaseholders,  who  owed  rents  to  the  lord,  but  had 
confused  the  boundaries  of  their  several  tenements,  praying  a  com- 
mission to  ascertain  the  boundaries,  and  it  was  objected,  at  a  hear- 
ing, that  the  suit  was  improper,  as  it  brought  before  the  Court 


Ch.  xi.  §  4. 


Bills  to  estab- 
lish general 
right,  against 
defendants 
having 
distinct 
interests : 

as  a  sole 
fishery, 

or  a  dutj', 


or  to  ascertain 
boundaries. 


1  Storv  Eq.  PI.  §  279:  Bovd  v.  Iloyt,  5 
Paige,  Ho;  Larkins  r.  Uiddle'  21  \la.  252; 
Emans  t\  Enians,  2  B''aslev  (N.  J.),  205. 

2  18  Ves.  72,  80.  "    ■ 

3  1  M.  &  C.  619;  Story  Eq.  PI.  §§  276, 
28.5,  .530. 

■•  Ld.  Red.  182;  Bowers  v.  Keesecher,  9 
Iowa(l  With.),  422;  Dimmock  v.  Bixby, 
20  Pick.  368;  .Sear*  v.  (,'arrier,  4  Allen, 
341;  Tucker  v.  Tucker,  2'.t  Miss.  (8. Jones) 
3-50;  Cliase  r  Seailes.  45  N.  II.  519;  Bug- 
bee  V.  ^argent.  23  .M:uiie,  269;  Warren  v. 
Warren,  56  .Maine,  367;  Ffr-s  r.  Ha\'nes, 
31  Maine,  81;  Feliowes  r.  Fellowes,  4 
Otwen,  6t-2;  Itichard-s  v.  Pierce,  52  Maine, 
5<;'2;  I'co)ile  r.  .M..rrill,  26  Cal.  336;  Story 
Eq.  PI.  §  278,  not«!;  Murniy  v.  Hiiy,  1 
BaibCli.  59;  Mi.\  v.  Ilotchkiss,  14  Conn. 
32;  Booh  v.  Stamper,  10  Geo.  109;  Nail 
V  Moblev.  9  (Jeo.  278;  Win.slow  v.  Dous- 
man,  18  WIh.  456;  see  Watson  V.  C"X,  1 
Ired.  Eq.  38!»;  Stuart  r.  (Mter,  4  liand. 
74;  Xewl.tnd  v.  Rogers,  3  Barb.  Ch.  432; 
Kohertxin  r.  Stevens.  1  Irrd  Ch.  247; 
Walkiip  r.  Zehring.  13  Iowa  (5  With.), 
806;  I)ei:ifiel(l  ?'  Ander-on,  7  Stn.  &  M. 
630;  Allen  v.  Montgomery  H.li.  Co.,  11 
Ala.  437;  .Scriuicger  r.  Hucliannoii,  3  A. 
K  MMr-h.21'.i;  Parish  r.  S'oan,  3  Ind. 
Ch  607;  Vaiin  r.  Ilargelt,  2  Dev.  &  Bat. 
Ch  31.  Nor  wii!  the  objection  of  multi- 
fariousness prevail  where  the  interests  of 


the  several  plaintiff-,  though  distinct  and 
upon  distinct  conveyances,  are  yet  of  a 
siniiliir  nature  against  the  same  defend- 
ants, and  in  relation  to  the  same  sulject- 
matter,  and  the  relief  prayed  is  in  chara.-- 
ter  the  same  to  all.  Kunkel  r.  Markeil,  26 
Md  390,  409;  see  Thomas  v.  Doub.  8  (iill, 
7;  Young  v.  Lyons,  8  (iill,  166;  Williams 
V.  West,  2  Md".  198;  Peters  v.  Van   Luir, 

4  Gill,  263,  264.  But  a  bill  is  held  bad 
for  multifariousness,  whore  it  is  brought 
against  several  dcfVn'lants,  seekiiiL' redress 
for  injurie-;  arising  out  of  transactions  with 
them  separately,  at  dilVerent  times,  nni1  re- 
lating to  dillerent  subjects..   Coe  r.  Turner, 

5  Conn.  Hfi;  Marseli-^  i'.  Morns  Can;d,  i!v;c. 
1  Saxton  (N.  .1.),  31;  Meicham  ?'.  Wil- 
liams, 9  .\la.  842;  Colburn  v.  Bioughton, 
9  Ala.  351;  Ilungerford  )v  CushiiiL',  8  Wis. 
332.  Unconnected  demands  against  dif- 
ferent estate?'  cannot  be  uinted  in  the  same 
bill,  though  the  defeii'lant  is  executor 
of  lioth  l>aniel  r.  Morrison,  6  Dana,  1^6; 
Kay  r.  .loni's.  7  .1.  .1.  Marsh.  37;  see  Mc- 
Caitnev  v.  Calhoun,  11  .Ma.  110. 

fl  M;ivor  of  York  v.  Pilki'igton,  1  Ark. 
282.  ci'ed  \A.  lied.  1."'2;  Smith  i-.  Kiirl 
Brownlow,  E.  K.  9  Eq.  241;  Chase  v. 
Searlfs,  45  N.  II    511.  521. 

6  t:itv  of  Eomlon  v.  I'erkins,  8  Bro.  P. 
C.  cd.  toml   602. 


342 


THE    lULL. 


Cii.  VI.  §  4. 


or  for  tithes; 

but  objects 
nmst  lie  of 
saiueuuture; 


but  bill 
against  one 
for  separate 
and  distinct 
causes,  is 
demurrable ; 


innny  }i:ii-ties  having  distinct  interests,  it  was  answered  that  the 
lord  c'laiiued  one  general  right,  for  the  assertion  of  which  it  was 
necessary  to  ascertain  the  several  tenements ;  and  a  decree  was 
made  accordingly.^  U])on  the  same  ])rinci|ile  it  is,  that  one  suit  is 
entertained  for  tithes  against  several  ])arishioners.  Suits  of  this 
kind,  however,  n^ust  all  be  for  objects  of  the  same  nature ;  and  if 
a  bill  is  filed  against  several  defendants  for  objects  of  a  different 
nature,  although  the  plaintiff  claims  them  all  in  the  same  character, 
it  will  be  multifarious;  ^  thus,  if  a  parson  should  prefer  a  bill  against 
several  persons,  viz.,  against  some  for  tithes  and  against  others  for 
glebe,  it  would  be  liable  to  demurrer ;  and  so,  if  the  lord  of  a  manor 
were  to  prefer  one  bill  against  divers  tenants  for  several  distinct 
matters  and  causes,  such  as  common,  waste,  several  piscary,  &c., 
this  would  be  wrong :  though  the  foundation  of  the  suit,  viz.,  the 
manor,  be  an  entire  thing.® 

It  is  to  be  remarked,  that  Lord  Redesfhde  appears  to  confine 
the  meaning  of  multifariousness  to  cases  where  a  plaintiff  demands 
several  matters  of  difiereut  natures  of  several  defendants  by  the 
same  bill;*  but  in  Attorney- General  v.  77ie  GoldsrnitJts'  Coin- 
puny,^  Sir  Lancelot  Shadwell  V.  C.  said:  "I  apprehend  that, 
besides  what  Lord  Redesdale  has  laid  down  upon  the  subject, 
thei"e  is  a  rule  arising  out  of  the  constant  practice  of  the  Court, 
that  it  is  not  competent,  where  A,  is  sole  })laintiff,  and  B,  is  sole 
defendant,  for  A.  to  unite  in  his  bill  against  B.  all  sorts  of  matters 
wherein  they  may  be  mutually  concerned.®  If  such  a  mode  of 
proceeding  were  allowed,  we  should  have  A.  filing  a  bill  against 
B.,  ])raying  to  foreclose  one  mortgage,  and,  in  the  same  bill,  pray- 
ing to  redeem  another,  and  asking  many  other  kinds  of  relief  with 


1  Magdalen  Coll.  v.  AthiU,  cited  Ld.  Rtd. 
183. 

2  West  V.  Randnll,  2' Mason,  181;  Cam- 
bridge Water  Works  v.  Somerville  Dj'eins; 
&c.  Co.,  U  Gray,  193;  Swift  v.  Eckford, 
6  Paige,  22. 

3  H.rke  V.  Harris,  Hard.  337. 

4  Ld.  Red.  181. 

6  5  Sim.  670,  675;  and  see  Attorney- 
General  V.  The  Corporatii.n  of  Carmarthen, 
G.  Coop.  30;  Attorney-General  v.  St.  Cross 
Hosiiital,  17  Reav.  435;  Huphcs  v.  Cciok, 
34  Reav.  407;  see  Storv  Eq.  PI.  §§  531, 
532,  .033;  Kent  v.  Lee,  2  Sandf.  Ch.  105. 
A  bill  is  niidfifarious  which  seeks  to  re- 
deem a  mortpa^ie  of  an  entire  est-.ite.  and 
a  sulisequent  mortpnge  by  one  tenant  in 
common  of  his  share  in  a  part  of  the  estate. 
White  V  Curtis,  2  Grny,  46".  Hut  a  bill  is 
not  necessarily  multifarious,  by  reason  of 
its  seekinfr  to  redeem  two  distinct  mort- 
pages  of  diflferent  j)arcels  of  rial  estate,  or 
by  reasf'n  of  its  .seeking  specific  perform- 
ance of  distinct  contracts  relating  to  dif- 
ferent parcels  of  real  estate.  Hobinson  v. 
Guild,  12  Met.  323;  see  Holmau  v.  Bauk 


of  Norfolk,  12  Ala.  369.  Nor,  where  it 
seeks  to  foreclose  a  mortgage  of  land,  and 
to  redeem  a  prior  mortrrape  of  (.ne  of  the 
trncts  held  bv  one  of  the  defendants.  Bell 
V.  Woodward,  42  N.  H.  181.  A  bill  for  a 
general  account  and  settlement  of  a  co- 
partnership may  embrace  every  object 
necessary  to  tlie  complete  adjustment  of 
the  concern,  without  being  objectionable 
for  multifariousness.  Wells  v.  Strange,  5 
Geo.  22;  .see  Kent  v.  Lee,  2  Sandf.  Cli. 
105;  'lomlinson  v.  Claywell,  4  Jones  Eq. 
(N.  C.)317. 

e  See  Story  Eq.  PI.  §  280;  Brvan  v. 
BIythe,  4  HIackf.  249;  White  v.  Curtis,  2 
Gray,  467;  Davoue  v.  Fanning,  4  .John. 
Ch.  204;  (Jarmichael  v.  Bowdtr,  3  Howa'd 
(Miss.),  252;  Robersion  v.  Stevens,  1  I  red. 
Eq.  247;  Story  Eq.  PI.  §282;  Lynch  v. 
Johnson,  2  Litt.  104.  Debt  and  detinue 
may  be  joined,  and  for  ii  similar  reason,  a 
claim  for  a  >peci(ic  tract  of  land,  and  for  a 
sum  of  money,  the  parties  being  the  same, 
maj'  be  united  in  the  same  suit  in  Chan- 
cery.    AVhitney  v.  Whitney,  6  Dana,  329. 


MATTER    OF    THE    BILL.  343 

respect  to  many  other  subjects  of  complaint."     In  that  case,  the    Ch.  YI.  §  4. 

information  against  the  Company  stated,  that  there  was  a  charity   '■^ y ^ 

for  the  benefit  of  young  men,  being  free  of  the  Company,  and  then  as, bill  against 
alleged- that  divers  other  bequests  had  been  made  to  the  Company  fordTsdnct 
for  the  puii)Ose  of  making  loans  to  young  men  for  their  advance-   charities, 
ment  in  business  or  life,  and  prayed  that  the  first-mentioned  char- 
ity, and  all  other  (if  any)  like  gifts  and  bequests  to  the  Company 
might  be  established,  and  that  the  due  performance  of  the  chari- 
Vdh\e  trusts  might  be  enforced  for  the  future ;  and  the  Vice-Chan- 
cellor,  upon  a  demurrer  being  put  in  to  the  information,  because  it 
was  exhibited  for  several  and  distinct  matters  which  ought  not  to 
be  joined  together  in  one  information,  held  the  information  to  be 
multifarious,  and  allowed  the  demurrer.^ 

It  should  be  noticed  that,  in  the  above  case,  there  was  nothing  unless  they 
in  tlie  information  to  show  that  the  character  of  the  bequests  was'  ^gneous"' 
homogeneous,  and  that  his  Honor  held,  that  if  there  had  been  any 
allegation  to  show  that  they  were  of  that  character,  although 
there  might  be  minute  differences  between  the  bequests,  they  might 
all  have  been  comprised  in  the  same  information.'^  Thus,  in  the 
case  of  Attorney- General  v.  The  Merchant  Tailors'  CorniKiny^ 
where  the  information  prayed  the  establishment  or  regulation  of  a 
great  number  of  different  charitable  gifts,  which  were  stated  in  the 
information  to  have  been  made  to  the  Company,  by  way  of  bequest 
or  otherwise,  on  trust  to  lend  out  the  same  to  freemen  of  tlie  Com- 
pany, or  upon  some  other  like  or  corresponding  trust,  for  the  benefit 
and  advancement  of  freemen  in  trade  or  business :  the  number  of 
charities  in  respect  of  which  the  relief  was  sought  by  tlie  information 
was  eiglit ;  but  as  they  were  to  be  applied  mainly  and  substantially  ■ 
for  the  same  objects,  and  it  appeared  upon  the  information  that, 
owing  to  the  minuteness  of  the  sums,  each  of  them  could  not  be 
administered  as  the  donors  pointed  out.  Sir  Lancelot  Shadwell  V. 
C.  thought  that  tlie  Court  ouglit,  at  the  hearing,  to  deal  with  them 
conjointly,  and  that  the  information  was  not  multifarious.*  On 
api)eal.  Lord  Brougham  concurred  with  this  decision,  as  to  seven 
of  the  charities,  and  gave  leave  to  amend  the  bill  by  adding  parties 
or  waiving  relief  as  to  the  eiglith.'"' 

From  the  above  cases  it  may  be  deduced,  that  a  jilaintitf  cannot   "Where  diflcr- 
join  in  liis  bill,  even  against  the  same  defendant,  matters  of  differ-   [",,,"','',.,,7.'* 
ent  natures,  although  arising  out  of  the  same  transaction  ;   vet,   "i"*-  I'iH. '><><■ 
when  the  matters  are  homogeneous  m  their  character,  tiie  nitro- 
(luction  of  them  into  the  same  bill  will  not  be  multifarious  ;  and 

1  See  Story  Eq.  PI.  §§  532,  633.  IhikI,  thiit  it  aUo  alicgpstliat  the  (lefciiflant 

2  See  5  Sun.  076.  piircliaseij  tholindas  the  (il.iiuliir's  af^eiit, 
8  5  Sim.  '208.  and  witli  his  money,  and  therefore  holds 
*  Story  Kq.  I'l.  §  281.    It  is  no  objection  it  in  trust  tor  iiie'|daintiDf.      Gerrish  v. 

to  a  bill  in  K(|uity,  pniyinj^  for  the  specific        'i'owne,  3  (ira}-,  H2. 
performance  of  an  agreement  to  convey  *  1  M.  &  Iv.  189,  192. 


344 


THE   BILL. 


Cii.  VI.  §  4. 


I'laiiitiiV  may 
ilaiiu  sanu' 
rii;lit  by  ilit- 
tercut  titles. 


Bill  by  pev- 
eral  plaint ifts 
claiiniiijr  tli>- 
tiiut  riuiits.  is 
multifarious : 

as,  purchasers 
of  diftereiit 
lots  at  an 
auction; 

or  heir  and 
next  of  kin, 


it  is  to  1)0  observed,  tliat  lliis  distinelioii  will  not  be  affected  by 
the  eiiemnstaiiee  of  the  i)laiiitiff  claiming  the  same  tiling  under 
distinct  titles,  and  that  the  statement  of  such  different  titles  in  the 
same  bill  will  not  render  it  multifarious.^  Thus,  where  a  bill  was 
tiled  for  tithes  by  the  rector  of  a  jiarish  in  London,  in  Avhich  the 
title  was  laid  under  a  decree  made  })ursuant  to  the  B7th  Hen. 
VIII.  c.  12,  by  which  i)ayment  of  tithes  was  decreed  in  London  at 
the  rate  of  2s.  9d.  in  the  pound  on  the  rents,  with  a  charge  that, 
in  case  such  decree  should  not  be  deemed  binding,  the  j)laintiff 
was  entitled  to  a  similar  ])ayment,  under  a  })revious  decree,  made 
in  the  year  1535,  and  conlirmed  by  the  same  Act ;  and  in  case 
neither  of  the  said  decrees  were  binding,  the  bill  charged  that  the 
plaintiff  was  entitled,  by  ancient  usage  and  custom  from  time 
immemorial,  to  certain  dues  and  oblations  calculated  according  to 
'rent  at  2s.  9d.  in  the  pound :  a  demurrer  for  multifariousness  was 
overruled.^ 

As  a  bill  by  the  same  plaintiff  against  the  same  defendant  for 
different  matters  would  be  considered  multifarious,  so,  d  fortiori, 
would  a  bill  by  several  plahitiffs,  demanding  distinct  matters, 
against  the  same  defendants.^  Thus,  if  an  estate  is  sold  in  lots 
to  different  purchasers,  the  purchasers  cannot  join  in  exhibiting 
one  bill  against  the  vendor  for  a  s])ecific  performance;  for  each 
party's  case  would  be  distinct,  and  there  must  be  a  distinct  bill 
upon  each  contract.*     Upon  the  same  principle,  where  the  heir 


1  Neither  is  a  bill  multifai  ious  where  its 
allegations  all  relate  to  one  transacticm, 
between  the  same  parties,  to  one  and  the 
same  sul)ject-matter  and  the  same  injury, 
althoush  It  mav  pray  for  two  ditterent 
methods  of  relief  a^^ainst  that  injury. 
■\VelIs  V.  Bridgeport  &c.  Co  ,  30  Conn. 
316.  Nor  is  a  bill  multifarious  because 
several  grounds  are  set  out  to  show  the 
pliiintifl"'s  right  to  the  relief  sought.  Cauley 
V.  Lawson,  5  Jones  Eq.  N.  C  132. 

Where  the  transactions  charged  are 
parts  of  a  series  of  acts,  all  tending  to  de- 
feat the  plaintiff's  remedy  at  Law,  they 
mav  proi)erly  be  united  in  the  same  bill. 
Kandoljili  v.  Daly,  1  C  E.  Green  (N  J.), 
313;  Kennebec  and  Portland  K.K.  Co.  v. 
Portland  and  Kennebec  R  K.  Co.,  54  Maine. 
173.  A  bill  Itroughl  by  an  insurance  com- 
pany, pravinir  that  a  policy  of  insurance, 
which  Inis  been  obtained  from  them  by 
fraud,  may  be  delivered  up  to  he  cancelled, 
and  a!so  that  a  commission  may  issue  for 
the  examination  of  witnesses,  is  not  mul- 
tifarious. Ciimmenial  Mut.  Ins.  Co.  v. 
McLoon.  14  Allen,  351. 

2  Owen  V.  No'iin,  M'Lel.  238;  13  Pri. 
478;  and  see  Bovd  v.  Moyle,  2  Coll.  316, 
323;  where  a  bill  to  restrain  two  actions 
relating  to  the  same  matter  was  held  not 
to  be  multifarious';  see  also  Uavis  v.  Cripps, 
2  Y.  &  C.  C.  0.  430,  434. 


3  Jones  V.  Garcia  del  Rio,  T.  &  R.  297, 
301;  see  Finley  v.  Harrison,  5  J.  J.  Marsh. 
158;  Kay  v.  Jones,  7  J.  J.  Marsh.  37;  Al- 
len V.  Miller,  4  Jones  Eq.  (N.C.)146;  Mix 
V.  Hotchkiss,  14  Conn.  32  ;  Kennedy  v. 
Kennedv,  2  Ala.  571 ;  Armstrong  v.  Athens 
Co.,  10  Ohio,  235;  Ohio  v.  Ellis,  10  Ohio, 
456;  Marshtill  I).  Means,  12  Geo.  61;  Av- 
ers V.  Wright,  8  Ired.  Eq.  229.  But  a 
widow,  who  is  administratrix  of  her  hus- 
band's estate,  and  brings  a  bill  in  Equitj' 
to  redeem  real  estate  in(jrtgageil  by  him, 
does  not  make  the  bill  midtifarious,  by 
therein  claiming  to  maintain  her  suit  in 
b'>tli  capacities.  Robinson  v.  Guild,  12  Met. 
323;  see  Fairly  «.  Priest,  3  Jones  Va\.  (N. 
C.)  21.  One  tax-payer  of  a  school  district 
cannot  sue  in  behalf  of  himself  and  of  the 
other  tax-payers  of  the  district,  to  restrain 
the  sale  of  their  real  estate  for  the  purpose 
of  collecting  a  delinquent  tax  assessed  to 
paj-  certain  judgments  against  the  district, 
and  to  have'  the  jud'/ments  declared  void, 
on  the  ground  that  they  were  obtained  on 
illegal  and  void  school  orders,  &c.  Each 
tax-payer  desiring  the  relief  sought,  must 
bring  his  general  action.  Newcomb  v. 
Horton,  18  Wis   566. 

■*  llargreavcs  v.  Wright,  10  Hare,  Ap. 
56;  tStory  Eq.  PI.  §  272,  and  notes;  and 
see  Hudson  v.  Maddison,  12  Sim.  416,  418; 
6  Jur.  11'j4,  which  was  the  case  of  a  bill 


MATTER    OF    THE    BILL. 


345 


and  next  of  kin  of  an  intestate,  who  was  an  infiint,  was  joined 
with  his  sister,  who  was  the  other  next  of  kin,  as  pkiintiif  in  a  bill 
against  the  widow,  who  had  taken  out  administration  to  the  intes- 
tate's effects,  and  had  also  taken  possession  of  the  real  estate,  as 
guardian  to  the  infant  heir,  for  an  account  both  of  the  real  and 
personal  estate,  Sir  Lancelot  Shadwell  V.  C.  allowed  a  demurrer 
for  multifariousness,  on  the  ground  that  the  interests  in  the  real 
and  personal  estate  were  distinct  from  each  otlier.^  But  it  has 
been  decided,  that  a  bill  does  not  become  multiforious  because  all 
the  plaintiffs  are  not  interested  to  an  equal  extent ;  as  in  Knye  v. 
Moore^  where  a  bill  was  filed  by  a  woman  and  her  children  to 
compel  the  delivery  up  of  a  deed^by  which  the  defendant  had 
made  a  provision  for  the  woman  (with  whom  he  had  cohabited), 
and  her  children,  and  which  had  been  executed  in  pursuance  of  an 
agreement,  whereby  he  was  bound,  besides  the  execution  of  the 
deed,  to  pay  to  the  woman  an  annuity  for  her  life,  an  account  of 
which  was  also  sought  by  the' bill :  it  was  objected,  upon  demurrer, 
that  tlie  bill  was  multifarious,  because,  besides  seeking  the  j^er- 
formance  of  the  agreement  under  which  the  mother  alone  was 
entitled,  it  joined  to  that  the  claim  for  the  deed,  in  which  she  was 
interested  jointly  with  her  children ;  but  Sir  John  Leach  V.  C. 
thought  that,  the  whole  case  of  the  mother  being  properly  the 
subject  of  one  bill,  the  suit  did  not  become  multifarious  because 
all  the  plaintiffs  Avere  not  interested  to  an  equal  extent.'^ 

And  so,  where  several  persons  claim  under  one  general  right, 
they  may  file  one  bill  for  the  establishment  of  that  right,  without 
incurring  the  risk  of  a  demurrer  for  multifariousness,  although 
the  title  of  each  plaintiff  may  be  distinct;*  thus,  in  Poioell  v.  The 


Ch.  VI.  §  4. 


Not  necessary 
that  all  the 
plaintiffs  be 
equally 
interested. 


by  several  persons  to  restrain  a  nuisance; 
see,  however,  Pollock  v.  Lester,  11  Hare, 
266,  where  it  was  Ik'IiI  that,  in  a  similar 
case,  it  was  no  misjoinder,  and  within  the 
provisions  of  lo  &  16  Vic.  c.  66,  §  49.  But 
where  an  administrator  has  collusively 
sold  separate  lots  to  separate  purchasers 
at  the  same  sale,  a  liill  iifjainst  all  tin;  pur- 
chasers is  not  multil'arious.  Korni(|uet  i'. 
For-tall,  34  Miss.  (5  (i''orgft),  87  ;  see 
Coleman  r.  Barnes,  .0  Allen,  374;  Tucker 
V.  Tucker.  2'J  .Mis.  (8  .Jones)  S.'iO  ;  Gaines 
V.  Chew,  2  How.  U.  S.  61'J;  Williams  v. 
Neel,  10  liirh.  1  Va\.  (S.  C.)  338;  Hrav  v. 
Thaichor,  28  Miss.  (7  .Jom-s)  120.  A  bill 
to  hiive  certain  notes  (Iclivcrcd  up  and 
canc'-llcil,  the  notes  beinf^  all  maiic  by  the 
plaintifV,  and  payable  to  the  same  party,  i.s 
not  multil'anous,  Cor  joininf.;  as  resjiondents 
tlie  several  pers'ins  holding  tlice  notes. 
(Jarrett  v.  Mississippi  &  Ala.  IMJ.  Co.,  1 
Freeman  Ch.  70;  see  Sears  v.  Currier,  4 
Allen,  33It;  Hartcc  r.  Tom|>kins,  4  Sneed 
(Tcnii.).  '123;  llal-tr:ul  r.  ,shp|,ard,  23  Ala. 
058;  Martin  r  Martin,  13  Mis.  36 
1  Dunn  V.  Dunn,  2  Sim.  329;  Maud  v. 


Several  may 
claim  under 
one  f^eueral 
right; 


Acklom,  t6.  331;  Exeter  College  t'  Row- 
land, 6  Mad.  94;  see,  however,  Sanders  v. 
Kelsev,  10  .lur.  833.  V.  C.  E  ;  Innes  v. 
Mitchell,  4  Drew.  57;  3  Jur.  N.  S.  756; 
Thomiis  V.  Kees.  1  Jur.  N.  S.  197,  M.  K.j 
Allen  y.  Miller,  4  .Jones  Eq.  (N.  C)  146. 

2  1  S.  &  S.  61,  64. 

3  See  observations  on  this  case  in  Dunn 
r.  Dunn,  2  Sim.  231. 

*  Storv  Eq.  I'l.  §  279  a ;  Shields  v.  Thom- 
as, 18  liow.  U.  S.  253.  Where  a  bill  in 
Equity,  by  several  plaintilTs,  to  enjoin  a 
nuisance,  contained  also  a  prayer  tor  an 
account  and  coin|)ensation  tor  the  damage 
to  each  com|ilainant  respectively,  it  was 
held,  tiiat  niuitiliuiiius  reliel' eould  not  be 
granted  fis  jirayeil  for;  luit  thjit  tiie  objec- 
tion might  be  obviated  by  striking  out  the 
priiyer  for  an  lu'coimt  of  the  dnmiige  to  the 
pbiintitls  respectivelv.  Murrav  v,  Hiiv,  1 
Harb.  Ch.  69;  Brady  v.  Weeks,  3  H;irl>. 
(.S.  C.)  157.  So  in  otlier  cases,  where  all 
the  plaintitVs  are  iiiteresteil  in  the  principal 
matter  stated  in  the;  hill,  but  the  hill  slates 
«  distinct  grouii'l  fur  the  iiiterl'erenco  of 
E(iuity,  which   concerns  only  one  of  the 


346 


THE    BILL. 


Ch.  VI.  §  4. 


a.«  in  bill  of 
peace. 


Multitarious- 
ncss  may  be 
objected  to  by 
demurrer  nr 
answer,  but 
not  at  the 
healing, 


except  by  the 
Court. 


J^itrl  of  Poicis,^  -where  tlie  fiveliold  teiKiiils  of  ;i  lordslup  havino; 
riuhts  of  coimnou  over  certain  lands,  tlie  lord  approved  ])arts  of 
the  coninion  lands  and  ejranted  them  to  other  persons,  but  the 
tenants  prostrated  the  fences,  upon  which  actions  of  trespass  were 
brought  against  tlieni,  and  they  filed  a  bill  in  the  Court  of  Exche- 
quer, in  the  nature  of  a  bill  of  peace,  against  the  lord  and  his 
grantees,  to  be  quieted  in  the  enjoyment  of  their  commonable 
rights,  a  general  demurrer  was  overruled :  the  Court  being  of 
opinion,  that  the  objection  that  the  plaintiffs  might  each  have  a 
right  to  make  a  separate  defence  to  the  actions  at  Law,  was  not 
valid,  as  there  was  one  general  question  to  be  settled,  which 
pervaded  the  whole.  • 

The  proper  way  in  which  to  take  advantage  of  multifariousness 
in  a  bill  is  by  demurrer;'^  and  it  is  too  late  to  object  to  a  suit, 
on  that  ground,  at  the  hearing.^  It  seems,  however,  from  the 
re])ort  of  the  judgment  of  Sir  John  Leach  M.  R.  in  Greemoood  y. 
Churchill,'*'  that  the  objection  may  be  taken  by  answer,^  and  that 
though  the  defendants  are  precluded  from  raising  the  objection 
at  the  hearing,  the  Court  itself  will  take  the  objection,  if  it  thinks 
fit  to  do  so,  with  a  view  to  the  order  and  regularity  of  its  ])W- 
ceedinofs,® 


plaintiffs,  if  there  is  no  prayer  for  relief 
touching  this  hitter  matter,  the  bill  is  not 
multifarious.  Judson  v.  Touhnin,  9  Ala. 
662  ;  Davis  v.  Miller,  4  Jones  Eq.  (N.  C.) 
447. 

1  1  Y.  &  J.  159;  see  Cornwell  v.  Lee,  14 
Conn.  524. 

2  For  form  of  demurrer,  see  Vol.  III. 

8  Ward  V.  Cooke,  5  Mad.  122  ;  Wvnne 
V.Callander,  1  Russ.  29.3,  296;  Powell  v. 
Cockerell,  4  Hare.  557,  562;  Story  Eq.  Ph 
§  284,  a.  It  is  held,  in  the  followinir  cases, 
that  advantatre  must  be  taken  of  multifari- 
ousness bv  demurrer.  Bryan  v.  Bhthe,  4 
Blaokf.  249;  Grove  ?).  Fresh,  9  Gill  &  ,J. 
281;  Thurman  v  Shelton,  10  Yerger,  383; 
Luckett  V.  White,  10  Gill  &  .J.  480; 
Bell  V.  Woodward,  42  N.  II.  181,  189;  see 
Avery  v.  Kfllogg,  11  Conn.  562;  Moreau  ?7. 
Saffarans,  3  Sneed  (Tenn.),  595;  Redmond 
V.  Dana,  3  Bosw.  (N.  Y  )615.  Filing  an  an- 
swer and  jroing  into  an  examination  of  tes- 
timony as  to  the  merits  of  the  whole  matter 
in  controversy,  is  a  waiver  of  the  objection. 
Gibbs  V.  Cliigett,  2  Gill  &  J.  14  ;  but 
see  Murdock  v.  liatcliff.  7  Ohio  119;  Nel- 
son V.  II  11,  5  How.  U.  S.  127;  Wellborn  v. 
Tiller.  10  Ala.  305;  Veghte».  The  Karitan 
Water  Power  Co  ,  4  C.  E.  Green  (N.  J  ), 
142,  144,  145.  In  Olivers.  Piatt,  3  How. 
U.  S.  333.  412.  it  was  held,  that  the  objec- 
tion of  inulti(ariousne«s  cannot,  as  a  niit- 
ter  of  right,  be  taken  by  the  parties  except 
on  demurrer,  plea,  or  answer  ;  if  not  so 
taken,  it  must  be  regarded  as  waived. 
Wilson  V.  Lvnt,  30  Barb.  (N.  Y.)  124;  Ab- 
bot V.  .Jo!inson,  32  N.  II  9;  Ve^hte  v.  The 
Karitan  Water  Power  Co.,  4  C.  E.  Green 


(N.  J.),  142;  Bell  v.  Woodward,  42  N.  H. 
181,  193.  A  demurrer  to  a  bill  for  multi- 
fariousness goes  to  the  whole  bill.  Boyd 
V.  Hovt,  5  Paige,  65;  Mcintosh  v.  Alexan- 
der, 16  Ala.  87;  White  v.  White,  5  Gill, 
359;  Bell  v.  Woodward,  42  N.  H.  181, 193. 
To  a  bill  to  foreclose  a  mortgage  of  land, 
and  to  redeem  a  prior  mortgage  of  one  of 
the  tracts,  held  by  one  of  the  defemliints,  a 
plea  was  tiled  that  the  plaintiff's  mortgage 
did  not  c'lver  the  tract  which  was  sought 
to  be  redeemed,  and  the  bill  was  therefore 
multifarious.  It  was  held  that  the  facts, 
if  well  pleaded  and  estalilished  by  the 
proof,  showed  the  bill  to  be  defective  on 
the  ground  of  multifariousness.  Bell  v. 
Woodward,  42  N.  II.  181.  As  to  the  effect 
of  an  answer,  denying  all  the  allegatinns 
of  the  bill  relating  to  the  mat'er  of  the 
plea,  upon  the  plea,  see  Belly.  Woodward, 
sujjra. 

4  1  M.  &  K.  559. 

6  Bell  V.  Woodward,  42  N.  H.  181,  189; 
Abbot  V.  .Johnson.  32  N.  H.  9.  To  sustain 
a  demurrer  to  a  bill  for  multifariousness 
against  several  defendants,  it  is  not  neces- 
sary that  the  defendant  demurring  should 
so  far  answer  the  hill  as  to  deny  the  ordi- 
nary general  charge  of  combination.  Em- 
ans  V  Enians,  3  Beasley  (N.  J),  205,  207; 
see  Brookes  v.  Whitworth,  1  Mad.  86; 
Salvidge  v.  Hyde,  5  Mad.  138. 

6  Greenwood  v.  Churchill,  1  M.  &  K. 
557;  Ohio  r.  Kills,  10  Ohio,  456.  Where 
the  defendant  omits  to  demur  for  multi- 
fariousness, the  Court  may,  sun  sponle,  lake 
the  ohjf-ctioii  and  di-miss  the  bill;  but  the 
Court  should  not  interfere   iu   this  way 


MATTER    OF    THE    BILL. 


347 


Scandal  and 
impertinence. 


Definition  of 
scandal. 


Great  care  must  be  taken,  in  framing  a  bill,  that  it  does  not  Cii.  VI.  §  4 
contain  statements  or  charges  which  are  scandalous  or  imperti- 
nent:^ for,  if  it  does,  it  may  be  objected  to  by  the  defendant.^ 
Any  proceeding  before  the  Court  may  be  objected  to  for  scandal 
or  impertinence,  and  the  scandalous  matter  expunged  :  with  costs 
to  the  party  aggrieved.^ 

Scandal  consists  in  the  allegation  of  any  thing  which  is  unbe- 
coming the  dignity  of  the  Court  to  hear,  or  is  contrary  to  good 
manners,  or  which  charges  some  person  with  a  crime  not  necessary 
to  be  shown  in  the  cause :  *  to  which  may  be  added,  that  any  un- 
necessary allegation,  bearing  cruelly  upon  the  moral  character  of 
an  individual,  is  also  scandalous.^ 

There  are  many  cases,  however,  in  which,  though  the  words  in 
the  record  are  very  scandalous,  yet,  if  they  are  material  to  the 
matter  in  dispute,  and  tend  to  a  discovery  of  the  point  in  question, 
they  will  not  be  considered  as  scandalous:^  for  a  man  may  be 
stated  on  the  record  to  be  guilty  of  a  very  notorious  fraud,  or  a 
very  scandalous  action,  as  in  the  case  of  a  brokerage  bond,  given 
before  marriage,  to  draw  in  a  poor  woman  to  marry ;  or  where  a 


NothinpT 
material  is 
scandalous. 


when  the  trouble  and  expense  by  reason 
ot  multifariousness  mi^t'thave  been  saved 
bv  a  demurrer.  Cliew  v.  Bank  of  IJalti- 
niore,  14  Ml.  299;  Oliver  ».  Piatt,  .3  How. 
U.  S.  .333,  412;  Oliio  y  Kills,  10  Ohio,  456; 
Story  Eq.  PI.  §§  284  a.  271  note:  Hickman 
V.  (jnoke,  3  Humph.  C40  ;  Swavze  v. 
Swavze,  1  Stockt.  (N.  .1.)  273;  Rockwell 
V.  Morgan,  2  Beasley  (X.  J.),  384.  386; 
M'ales  V.  Newbould.  9  Mich.  45 ;  Kmans  v. 
Emans,  1  McCarter  (X.  .1.),  114.  But,  as 
stated  in  note  above,  the  objection  of  mul- 
tifariiusness,  wheti  apparent  on  the  face  of 
the  bill,  c;in.  In  general,  be  taken  only  by 
demurrer;  and  in  such  case  Is  waived  by 
not  demurring  to  the  1)111;  but,  if  It  be  not 
apparent  upon  the  bill,  It  is  open  to  the 
defendant  en  his  plea,  or  his  answer  made 
ex[)re-slv  for  the  purpose  of  takiuL' advan- 
ta^'C  of 'It.  Bell  V.  Woodward.  42  N.  H. 
Ibl;  Veghte  v.  The  I.'aritim  Water  Power 
Co  ,  4  O.  E.  Green  (X.  .J.),  142,  14.5,  per 
Ch:incellor  Zabriskie;  see  Wilson  i>.  Lvnt, 
30  IJarl).  (X.  Y.)  124  ;  Oliver  v.  Piatt,  3 
ll.,w.  U.  S.  333;  Avery  v.  Kell'^c,  11 
('«nn.  562;  Cuvler  v.  .Moreland,  6  Palf^e, 
273;  F.uckett  v.  White,  10  (Jill  &  J. 
4^0;  Ihurman  v.  Sheltoii,  10  Yerffer,  383; 
I'.uffalow  V.  Butfil'-w,  2  Irel.  Ch.  113; 
(;rove  V.  Kre.sh.  9  Ulll  &  .1.  280;  (;il)bs  v. 
Cloyett,  2  Gill  &  .1.  14;  IJrvan  v.  hlvtlie, 
4  Hla<:kf.  249;  StDrv  Ivp  1'1.284  a;  Veghte 
V.  The  Itintaii  Wiiter  Power  Co.,  4  C.  E. 
Green  (N.  .).),  142.  And  where  the  bill 
Sets  t'orth  two  dis'inct  and  independent 
f^rouids  of  complaint,  the  ol)jecti<in  of 
ninltlfiiriousness  is  obvi;iled  by  the  remov- 
al of  one  of  those  ffiounds  bv  the  defend- 
ant uft<  r  the  fdin;^  of  the  bill  and  before 
iiiHwcr.  Whitney  v.  Cnlon  Hallway  Co., 
11    Gray,  359;   sue   Kmans  v.  Emans,   1 


McCarter  {X.  .T.),  114;  Commercltil  l\Iut. 
Ins.  Co.  V.  .McLoon,  14  Allen,  351;  McCaba 
V.  Bellows,  1  Allen,  269. 

1  See  26th  Equity  Rule  of  United  States 
Courts,  post,  326  note,  Ap. 

2  Ord.  VIIF.  2,  XVI.  21. 

3  Er-kiiiec.  Garih^hore,  18  Ves.  114;  Ex 
parte  Le  Heu]),  ib.  221,  223;  see  Storv  Eq. 
PI.  §  266;  Doe  V.  Green,  2  Paise,"  349; 
Somers  v.  Torrey,  5  Paifje,  64 ;  Powell  v. 
Kane,  5  Paijje,  265  ;  The  Camden  and 
Amboy  R  R.  Co.  v.  Stewart,  4  C.  E.  Green 
(X.  .J.),  343,  346. 

4  Wyatt's  P.  R.  383. 

6  Per  Lord  Eldon,  in  Ex  prtrte  Simpson, 
15  Ves.  476;  and  see  OofHn  v.  Cooper,  6 
Ves.  514;  Atwool  v.  Ferrler,  1  W.  X.  276; 
14  W.  R.  1014,  V.  C  W.  Facts  not  ma- 
terial to  the  decision  are  Impertinent,  andj 
If  reproachful,  are  scandalous.  Woods  v. 
Morrell,  1  .John.  Ch.  103. 

6  Story  Eq.  PI.  §  269.  Thus  a  state- 
ment In  an  answer,  intrndnced  to  show  the 
temper  with  which  a  bill  Is  filed,  and  the 
oppressive  course  pnr-ucd  by  the  plaintiff, 
is  not  scandalous  or  impertinent,  inasmuch 
as  It  m:iv  have  an  I'tl'ect  on  the  costs. 
Desplaces  v.  Gorls,  1  Edw.  Ch  350.  So  it 
has  been  held,  that  an  executor,  who  Is 
called  to  account,  Is  not  subject  to  an  ex- 
ception for  scandal  and  Impertinence,  for 
sayiiig  in  his  aiiswiT,  that  some  of  the 
property  Is  withlii'ld  tVoni  him  under  a 
forged  deeil  possessed  by  tin;  pliiintitf;  f "r 
his  silence  might  pn-judlce  him  afierwards. 
Jolly  V.  Carter,  2  E'llw.  Ch.  209;  see  So- 
mers V.  Torrev,  5  Paige,  54 ;  Hees  v  Evans, 
C^hancerv.  X.Y..Ian.  25, 1841,  cited  1  Smith 
Ch.  Pr.  (2d  .\m.  ed.)  567,  note  (6).  Perti- 
nent matter  cannot  be  somdalous.  Good- 
rich V.  Rodney,  1  MIn.  196. 


34S 


THE    BILL. 


Cii.Yl.  5  1. 


In  bill  to  re- 
move trus- 
tees, not 
scandalous 
to  impute 
con'upt  or 
vindictive 
motives ; 


secus,  to  al- 
lege general 
malice  or 
personal  hos- 
tility ; 


or  to  state 
particular 
acts  of 
immorality, 
•which  may  be 
proved  under 
general  . 
charge. 


man  iMlsoly  ropvcsonts  lihnsclf  to  liavo  a  great  estate,  when  in  fact 
he  is  a  l)aiikni]>t  ;  or  where  one  man  is  j)ersonate(l  lor  another;  or 
in  the  ease  ot"  a  connnou  eheat,  o-aniester,  ov  sharper  about  the 
town  :  in  tliese,  and  many  other  instances,  the  allegations  may 
appear  to  be  very  scandalous,  and  not  tit  to  remain  on  the  records 
of  the  Court ;  and  yet,  ])erhaps,  without  having  ait  answer  to  them, 
the  parly  may  lose  his  right;  the  Court,  therefore,  always  judges 
whether,  though  matter  be  jorwia  facie  scandalous,  it  is  or  is  not 
of  absolute  necessity  to  state  it ;  and  if  it  materially  tends  to  the . 
point  in  question,^  and  is  become  a  necessary  part  of  the  cause, 
and  material  to  the  defence  of  either  party,  the  Court  never  looks 
ti])on  this  to  be  scandalous.'-  Were  it  otherwise,  it  would  be  lay- 
ing down  a  rule  that  all  charges  of  fraud  are  scandalous :  Avhich 
would  be  dangerous.^  Upon  this  principle,  therefore,  it  has  been 
determined,  that  if  a  bill  be  filed  by  a  cestui  que  trust  for  the  pur- 
pose of  remo\ang  a  trustee,  it  is  not  scandalous  or  impertinent  to 
challenge  every  act  of  the  trustee  as  misconduct,  or  to  impute  to 
him  corrui)t  or  improper  motives,  in  the  execution  of  the  trust,  or 
to  allege  that  his  conduct  is  the  vindictive  consequence  of  some 
act  on. the  part  of  the  cestui  que  trust,  or  of  some  change  in  his 
situation.*  It  is  to  be  observed,  however,  that  in  such  case  it 
Avoidd  be  impertinent,  and  might  be  scandalous,  to  state  any  cir- 
cumstance as  evidence  of  general  malice  or  personal  hostility, 
without  connecting  such  circumstance  with  the  acts  of  the  trustee 
which  are  complained  of:  because  the  fact  of  the  trustee  enter- 
taining general  malice  or  hostility  against  the  plaintiff,  affords  no 
necessary  or  legal  inference  that  his  conduct  in  any  particular 
instance  results  from  such  motive. 

It  has  been  decided,  that,  under  a  general  charge  of  immorahty, 
evidence  of  particular  instances  of  misconduct  may  be  introduced.^ 
Where,  therefore,  such  evidence  can  be  made  use  of  under  the 
general  charge,  the  specific  instances  should  not,  if  it  can  be 
avoided,  be  introduced  into  the  bill ;  thus,  it  is  improper,  in  a  suit 
wdiich  is  founded  upon  the  w^ant  of  chastity  in  a  particular  indi- 
vidual, as  in  cases  of  bills  to  set  aside  securities  given  turpi  con- 
sideratione,  to  charge  particular  instances  of  levity  which  might 
affect  the  character  of  strangers,  and. to  fill  the  record  Avith  private 
scandal:  because  evidence  of  those  particular  instances  may  be 
given  under  the  genersri  charge.® 


•  1  Everett  v.  Prvthergch,  12  Sim.  365, 
367;  B.  «.  W.,  3l'Beav.  342;  S.  C  nom. 
A.  r.  15.,  8  .Jur.  N.  S.  1141;  Edmands  v. 
Lord  Brougham,  1  \V.  N.  67,  V.  C  S. ;  12 
Jur.  N.  S.  156,  V.  C.  S. 

2  Gilb.  For.  Rom   207. 

8  Fenhoulet  v.  Passavant,  2  Yes.  S.  24. 

\  Earl  of  Portsmouth  v.  Fellows,  5  Jlad. 


450;  and  see  Anon.,  1  M.  &  C.  78;  Lord 
St.  John  V.  Lady  St.  John,  11  Ves.  526, 
539;  Reeves  v.  Baker,  13  Beav.  436. 

o  Sf-e  Moores  v.  Aloores,  1  C.  E.  Green 
(N.  J.),  275,  277. 

«  Whalev  V.  Norton,  1  Vern.  483  ; 
Clarke  v.  Periam,  2  Atk.  333,  337. 


MATTER    OF    THE    BILL. 


349 


From  what  has  been   said  before,  it  may  be    collected   that,    Ch.YI.  §4. 

although  nothing  relevant  can  be  scandalous,  matter  in  a  bill  may   ' c ' 

be  impertinent   without    being    scandalous.^      Impertinences    are   Definition  of 
described  by  Lord  Chief  Baron  Gilbert  to  be,  "where  the  records  in^P-^rtinence 
of  the  Court  are  stuffed  with  long  recitals,  or  with  long  digressions 
of  matter  of  fact,  which  are  altogether  unnecessary  and  totally 
immaterial  to  the  matter  in  question :  as  where  a  deed  is  unneces- 
sarily set  forth  in  hcec  verbal  "^ 

It  is  to  be  observed,  that  neither  scandal  nor  impertinence,  how-  impertinence 
ever  gross  it  may  be,  is  a  ground  of  demurrer 
pleading  that  utile  per  inutile  non  vitiatur?     Where,  however. 


it  being  a  maxim  of  J--^*^-;^,, 


1  Fenhoulet  r.  Passavant,  2  Ves.  S.  24 ; 
Goodrich  t'.  Kodney,  1  Miii.  195;  Hood  v. 
Inman,  4  John.  Ch.  43".  Impertinence  is 
the  introduction  of  any  matters  into  a  bill, 
answer,  or  other  pleading  or  proceeding  in 
a  suit,  which  are  not  properly  before  tlie 
Court  fir  decision  at  any  particular  stage 
of  the  suit.  Story  Eq.  V\.  §  266 ;  Wood  i'. 
Mann,  1  Sumner,  506,  578  ;  see  the  26tli 
and  27th  Equity  Kules  of  the  Supreme 
Court  of  the  United  States,  January  ferm, 
1842,  in  Story  Eq.  V\.  §  206.  the  best 
test  to  asci-rtain  wliether  matter  be  im- 
pertinent, is  t'j  try  wliether  the  subject  of 
the  allegation  could  be  put  in  issue,  and 
would  be  matter  proper  to  be  given  in 
evidence  between  the  parties.  Woods  v. 
Morrell,  1  John.  Ch.  103.  The  Court  will 
not,  because  there  are  here  and  there  a  few 
unnecessary  words,  treat  them  as  imper- 
tinent. Story  Eq.  PI.  §  267;  Hawley  v. 
Wolverton,  5  Paige,  622.  A  bill  may 
contain  matter  which  is  impeitinent,  with- 
out the  matter  being  scandalous;  but  if,  in 
a  technical  sense,  it  is  scandalous,  it  must 
be  impertinent.  Storj'  Eq.  PI.  §  270; 
M'lutvre  v..  Trustees  of  Union  College,  6 
PaigeJ  2.39. 

All  exception  for  impertinence  will  be 
ovcrrulrd  if  tiie  expunging  the  matter 
exc('|)ted  to  will  leave  the  residue  of  the 
clause  which  is  not  covered  by  the  excep- 
tion, either  false  or  wholly  unintelligible. 
M'lutvre  v.  Trustees  Union  College,  6 
PaigcJ  230. 

'i  V,\\\).  For.  liom.  209;  and  see  Norway 
V.  Uowe,  1  Mer,  135;  Lowe  v.  Williams,  2 
S.  &  S.  574;  lially  v.  Williams,  1  .M'E.  & 
Y.  334;  Slack  v.  Evans,  7  Pri.  278,  n.; 
Gnmpertz  u.  Ikst,  1  V.  &  C.  Ex.  114.  117; 
Hyde  1-.  .Mast'-rinan,  C.  &  P.  205,  271;  5 
Jur  643;  Attoriiev-fieneral  f.  Uckards,  G 
Beav.  444,  449;  1  i'liil  38.3,  386;  7  Jur. 
362;  S.  C.  ruim.  Hickards  v.  Attornev- 
Ceiieral.  12  CI.  &  K.  30;  9  Jnr.  383;  All- 
frey  r  Allhey,  14  Heav.  235;  15  Jur.  ^31; 
Goiidricli  r.  Hodp'-y,  1  Min.  195;  The  (Jam- 
den  and  Aniboy  liU.  Co.  i;.  Stewart,  4  (J. 
E.  (Jreen  (N.  J.),  343.  All  matters  not 
material  to  ti.e  suit,  or,  if  material,  which 
arc  not  ill  issue,  or  which,  if  both  material 
and  in  issue,  an?  set  forth  with  great  and 
unnecessary  prolixity,  constitute  imperti- 


nence. A  bill  in  Chancer}',  like  a  declara-  ' 
tion  at  Law,  should  confine  its  statements 
to  such  facts  as  are  proper  to  show  that 
the  plaintiff'  is  entitle!  to  relief,  and  which, 
if  proved,  will  entitle  him  to  relief;  and 
should  not  set  out  the  evidence,  whether 
oral  or  written,  by  which  the  facts  are 
to  be  proved.  The  Camden  and  Aniboy 
K  K.  Co.  V.  Stewart,  4  C.  E.  Green  (N. 
J  ),  343.  In  the  United  States  Cnurts, 
it  is  required  that  every  bill  shall  be 
expressed  in  as  brief  and  succinct  terms 
as  it  reasonably  can  be,  and  shall  con- 
tain no  unnecessary  recitals  of  deeds,  doc- 
uments, contracts,  or  other  instruments, 
in  luBC  verba,  or  any  other  impertinent 
matter,  or  any  scandalous  matter  not  rele- 
vant to  the  suit.  If  it  does,  it  may  on  ex- 
ceptions be  referred  to  a  master  bj'  any 
ju'tge  of  the  Court  lor  impertinence,  or 
scandal,  and  if  so  found  by  him,  the  mat- 
ter shall  be  expunged  at  the  expense  of 
the  plaintifi",  and  he  shall  pay  to  the  defend- 
ant all  his  costs  in  the  suit  up  to  that 
time,  unless  the  Court  or  a  judge  thereof 
shall  otherwise  ord^-r.  If  the  master  shall 
re])ort  that  the  bill  is  not  scandalous  or 
impertinent,  the  defendant  shall  be  entitled 
to  all  ciists  occasioned  by  the  reference. 
Equity  Rule,  26.  • 

In  New  Hampshire,  "  Every  bill  and 
ansjver  shall  be  expressed  as  concisely 
as  may  be,  and  no  deed,  will,  agieenient, 
or  other  writing  shall  be  set  forth  at  length, 
or  annexed  to  any  bill  or  answer,  but  sa 
much  of  either  as  is  material,  and  no  more 
shall  be  inserted."  liule  of  Chancery,  4, 
38  N.  II.  606.  "  The  idle  repetitions, '  your 
orator  further  complains,'  "your  oratnr 
further  siKJweth  to  your  Honors,'  and 
the  like,  in  bills;  anil" 'this  delcndant,  fur- 
ther answering,  saitli,'  and  the  like,  in  an- 
swers, shall  be  omitted.  Where  the  names 
of  parlies  are  omitted,  they  shall  be  referred 
to  as  jildiiiliJI'x  or  (Itftnditnls."  Pule  of 
Chancery  nt  N.  H.  7. 

3  Si'e  Pronm's  Maxims,  CO'2;  Story  Eq. 
PI.  §  269.  ll' an  ans\\er  contain  scanda- 
lous or  impcrtini'iit  matter,  it  will  be  re- 
ferred, in  order  that  it  may  be  expunged 
at  the  cost  of  the  party  fifing  the  answer. 
Alason  V.  Mason,  4  lien.  &  M.  414;  sec 
Langdoii  r.  Pickering,  19  Maine,  214.    The 


350 


TIIK    BILL. 


Cn.VI.§4. 

how  tnki'ii 
adviuitago  of; 

old  practice ; 


present 
practice ; 

exceptions  for 
impertinence 
abolished ; 

but  costs  oc- 
casioned by  it 
may  be  im- 
posed, upon 
application ; 


or  disallowed 
by  the  Court 
or  Judge, 
without  ap- 
plication. 


there  is  scandal  in  n  Mil,  the  defendant  is  entitled  to  have  the 
record  ]»nrified  liy  ('\]iun>iinL!^  the  scandalons  matter;  and  it  was 
torniei'ly  the  same  A\illi  reference  to  inijiertinent  matter.  In  order 
that  this  miiiht  be  done,  the  course  formerly  was  for  the  defeinhnit 
to  move  the  Court  for  an  order  to  liave  the  bill  referred  to  a  master 
to  report  wliether  it  was  scandalous  or  ini]»ertinent.  This  refer- 
ence was  obtained  of  course,  and  being  general,  without  sjiecify- 
ing  the  particular  passages  objected  to,^  obviously  precluded  the 
party,  whose  })leading  Avas  alleged  to  be  scandalous  and  im])ertinent, 
from  exercising  any  judgment  u])on  the  subject,  much  less  from 
submitting  to  have  the  objectionable  passages  expunged.  To 
remedy  this  it  was  provided  by  a  General  Order  of  the  Court,  that 
no  order  should  be  made  for  referring  any  pleading,  or  other 
matter  for  scandal  or  impertinence,  unless  exceptions  wei'e  taken 
in  writing,  to  the  jjarticular  })assages  complained  of.^ 

The  practice  of  excepting  to  bills,  answers,  and  other  pro- 
ceedings for  impertinence  has  been  abolished  :  ^  the  Court  may, 
however,  direct  the  costs  occasioned  by  any  impertinent  matter 
introduced  into  any  jiroceeding,  to  be  paid  by  the  party  intro- 
ducing the  same,  ujion  application  being  made  to  the  Coint  for 
that  pui-pose :  *  such  application  to  be  made  at  the  time  when 
the  Court  dis])oses  of  the  costs  of  the  cause  or  matter,  and  not  at 
any  other  time.^  The  Court  may  also,  without  any  a|)plication 
being  made,  dechire  that  any  pleading,  petition,  or  affidavit,  is 
improper  or  of  unnecessary  length:  or  may  direct  the  taxing 
master  to  distinguish  what  part  thereof  is  improj^er,  or  of  unnec- 
essary, length;®  and  in  hke  manner,  the  Judge  may  disallow  im- 
jjcrtinent  or  unnecessary^  matter  in  proceedings  in  Chambers ; ''  in 


introduction  of  scandalous  and  imperti- 
nent matter  in  a  bill,  does  not  authnrize 
nor  justity  similar  matter  in  an  answer, 
tiiougli  introduced  to  meet  sucli  irapijjper 
allegations  in  the  bill.  .Such  matter  in  the 
bill  shoulil  be  objected  to  by  the  defend- 
ants in  the  regular  way.  Langdon  v. 
Pickering,  19  Maine,  214;  see  the  Camden 
and  Ambnv  K.li  Co.  v.  Stewart,  4  C.  E. 
Green  (X.  J.),  343. 

1  Harr.  bv  Newl.  43;  1  T.  &  V.  519. 

2  3fcth  Ord.  M!i3',  1845;  Sand.  Ord.  998; 
afterwards  the  23d  Ord.,  Nov.,  IboO,  was 
substituted.  12  Beav.  xxvii.  The  ground 
of  this  order  is  substantially  covered  by 
the  27th  Efiuily  Rule  of  the  United -States 
Courts.     Exceptions  for  scandal  or  imper- 

•tinence  must  pont  out  the  exceptioniil)Ie 
matter  with  sufhcient  certainty  to  enable 
the  adverse  party  and  the  officers  of  the 
Court  to  ascertain  what  particuhir  p;irtsof 
the  pleading  or  proceeding  are  to  be  strick- 
en out,  if  tlie  excejitions  are  allowed. 
AS'hitmarsh  v.  Canijibell,  1  Paige,  045; 
franklin  v.  Keeler,  4  Paige,  3b2  ;  see  also 


German  v.  Macliin,  6  Paige,  288.  In 
Maine,  exceptions  for  scanilal  and  imperti- 
nence may  be  taken  within  twenty  days 
after  service  of  the  b;ll.     Cliancery  liule,  5. 

3  By  the  settled  practice  in  New  Jersey, 
exceptions  will  lie  tor  impertinence  in  a 
bill,  answer,  or  other  phading,  and  in  in- 
terrogatories, depositions,  or  aflitbivits  in 
any  suit.  The  Oiimden  and  Anibov  U.K. 
Co.  V.  Stewart,  4  (J.  E.  Green  (N.  J.),  343, 
344,  345.  Hut  the  rule  to  lile  exceptions 
and  refer  them  to  a  master,  is  for  the  re- 
lief of  the  Court,  and  tliey  ma^'  be  heard 
at  his  option  direct)}'  by  the  Chancellors. 
JOi'J. 

4  15  &  16  Vic.  c.  86,  §  17;  seeDufour  v. 
Sigel!,  4  I)e  G.,  M.  &  G.  620,  526. 

5  Ord.  XL.  11. 

6  Ont.  XL.  9.  As  to  this  Ord.  see  Moore 
w.  Smith,  14  Ik-av  396;  Ma3'or  of  Berwick 
V  Murray,  7  l)e  (J.,  M.  &  G.  497;  3  Jur. 
N.  S.  1,  5;  Jie  Fairington,  33  Beav.  340; 
and  for  form  of  Order  thereunder,  see  Se- 
ton  89,  No.  17. 

V  Ord.  XL.  10. 


MATTER    OF    THE    BILL. 


351 


the  first  case,  the  Court  may  deal  with  the  costs  as  may  be  just ;  ^ 
and  in  the  second,  the  costs  occasioned  in  resj^ect  of  the  matter  so 
disallowed  to  the  other  party  are  to  be  paid  by  the  party  on  whose" 
behalf  the  proceeding  was  brought  in,  and  his  own  costs  in  respect 
thereof  disallowed.^  Exceptions  may  still  be  taken  to  pleadings, 
and  other  matters  de]»ending  before  the  Court,  for  scandal :  they 
must  be  in  writing,  and  signed  by  counsel,^  and  describe  'the  par- 
ticular passages  alleged  to  be  scandalous.* 

It  appears  to  have  been  formerly  the  opinion  that,  in  cases  of 
scandal,  "the  Court  itself  was  concerned  to  keep  its  records  clean, 
and  -n-ithout  dirt  or  scandal  appearing  thereon;"^  and  in  Ex 
parte  Simpson^  Lord  Eldon  said  that,  with  reference  to  the  sub- 
ject of  scandal  in  proceedings,  either  in  causes  or  in  bankruptcy, 
he  did  not  think  that  any  appUcation  by  any  person  was  neces- 
sary ;  and  that  the  Court  ought  to  take  care  that,  either  in  a  suit 
or  in  a  proceeding  in  bankruptcy,  allegations  bearing  cruelly  upon 
the  moral  character  of  individuals,  and  not  relevant  to  tlie  subject, 
should  not  be  put  upon  the  record.  Any  party  to  the  cause  may 
file  exceptions  for  scandal;^  hence,  a  defendant  not  served  with 
the  bill  may  appear  gratis,  and  file  exceptions  for  scandal ;  ^  and 
one  defendant  may  file  exceptions  for  scandal  in  a  co-defendant's 
answer.® 

There  was  formerly  some  doubt  whether,  under  any  circum- 
stances, a  person  not  a  i^arty  to  the  cause  could  except  to  any 
record  for  scandal.^**  In  the  case  of  Williams  v.  Douglas^^  the 
authorities  upon  the  subject  were  brought  before  Lord  Langdale 
M,  R.,  who  had  to  decide  upon  the  question,  whether  a  person 
not  being  a  party  to  the  cause,  who  alleged  that  the  bill  contained 
matter  at  the  same  time  impertinent  as  between  the  parties,  and 
scanrlalous  as  against  him,  Avas,  of  course,  and  without  leave,  en- 
titled to  file  exceptions  for  scandal,  with  a  view  to  have  the  scan- 
dalous and  imjtertinent  matter  expunged.^^  His  Lordship  said: 
"Tliere  is  but  little  authority  on  the  subject;  but  from  the  terms 
ill  wliich  Lord  liacon's  order  is  expressed,  from  the  dicta  of  Lord 
I'vldon,  expressed  in  a  manner  to  show  that  he  had  considered  the 
subject,  and  from  tlie  apparent  necessity  of  the  case,  there  being, 
as  I  conceive,  no  other  way  of  doing  eftectual  justice  to  an  injured 


Ch.TT.  §4. 


Scandal  in 
■pleading's, 
&c.,  betbre 
the  Court 
may  be 
excepted  to; 

Court  itself 
may  object  to 
scandalous 
matter. 


Person  not  a 
party  to  the 
cause  may 
except  tor 
scandal,  by 
special  leave. 


1  Ord.  XL.  9.  Ah  to  this  Ord.  see  Moore 
V.  Smiili,  14  Heav.  'AW>\  Mayor  ot  Berwick, 
r.  Murray,  7  l;e  (J.,  M.  c&  (i.  41^7;  a  .lur. 
N.  JS.  1,  6.  For  form  of  Order  thcr«under, 
nee  Si-lon  «9,  No.  17. 

^  (Jr.l.  -XL.  10. 

8  Ord.  XVI.  2;  and  see  Ord.  VIII.  1,  2. 

*  Ord.  XVI.  2.  I'or  form  of  exceptions, 
Bee  Vol.  III. 

6  2  1*.  Wrna.  312,  Arg. 

•  15  Ves.  47«,  477.     As  to  scandnl  in  a 


proreedinp  under  the  summary  jurisdic- 
tion, see  lit  (Jornall,  1  Hen  v.  22(3. 

7  Coliin  V.  Coo|)cr,  (J  Yes.  iiU;  13  &  14 
Vic.  c.  35,  §  27;  Ord   XVI.  2. 

0  Fell  V.  Christ's  College,  Cambridge,  2 
IJro.  C.  C.  27U. 

'■'  Coflin  V.  (,'ooper,  6  Ves.  514. 

i"*  Ibid.;  Aiion.,4  iMad.  252;  see  5  Ucuv. 
86. 

n  6  Beav.  82,85;  6  .lur.  879. 

12  Story  K(i.  I'l.  §  270. 


352 


THE    BILL. 


Cii.yi.  §4. 


Semhie,  ex- 
emptions for 
scandal 
would  not  be 
overruled,  if 
good  in  part: 
though  bad 
in  part. 


Practical 

directions  as 
to  exceptions. 


Office  Copy. 


Time  to  set 
down. 


]i:irty,  it  would  seem  that  the  Court  must  have  jurisdiction  and 
authority  to  expunge  scandal  from  the  record,  at  the  instance  of  a 
person  who  may  not  be  a  party  to  the  cause."  His  Lordship,  how- 
ever, thought,  that  a  pei-son  not  a  party  to  the  record  could  not  ' 
adopt  this  ]>roceeding  without  special  leave;  and  he,  therefore, 
dischargetl  the  order  then  in  question,  on  the  ground  of  its  having 
been  obtained  ex  pcwte.  From  this  case  it  would  appear,  that  a 
stranger  to  the  suit  can,  if  the  circumstances  justify  it,  obtain  the 
leave  of  tlio  Court  to  except  to  a  record  for  scandal. 

It  has  been  decided  under  the  former  ])ractice,  that  in  the  case 
of  exceptions  for  impertinence,  an  exception  cannot  be  partially 
allowed ;  and  therefore,  if  part  of  an  exception  be  good,  and  the 
rest  bad,  the  whole  exception  must  be  overruled.^  It  has  not, 
it  is  belicA-ed,  ever  been  so  held  as  to  exceptions  for  scandal ; 
and  if  the  question  should  arise,  it  is  conceived  that  the  j)rac- 
tice  with  reference  to  exceptions  for  impertinence  would  not  be 
followed. 

Exceptions  must  be  written  on  paper  of  the  same  description 
and  size  as  that  on  which  bills  are  printed,^  and  be  indorsed 
with  the  name  and  place  of  business  of  the  solicitor  and  of  his 
agent,  if  any,^  or  with  the  name  and  j^lace  of  residence  of  the 
party  acting  in  person,^  by  whom  they  are  filed.^  The  exceptions 
must  be  filed  at  the  Record  and  Writ  Clerks'  Office,®  and  notice 
of  the  filing  thereof  be  given,  on  the  same  day,  to  the  solicitor  for 
the  opposite  party,  or  to  the  j^arty  himself  if  he  acts  in  person ;  "^ 
but  if  the  notice  is  not  given  at  the  proper  time,  the  party  will  be 
relieved  from  the  irregularity  on  payment  of  costs.^  No  time  is 
limited  within  which  exceptions  for  scandal  must  be  filed.  The 
party  whose  pleading  is  excepted  to  takes  an  office  cojiy  of  the 
exceptions.® 

Exceptions  for  scandal  must  be  set  doAvn  for  hearing  before  the 
Court,-"'  Avithin  six  days  after  the  filing  thereof,  exclusive  of 
vacations :  ^^  otherwise,  they  will  be  considered  as  abandoned,  and 


1  Wagstaff  V.  Bryan,  1  R.  &  M.  30; 
Tench  v.  Cheese,  1  Beav.  571,  575,  and  re- 
porter's note,  ibid. ;  Byde  v.  Masterman,  C. 
&  P.  205,  272;  5  Jur.  643;  Desplaces  v. 
Goris,  1  YaW.  Ch  353.  'Ihe  Court,  in 
cases  of  impertinence,  ought,  before  ex- 
punging the  matter  alleged  to  be  imperti- 
nent, to  be  especially  clear,  tl)at  it  is  such 
as  ought  to  be  struck  out  of  the  record,  for 
the  reason,  that  the  error  on  one  side  is 
irremediable,  on  the  other,  not.  See  Davis 
r.  Cripps,  2  Y.  &  C.  (N.  II.)  443;  Story 
Eq.  V\.  §  267. 

■i  Ord.  March  6,  1860,  r.  16.  The  paper 
must  he  cream-wove, machine-drawn,  fools- 
cap, folio  t>aper,  19  lbs.  per  mill  ream,  and 
have  an  inner  margin  about  three-quarters 
of  an  inch  wide,  and  an  outer  margin  about 
two  inches  and  a  half  wide.    Ord.  IX.  3. 


8  Ord.  III.  2. 

4  Ord.  III.  5. 

6  For  form,  see  Vol.  III. 

•5  Ord.  XVI.  3."  No  fee  is  payable  on 
filing. 

'  Ord.  XVI  3.  The  notice  must  be 
served  before  seven  o'clock  in  the  even- 
ing, except  on  Saturday,  when  it  must  be 
served  before  two  in  tlie  afternoon;  or  the 
service  will  be  deemed  to  have  been  made 
on  the  following  day,  or  on  Monday,  as  the 
case  may  be.  Ord.  XXXVII.  2.  l<"orform 
of  notice  see  Vol.  III. 

8  Bradstock  v.  Whatley,  6  Beav.  61; 
Lowe  V.  Williams,  12  Beav.  482;  and  see 
Lord  SutHeld  v.  Bond,  10  Beav.  146,  163. 

'■>  Or.i.  XXXVI.  1. 

W  13  &  14  Vic.  c.  35,  §  27. 

n  Ord.  XXXVIL  13  (2). 


t  MATTER    OF    THE    BILL.  353 

the  person  by  whom  such  exceptions  were  filed  must  pay  to  the    Cn.  Yi.  §  A. 

opposite  party  such  costs  as  may  have  been  incurred  by  such   ' r ' 

party,  in  respect  of  such  exceptions.^  It  is  presumed  that,  in 
such  case,  by  analogy  to  the  practice  where  a  demurrer  or  plea, 
though  filed,  is  not  set  down  for  argument,^  the  o]i]iosite  party 
may  obtain  an  order  of  course,  on  motion,  or  on  petition  at  the 
Rolls,  for  the  taxation  of  the  costs  of  the  exceptions,  and.for  pay- 
ment thereof  by  the  excepting  party. 

The  exceptions  must  be  set  down  to  be  heard  before  the  Judge  How  set 
to  whose  Court  the  cause  is  attached.''     The  Registrar's  Clerk  at  •^o^^'"- 
the  order  of  course  seat,  will  set  down  the  exceptions,  on  production 
to  him  by  the  solicitor  of  the  party  filing  them  of  the  Record  and 
"Writ  Clerks'  certificate  of  the  filing  of  the  exceptions,  indorsed  by 
the  solicitor  with  a  request  for  that  purpose.*     The  exceptions  will 
then  be  put  in  the  paper  of  such  Judge,  for  hearing  on  an  early 
day;  and  on  the  day  on  which  the  exceptions  are  so  set  down, 
notice  thereof  must  be  served  pn  the  party  whose  pleading  or  other  Notice  of 
matter  is  excepted  to :  otherwise  the  exceptions  will  be  deemed  setting  down, 
not  set  down.^ 

Exceptions  will  not  be  allowed  to  stand  over  to  an  indefinite  Exceptions 

„  •     16  cannot  stand 

period.^  _  overindefi- 

As  this  is  the  first  occasion  upon  wliich  it  has  been  necessary  nitciy. 
to  refer  to  the  time  alloAved  in  procedure,  it  will  be  convenient  to   General  rules 

.  1  •  1  ■    1  1      as  to  compu- 

state  here  some  general  rules  concernnig  tlie  manner  m  AvnicJi  such  tation oftime. 
periods  are  to  be  computed. 

"Where  any  limited  time,  from  or  after  any  date  or  event,  is  i^imUcd  time, 
appointed  or  allowed  for  doing  any  act  or  taking  any  proceeding,  {J",\J"|j'J^^''^ 
and  such  time  is  not  limited  by  hours,  the  coni})utation  of  such 
limited  time  is  not  to  include  the  day.  of  such  date,  or  of  the 
happening  of  such  event,  but  is  to  commence  at  the  beginning  of 
the  next  following  day;  and  the  act  or  proceeding  is  to  be  done 
or  taken  at  the  latest  on  the  last  day  of  such  limited  time,  accord- 
ing to  such  computation.'' 

Where  the  time  for  doing  any  act  or  taking  any  proceeding  is  Months. 
limited  by  months,  not  expressed  to  be  calendar  months,  such  time 
is  to  be  computed  by  lunar  months  of  twenty-eight  days  each.* 

1  Ord.  XVI.  20.     Similar  provisions  are  3  Qrd.  VF.  4. 

made  for  ^iecurinp  an  early  ilecision  of  ex-  *  Ord.  XVI.  10;  Keg.  Ilcgul.  15,  March, 

ception'*  lor  scandal  or  impertinence  in  the  I860,  rr.  1,  5.    Tor  form  of  request,  see  Vol. 

27th   Equity    Kule   of  the   United  States  III. 

Courts.      It  seems  that  the  party   whose  ^  Ord.  XVI.  10.     The  notice  must  be 

pleailing  is  excepte<l  to  may,  if  he  desires  given  as  directed   by  Ord.  XXXVII.  2, 

It,  obtain  an  order  of  course  to  set  the  ex-  itnte,  n.  .352,  n.  7.     For  form  of  notice,  see 

ceptionn  down  before  the  expiration  of  the  Vol.  ill. 

six  days,     t'ovle  v.  Alleyne,  14  Beav.  171.  o  Ord.  XXI.  13.     For  further  informa- 

2  See  Ord.  K\V.  14,  16,  17;  Seton,  1257;  tion  as  to  excejitions,  scc/Wii^,  < 'hap.  XVII. 
and  post.  Chap.  XI V.  §  4,  Dunnrrtrs  ;  and  §  4,  /•.'xcejillimit  to  Answers. 

Chap.  XV.  §  4,  /Vcn«.     For  forms  of  mo-  7  ()rd.  XXX  VII.  9. 

tion  paper  and  petitii>n,  Bee  Vol.  III.  *  Ord.  XXXVII.  10. 

VOL.  I.  23 


r>54 


THE    BILL. 


Til.  VI.  5  4. 


Timo  ox|iir- 
iiig  oil  ;i  (lay 
oil  wliiih 
oJKcos  closed. 


Days  on 
•whioli  ortices 
closed:  wiien 
not  reckoned. 

Exceptions 
for  scaiidiil 
may  be  taken 
at  any  time. 


Scandalous 
matter:  how 
expunged ; 


when  to  be 
expunged. 


Scandal  in  a 
proceeding  at 
Chambers, 
how  objected 
•to. 


WlnTo  (lio  tiiuo  lor  (l((in<4'  ;iny  net  or  tiiking  any  proceeding 
o\|>iri's  on  ;i  Suiul.iy  or  other  (l;iy  on  ^\  liicli  tlic  offices  are  closed, 
and  by  reason  tlieii'ot' sneli  act  or  ])roeeeding  cannot  be  done  or 
taken  on  tli;il  day,  su<-li  act  or  )(roeeeding  is,  as  far  as  regards  the 
time  of  doing  ov  taking  tlie  same,  to  be  held  to  l)e  dnly  done  or 
taken,  if  done  or  taken  on  the  day  on  Avhich  tlic  otlices  sliall  next 
open:^  and  where  any  time  limited  is  less  than  six  days,  Sundays 
and  other  days  on  which  the  offices  are  closed  (except  Monday  and 
Tuesday  in  Easter  Aveek),  are  not  to  be  reckoned.^ 

Exceptions  for  scandal  may  be  taken  at  any  stage  of  the  suit.^ 
It  is  to  be  noticed,  that  in  Lady  Abergavenny  v.  Lady  yiber- 
gavenny,*^  Lord  King  discharged  an  order  obtained  for  referring  a 
bill  for  scandal  after  answer :  intimating,  that  it  should  be  observed 
as  a  rule,  for  the  future,  not  to  refer  a  bill  for  scan(hil  after  the 
defendant  had  submitted  to  answer  it ;  but  his  Lordship's  deter- 
mination to  alter  the  old  practice  of  the  Court  in  this  respect  does 
not  appear  to  have  been  adhered  to,^ 

LTj)on  the  production  of  an  order  allowing  exceptions  for 
scandal,  it  is  the  duty  of  the  officer,  having  the  custody  or  charge 
of  the  pleading  or  other  matter,  to  expunge  such  parts  thereof  as 
the  Court  has  held  to  be  scandalous;®  and  when  he  has  so  done, 
he  usually  writes  a  memorandum  in  the  margin  of  the  document, 
opposite  the  expunged  passages,  to  the  effect  that  the  same  have 
been  expunged  pursuant  to  order,  adding  its  date,  and  signs  the 
memorandmn.  If  an  office  copy  of  the  document  has  been  taken 
at  the  Record  and  Writ  Clerks'  Office,  it  will  be  amended,  without 
fee,  on  being  left  there  for  that  purpose.'^ 

Where  a  bill  had  been  held  scandalous,  the  Court  refused  to 
hear  a  motion  for  an  injunction  until  the  scandalous  matter  had 
been  expunged.® 

Where  scandalous  matter  has  been  introduced  into  any  pro- 
ceedings at  Chambers,  any  party  wishing  to  comjilain  of  it  should 
take  out  a  summons  for  the  Judge  to  examine  such  matter ;  and, 
if  scandalous,  the  Judge  may  cause  it  to  be  expunged.® 


1  Ord.  XXXVII.  12. 

2  Ord.  XXXVII.  11. 

3  Ellison  V.  Burgess,  2  P.  Wms.  312  n.; 
Anon.,  5  Ves.  656 ;  Fenhoulet  v.  Pflssavant, 
2  Ves.  S.  24;  Anon.,  ib.  631;  Barnes  v. 
Saxbv,  3  Swanst.  232,  n.;  Everett  v.  Fry- 
thergch,  12  Sim.  363 ;  Booth  v.  Smith,  5 
Sim.  639;  Storj-  Eq.  I'l.  §  270;  Avck- 
bourne  Ch.  Pr.  (Lond.  ed.  1S44)  197,  198; 
Anon.,  5  Sumner's  Ves.  656,  and  cases 
cited  in  note;  1  Smith  Ch.  Pr.  (2d  Am. 
ed.)  569,  570. 

4  2  P.  Wms.  311;  see  also  Jones  v. 
Langham,  Bunl).  53. 

5  Anon.,  2  Ves.  S.  631;  Anon.,  5  Ves. 
656;  see  also  Woodward  v.  Astley,  Bunb. 
304;  Everett  r.  Pr}'thergch,  12  Sim.  363. 

'^  Ord.  XVI.  21.    No  lee  is  paj-abie.    For 


cases  where  scandalous  or  irrelevant  docu- 
ments have  been  ordered  to  be  taken  off 
the  tile,  see,  by  consent,  Tiemaine  v.  Tre- 
maine,  1  Vern.  189;  .lewin  w.  Tavlor,  6 
Beav.  120;  Walton  v.  Broadbent,  3' Hare, 
334 ;  Clifton  v.  Bentall,  9  Beav.  105 ;  Jlake- 
peace  v.  Homieux,  8  W.  K.  687,  V.  C.  K. ; 
and  without  consent,  Goddard  v.  Parr,  24 
L.  J.  Ch.  783;  3  W.  K.  633,  V.  C.  K.; 
Kernick  v.  Kernick,  12  W.  li.  335,  V.  C. 
W.;  and  for  costs,  in  such  cases,  see  yi^x 
parte.  Simpson,  15  Ves.  476. 

7  Braitliwiiite's  Pr.  132. 

8  Davenport  v.  Davenport,  6  Mad.  251; 
and  .'iee  Coylc  v.  Alleyne,  14  Beav.  171. 

a  Ord.   XXXV.  60.     For  form  of  sum- 
mons, see  Vol.  III. 


FORM    OF    THE    BILL.  355 

As  a  general  rule,  the  costs  occasioned  by  scandalous  matter,    Cn.  VL  §  5. 
and  of  the  application  to  have  it  expunged,  follow  the  decision; 
but  they  should  be  asked  for  when  the  a])plication  is  heard.^ 


Sectiox  V.  —  The  Form  of  the  Bill. 

Having  thus  endeavored  to  point  out  the  matter  of  which  a 
bill  in  Equity  ought  to  consist,  it  remains  to  direct  the  reader's 
attention  to  the  form. 

.     The  form  of  an  original  bill  commonly  used,  jjreviously  to  the  Bills  were 
late  Act,  according  to  the  analysis  of  Lord  Redesdale,^  consisted  ^1,™°'^"'?  ***^ 
of  nine  parts :  some  of  which,  however,  were  not  essential,  and  till  late  Act. 
might  be  used  or  not  at  the  discretion  of  the  person  who  prepared 
it.^     These  nine  jiarts  were  as  follows :  — 

I.  The  address  to  the  person  or  persons  holding  the  Great 
Seal. 

II.  The  names  and  addresses  of  the  parties  complamant. 

III.  The  statement  of  the  plaintift''s  case,  commonly  called  the 
stating  part. 

IV.  The  charge  that  the  defendant  unlawfully  confederated 
with  others  to  deprive  the  plaintiff  of  his  right. 

V.  The  allegation  that  the  defendants  intend  to  set  up  a  par- 
ticular sort  of  defence,  the  rci)ly  to  which  the  plaintiff  anticipates 
by  alleging  certain  facts  Avhich  will  defeat  such  defence.  This 
was  usually  termed  tlic  cJiurgiug  pm%  from  the  circumstances  that 
the  plaintifi''s  allegations  were  usually  introduced  by  way  of  charge, 
instead  of  statement. 

VI.  The  statement  that  the  plaintiff  has  no  remedy  Avithout  the 
assistance  of  a  Court  of  Equity :  which  was  termed  the  averment 
of  juriiidi(ition. 

VII.  The  interrogating  part,  in  which  tlie  stating  and 
charging  part  were  converted  into  intei-rogatories,  for  the  pur- 
pose of  eliciting  from  the  defendant  a.circmnstantial  discovery, 
upon  oath,  of  the  truth  or  falscliood  of  the  matters  stated  and 
charged. 

VIII.  The  ^myer  0/ 7-e/<e/;  adapted  to  the  circiunstances  of  the 
case. 

IX.  The  prayer  that  procesH  might  issue,  rc(|uiriiig  tlic  dcR'iKl- 
ant    to   ajipear    an<l    answer    the    l»iil;    U)    which    sometimes    was 

1  Miiscott  r.  HiillioH,  4  Itro.  ('.  C.  222;        party.    Kdiiiunds  f.  Lord  Broucliani,  1  W. 
.loddrell  v.   Joddrcll,   12   Mfav. '.210.     The       N.  03,  V.  C.  S. 
costs   ure  taxed    as   between    party   and  ^  1-d.  \WA.  42. 

8  Ld.  lied.  47. 


356 


TlIK    BILL. 


I'll.  VI.  §5.  ndded  a  prayer  for  a  provisional  writ,  such  as  an  injunction  or  a 
;/<'  (.raff  ?vy/>/(),  tor  tlio  purpose  of  restraining  sonic  ])rocee(ling.s  on 
the  part  oi'  tlic  (h-lcnchmt,  or  of  ])reventiny;  liis  ^'oiniij  out  of  the 
jurisdiction  till  he  had  answered  the  bill.  And  as  aijainst  some 
of  the  defendants,  this  ))art  sometimes  contained  a  ])rayer  tliat 
sut-h  parties  iiii^lit,  upon  lieinii,-  servetl  witli  a  copy  of  tlic  bill,  be 
bound  by  all  the  proct'cdinii's  in  the  causc.^ 


Statutory 
provision  as 
to  form  of  bill. 
Hills  to  con- 
tain concise 
narratives, 
divided  into 
paragraphs. 


BUls  now 
usually  of 
four  parts. 


The  form  of  a  bill  has,  however,  been  materially  altered  by  the 
Chancery  Amendment  Act  of  1852,  by  Avhich,  as  we  have  seen,'^ 
it  is  enacted  that  every  bill  "should  contain,  as  concisely  as  may 
be,  a  narrative  of  the  material  facts,  matters,  and  circumstances,, 
on  which  the  plaintift"  relies :  such  narrative  being  divided  into 
paragra})hs,  numbered  consecutively:  and  each  ])aragrai)li  con- 
taining, as  nearly  as  may  be,  a  separate  and  distinct  statement  or 
allegation,^  and  shall  jtray  specifically  for  the  relief  which  the 
plaintiff  may  conceive  himself  entitled  to,  and  also  for  general 
reUef."* 

A  bill,  as  ordinarily  framed,  may  now  be  said  to  consist  of  the 
firf  t,  second,  third,  and  eighth  parts  above  enumerated  only ;  the 
charging  part  is,  indeed,  still  occasionally  inserted,  but  it  is  rather 
as  part  of  the  narrative  than  as  a  separate  part,  and  the  allegations 
are,  by  most  draftsmen,  introduced  as  statements,  and  not  by  way 
of  charge ;  so  that  practically,  this  part  may  now  be  considered  as 
included  in  the  stating  part.^  The  averment  of  jurisdiction  is  also 
still  sometimes  inserted,  but  it  may  also,  when  inserted,  be  con- 
sidered as  a  portion  of  the  stating  part.  The  fourth  part,  or  charge 
of  confederacy,  gradually  became  disused,  and  is  now  universally 
omitted;  the  seventh,  or  interrogating  part,  is  now  omitted  by 
express  enactment ;  ^  and  the  ninth  part,  or  prayer  for  process,  is 
also  omitted :  the  writ  of  subjyoena  to  appear  and  answer  the  bill 
having  been  abolished.''  The  prayer  for  an  injunction,  or  a  ne  exeat 
regno^  or  that  certain  formal  parties  may  be  bound  upon  being 
served  with  a  copy  of  the  bill,  is  inserted  when  it  forms  part  of 
the  relief  adapted  to  the  circumstances  of  the  case  ;  but  then  it 
properly  forms  a  portion  ^f  the  eighth  part.^ 

1  This  is  still  so,  Ord.  X.  11;  see  pnst. 
Chap.  VII.  §  1,  Sefvke  of  a  copy  oftht  bill 
on  t  urmal  JJeftndants. 

2  Ante,  p.  .'513. 
8  See  Statutesof  Iowa,  Revision  of  1860, 

Pt.  3,  c.  122,  §§  2875,  §  9,  p.  .510. 

4  15  &  IG  Vic.  c.  86,  §  10;  and  see  form 
of  bill,  as  given  by  Ord.  IX.  2,  and  .Sched. 
A.,  pi'st,  Vol.  III.  The  present  form  of  bill 
appears  to  lie  a  returji  to  the  more  ancient 
form;  see  Partridge  v.  Ilaycraft,  11  Ves. 
574.  The  fact  that  the  frame  of  a  bill  is 
unusual,  and  without  a  precedent,  does  not 
alone  constitute  an  objection  to  the  relief 


sought,  if  it  can  be  supported  upon  prin- 
cir>le.  Yauger  v.  Skinner,  1  McCarter 
(N.  .J.),  389,395. 

5  See  Mansell  v.  Feeney,  2  .J.  &  11.  313, 
318 

6  15  &  16  Vic.  c.  86,  §  10. 
V  Jb.  §2. 

8  Every  bill  is  intituled  "in  Chancery," 
marked  with  the  name  of  the  judge  before 
whom  it  is  intended  to  be  set  down,  and 
headed  with  the  names  of  the  parties  as 
plaintiffs  and  defendants;  see  post,  §  7, 
Printing  and  filing  the  bill. 


FORM    OF    THE    BILL. 


357 


The  attention  of  the  reader  will,  therefore,  be  confined  to  the    Ch.  VL  §  5. 
four  parts  above  enumerated,  as  the  distinct  parts  of  which  a  bill 
now  consists. 


1.  Address  of  the  Hill. 

Every  bill  must  be  addressed  to  the  person  or  persons  who  have 
the  actual  custody  of  the  Great  Seal  at  the  time  of  its  being  filed  :^ 
unless  the  seals  are  in  the  Queen's  own  hand,  in  which  case  the  bill 
must  be  addressexi  "  To  the  Queen^s  Most  Excellent  Majesty  in  her 
Sigh  Court  of  Chancery P  ^ 

If  the  Lord  Chancellor  or  Lord  Keeper  himself  be  a  party,  the 
bill  must,  in  like  manner,  be  addressed  to  the  Queen  ;^  but  in  all 
other  cases,  including  a  case  where  the  Master  of  the  Rolls  is  a 
party,*  the  bill  must  be  directed  to  the  Lord  Chancellor,  or  other 
person  having  the  custody  of  the  Great  Seal. 

Upon  every  change  in  the  custody  of  the  Great  Seal,  or  altera- 
tion in  the  style  of  the  person  holding  it,  notice  of  the  form  in 
which  bills  are  to  be  addressed  is  put  up  in  the  Record  and  Writ 
Clerks'  Office. 


Address  of 
the  bill: 


when  holder 
of  Great  Seal 
sues,  or  is 
sued. 


Notice  of 
change  of 
style. 


2.  Names  and  Addresses  of  the  Plaintiffs. 
It  is  not  only  necessary  that  the  names  of  the  several  plaintiffs  Name  and 
in  a  bill  should  be  correctly  stated,  but  the  dcscrii)ti()n  and  place   J^Jj'i't^ff  must 
of  abode  of  each  plaintiff  must  be  set  out,  in  order  that  the  Court  he  correctly 
and  the  defendants  may  know  where  to  resort  to  com])cl  obedience 
to  any  order  or  process  of  the  Court,  and  particularly  for  the  pay- 
ment of  any  costs  which  may  be  awarded  against  the  ])laintiffs,  or 
to  punish  any  improper  conduct  in  the  course  of  the  suit.^ 


1  In  the  United  States  the  address  of  the 
bill  is  to  the  Court  from  which  it  seeks  re- 
lief, by  its  appropriate  and  technical  de- 
Bcription.  and  the  Address  must  be  viiried 
accordingly.  Story  I"f|.  I'l  §  20.  In  tlie 
Circuit  Courts  of  tbe  United  States  bills  are 
addressf-d  "  To  the  .Judges  ol  tlie  Circuit 
Court  of  the  United  States  lor  the  District 
of,"  &c.  U.  States  Court  Kquity  Kiile,  20; 
Story  K(|.  I'l.  §  26.  In  Ma^.sachusetts  and 
Maine  the  hill  is  addressed  "To  the  Hon- 
orable tlie  .Justices  of  the  Supreme  .lu  licial 
Court."     In  New  Hampshire,  the  addnss 

i.s:    "R s*.     To  the  Supreme  .Iiidiiial 

Court."  Chancery  Huie,  2.  In  New  .ler- 
oey,  "To  tlie  Honoralile  A.  ().  Z,  Chan- 
cellor of  the  S'ate  of  New  .Jersey."  In 
Vermont,  "To  the  Honorable  A.  H  ,  Chan- 
cellor oltiie  First  [o;-hecon(f,  &C.J  .Judicial 
Circuit." 

2  2  West.  Syml).  194,  b.  For  forms  of 
address,  sec  Vol.  III. 

3  4  Vin.  Al).  .3Hr,;  Leg.  .Tud.  in  Ch.  44, 
258;  .lud  Atith.  M  It.  179,  182;  l.d.  Hed. 
7;  Coop.  IC(|.  I'l.  2.'J.  llraithwaite's  I'r. 
20.    In  1  I'rax.  Aim.  463,  i*  a  precedent 


of  a  bill  by  Lord  Chnncellor  .loflories,  ad- 
dressed to  the  King's  iMost  Excellent  Ma- 
jesty, and  praying  his  Majesty  to  grant  tlie 
usual  process  of  Siihpmw  ;  and  in  Vol.  II. 
of  the  same  book,  310,  Is  to  be  found  nn 
answer  to  the  same  bill.  The  linal  decree 
in  such  cas(^s  is,  "  liij  the  Queen's  Most 
Jvxcellcnl  Miijtshi,  in  her  I/if/h  Court  of 
thniicery,"  and  is  signed  by  her.  Leg. 
.Jud.  in  Ch.  254,  256.  In  Lord  Keeper  v. 
Wyld,,  1  Vern.  139,  where  Lord  Keeper 
Cuildlbrrl  and  others  were  plaintilfs,  the 
MasliM-  of  the  liolls  and  one  of  the  Chief 
.Justices  sat  to  decide  the  cause.  Coop.  Ecp 
ri.  2:3. 

■*  See  Leg.  .Iiid.  in  Ch.  41,  where  it  is 
'stated  that  in  the  bitndleoft  'haurery  parch- 
m('Ml'<  in  the  Tower,  there  is  a  hill  liy  .More- 
ton,  K<'cpi'r  of  the  Hulls,  directed"  to  the 
li'iglit  h'cv.  Father  in  God,  Kohert,  Hishop 
of  liath  and  Wells.  ( '..op.  i:<i.  I'l.  23,  n.  ip). 

'>  Ld.  Ued.  42;  and  si'c,  as  to  wlnit  is  a 
sudicient  descriptfon,  Grillith  j).  Uickett.s, 
5  Hare,  19.);  Sibbcring  r.  I'".arl  of  lliilcnr- 
ra-,  1  l)e  V,.  tk  S.  6h3;  12  .Jur.  108.  In 
the  United  States  Courts,  every  bill  in  Iho 


358 


THE   BILL. 


C'li.  VI.  5 


unless  mere 
fiTor. 


It  si'cMiis  that  a  (U'liiunci-  w  ill  lie  (o  a  l)ill  wliicli  docs  not  state 
the  place  of  abode  oC  the  plaiiitillV  :"'<!  ^l>:it  if  the  hill  describes 
tlie  ])laintitf  as  rcsidiiiL;;  at  a  wroiin'  ]ilace,  the  I'act  may  l)e  taken 
advantage  of  l)y  plea:  tliouiih  a  defcmlaiit  cannot  put  in  such  a 
plea,  at\er  a  di'iniUTiT,  upon  tlie  same  uround,  lias  been  overi'ided, 
without  K'a\e  of  tlie  Court.- 

The  modern  ])ractice,  however,  in  such  cases,  is  not  to  demvu",  or 
])k>ad  to  the  bill,  but  to  apply  by  special  motion  or  summons,"  on 
notice  to  the  plaintiff,  tliat  he  may  give  security  for  costs,  and  that 
in  the  mean  time  ])roceedin<is  in  the  suit  may  be  stayed.''  Thus,  in 
/Siiitpson  V.  Jiurton,^  Lord  Langdale  INI.  ]|.  said  :  "There  can  be  no 
doubt,  that  it  is  the  duty  of  a  plaintiff  to  state  his  place  of  resi- 
dence, truly  and  accurately  at  the  time  he  files  his  bill ;  and  if,  for 
the  purpose  of  avoiding  all  access  to  him,  he  wilfully  misrepresents 
his  residence,  he  will  be  ordered  to  give  security  for  costs.  I  do 
not  think  the  rule  extends  to  a  case  Avliere  he  has  done  so  inno- 
cently, and  from  mere  error."  ^  It  is  to  be  observed  that,  in  this 
case,  all  the  plaintiffs  were  incorrectly  described  in  the  bill ;  but 
there  does  not  aj^pear  to  be  any  decision  upon  the  point,  where 
there  ha^e  been  several  plaintiffs,  one  or  more  of  whom  are  cor- 


intro'hictorv  part  thereof,  shall  contain  the 
nnnies,  phices  of  abode,  and  citizenship,  of 
all  the  j)arties,  plaintitl's  and  defendants, 
b_v  and  against  whom  the  bill  is  brought. 

Thus:    "A.  B.,  of ,  and  a  citizen  of 

the    Stiite   of  ,  brings  this,  his  bill, 

asainst  (J!.  D.,  of ,  and  a  citizen  of  the 

State  of ,  and  E.  F.,  of ,  and  a 

citizen  of  the  State  of .     And,"  &c. 

Equity  Rule,  20.  See  Story  Eq.  PI.  §  26; 
1  Smith  Ch.  I'r  (2d  Am.  ed.)  82,  8.3 ;  Dodge 
V.  Perkins,  4  JIason,  435.  It  is  indispen- 
sable in  all  cases  where  the  right  to  bring 
the  suit  in  the  Courts  of  the  TInited  States 
is  founded  on  the  fact,  that  the  plaintilfs 
and  defendants  are  citizens  of  different 
States,  to  allege  that  fact  distinctly  in  the 
bill.  See  Bingham  v.  Cabot,  3  Ball.  382; 
.Jackson  v.  Ashton,  8  Peters,  148.  In  New- 
Hampshire,  "  every  bill  in  the  introductory 
part  shall  contain  the  names,  places  of 
abode,  and  proper  description  of  all  the 
parties,  plaintiff's  and  defendants,  by  and 
against  whom  the  bill  is  brought.  The 
form  in  substance  shall  be  as  follows  : 
'  A.  15.,  of,  &c.,  complains  against  C.  D., 
of,  &c.,  and  E.  F.,  of,  &c.,  and  savs,'  "  &c. 
Chancery  Uule,  2,  38  N.  H.  60.'>. "  By  Rule 
1,  "  The  name  of  the  county  in  which  a. 
suit  in  Equity  maj'  be  brought  shall  be 
written  in  the  upper  margin  of  each  pro- 
ceeding; and  the  words  in  said  county 
shall  refer  to  the  county  in  the  margin, 
unless  the  contrarj-  appears."  38  N.  II. 
605.  A  demurrer  will  be  sustained  to  a 
bill  in  Equity  where  one  of  the  parties  is 
stated  to  be  a  private  corporation,  if  it  is 
not  described  in  substance  as  a  corpora- 
tion established  by  law  in  some  State,  and 


transacting  its  business  in  some  place,  but 
the  defect  may  be  amended.  The  Winni- 
piseogee  Lake  Co.  v.  Young,  40  N.  II.  420. 

1  Winnipiseogoe  Lake  Co.  v.  VVorster, 
29  N.  IL  443;  Winnipiseogee  Lake  Co.  v. 
Young,  40  N.  H.  420. 

2  Rowley  ».  Eccles,  1  S.  &  S.  511 ;  Smith 
V.  Smith,  kay  Ap.  22.  In  Bainbrigge  v. 
Ortoii,  20  Beav.  28,  however,  Sir  John 
R<imilly  ]M.  R.  appears  to  have  doubted 
whether  such  a  plea  can  be  maintained; 
and  if  such  a  plea  is  bad,  so,  it  is  appre- 
hended, would  a  demurrer  be,  where  no 
address  is  stated.  It  is  to  be  observed 
that,  in  Rowley  v.  Eccles,  the  demurrer 
was  overruled,  and  in  Smith  v.  Smith  the 
plea  disallowed.  See,  however,  Sibbering 
V.  Earl  of  Balcarras,  ubi  sup. 

3  Tynte  v.  Hodge,  2  ,7.  &  H.  692. 

4  Sandys  v.  Long,  2  M.  &  K.  487;  see 
also  Bailey  v.  Gundry,  1  Keen,  53;  Camp- 
bell V.  Andrews,  12  Sim.  578;  Bainbrigge 
V.  Orton,20  Beav.  28;  Hutchinson «.  Swift, 
13  W.  R.  532,  L.  .JJ.;  Howe  v.  Harvey,  8 
Paige,  73;  1  Smith  (^h.  Pr.  (2d  Am.  cd.) 
557,  and  note.  For  forms  of  notice  of  mo- 
tion and  summons,  see  Vol.  III. 

5  1  P.eav.  556. 

6  See  also  Watts  v.  Kelly,  6  W.  R.  206, 
V.  C.  W.;  Smith  v.  Cornfoot,  1  De  G.  & 
S.  684;  12  Jur.  200;  Griffith  v.  Ricketts.5 
Hare,  195;  Plaj'er  v.  Anderson,  15  Sim. 
104;  Manby  I'.  Bewicke,  8  De  (i.,  M.  &  G. 
468;  2  .Jur.  N.  S.  671;  Kerr  v.  Gillespie, 
7  Beav.  269;  Knight  v.  Cory,  9  Jur.  N.  S. 
491;  11  W.  R.  254,  V.  C' W. ;  Dick  v. 
Munder,  11  Jur.  N.  S.  819;  13  W.  R.1C'13, 
M.  R.,  where  the  plaintiff  was  allowed  to 
amend,  instead  of  giving  security. 


FORM    OF    THE    BILL.  359 

rectly  described,  and  the  rest  not  so.     It  is  presumed,  however,    Ch.  VI.  §  5. 
fi-om  analogy  to  the  practice  where  there  are  several  plaintiffs,  one 
only  of  whom  is  resident  abroad,^  that  the  Com-t  would  not,  in 
such  case,  require  those  plaintiffs  who  are  not  i)roperly  described 
to  give  security. 

Where  a  bill  is  filed  on  behalf  of  an  infant,  or  person  of  unsound   Address  of 
mind  not  so  found,  it  is  not  necessary  or  usual  to  describe  the   by  ;°nc^^°^ 
plaintiff  by  his  place  of  abode ;  -  because  an  infont  or  person  of  fnend  need 

^  "     .  ■*■  T  not   DG  '^IVGD 

unsound  mind  is  not  responsible  either  for  costs  or  for  the  conduct  but  address  of 

of  the  suit;  the  description  and  place  of  abode  of  the  next  friend  'jjf^'jbl''"'^ 

must,  however,  be  set  out.^     In  the  case  of  a  married  woman  suing  stated. 
by  her  next  friend,  it  is  usual,  but  not  essential,  to  set  out  the  ad- 
dress of  the  married  woman,  but  the  address  of  the  next  friend 
must  be  stated ;  *  and  where  a  married  woman  sues  as  a  feme  sole, 
that  fact  must  be  stated  in  this  part  of  the  bill. 

The  address  of  a  peer  of  the  realm  or  of  a  corporate  body,  suing  Peers  and 

as  plaintiff,  need  not  be  stated  in  the  bill.^  orporationa. 

A  plaintiff  in  a  cross-bill  is  not  required  to  give  secm-ity  for  costs  Plaintiff  in 

on  the  groun.l  of  insufficient  description  of  residence.^  requTred  to"* 

The  defendant  should  apply  that  the  plaintiff  may  give  security  give  security. 

for  costs  as  soon  as  he  becomes  aware  of  the  fact  that  the  plaintiff's  Application 

,  .,,  T  •/.   1       -XL'      1  1  for  security 

addi-ess  is  incorrectly  stated  m  the  bill ;  and  if  the  defendant  takes  for  costs, 
any  active  steps  in  the  cause  after  he  becomes  so  aware,  and  before  ^'^je'^,,,|tbout 
a])] (lying,  it  will  be  a  waiver  of  his  right  to  security.'^  delay. 

The  Order,**  by  which  the  penal  sum  in  the  bond  to  be  given  by   Amount  of 
the  plaintiff  by  way  of  security  for  costs  is  increased  from  40/.  to  security. 
100/.,  only  speaks  of  cases  where,  the  plaintiff  is  out  of  the  juris- 
diction.    It  has,  hoAvever,  been  decided  that  it  api)lies  to  the  case 
now  under  con.sideration,  and  to  all  other  cases  where  security  for 
costs  is  required." 

Where  a  plaintiff  sues  as  executor  or  administrator,  it  is  not  nee-  Executor  or 
cssary  so  to  describe  himself  in  this  part  of  the  bill :  though,  as  we   f,*!"y "'^['"g'^o"'^ 
have  seen  l)efore,  it  is  necessary  that  it  should  a]ipear  in  the  stating   describe 
part  that  he  has  duly  jToved  the  will  or  obtained  administration, 
as  the  case  may  be.^° 

1  See  ante,  p.  28.  c  WiM  v.  ]\Iurrny,  1 8  .lur.  892.  V.  C.  W. ; 

'■i  IJniitliwaite's  I'r.  2.5;  see  forms  in  Vol.  see  iiNo  Vincetit  c.  Ilimter,  5  Hare,  320-; 

HI.  Wattceu  V.  Milium,  :J  De  G.  &  8.  516;  14 

3  This  is  not  altered  by  tlio  cliaufce  in  .Jur.  lt;.5;  Sloggett  »•.  Viarit.  13  Sim.  187. 

practice,  which  rc(|uircs  ii  written  author-  "  Swaii/.y  r'.  Swanzy,  4  K.  &  J.  237;  4 

ity  fnim  tlic  next  frieml  to  be  liled  with  .Jur.  N.  S.  1013. 

the  bill.    Major  ».  Arnott,  2  Jur.  N.  S.  60,  »  Ord.  XL.  6. 

V.C   K  "  IJailey  v.  Gnndrv,  1  Keen,  53,  57;  but 

<  Uraithwaite's  Pr.  21,  25.     If  the  next  see  Atkins  »'.  ('ook,'3  .lur.   N.  S.  283,  V. 

friend  of  a  plaiiiliir  be  uudescribed  in  the  ('.   K.;    Paitington  v.  JJeynolds.  G  W.  U. 

bill,  he  may,  on  "pi'cial  application  by  mo-  307,  V.  (!.  K.,  when;  it  wa«  held  that,  iu 

tion  or  suiiimouH,  be  ordered  to  give  seen-  the  case  of  a  petition,  40/.  is  the  proper 

vity  for  costs;  nee  Kerr  v.  (jillecpie,  and  amount.     P'or  more  on  the  subject  of  secu- 

WutlR  V.  Kelly,  ;////  jiw/<.     l'"or  forms  of  no-  ritv  for  costs,  see  ante,  pp.  27-37. 

tice  of  motion  and  cuinmons,  see  Vol.  III.  1"  yi/i<e,  pp.  318,  319. 

6  lirailhwaite's  I'r.  20. 


■  himself. 


;UK) 


TIJE    BILL 


I'll.  VI.  §  ;■).  Wlieiv  a  plaiiitiir  suos  on  bcliall"  of  liiinscir  and  of  otliovs  of  a, 
similar  class,  it  should  be  so  stated  in  this  ])art  oftlK'  hill ;  and  the 
omission  of  such  a  statement  will,  in  many  eases,  render  a  bill 
liable  to  objection  for  Avaut  of  parties,^  and  in  other  cases  will 
deprive  the  jjlaintiff  of  Ins  right  to  the  whole  of  the  relief  which 
he  seeks  to  obtain.  Thus,  in  the  case  of  a  single-bond  creditor 
suing  for  satisfaction  of  his  debt  out  of  the  personal  and  real  estate 
of  his  debtor,  and  not  stating  that  he  sues  "on  behalf  of  himself 
and  the  other  s})ecialty  creditors,"  he  can  only  have  a  decree  for 
satisfaction  out  of  the  personal  estate  in  a  due  course  of  adminis- 
ti-ation,  and  not  for  satisfaction  out  of  the  real  estate.^ 

3.  Stating  Part. 

With  respect  to  the  manner  in  which  the  })laintift''s  case  should 
be  presented  to  the  Court,  it  is  to  be  observed,  that  whatever  is 
essential  to  the  rights  of  the  plaintiff,  and  is  necessarily  within  his 
knowledge,  ought  to  be  alleged  positively  :  ^  and  it  has  been  deter- 
mined, ui)ou  demurrer,  that  it  is  not  a  sufficient  averment  of  a  fact, 
in  a  bill,  to  state  that  a  plaintiff  "is  so  informed;"*  or  to  say  that 
one  defendant  alleges,  and  the  plaintiff  believes,  a  statement  to  be 
true  ;  ^  nor  is  an  allegation,  that  the  defendant  sets  up  certain  pre- 
tences, followed  by  a  charge  that  the  contrary  of  such  pretences  is 
the  truth,  a  sufficient  allegation  or  averment  of  the  facts  which 
make  up  the  counter  statement.'' 

The  claims  of  a  defendant  may  be  stated  in  general  terms,  and 
if  a  matter  essential  to  the  determination  of  the  plaintiff's  claim 
erj  is  sought,  is  charged  to  rest  within  the  knowledge  of  a  defendant,  or  must 
of  neeessity  be  within  his  knowledge,  and  is  consequently  the  sub- 
ject of  a  part  of  the  discovery  sought,  a  precise  allegation  is  not 
required." 


Facts  ir.ust 
be  allejred 
positivily; 


except  fad  s 

concerning; 

which'disrrv- 


1  Ante,  p. '237. 

2  Bedford  v.  Leigh,  2  Dick.  707;  May  v. 
Selbv,  1  Y.  &  C.  <J.  C  235;  Connolly  v. 
M'lJermott,  3  .Jo.  &  Lat.  260;  Ponsford  v. 
Hartley,  2  J.  &  H.  736;  Johnson  v.  Comp- 
ton,  4  Sim.  47;  ante^  p.  235.  If,  however, 
a  defect  of  this  description  nppear  at  the 
hearinfj,  the  Court  will  allow  the  case  to 
stand  over,  with  liberty  to  the  plaintiff' to 
amend,  ibid.  ;  Biscoe  v.  Waring,  liolls,  7 
Aug.,  1835,  MS.;  see  Storv  Kq.  PI.  §  100, 
note;  Casby  ?;.  Wicklilfe,  7  B.  INIoti.  120. 
Or  the  bill  innj-  be  ordered  to  be  taken 
Hs  a  bill  on  behalf  of  the  other  creditors. 
Woods  V.  Sovverby.  14  \V.  K.  0,  V.  C.  W. 

3  Ld.  Ked.  41;"l)arthez  v.  Clemens,  6 
Beav.  165,  169;  Monday  v.  Knight,  3 
Hare,  497,  502;  Padwick  v.  Hurst,  18 
Beav.  575;  18  Jur.  703;  Baiiibri"ge  v. 
Moss,  3. Jur.  X.  S.  58,  V.  C.  W.;  Duck- 
worth V.  Duckworth,  35  Ala.  70;  Moran 
V.  I'almer,  13  Mich.  307;  Mclntyre  v. 
Wright,  6  Paige,  239.  An  allegation  in  a 
bill  that  the  plaintiff  "  has  been  informed 


and  believes,  and  therefore  avers,"  is  a 
sufficiently  positive  averment.  Wells  v. 
Bridgeport,  &c.  Co.,  30  Conn.  316.  The 
pleader  should  aver  the  fact  on  his  infor- 
mation and  belief,  and  not  his  information 
and  belief  that  tiie  fact  exists.  Nix  v. 
Winter,  35  Ala.  309. 

4  Lord  Uxbridge  v  Staveland,  1  Ves.  S. 
50 ;  Lucas  v.  Oliver,  34  Ala.  626 ;  Cameron 
V.  Abbott,  30  Ala.  46;  Jones  v.  Cowles,  26 
Ala.  612. 

^  Kgremont  v.  Cowell,  5  Beav.  620,  622; 
Hodgson  V.  Kspinasse,  10  Beav.  473;  Nix 
V.  Winter,  35  Ala.  309. 

6  Flit  t  );.  Field,  2  Anst.  543;  Houghton 
V.  Pieynolds,  2  Hare,  207;  7  Jur.  414. 

"!  Ld.  Red.  42;  Aikin  v.  Ballard,  Rice 
Oh.  13;  Story  Eq.  PI.  §  255.  A  bill  in 
Equity,  brought  by  a  partner  against  his 
copartner,  for  an  account,  &c  ,  wherein  it 
is  averred  that  tlie  defendant  has  all  the 
partnershij)  books  and  papers  in  his  pos- 
session, or  under  his  control,  and  refuses  to 
permit  the  plaintiff'  to  examine  them,  need 


FORM    OF    THE    BILL. 


361 


In  general,  however,  a  plaintiff  must  state  upon  his  hill  a  case  Ch.  VL  §  5. 
upon  which,  if  admitted  by  the  answer,  or  proved  at  the  hearing,  "  ^^  -^ 
the  Court  could  make  a  decree  ;i  and,  therefore,  where  a  bill  was  Sufficient 

n  •  ,    ,        T         i  •       must  be 

filed  to  restrani  a  deiendant  fi-om  settmg  u])  outstandmg  terms,  m   averred  to 
bar  of  the  plaintifi"s  right  at  law :  not  stating  that  there  were  any  *ouiid  decree, 
outstanding  terms  or  estates,  but  merely  alleging  that  the  defend- 
ant threatened  to  set  up  some  outstanding  term,  or  other  legal 
estate.  Sir  Lancelot  Shadwell  V.  C.  allowed  a  demurrer,  on  the 


not  contain  such  certainty  and  particu- 
larity of  statement  as  would  be  held  nec- 
essary if  the  piaintift'  had  access  to  those 
books  and  papers.  Towie  v.  Pierce,  12 
Met.  329 :  Crockett  v.  Lee,  7  Wheat.  522 ; 
Storv  Eq.  Pi.  §  257;  Knox  v.  Smitli,  4 
How.  U.  S  298;  Capel  r.  McColium,  27 
Ala.  461 ;  Miller  v.  Thatcher,  9  Texas,  482; 
Jones  V.  Brinker,  20  Mis.  (5  Bennett)  87. 

1  Perrv  v.  Curr,  41  N.  H.  371 ;  Crockett 
i;.  Lee,  "7  Wheat.  522;  Story  Eq.  PI. 
§  257;  Knox  v.  Smith,  4  How.  U.  S. 
298;  Capel  v.  McCollum,  27  Ala.  461; 
Miller  v.  Thatcher,  9  Texas,  482;  Jones 
V.  Brinker,  20  Mis.  (5  Bennett)  67.  Care 
must  be  taken  that  every  averment  neces- 
sary to  entitle  the  piaintift"  to  the  relief 
prayed  for,  should  be  contained  in  tiie 
stating  part  of  the  bill.  Story  Eq.  PI. 
§  32;  Wkite  v.  Yaw,  7  Vt.  357";  Perrv  v. 
Carr,  41  N.  H.  371;  Wright  v.  Dame',  22 
Pick.  55;  Kunkel  v.  iMarkell,  26  Md.  408. 
This  part  of  the  bill  should  be  full  and  ac- 
curate, for  if  a  plea  is  put  in,  the  validity 
of  the  plea  will  be  decided  with  reference 
to  the  ^tatnig  part  of  the  bill,  and  not  with 
reference  to  the  interrogatory  part,  if  it 
varies  from  it.  Story  Eq.  Pi.  §  27;  see 
Macnamara  v.  Sweetman,  1  Ilogan, 
29;  Mechanics'  Bank  v.  Levy,  3  I'aige, 
600;  Coles  v.  Buciianan,  3  Ired.  Ch.  374. 
Where  the  stating  part  does  not  show  the 
equity  of  the  plaintiff's  case,  the  defect 
cannot  be  supplieil  by  inference,  or  by 
reference  to  averments  in  other  parts  of 
the  bill.  Wright  v.  Dame,  22  Pick.  55; 
see  to  the  same  point,  Harrison  v.  Nixon, 
9  Peters,  503 ;  Shepard  v.  Shnpard,  0  (.'onn. 
67;  Dnckwortii  v-  Duckworth,  35  Ala.  70; 
Ma'<on  V.  Poster,  3  J.  J.  Marsh.  284;  Le- 
crafc  V.  Deinpsev,  15  Wend.  S3;  Yancv  v. 
Feuwick,  4  Men.  &  M.  423;  IMitchefl  v. 
Maupin,  3  Monroe,  ^8:  Crocker  v.  Hig- 
pins,  7  Conn.  342;  Hol)art  v.  Fri-bie,  5 
Conn.  592;  Blake  r.  II inkle,  10  Yerger, 
218;  Taliaferro  r.  Foot,  3  I.eigh,  58;  Hood 
V.  Inman,  4  .loliii.  Ch.  437;  (chambers  y. 
Chahnnrs  4  (Jill  &  ^.  420;  K^tep  v.  Wat- 
kins,  1  HIand,  486;  Townshend  i).  Duncan, 
2l{land,  45;  (Jrove  r  Hcntch,  26  M<1.  367, 
377;  Walkinni'.  Sto(k<'tt,6  Ilarr.  &  J.  445; 
Tinuns  v.  Shannon,  19  Md.  312.  The  plain- 
till' will  not  be  perniitli-'l  tootferor  require 
evid'-ncc  of  any  niat''rial  fact  not  distinctly 
Mated  in  the  j)remiH(!S.  See  Storv  Eq-  I'l. 
6§  28,  257;  Crr.ckett  r.  I.ee,  7  Wheat.  632; 
Jackson  v.  A.shton,  11  Pcter.s,  229;  Rowan 


V.  Bowles,  21  III.  17;  Sprigg  v.  Albin,  6  J. 
J.  Marsh.  158 ;  Skinner  v.  Bailey,  7  Conn. 
496.  He  cannot  recover  on  a  case  different 
from  that  alleged.  Sanborn  v.  Kittredge, 
20  Vt.  632;  Gibson  v.  Car.son,  3  .\la.  421; 
Harding  V.  Handy,  11  Wheat.  103;  Jack- 
son V.  Ashton,  11  Peters,  229.  A  general 
statement  or  charge,  however,  of  the  mat- 
ter-of-fact, is  sufHcient;  and  it  is  not 
necessary  to  charge  minutely  all  the  cir- 
cumstances which  may  conduce  to  prove 
the  general  charge ;  for  these  circumstances 
are  properly  matters  of  evidence,  which 
need  not  be  charged  in  order  to  let  them 
in  as  proofs.  Storv  Eq.  PI.  §  28;  Nesmith 
v.  Calvert,  1  Wood"&M.34;  Lovellv.  Far- 
rington,  50  Maine,  239;  Rogers  v.  Ward, 
8  Allen,  387.  On  the  other  hand,  the 
charge  may  be  substantially  made  by 
stating  the  facts  from  which  the  fraud  or 
mistake  would  be  necessarily  implied. 
Courts  of  Equity  derive  their.  juris<iiction 
from  the  facts  alleged,  not  from  the  terms 
used  in  setting  them  out.  Grove  v.  Kentch, 
26  Md.  307,  377;  see  Harding  v.  Handv, 
11  Wheat.  103,  120,  121;  see  further  to 
these  points,  Dillv  v.  Ileckrott,  8  Gill  & 
J.  171;  Morrison'v.  Hart.  2  Bibb,  4;  Le- 
master  v.  Burkhart,  2  Bibb,  26;  Crocker 
V.  Iligffins,  7  Conn.  342 ;  Buck  v.  IMcCaugh- 
trv,  5  Monroe,  220;  Bank  of  United  States 
»."  Shultz,  3  Ohio,  62;  Anthony  v.  Left- 
wich,  3  Rand.  263;  Boone  v.  Chiles,  10 
Peters,  177;  Jackson  v.  (^artwright,  5 
Munf  314;  Aikcns  v.  Bullard,  1  Rice  Eq. 
13;  IJishop  v.  Bishop,  13  Ala.  475;  White 
V.  Yaw,  7  Vt.  357;  The  Camden  and  Am- 
boy  K.R.  (Jo.  V.  Stewart,  4  C.  E.  Green 
(N.J.).  343.  But  where  the  facts  stated 
in  the  bill  are  disproved,  or  are  defectively 
stated,  relief  may  begrantetl  upon  the  (acts 
stated  in  the  answer.  Maury  r.  Lewis,  10 
Yerger,  115;  Rose  r.  Mvnatt,  7  Yerger,  30; 
M'Laughlin  v.  Daoiel,  8  Dana,  184;  Dealty 
i;.  Murphy,  3  A.  K.  Marsh.  474;  but  see 
Thomas  v.  Warner,  15  Vt.  110;  Storv  En. 
]•!.  §§  257.  264;  West  v.  Hall,  3  llaVr.  & 
J.  221;  Ivlwards  v.  Mjisscy,  1  Hawks. 
359.  Rule  4  of  the  Massachusetts  Rules  of 
Practice  in  (Jhancery,  requires  that  ''the 
bill  shall  contain  a  clear  ami  explicit  state- 
ment of  the  ijlaintiff's  case."  In  Maine, 
"  the  bill  must  set  f^rth  clearly,  succinctly, 
and  precis'dy,  the  facts  and  causes  of  com- 
plaint, without  circuuilocutii'n  or  repeti- 
tion."    Rule  1,  37  Maine,  561,  Appx. 


362 


THE    BILL. 


I'll.  VI.  S 


Seisin  in  fee, 
how  allc'red. 


Possession  of 
a  chattel  real. 

Seisin  of 
things 
manurable  ; 

not  manur- 
able. 


Words  to 

enlarge 

meaning. 


Technical 
expressions 
not  absolutely 
neces.sary. 


Lrroiiutl  that  the  bill  oiiL!;lit  to  liave  statcul  wliat  tlio  outstanding 
tonii  or  estate  was.^ 

Altln)uiili  thi'  rules  of  j)k'atUnijj  in  Courts  of  Equity,  especially 
in  the  ease  of  hills,  are  not  so  strict  as  tliose  adopted  in  Courts  of 
Law,  yet,  in  franiinu'  ]>leadino;s  in  Ecpiity,  the  draftsman  will  do 
Avi'll  to  adhere  as  closely  as  he  can  to  the  ujeneral  rules  laid  down 
in  the  books  whit-h  treat  of  Common  Law  i)leadini!:s,  whenever 
such  rules  are  ap])licable  to  the  case  which  lie  is  called  upon  to 
present  to  the  Court  r'^  for  there  can  be  no  doubt,  that  the  stated 
forms  of  descri])tion  and  allef>;ation  which  are  adojjted  in  })leadings 
at  Law  have  all  been  duly  debated  under  every  possible  considera- 
tion, and  settled  upon  solemn  deliberation,  and  that,  having  been 
established  by  long  usage,  experience  has  shown  them  to  be  jirefer- 
able  to  all  others  for  conveying  distinct  and  clear  notions  of  the 
subject  to  be  submitted  to  the  Court ;  and  if  this  be  so  at  Law, 
there  appears  to  be  no  reason  why  they  should  not  be  considered 
as  equally  applicable  to  pleadings  in  Courts  of  Equity,  in  cases 
where  the  object  of  the  pleader  is  to  convey  the  same  meaning  as 
that  affixed  to  the  same  terais  in  the  ordinary  Courts.  Thus,  as 
at  Law,  if  a  man  intends  to  allege  a  title  in  himself  to  the  inheri- 
tance or  fi-eehold  of  lands  or  tenements  in  possession,  he  ought 
regularly  to  say  that  he  is  seised  j'  or,  if  he  allege  possession  of  a 
term  of  years,  or  other  chattel  real,  that  he  is  possessed ;  ^  if  he 
allege  seisin  of  things  manurahle.,  as  of  lands,  tenements,  rents,  &c., 
he  should  say  that  he  was  seised  in  his  demesne  as  of  fee  ;  and  if 
of  things  not  manurable,  as  of  an  advowson,  he  should  allege  that 
he  is  seised  as  of  fee  and  right,  omitting  the  words  in  his  detnesne^ 
so  that  there  seems  to  be  no  reason  Avhy  the  same  forms  of  expres- 
sion should  not  be  equally  proper  in  stating  the  same  estates  in 
Equity.  It  is,  indeed,  the  general  practice,  in  all  well-drawn  j)lead- 
ings,  to  insert  them,  although  they  are  frequently  accompanied 
wdth  other  words,  which  are  sometimes  added  by  way  of  enlarging 
their  meaning,  and  of  extending  them  to  other  than  mere  legal 
estates.  Thus,  in  stating  a  seisin  in  fee,  the  words  "  or  otherwise 
well  entitled  to^''  are  frequently  added :  although  it  would  seem 
that,  in  some  cases,  the  addition  of  these  words  w^ould  be  incorrect, 
and  might  render  the  allegation  too  uncertain.^ 

In  recommending  the  use,  in  pleadings  in  Equity,  of  such  tech- 
nical expressions  as  have  been  adopted  in  pleadings  at  Common 


1  Stansburj'  v.  Arkwriglit,  6  Sim.  481, 
485;  see  also  Jones  v.  Jones,  3  Mer.  161, 
175;  Barber  v.  Hunter,  cited  ih.  170,  173; 
Frietas  v.  Dos  Sandos,  1  Y.  &  .1.  574.  If 
the  bill  founds  the  right  against  the  defend- 
ant upon  the  fact  of  his  having  notice,  it 
should  charge  such  notice  directly,  other- 
wise it  is  not  matter  in  issue  on  which  the 


Court  can  act.     Story  Eq.  PI.  §  263,  and 
cases  in  note. 

2  See  The  Camden  and  Amboy  R.Il.  Co. 
V.  Stewart,  4  C.  E.  Green  (N.  J.),  343, 346. 

3  Stephen  on  PI.  233,  242;  Whitworth 
Eq.  Prec.  162,  n.  et  sea. 

4  Jbid. 

6  Baring  v.  Nash,  1  V.  &  B.  551. 


FORM    OF    THE    BILL. 


363 


Law,  it  is  not  intended  to  suggest  that,  in  Equity,  the  use  of  any 
particuhir  fonn  of  words  is  absohitely  necessary,  or  that  the  same 
thing  may  not  be  expressed  in  any  terms  which  the  draftsman  may 
select  as  proper  to  convey  his  meaning,  provided  they  are  adequate 
for  that  purpose.^  All  that  is  contended  for  is,  that  notwithstand- 
ing the  looseness  with  which  j^leadings  in  Courts  of  Equity  may, 
consistently  with  the  principles  of  those  Courts,  be  Avorded,  yet, 
where  it  is  intended  to  express  things  for  which  adequate  legal  or 
technical  exj>ressions  have  been  adopted  in  pleadings  at  Law,  the 
use  of  such  expressions  will  be  desirable,  as  best  conducing  to 
brevity  and  clearness.  Assuming,  therefore,  that  even  in  plead- 
ings in  Equity  the  same  fonn  of  words  as  are  used  in  pleadings  at 
Law  may  generally  be  introduced  with  advantage,  the  reader's 
attention  Avill  here  be  directed  to  some  of  the  rules  adopted  in 
legal  pleadings,  which  may  with  good  eftect  be  adojjted  in  Equity. 

Thus,  it  is  a  rule  in  pleading,  at  Common  Law,  that  the  nature 
of  a  conveyance  or  alienation  should  be  stated  according  to  its 
legal  effect,  rather  than  its  form  of  words  ;^  and  this  is  in  substance 
enjoined  by  the  General  Order,^  which  dii-ects  "that  deeds,  writ- 
ings, or  records  be  not  unnecessarily  set  out  in  pleadings  in  hcec 
verba,  but  that  so  much  of  them  only  as  is  pertinent  and  material 
be  set  out  or  stated,  or  the  eifect  and  substance  of  so  much  of  these 
only  a«  is  pertinent  and  material  be  given,  as  counsel  may  deem 
advisable,  without  needless  prolixity."  •* 

It  may  be  observed,  however,  that  although  it  is  desirable,  in 
stating  instruments,  that  the  above  Order  should  be  adhered  to, 
and  that  the  substance  only  of  such  instruments  as  are  necessary 
to  be  set  out  should  l)e  stated,  without  re])eating  them  in  hmc  verba, 
yet  cases  may  arise  in  which  it  is  convenient  to  state  Avritten  docu- 
ments in  their  very  words.  This  occurs,  whenever  any  question 
in  the  cause  is  likely  to  turn  upon  the  precise  words  of  the  instru- 
ment, as  in  the  case  of  bills  filed  for  the  establishment  of  a  particu- 
lar cf)nstruction  of  a  will  which  is  informally  or  inartificially  worded: 
in  sucli  bills,  the  words  which  are  the  subject  of  the  discussion 
ought  to  be  accurately  set  out,  in  order  more  specifically  to  point 
the  attention  of  the  Court  to  tliem.  Indeed,  Avherever  informal 
iiistruriicnts  are  insisted  on,  upon  the  construction  of  Avhich  any 
ditliculty  is  likely  to  arise,  as  is  frequently  the  case  in  agreements 


Ch.  VI.  §  5. 


Legal  effect 
only  of  deeds 
should  be 
stated. 


Documents, 
■when  to  be 
set  out  in 
hcec  verba : 


Where  ques;- 
tion  turns 
upon  particu- 
lar words ; 

as  in  wills, 


or  informal 
instruments 


1  See  IJidKly  r.  IJonrl,  18  Md.  433;  Bol- 
cinno  v.  ('ooke,  19  Md.  376;  Grove  v. 
licntch,  2R  Md.  307,  .'377. 

'■*  St<'pheii  on  I'l.  2.17;  see  1  f'hitty  V\. 
(Otli  Am.  f<l.)  305;  Andrews  v.  Williams, 
11  Conn.  .T2C;  Morris  t'.  Fort,  2  M'( 'ord, 
3!t8;  Lent  r.  rn<|clfonl.  10  Muss.  230; 
Ilopkinn  V.  YoiMif;,  11  Mass.  307;  Walsh 
V.  (iihner,  3  Ilarr.  &  .1.  407;  Grannis  v. 
Clark,  8  Cowcn,  36;  Kidgley  r.  Kiggs,  4 


Ilarr.  &  .1.  363 ;  Silver  v.  Kendrick,  2  N. 
H.  160;  Osborne  r.  Lawrence,  9  Wend. 
135;  Crocker  i'.  Whitney,  10  Mass.  320; 
Goodwicli  V.  IJodney,  1  iNIin.  195. 

•'  Ord.  VI IF.  2. 

4  Sec  2Gth  U.  States  F.qnifv  Rule;  Oood- 
ricli  V.  liodn('3',  I'Min.  VM>\  kule  2  of  New 
Jersey  Chancery  Itulcs,  2  Met  'arter  ( .\.  .1. ), 
613;  Tlic  Ciimilen  and  Ambov  U.K.  Co.  v. 
Stewart,  4  C.  E.  Green  (N.  J."),  343. 


364 


THE    BILL. 


Cm.  VI.  ^  5. 


OKI  practice 
of  leaving 
document 
with  clerk 
in  Court, 


discontinued. 


Where  not 
required  at 
Common 
Law,  written 
instruments 
need  not  be 
stated. 


rcdueod  into  wiitiii":!;  liy  persons  wlio  liavo  not  boon  professionally 
0(luo;itO(l,  ov  Avliioli  ;n'o  insistod  on  ns  ri-siiltinu;  from  a  writton  cor- 
rospondonoo :  in  idl  sncli  casos,  tlio  writlon  instninionls  rolicd  on, 
or  at  least  tlio  material  ]>arts  of  them,  sliotdd  1)C  set  out  in  hcvc  verba. 
So  also,  in  bills  lilcd  for  the  purpose  of  carryino:  into  effect  Avritten 
ai'ticles,  upon  the  construction  of  which,  although  they  are  formally 
drawn,  questions  are  likely  to  arise,  such  articles  or  so  much  of 
them  as  are  likely  to  give  rise  to  questions,  should  be  accurately 
stated.  In  many  cases  also,  the  expressions  of  an  instrument  or 
writing  are  such  that  any  attempt  to  state  their  substance,  with- 
out introducing  the  very  words  in  which  they  are  expressed,  would 
be  ineffectual :  in  such  cases,  also,  it  is  best  that  they  shoidd  be  set 
forth ;  and  where  a  deed  or  agreement,  or  other  instrument  relied 
upon  by  the  plaintiff  has  been  lost  or  mislaid,  and  is  not  forthcom- 
ing, it  may  be  useful,  if  it  can  be  done,  to  set  out  the  contents  of 
the  instrument  at  length,  in  order  to  obtain  an  admission  of  the 
contents  from  the  defendant  in  his  answer. 

It  may  be  observed  here  that,  according  to  the  old  practice  of 
the  Court,  when  a  plaintiff  wished  to  obtain  from  a  defendant  an 
admission  as  to  a  particular  deed  or  instrument  in  his,  the  plain- 
tiff's, own  possession,  it  was  usual  to  leave  the  deed  or  other  in- 
strument in  the  hands  of  the  plaintiff's  clerk  in  Court,  and,  having 
stated  that  flict  in  the  bill,  to  pray  that  the  defendant  might  in- 
spect it,  and  after  inspection  answer  the  interrogatories  applicable 
to  the  subject.-^  This  j^ractice,  however,  has  been  for  a  long  time 
discontinued ;  and  it  is  now  considered  sufficient  to  state  upon  the 
bill  the  date,  parties'  naiiies,  and  substance  of  the  deed  or  instru- 
ment relied  upon  by  the  plaintiff,  and  then,  by  interrogatory,  to 
require  the  defendant  to  set  forth  whether  a  deed,  of  the  nature  of 
that  set  forth,  was  not  duly  executed  by  and  between  the  2:>arties 
stated,  or  some,  or  one,  and  which  of  them,  and  whether  the  deed 
does  not  bear  the  date,  and  is  not  to  the  purport  or  effect  before 
set  out,  or  of  some,  and  what  other  date,  or  to  some,  and  what 
other  purport  and  effect.  This  form  of  statement  and  interroga- 
tory is  calculated  to  draw  from  the  defendant,  either  an  admission 
or  denial  of  the  deed,  and  of  all  knowledge  of  it,  or  of  its  execu- 
tion, date,  and  contents ;  or  else  a  statement  of  the  defendant's 
knowledge  or  belief  of  the  parties  by  whom  it  was  executed,  and 
of  its  date,  tenor,  and  effect. 

With  reference  to  the  subject  of  stating  written  instruments,  it 
may  be  observed,  that  it  is  a  rule  in  pleading  at  Law,  that  where 
the  nature  of  a  conveyance  is  such  that  it  would,  at  Common  Law, 


1  Per  Lord  Eldon,  in  The  Princess  of 
Wales  V.  The  Earl  of  Liverpool,  1  Swanst. 
123.    Maps,  plans,  trade-marks,  &c.,  may 


however,  still  be  deposited  at  the  Record 
and  Writ  Clerks'  oflice,  and  referred  to  in 
tiie  bill.    Braithwaite's  Pr.  25. 


FOEM    OF    THE    BILL. 


365 


be  valid  mthoiit  deed  or  writing,  there  no  deed  nor  writing  need 
be  averred,  though  such  document  may  in  tact  exist ;  but  where  the 
nature  of  the  conveyance  requires,  at  Common  Law,  a  deed  or 
other  written  instrument,  such  instrument  must  be  alleged.^  The 
same  rule  has,  it  would  seem,  been  adopted  with  respect  to  plead- 
ings in  Equity;  thus,  in  stating  a  conveyance  by  bargain  and  sale, 
it  is  not  essential  to  state  that  it  was  enrolled :  for  though  such  a 
process  is  rendered  necessary  by  statute,  it  was  not  so  at  Common 
Law.^ 

In  a  bill  for  specific  performance  of  an  agx-eement  relating  to 
land,  it  is  however,  necessary  to  allege  that  the  agreement  is  in 
writing :  ^  otherwise,  the  bill  will  be  demurrable ;  but  it  is  not  nec- 
essary to  allege  that  it  has  been  signed :  *  because,  from  the  state- 
ment that  it  is  in  writing,  it  is  necessarily  to  be  inferred  that  it  has 
been  signed.^ 

It  may  be  noticed,  in  this  place,  tbat  wliere  an  agreement  relied 
iq^on  in  a  bill  is  to  be  collected  from  the  letters  between  the  parties, 
the  letters  may  be  stated  in  the  bill,  either  as  constituting  the  al- 
leged agreement,  or  as  evidence  of  an  alleged  parol  agreement. 
In  the  first  case,  the  defendant  may  insist  that  they  do  not  make 
out  a  concluded  agreement,  and  that  no  intrinsic  evidence  can  be 
received  ;  in  the  latter,  he  may  plead  the  Statute  of  Frauds.*^ 

It  is  upon  the  principle  above  referred  to,  that  although  stamj)- 
ing  is,  by  sundry  Acts  of  Parliament,  rendered  necessary  to  the 


Ch.  VL  §  5. 


Secus,  where 
required. 


Bargain  and 
sale,  witliout 
aveiring 
enrolment. 


Agreement 
relating  to 
lai)d  nmst  be 
alleged  to  be 
in  writing; 

but  allegation 
of  signature 
notnecessary. 

Letters 
containing 
agreement, 
may  be 
stated,  as 
constituting 
it,  or  as 
evidence. 


Stamp  need 
not  be 
averred. 


1  Stephen  on  PL  2.3S,  2Sr,  288. 

2  See  Harri-dn  v.  Hogg,  2  Yes.  J.  327. 
Where,  it  is  nUeged  th'at  a  mortgagoe  "  by 
his  assignment  in  writing  on  said  deed, 
sealed  wiMi  hi-*  seal"  (date  and  considera- 
tion stated),  "conveyed  and  assigned  to 
the  plaintitlall  his  right,  title,  and  interest 
in  the  same,  together  with  the  debt  se- 
cured thereliy,  and  all  his  claims  in  and  to 
the  mortgage,  all  which  will  more  fully 
appear  by  said  deed  aiul  assignment  when 
produced  in  ("ourt,"  it  was  lield  sudicient 
on  demurrer,  although  there  was  no  allega- 
tion in  the  bill  that  the  assignment  was 
acknowled^ied  find  recorded.  Lovell  v. 
l''arriiigt<in,  50  Maine,  2.39. 

3  Whitchurch  r.  lievis,  2  Rro.  C.  C.  559, 
5GS;  liedding  r.  Wilkes,  .3  Bro.C.  C  400.; 
I'.arkworth  ?;.  Young,  4  Drew.  1;  .3.Jur.  X. 
S.  .34;  Woo'l  r.  .Midgeley,  5  De  Cr.,  M.  & 
('•.  41;  see  I'iercy  v-  Adams,  22  (ieo.  101). 
I'art-perlormsince  of  a  contract  williin  the 
Stntuje  of  Frauds  must,  in  order  to  entitle 
a  partv  to  ndief,  be  e.\i)ressly  stated  in  the 
bill.  Sen  Mrach  r  Stcne,  1  I).  (:hi|>.  182. 
As  to  the  effect  of  part-jierfurmance,  and 
what  wid  amount  to  a  part-perlonnance 
RulKcient  to  take  a  case  out  of  the  statute, 
»ee  Whitchurch  v.  Heavis,  2  Uro.  (;.  C. 
(Perkins's  ed.)  0')<>,  note  (ci),  and  cases 
cited;  Whitebread  v.  I'rockliurst,  1  id. 
404,  and  cases  cited  m  notes;  2  Story  Eq. 


Jur.  §§  759-767;  Newton  v.  Swasey,  8  iST. 
H.  9;  1  Sugden,  Vend.  &  Pur.  (7th  Am. 
ed.)  140  el  seq.,  and  hotes.  A  trust  need  , 
not  be  alleged  to  be  in  writing,  but  it  is 
suflRcient  it  the  trust  is  proved  by  writing 
at  the  hearing;  see  Davies  v.  Ottv,  10  Jur. 
N.  S  506;  12  W.  K.  682,  M.  \i.:  ib.  896, 
L.J.J.;  33  Beav.  540;  2  De  G.,  J.&  S.  238; 
and  see  Forster  r.  Hale,  3  Ves.  696 ;  Ran- 
dall V  Morgan,  12  Ves.  74,  and  cnmp.  the 
4th  and  7tli  sects,  of  Stat,  of  F'rauds.  Peas- 
ley  /'.  Parnev,  1  I).  Chip.  333;  see  Hobart 
t'.' Andrews,"  21  Pick.  526,  534;  Ontario 
B:ink  V.  lioot,  3  Paige,  478;  Coquillard  v. 
Suvdani,  8  Bhickf  24. 

i  Ki-t  V.  IK.bson,  1  S.  &  S.  543;  Bark- 
worth  iv  Young,  4  Drew.  1;  3  .Jur.  N.  S. 
34;  see  Story  Kq.  PI.  §§  253,  762;  Cosine 
V.  Graltam,  2  Paige,  177;  Coles  v.  Boone, 
10  Paige.  535;  (Ontario  Paiik  v.  11(01,  3 
Piiige,  478;  Hobart  v.  Andrews,  21  Pick. 
534;  liichards  v.  Richards,  9  Gray,  314; 
Sterm  v.  Drinker,  2  F.  D.  Smith  (N.  Y.), 
401;  1  Chitty  PI  (9ih  Am.  ed.)  303,  304; 
Nelson  V.  Dubois,  13  .John.  177;  Cleaves 
V.  Fos«,  4  Greenl.  1;  Wullis  v.  F'razier,  2 
Nott.  iS;  McC.  180. 

6  Harkworlli  v.  Young,  nbi  sup. 

0  liine  V.  Hletchlcv,  OMad.  17;  Skinner 
r.  ISI'Douidl,  2  De  G.  &  S.  205;  12  Jur. 
741;  Sugd.  V.  &,  P.  149;  Dart,  V.  &  P., 
649. 


366 


FORM    OF    THE    BILL. 


Cn.  VI.  §  5. 


Instnimont 
Croat  0(1  liy 
statute  imi.-it 
be  statiil, 
with  all  lir- 
ciinistances 
required. 


^YiIl  must  be 
averred  to 
have  been 
duly  made. 


As  to  state- 
ments under 
the  Enf;rav- 
ings  Co]iv- 
right  Acts. 


valulity  of  ;i  v.iiioty  of  instrnnionts,  it  is  not  neccssaiy,  nor  is  it 
even  usual,  iu  [ileadings,  to  aver  tliat  such  instruments  liavc  been 
duly  stanii)e(l. 

It  is  to  be  (,)bsorve(l,  also,  that  the  rule  of  jileadiiig  above  re- 
ferred to  a])jilies  only  to  eases  iii  which  the  neeessity  for  a  con- 
veyance or  agreement  being  in  writing,  is  superadded  by  statute 
to  things  which  at  Common  Law  might  have  been  by  parol ; 
but  where  a  thing  is  originally  created  by  Act  of  Parliament,  and 
retpiired  to  be  in  Avriting,  it  must  then  be  stated,  Avith  all  the 
circumstances  required  by  the  Act.  Thus,  it  was  neccissary  to 
allege  that  a  devise  of  lands  (which  at  Common  Law  is  not  valid, 
and  Avas  first  authorized  by  the  statutes  32  Hen.  VIII.  c.  1,  and  34 
lien.  VIII.  c.  5)  hatl  been  made  in  Avriting,  Avhich  is  the  only  form 
in  Avhich  those  statutes  authorize  it  to  be  madc.^ 

It  seems,  hoAvever,  that  it  is  sufficient,  under  the  present  Wills 
Act,^  to  allege,  that  a  will  has  been  duly  made,  or  duly  made  in 
Avriting ;  and  that  it  is  not  necessary  to  allege  the  signature  and 
attestation,  as  required  by  the  Act.^ 

Some  doubt  appears  to  be  entertained  wliether,  in  suits  under 
the  8  Geo.  II.  c.  13,  and  7  Geo.  III.  c.  38,*  by  Avhich  the  property 
in  certain  prints  is  vested  in  the  inventors  for  a  certain  number  of 
years  from  the  day  of  publishing,  it  is  necessary  to  state  that  the 
name  of  the  engraver  and  date  of  the  print  have  been  engraved 
on  the  print,  as  required  by  the  first-mentioned  Act.  In  J3lackwell 
V.  Harper,^  Lord  HardAvicke  was  of  opinion,  that  the  clause  in  the 
Act  was  only  directory,  and  that  the  property  was  vested  abso- 
lutely in  the  engraver,  so  as  to  entitle  him  to  sue,  although  the  day 
of  publication  Avas  not  mentioned,  and  compared  it  to  the  clause 
under  the  statute  of  Anne,®  which  required  entry  at  Stationers' 
Ilall :  upon  the  construction  of  Avhich  it  had  been  determined  that 
the  i)roperty  A'ests,  although  the  direction  had  not  been  complied 
Avith.  Lord  EUenborough  also  held,  at  nisi  prius^  that  an  action 
might  be  maintained,  although  the  proprietor's  name  Avas  not  in- 
scribed :  observing,  that  the  interest  Avas  vested  by  the  statute, 
and  tliat  the  Common  LaAV  gave  the  remedy.^  On  the  other  hand, 
it  appears  to  have  been  taken  for  granted  by  tlie  Court  of  King's 
Bench,  in  the  case  of  Thomjyson  v.  iSymonch,^  though  it  became 
unnecessary  to  decide  the  point,'  that  both  the  name  and  the  date 
should  appear ;  an.d  in  Harrison  v.  Ilogg^^  Lord  Alvanley  M.  R. 


1  Stephen  on  PI.  239. 

2  7  AVill.  IV.  &  1  Vic.  c.  2C. 

3  Hyde  v.  Edwards,  12  Beav.  IGO;    13 
Jur.  7.57. 

4  These    Acts   are    amended    and    ex- 
plained bv  17  (Jeo.  III.  c.  67 ;  G&  7  Will.  IV. 

"c.  59,  Ir.;  15  &  16  Vic.  c.  12;  see  Phillips 
on  Copyright,  Chap.  VIII. 
'o  2  Atk.  93,  95;  i3arn.  210,  213. 


6  8  Ann.  c.  19,  repealed  by  5  «Sc  6  Vic. 
c.  45. 

7  Bcckfordr.  IIood,7T.  K.  C20;  and  see 
Duller  V.  AValker,  cited  2  Atk.  94. 

8  Koworth  V.  AVilkes,  1  Campb.  94. 

9  5  T.  It.  41. 

10  2  Ves.  .1.  327.  The  Copyright  Act  of 
5  &  0  Vic.  c.  45,  as  to  Books,  has  been 
held  to  include  Engravings  in  Books;  so 


FORM    OF    THE    BILL. 


367 


Stated  that  he  inclined  to  diifer  from  Lord  Hardwicke,  and  that  it 
was  his  opinion  that  the  insertion  of  the  name  and  date  was  essen- 
tial to  the  plaintiff's  right. 

It  has  been  before  stated,  that  it  is  a  rnle  in  pleading,  that 
whenever  at  Common  Law  a  written  instrument  was  not  necessary 
to  complete  a  conveyance,,  it  is  not  necessary  in  pleading  to  aver 
it,  although  such  an  instrument  has  been  rendered  necessary  by 
statute,  and  has  been  executed.  The  converse  of  this  is  also  a 
rule,  so  that,  whenever  a  deed  in  Avi'iting  is  necessary  by  Common 
Law,  it  must  be  shown  in  jileading ;  therefore,  if  a  conveyance  by 
way  of  grant  be  pleaded,  a  deed  must  be  alleged :  because  matters 
that  "  lie  in  grant,"  according  to  the  legal  phrase,  can  pass  by  deed 
only.-^  Thus  in  Himning  v.  Willis^  where  the  plaintiff  filed  a  bill 
for  tithes,  and  set  up  by  way  of  title  a  jiarol  demise  by  the  impro- 
priator for  one  year,  the  defendant  demurred  for  want  of  title  in 
the  plaintiff,  and  the  plaintiff  submitted  to  the  demurrer.  Upon 
the  same  gi'ound,  in  Jackson  v.  Benson^  where  the  bill  j^rayed 
an  account  of  tithes,  and  merely  stated  that  the  impropriate  rector 
demised  the  tithes  to  him,  a  demurrer,  put  in  by  the  defendant, 
was  considered  to  be  well  founded;' and  in  Williams  y .  Jones^^ 
the  same  objection  was  taken  at  the  hearing,  and  would  have 
prevailed,  had  it  not  ajjpeared  that  the  impropriators  had  origi- 
nally been  made  parties  to  the  suit,  but  had  been  dismissed  in 
consequence  of  theh'  having  disclaimed  all  interest  in  the  tithes 
in  question.^ 

It  may  be  noticed  here  that,  in  stating  deeds  or  other  written 
instruments  in  a  bill,  it  is  usual  to  refer  to  the  instrument  itself,  in 
some  such  words  as  the  following,  viz.^  "  as  by  the  said  indenture^ 
rohen  produced^  icill  appeaxr  The  effect  of  such  a  reference  is  to 
make  the  whole  document  refeiTed  to  part  of  the  record.  It  is  to 
be  observed,  that  it  does  not  make  it  evidence :  in  order  to  make 
a  document  evidence,  it  must,  if  not  admitted,  be  proved  in  the 
usual  way ;  but  the  effect  of  referring  to  it  is  to  enable  the  plaintiff 
to  rely  upon  every  part  of  the  instrument,  and  to  prevent  his 
being  precluded  from  availing  himself,  at  the  hearing,*  of  any 
jiortiou,  either  of  its  recital  or  operative  l)art,  which  may  not  be 
inserted  in  the  bill,  or  which  may  l>e  inaccurately  set  out.  Thus, 
it  seems  that  a  plaintiff  may,  by  his  bill,  state  simjjly  the  date  and 
general  pur])ort  of  any  particular  deed  or  instrument  under  which 
he  claims,  and  that  such  statement,  provided  it  is  accom])anied  by 


that  tlie  provisions  of  8  Geo.  IL  c.  13,  need 
not,  in  sucli  ca<e,  be  coin|)lied  with.  Bogue 
i\  Iloulston,  .J  I)e  G.  &  S.  207;  Ifi.Iur.  372. 
Under  this  Act,  however,  |)a}'nK'nt  for  an 
article  writti;n  for  a  [xTiodical  must  be 
alipj^ed.  I^iciiardson  v.  (iilbert,  1  Sim.  N. 
S.  3.36;  1.5  ,Jur.  380;  but  see  I'hillips  on 
Copyright,  170. 

1  Stephen  on  I'l.  239. 


2  3  Wood,  29;  2  E.  &  Y.  188. 

8  M'CIel.  62;  13  I'ri.  131. 

4  VouiiK^',  2.J2. 

^  Voiiii^c,  2').1;  and  see  nnU,  p.  211. 

fi  liut  on  the  argument  of  a  demurrer, 
he  cannot  avail  himself  of  the  portion  not 
set  out.  Utirmer  v.  (Jooding,  3  1  )e  (J.  &  8. 
407,  410;  Cuddon  r.  Tito,  1  Uill'.  395;  4 
Jur.  N.  S.  579. 


Cii.  VI.  §  5. 


Instrument 
in  writing,  if 
necessary  at 
Law,  must  be 
averred : 


Where  things 
lie  in  grant, 


as  tithes. 


Reference  to 
instruments; 


makes  them 
part  of  record, 

but  not 
evidence. 


THE    RILL. 

n  rororencc  to  the  deed  itsolC,  will  be  suftlcicnt.  As  in  Pauncefort 
V.  Lord  Lincoln^^  where  the  ])l;rnitift"'s  el;uins  were  founded  on  a 
variety  of  deeds,  wills,  and  other  instruments;  hut  to  avoid  ex- 
])ense,  or  for  sonu^  other  purpose,  the  dates  and  <j,eneral  purport 
only  of  sueh  instruments  were  stated  in  tlie  bill,  with  reference  to 
tliem.  This  manner  of  stating  the  case  does  not  ap2iear  to  have 
been  considered  as  a  ground  of  objection  to  the  l>ill ;  but  Mdicn 
the  cause  was  brought  to  a  liearing,  Sir  Thomas  Clarke  M.  R.  re- 
ferred it  to  the  master  to  state  the  rights  claimed  l)y  the  plaintiff 
under  the  several  instruments  mentioned  in  the  bill,  and  reserved 
costs  and  further  directions  until  after  the  rejiort,  and  the  cause 
was  afterwards  heard,  and  a  decree  made,  on  the  report,  which 
.  stated  the  instruments.  It  is  obvious  that  the  method  of  stating 
the  plaintiff's  title  adopted  in  the  above-mentioned' case,  w^as  one 
of  great  inconvenience ;  and  although  it  has  been  referred  to  here, 
it  is  by  no  means  from  a  wish  to  recommend  its  adoj^tion  as  a 
precedent.  It  is  always  necessary,  in  (b-awing  bills,  to  state  the 
case  of  the  plaintiff  clearly,  though  succinctly,  upon  the  record ; 
and  in  doing  this,  care  should  be  taken  to  set  out  precisely  those 
deeds  which  are  relied  upon,  and  those  parts  of  the  deeds  which 
are  most  important  to  the  case.^ 
Of  the  Although  the  same  precision  of  statement  is  not  required  in 

required:  ^^^^^  in  Equity  as  in  pleadings  at  Law,  yet  it  is  absolutely  necessary 
that  such  a  convenient  degree  of  certainty  should  be  adopted,  as 
may  serve  to  give  the  defendant  full  information  of  the  case  which 
he  is  called  \ipon  to  answer.^  In  Cresset  v.  Mitton^  Lord  Thurlow 
observed,  "si)ecial  pleading  depends  upon  the  good  sense  of  the 
thing,  and  so  does  pleading  here ;  and  though  pleadings  in  this 
Court  run  into  a  great  deal  of  unnecessary  verbiage,  yet  there 
must  be  something  substantial;"  and  in  Lord  Redesdale's  Treatise 
it  is  said,  that  the  rights  of  the  several  parties,  the  injury  com- 
plained of,  and  every  other  necessary  circumstance,  as  time,  place, 
manner,  or  other  incidents,  ought  to  be  plainly,  yet  succinctly, 
alleged.^  And,  in  several  cases,  demurrers  have  been  allowed  to 
bills  on  the  ground  of  the  vagueness  and  uncertainty  of  their 
statements.*^     Upon  the  same  principle,  a  mere  allegation  that  the 

1  1  Dick.  362.  dolph  v.  Daly,  1  C.  E.  Green  (N.  J.),  313, 

2  Martin  v.  McBrvde,  3  Ired.  Cli.  531;        318. 

King  V  Trice,  3  Ired'.  Flq.  568.  ^  1  Ves.  .1.  450;  3  Bro.  C.  C  482 

3  See  Kunkel  v.  Markell,  26  Md.  408;  6  L,l.  Ked.  41. 

Droullard  t\  Baxter,  1  Scam.  192;  Rogers  <>  Wormald    v.   De   Lisle,  3    Beav.   18; 

f.  Ward,  8  Allen,  387;  Chapman  v.  Hunt,  Boyd  v.  Movie,  2  Corl.  316,  323;  Kelly  v. 

1  McCarter  (N.  .J  ),  149;  White  v.  Empire  Rogers,   1  Jur.  N.  S.  514,  V.  C.  W.;    see 

A=s.  Corp.  L.  R.  6  Kq.  23;    Story  Eq.  PI.  also   Vernon  v.   Vernon,  2  M.  &  C.  146 

%t\'dttitq.     General  certainty  is'.suHicient  171 ;  Reed  i;.  O'Brien,  7  Beav.  32,  37,  39 

in  pleadings  in  Equity.  Story  Eq.  I'l.  §  253;  Darthez   v.   Clemens,   6    Beav.    165,  169 

an^e,  360-362,  notes";    l're.=cott   v.  Everts,  Parker  u.  Nickson,  4  Giff.  306;  9  .Jiir.  N 

4  Wis.  314;  Paterson  &  Ilud.  R.R.  Co.  v.  S.  196;  Affd.  ?6.  451;  1  DeG.,  J.  &  S.  177 

Jersey  City,  1  Stockt.  (N.  J.),  434;  Ran-  but  see  Chouteau  v.  Rice,  1  Min.  106. 


FORM    OF    THE    BILL.  369 

defendant  is  a  trustee  for  the  plaintiff,  not  supported  by  the  facts    Ch.VL§5. 

stated,  ^vill  not  prevent  a  demurrer;^  and  so,  a  statement  that  a    ' y ' 

defendant  chiimed  an  interest  as  purchaser  under  an  alleged  agree- 
ment, but  that  such  agreement,  if  any,  had  been  long  since  aban- 
doned and  waived,  was  held  insufficient  to  prevent  a  demurrer 
by  that  defendant.-  However,  where  in  a  bill  for  specific  per- 
formance of  an  agreement  to  take  an  assignment  of  a  lease,  the 
plaintiff  stated  a  covenant  in  the  lease  not  to  assign  without 
license  of  the  lessor,  and  did  not  aver  that  the  plaintiff  had  or 
could  obtain  such  a  license :  there  being  no  statement  of  a  proviso 
for  re-entry  on  default,  the  Court  overruled  a  demurrer,  and,  at 
the  hearing,  directed  a  reference  to  inquire  whether  the  plaintiff 
could  make  a  good  title.^ 

With  respect  to  the  allegation  of  time,  it  is  to  be  observed  that,  in  alleging 
where  it  is  material,*  it  ought  to  be  alleged  with  such  a  degree  of  ^™®' 
accuracy,  as  may  prevent  any  possibility  of  doubt  as  to  the  period 
intended  to  be  defined.^  Thus,  in  prescribing  for  a  modus  in  a 
bill,  it  is  necessary  that  a  time  for  the  payment  of  it  should  be 
mentioned ;  ®  and,  formerly,  it  appears  to  have  been  considered, 
that  not  only  the  day  of  payment  should  be  mentioned,  but  that 
laying  the  day  of  payment  on  or  about  a  particular  day  was  too 
uncertain.'  It  has,  however,  been  decided  that,  in  ordinary  cases, 
the  laying  of  an  event  on  or  about  a  certain  day  of  a  certain 
month  or  year,  is  a  sufficient  specification  of  time.  In  the  case  of 
LeUjh  V.  Leifjh,^  the  bill  i)i-ayed  that  the  defendant  might  be 
restrained  from  setting  up  a  term  of  500  years,  in  bar  of  an  action 
of  ejectment  which  the  plaintiff  had  brought  against  the  present 

1  Jackson  v.  The  North  Wales  Railway  it  of  the  essence,  and  releases  the  other 

Company,  6  Hail.  t'a.   11'2;    13  Jur.  69;  party  upon  failure  to  comply  within  the 

Steedman  v.  Marsh,  2  Jur  N.  S.  391,  V.  time.     Fry  Specit.  I'ert.  §§  711,  713;  Heiie- 

^-  W.  (iiciv  V.  Lynch,  1  John.  Ch.  370;   Wells  v. 

^  Hodgson  V.  Espinasse,  10  I3eav.  473,  Smith,  7  Paige,  22;  (irigg  v.  Landis,  4  C. 

^'J.  E.Green  (N.  J.),  303,  3.-)4;    I'lckerhig  y. 

^  Smith  V.  Capron,  7  Ihire,  185;  14  Jur.  I'lckering,  38  N.  H.  400;  I'ennock  v.  Ela, 

6^*'-  189,  191.     In  all  cases  of  an  agreement  to 

<  On  the  subject  of  the  materiiility  of  convey  htuds,  where  the  value  of  the  prop- 
time,  see  Seton  w.  Shide,  7  Sun)ner"s  Vesey,  erty  concerned  litis  materiallv  changed, 
205  Perkins's  note;  .Maniuis  of  llertlord  or  where  great  linanciid  changes  have 
V.  iJuore,  5  irl.  719,  note  (</),  and  cases  materially  altered  the  relative  value  of 
cited;  2  Story  E(|.  Jur,  §  770,  ami  notes;  money  and  land,  time  will  be  consiilered 
iJichinoiid  r.  (ir.iy,  3  Allen,  25.  material,  and  a  party  will   not  be  allowed 

In  i;(iuity,  time  is  often  regarded  as  not  to   lie    by    until   the'  change   sets   in    his 

of  the  essence  of  a  contract.    Snowman  v.  favor,  and  then  ask   for  specilic  perform- 

llurford,  o5  Maine,  197;  Hull  r.  Noble,  40  anee.     Young  c.  l.'aihboiie,  1  C.  E.  (Jreen 

Maine,  459;  Rogers  y.  Siiiiii.lers,  10  Miiine,  (N.  J.),  224;    Merritt  v.    IJrown,  4  C.  E. 

92;  but  where  it  is  of  the  essence,  it  will  be  Green  (N.  J.),  293. 

insisted  on  as  well   in   Ivpiity  iis  at  Law.  f^  See  Sauni  y.  Stingley,  3  Clarke  (Iowa), 

Griggi;.  Landis,  4(J.  E.  <;ieeii(N.  J.),  350;  514. 

Mcrnit  ».  Bruwn,  4  C.  E.  Green  (N.  J.),  8  Goddardu.  Keeble,  Bunb.  105;  Phillips 

293.     It  is  of  the  essence  of  a  contract,  v.  S\  nies,  ib.  171.  • 

cither  when,  from  the  nature  or  subject-  "  "Pilackel  r.  Einnev,  i'i.  198. 

matter  of  the  eonlraet,  it  is  niaierinl  that  s  Uefo  re  the  Lord  Commissioners,  Aug. 

It  should  lie  perlormed  at  liie  time,  or  when  C  and  8,   1835. 
the  contract  by  express  stipulations,  makes 

VOL.   I.  2i 


370 


TIIK    RILL. 


Cii.  VI.  s 


and  other 
incidents: 


in  bills  to 
establish  a 
right  of  way ; 


or  bills  for  the 
discovery  of 


lH)Ssessl"»r,  :nnl  ;illi>uv(l  tlcit  llic  |)l:iiiitiff"s  title  accrued  on  llie 
ilcHth  oi"  an  intli\  itlual  nami'd,  which  liai)])enc(l  on  or  about  the 
*J(1  .Inly,  18tK).  The  di'londant  deintirretl,  on  the  iiround  tliat  the 
])erio(l  alK-oc'd  in  the  bill,  as  the  time  of  the  death  of  the  individ- 
ual named,  was  more  tlian  twenty  years  (the  period  required  by 
the  Stat,  a  &  4  Will.  IV.  c.  27,  §§  2  aiul  24,  to  bar  suits)  before 
the  tilins;  of  the  bill,  which  took  place  in  1834.  When  the  de- 
murrer was  iirst  argued,  Sir  Lancelot  Shadwell  V.  C.  was  of  opin- 
ion, that  the  words,  on  or  about  the  2d  July,  1806,  did  not  fix 
any  precise  date,  and  that  it  might  meau  many  years  before  or 
many  years  after  that  time ;  and  overruled  the  demurrer.  Upon 
appeal,  however,  the  Lords  Commissioners,  Pepys  and  Bosanquet, 
reversed  the  decision :  being  of  opinion,  that  from  the  known  and 
accepted  use  of  the  expression,  "on  or  about,"  in  all  the  ordinary 
transactions  of  life,  it  was  sufficiently  definite  for  all  the  pur])oses 
of  demurrer,  and  did  satisfactorily  set  out  the  fact,  that  the  person 
named  died  in  the  year  1806,^ 

With  respect  to  the  certainty  required,  in  setting  out  the  other 
incidents  in  the  plaintiff's  case,  the  following  cases  will  serve  to 
show  what  degree  of  it  is  required  under  the  circumstances  to 
which  they  refer.  In  the  case  of  Cresset  v.  Mitton^  before  alluded 
to,  a  bill  had  been  filed  to  perpetuate  testimony  to  a  right  of  com- 
mon and  of  way,  and  it  stated  "  that  the  tenants,  owners,  and 
occupiers  of  the  said  lands,  messuages,  tenements,  and  heredita- 
ments, in  right  thereof  or  otherwise,  have,  from  time  w^hereof  the 
memory  of  man  is  not  to  the  contrary,  had,  and  of  right  ought  to 
have,"  &C.  To  this  bill  a  demurrer  was  put  in :  one  of  the  grounds 
lor  which  was,  that  it  was  not  stated  as  to  what  messuages  in  par- 
ticular the  rights  of  common  and  of  way  were  claimed ;  and,  in 
allowing  the  demurrer.  Lord  Thurlow  said,  "  you  have  not  stated 
whether  the  right  of  way  and  common  is  appurtenant  and  ap])end- 
ant  to  the  land,  that  you  hold ;  and  you  state  it  loosely  that  you 
have  such  right  as  belonging  to  your  estate,  or  otherwise,  so  that 
your  bill  is  to  have  a  commission  to  try  any  right  of  common  and 
way  whatever."  The  same  doctrine  appears  to  have  been  held  by 
Lord  Keeper  North,  in  Gell  v.  Ilayward^  who,  upon  a  bill  to  per- 
petuate the  testimony  of  witnesses  touching  a  right  of  way,  held, 
that  in  such  a  bill  the  way  ought  to  be  laid  exactly  per  et  trans,  as 
in  a  declaration  at  Law.  And  so,  in  Myves  v.  Hyves,*  where  a  bill 
was  filed  for  a  discovery  of  title  deeds,  relating  to  lands  in  the 


'1  See  also  Richards  v  Evans,  1  Ves.  S. 
30;  Huberts  V.  Williams,  12  Kast,  33;  see, 
as  to  words  "  short! v  after,"  Baker  v. 
Wetton,  14  Sim.  426;  "9  Jur.  98;  and  as  to 
worfis  "  soon  after,"  Kdsell  v.  Buchanan, 
4  Bro.  C.  C.  254. 
2  3  Bro.  C.  C.  481;  1  Yes.  J.  449. 


3  1  Vern.  312. 

4  3  Ves.  343;  see  &ho  Loker  v.  Rolle,  ib. 
4,  7;  I^ast  India  Company  v.  Henchtiian, 
1  Ves.  J.  287,290;  and  see  Houj^hton  v. 
Keynold.s,  2  Hare,  264;  7. Jur.  414;  Munday 
V.  Knight,  3  Hare,  497,  and  reporter's 
note,  ib.  601;  S.  U.  8  Jur.  904. 


F0R31    OF    THE    BILL. 


371 


possession  of  the  defendant,  and  for  the  delivery  of  the  possession 
of  such  lands  to  the  jolaintift",  upon  a  loose  allegation  that,  under 
some  deeds  in  the  custody  of  the  defendants,  the  plaintiff  was 
entitled  to  some  interest  in  some  estates  in  their  possession,  but 
without  stating  what  the  deeds  were,  or  what  the  property  was  to 
which  they  appUed,  a  demurrer  was  allowed. 

The  principle  which  requires  a  sufficient  degree  of  certainty  in 
the  statement  of  a  bill,  hasbeen  further  illustrated  in  the  case  of 
iStansbury  x.  ArAtcri(/ht,^  before  referred  to,  where  a  bill  to  re- 
strain a  defendant  from  setting  up  outstanding  tenns  in  bar  to 
the  plaintiff's  claim  at  Law,  was  held  to  be  demun-able,  on  the 
ground  that  it  did  not  allege  what  sort  of  term  or  estate  was 
outstanding. 

The  rule  which  prescribes  that  a  plaintiff  cannot  sustain  a  bill, 
unless  he  has  employed  sucli  a  degree  of  certainty  in  setting  out 
his  case  as  may  enable  the  defendant  to  ascertain  the  precise 
grounds  upon  which  it  is  filed,  appKes  to  all  cases  in  which  a 
person  comes  to  a  Court  of  Equity  for  relief  upon  a  general 
allegation  of  error,  without  specifying  particulars ;  ^  and  if  a  per- 
son, seeking  to  open  a  settled  account,  files  his  bill  without  such 
a  specification  of  errors,  he  will  not  be  pemiitted  to  prove  them 
at  the  hearing,  even  though  the  settlement  of  the  account  is  ex- 
pressed to  be,  errors  excepted :  which  is  the  usual  form  observed 
in  settling  accounts.^  And  it  should  be  noticed,  that  where  a 
plaintiff  files  a  bill  for  a  general  account,  and  the  defendant  sets 
forth  a  stated  one,  the  plaintiff  must  amend  his  bill :  because  a 
stated  account  is  ^)/-/m«/aae  a  bar  till  the  particular  errors  in  it 
are  assigned.^  Ujion  the  same  ground  it  has  been  held,  that  an 
award  is  a  bar  to  a  bill  brought  for  any  of  the  matters  intended 
to  l>e  bound  In'  it ;  and  that  if  a  bill  is  filed  to  set  aside  the  aAvard 
as  not  being  final,  the  specific  objections  to  it  must  be  stated  upon 
the  bill.« 

It  is  to  be  remarke<l,  that  in  most  of  the  cases  above  cited,  the 


Cn.  VI.  §  5. 


or  to  restrain 
the  setting  up 
outstanding 
tenns ; 


1  6  Sim.  4S1,  4H.5 

2  Taylor  f.  Ilayliri,  2  Uro.  C.  C.  310;  1 
Cox,  4;j.');  Joliei-on  r.  Curiis,  3  Bro.  C.  C. 
2«i;  ;  Cock  re  II  v.  (Jurlev,  2«  Ala.  405; 
Prt'sliajte  t'.  iV-ii(lleton, '24  Mi'^s.  feO;  Ca- 
toii  V.  Willih,  i>  Ired.  JC(|  330  ;  I'n'scott  v. 
Kvcrt.",  4  Wis.  314;  DlthiI^  v.  l)(;niiis,  15 
M<1.  73;  .Mcwshaw  t'  Mew-liaw,  2  M<1.  Ch. 
l)pc.  12  ;  Walton  v.  Cody,  1  vS  is.  420; 
Coi.nors  r.  ('onnor-i,  4  Wis.  112;  IJadger  V. 
Uailger,  2  Wallace  U.  S.  87. 

3  .lotinMin  V.  Curtis,  u/ji  sup.  ;  1  Storv  Eq. 
Jur.  §§  .023,  527  ;  .Story  K(|.  I'l.  §§  251  j  800 ; 
Ciilvit  r.  Markliaui,  3  How.  (Mi-s  )  343; 
Mi.'l>ani;  r.  Melmm-,  1  In-fl.  )•:<).  403;  I)e 
Aloiitiiion-ni'y  r.  l).-vcifux,  1  Dm.  iSi  W. 
II'.';  I.i-avcriitt  i'.  Dcmpicv,  15  Wenil.  >>3; 
liaker  t.  Uiddle,  1  IJald.  3'j4,  41«;  IJain- 


bridfje  r  Wilcocks,  ib.  536,  540;  Consequn 
V.  ['"aniiing,  3  John.  Cli.  587;  S.  C.  17 
Ji'lin.  511;  Taylor  v.  Hayljn,  2  Hro.  C.  C. 
(I'erkin-'s  cd.)  311,  noie  (a),  and  cases 
cited;  Ji'hns'in  v.  Curiis,  Sid.  267,  note  (fi); 
Br>wiiell  V  ISrownell,  2  id.  63,  note  (a); 
but  see  Sliugurt  v.  Tlioinpson,  10  Leigh, 
434. 

■•  Dawson  V.  Dawson.  1  Atk.  1;  Story 
Eq.  PI.  798;  Brown  v.  Vandyke,  4  ilalst. 
Cli.  (N.  J.)  7'j5.  Tliis  rule  ouppo;-es  tlyit 
Hn  account  iias  been  given  by  the  det'enil- 
iint.  Vandyke  v.  IJrowii,  4  Halst.  Cli. 
(N.  J.)  657  ;  as  to  what  are  settled  ac- 
couiit.s.  see  CroCt  v  Graliain,  9  .lur.  N.  S. 
1032,  V.  C.  S.  ;  9  L.  T.  N.  S.  689,  L.  J.J.; 
2  De  G,  J.  &  S.  155. 

6  Kouth  V.  I'each,  2  Aust.  519. 


or  for  relief  on 
the  ground  of 
error ; 


or  to  open 
settled 
accounts ; 


or  where 
defendant 
sets  up  a 
stated 
account ; 

or  an  award. 


Objection 
taken  by 
demurrer. 


TIIK    BILL. 


Cii.  VI.  §  5.     tiuost ion  has  come  boforo  tlie  Court  upon  ilcimnicr,  which  seems 

"— — Y '    to   be    tlu'    i>roi)er   way  in   wliich    a  (lefeiidant  ought  to  take  tlie 

objection  th;it  a  bill  is  (K'lieient  in  c(.'rtainty :  it"  he  neglects  to  <lo 
so,  it  seems  t hat  in.'  cannot  avail  himst'lt"  ot"  tlie  objection  at  the 
liearing.^ 

As  a  general  rule,  conclusions  of  law  need  not  be  averred ;  but 
where  certain  tacts  are  stated  from  Avhich  it  is  intended  to  draw  a 
conclusion  of  law,  the  bill  ought  to  be  so  framed  as  to  give  notice 
to  the  defendant  of  the  ]>laintilf's  intention  to  insist  on  such  con- 
clusion:  otherwise,  he  will  not  be  allowed  to  do  so.  Thus,  in  a 
bill  for  specific  performance  of  an  agreement  to  sell  a  leasehold, 
the  plaintiii"  Avas  not  allowed  to  insist  that  the  defendant  had 
waived  his  right  to  inquire  into  the  landlord's  title :  because, 
although  he  had  stated  in  his  bill  facts  from  which  the  waiver 
might  be  inferred,  he  had  not  alleged  the  waiver.^ 


OwK-hisioiis 
ot"  law  need 
not,  in 
gejieniJ,  be 
averred. 

Exception. 


4.   Charge  of  Confederacy. 

It  was  formerly  customary  in  almost  every  bill  to  introduce  a 
general  charge  of  confederacy  against  the  defendants.^  There  is 
no  such  statement  in  the  model  of  a  bill  given  by  the  General 
Orders,  and  it  is  scarcely  necessary  to  say  that  such  a  charge  woidd 
now,  except  under  very  special  circumstances,  be  deemed  idle  and 
impertinent. 

5.   Charging  Part.^ 

It  was  formerly  the  practice  of  pleaders  in  Equity  to  state  the 
plaintitt" 's  case  in  the  bill  very  concisely,  and  then  if  any  matter 
was  introduced  into  the  defendant's  plea  or  answer,  which  made  it 
necessary  for  the  plaintiii'  to  jjut  in  issue,  on  his  part,  some  addi- 


1  Carcw  V.  Johnston,  2  Sch.  &  Lcf.  280. 

2  Clive  f.  Beaumont,  1  De  G.  &  S.  31*7; 
13  Jur.  22fj;  (jaston  «.  Fraukum,  2  De  G. 
&  S.  oGl;   16  Jur.  507. 

3  See  P.artdii,  33,  note  (1)  ;  Cooper  Y.<\. 
PI.  10;  1  IL-ff.  Ch.  Fr.  41.  The  genernl 
charge  of  l'rau<lulent  combination,  &c.,  is 
not  sufficient  to  charge  fiaud;  tliere  must 
be  a  specitic  allegation  of  fraud,  stating  the 
facts.  Lewis  v.  Lewis,  y  Missou.  183;  but 
see  Farnliam  v.  Brooks,  9  Pick.  212,  219. 
Altlioiigli  the  churyt  vf  conj'tdtracy  is  now 
usually,  but  not  invariably,  inserted  in 
bills,  yet  it  '\A  treated  as  mere  surplusage; 
so  much  so,  that  it  is  said,  that  the  geneial 
charge  of  combination  need  not  be  (al- 
though it  usually  is)  denied  or  responded 
to  in  the  answer,  when  chiirged  in  ilie  bill; 
for  It  is  mere  iin|jertiiience.  Story  Kq.  PI. 
§  29.  By  the  2Lst  Lquity  Kule  of"  the  Su- 
preme Court  of  the  United  States,  January 
J'enn,  1842,  it  is  provided,  that  the  plain- 
tiii" shall  be  at  liberty  to  omit  at  his  option 


the  p'.irt  which  is  usually  called  the  com- 
mon confederacy  clause  of  the  bill,  aver- 
ring a  confederacy  between  the  defendants 
to  injure  or  defraud  the  plaintiff'.  By  the 
7th  Chancery  Rule  m  JIassachusetts,  it  is 
provided,  that  the  common  c-harge  of  fraud 
or  combination  shall  be  omitted,  except  in 
cases  where  it  is  intended  to  charge  Iraud 
and  combination  specifically.  See  Adams 
V.  Porter,  1  Cusli.  170.  And  in  New 
Hampshire,  it  is  held  that  the  allegation 
of  conlederacy  is  not  essential,  except 
where  it  is  intended  to  charge  fraud  and 
combination  specifically.  Stone  v.  Ander- 
son, 26  N.  IL  606.  And  by  rule  of  Court 
in  that  State,  the  charge  of  confederacy 
may  be  omitted.  Kule  in  Chancery,  3,  38 
Is'.  IL  605,  Appx.  In  Maine  it  must  be 
omitted.  Ciiancery  Hule  1,  37  Maine,  581. 
■*  The  form  of  such  a  charge  is  given  in 
Van  lleythuysen's  Equity  Draftsman,  p.  5, 
and  in  Barton,  p.  34;  Story  Eq.  PI.  §§  31, 
33,  and  notes. 


FORM    OF    THE    BILL.  373 

tional  fact  in  avoidance  of  snch  new  matter,  such  new  fact  was    Ch.  VI.  §  5. 

placed  ujion  the  record  by  means  of  a  special  replication.     In 

order  to  avoid  the  inconvenience,  delay,  and  unnecessary  length 

of  pleadino;,  arising  from  tliis  course  of  proceeding,  the  ])ractice 

grew  up,  when  the  ])laintiff  was  aware  at  the  time  of  liUng  liis  bill 

of  any  defence  which  might  be  made  to  it,  and  had  any  matter 

to  allege  which  miglit  avoid  the  effect  of  such  defence,  to  insert 

an  allegation  that  the  defendants  pretend,  or  set  up  such  and  such 

allegations  by  way  of  defence,  and  then  to  aver  the  matter  used 

to  avoid  it  in  the  form  of  charge.     This  was  commonly  called  the 

charging  part  of  the  bill,  and  its  introduction  into  practice,  in  all 

probability,  led  to  the  discontinuance  of  special  replications,  by 

enabling  the  plaintiff  to  state  liis  case,  and  to  bring  forward  the 

matter  to  be  alleged  in  reply  to  the  defence  at  the  same  time,  and 

that  without  making  any  admission,  on  the  part  of  the  plaintiff,  of 

the  truth  of  the  defendant's  case.     Thus,  if  a  bill  were  filed  on 

any  equitable  ground,  by  an  heir  who  apprehended  his  ancestor 

had  made  a  will,  he  might  state  his  title  as  heir,  and  alleging  the 

will  by  way  of  pretence  on  the  part  of  the  defendants  claiming 

under  it,  make  it  a  part  of  his  case  without  admitting  it. 

Such  was  the  origin  of  what  was  called  the  charging  ])art  in  a 
bill,  and  there  is  no  doubt  that  in  many  cases  it  is  still  convenient, 
and  may  be  made  the  means  of  enabling  the  plaintiff  to  state  his 
answer  to  some  antici])ated  defence,  or  to  guard  his  statement  by 
allegations  which  could  not  conveniently  be  inserted  in  the  text. 
The  model  of  a  bill,^  it  will  be  observed,  contains  no  charging 
jiart,  and  such  a  mode  of  statement  can  never  be  said  to  be  abso- 
lutely necessary;-  but  there  are  cases  Avhere  it  may  still  be  useful, 
though  the  comparative  simplicity  of  modern  pleading  will  dimin- 
ish most  materially  the  occasions  for  its  use.^ 

1  Vol.  III.  3  See  Aiken   v.   Rallanl,  Rice  Eq.  13; 

2  Story  Kq.  IM  §§  .32,  32  a,  33,  and  note.  M'Crea  ?;.  Purmort,  IG  Wend.  400;  Haw- 
By  the  I'>|iiity  Itiiien  of  the  Siipreme  Court  ley  v.  VVolvertoii,  T)  I'aifrc,  522 ;  ISreciianics' 
ot'  the  Uniteil  States,  the  plMiiitiH'  is  at  IJank  v.  Levy,  3  Paiire,  60(5;  Stall'ord  v. 
llherty  to  omit,  at  his  oiition.  whiit  is  com-  Urown,  4  Paige,  88;  Story  Eq.  i'l.  §  31; 
moiily  call-^d  the  char^itif;  ])arl  of  the  hill,  Parkers  Carter,  4  Munt'.  273;  1  MolV  Cii. 
net'.in;;  forth  the  matters  or  excuses  which  Pr.  42.  If  tlie  |)hiintifr  wishes  to  obtain  a 
the  defendant  is  supfioserl  to  intend  to  pet  discover^'  of  facts  to  antiiip  ite  and  rebut 
up,  l)y  wav  of  dclcnce  to  tiie  bill.  And  the  defence-  wiiicli  may  I)e  set  up  h_v  the 
the  p'ainliir  may,  in  the  n:irr:itivo  or  defendant,  he  should,  in  the  char^ini!;  part 
ctaiini;  p. irt  of  his  bill,  state  and  avoid,  by  of  the  bill,  state  the  anticiiiati'd  defence 
counter  averments,  at  his  option,  any  as  a  pretence  of  the  dercndanr,  and  then 
niitter  or  thinj;  which  he  supposes  will  be  charge  the  real  facts  to  la\'  a  foundation 
insisted  upon  by  the  defendant,  by  way  of  for  the  discovery  which  is  sought.  Stiif- 
(b-t'ence  or  excii'-e.  to  the  case  made  by  the  fonl  >•  Hrown,  4  Paige,  H8. 
Tibiintifl  for  relief.  Rule  21.  So  in  New  "  Another  very  important  rule,"  says 
I  hiniiisliire.  liide  in  Chancery,  3,  38  N.  ^Ir.  .luslice  Sloiy,  '"as  to  the  fame  of 
II.  60.').  bills,  seems  now  established  in   lOiigbiiil; 

Rule  7,  of  Chancery  Practice  in  Ma-sa-  aud  that  is,  if  the  bill  me  ins  to  rely  u(ion 

chunetts,  provides  that  tlu<  plninliff,  when  any  confessions,  conversatiofis,  or  admis- 

liiH  ca'e  rcjquires  it,  may  allege  by  wa}'  of  f<ions  of  the  defendant,  either  written  or 

cbnr>;e,  any  |)articular  fact,  for  the  pur])ose  oral,  as  proof  of  ifny  fact  chiirged  in  the 

of  putting  it  in  isBiiu.  bill    (u.s,  for  example,  of  fraud),   the  bill 


O  —    1 


THE    BILL. 


Cn.  VI.  §5.         Kills  used  lonncrly  to  oontnin  a  proclso  nvormcnt  of  jurisdiction 

"— — Y '    ill  tlu'  Court.     'I'iiis  is   uow  obsolete,  and   was  never  absolutely 

retjuisite.^ 

6.  Interrogatitiij  l\i)'t. 

The  interrosxatiuL!:  ]iar(  of  a  bill  was  an  almost  invariable  accom- 
paniment to  a  bill,  until  the  recent  statute  to  amend  the  practice 
of  the  Court  of  Chancery.-  It  will  be  recollected  that  it  is  now 
precisely  enacted,  "  that  the  bill  of  complaint  shall  not  contain 
any  interrogatories  for  the  examination  of  the  defendant."^ 

It  will  be  convenient  here  to  set  forth  the  statutory  rules  and 
the  regulations  of  the  Court  on  this  subject. 

By  15  &  16  Vic.  c.  86,  §  12,  it  is  enacted,  that  "Mdthin  a  time 
to  be  limited  by  a  General  Order  of  the  Lord  Chancellor  in  that 
behalf"  the  plaintiff  in  any  suit  in  the  said  Court  commenced  by 
bill  may,  if  he  requires  an  answer  from  any  defendant  thereto,  file 
in  the  Record  Office  of  the  said  Court  interrogatories  for  the 
examination  of  the  defendant  or  defendants,  or  such  of  them  from 
whom  he  shall  require  an  answer,  and  deliver  to  the  defendant  or 
defendants  so  required  to  answer,  or  to  his  or  their  solicitor,*  a 


must  expressly  charge  what  such  confes- 
sions, conversations,  or  arimissioiis  are,  and 
to  whom  made;  otherwise  no  evidence 
thereof  will  be  aiimitted  at  the  hearing." 
"  Whether  tiie  lilte  rule  will  be  allowed  to 
pievail  in  America,  may  be  deemed  fipen 
to  uiiich  doubt."  See  Story  Kq.  I'l.  §  265  a, 
and  the  cases  cited  in  notes,  fur  a  more 
full  statement  of  the  rule  and  the  reasons 
of  it  In  Smitli  v.  Huruham,  2  Sumner, 
612,  it  was  held  that  the  confessions,  ad- 
missions, an  I  conversations  of  the  defend- 
ant need  not  be  expressly  charged  in  a 
bill  in  Equity,  in  order  to  entitle  the  plain- 
tiff to  use  them  in  proof  of  facts  charged, 
and  in  issue  therein.  See  Bishop  v.  Uishop, 
13  Ala  47.5. 

If  the  bill  is  sworn  to,  it  is  perjuiy  for 
the  piaintitf  knowingly  to  make  a  false 
chaige  or  averment  in  the  charging,  as 
much  as  if  he  makes  a  false  statement  in 
the  stating  part.  Smith  v.  Clark,  4  Paige, 
368. 

1  See  Story  Eq.  PI  §  34;  Botsford  v. 
Burr,  11  Conti.  309.  By  the  21st  Equ'ty 
Rule  "f  the  Supreme  Court  of  the  United 
States,  .Ian  Term,  1842,  the  plaintiff,  in  his 
bill,  shall  be  at  liberty  to  omit,  at  his  op- 
tion, what  is  commonly  called  the  jurisdic- 
tion clause  of  the  bill,  viz.,  "'  that  the  acts 
complained  of  are  cuntrary  to  Equity," 
&c.  So  in  New  Hami)shire.  Ilule  in 
Chancery,  3,  38  N.  H.  605,  Appx.  In  all 
bills  ill  Equity  in  the  Court*  of  the  United 
States,  the  citizenship  should  appear  on 
the  face  of  the  bill,  to  entitle  the  Cmirt  to 
take  jurisdiction;  otherwise  the  bill  will  bo 
dismissed.  Dodge  v.  Perkins,  4  .Ma-on, 
435;  Story  Efj.  I'l.  26,  note;  Bingham  r. 


Cabot,  3  Dall.  382;  Jackson  v.  Ashton,  8 
Peters,  148  ;  Story  Eq.  PI.  §  492;  Vo=e  v. 
Philbrook,  3  Storv,335;  see  Louisville  and 
K.R.  Co.  V.  Stetson,  2  How.  U.  S  497; 
Winnipiseogee  Lake  Co.  v.  Worster,  29  N. 
II.  433,  443,  444.  For  a  form  of  the  aver- 
ment of  jurisdiction,  see  Storj'  Eq.  PI. 
§  34,  in  note. 

■2  Story  Eq.  PI.  §§  35-39,  and  nott-s.  A 
bill  which  wholly  omits  the  interrngatory 
part,  is  said  to  he  defeitive  in  Sliedd  v. 
Garlield,  5  Vt.  39.  But  it  is  not  regarded 
as  absolutely  necessary  bv  Mr.  .Justice 
Story,  Eq.  PI.  §  38,  though  often  highly 
useful  to  sift  the  conscience  of  the  defend- 
ant, and  almost  universal  in  practice. 
Jbi<l.  See  also  Eberlv  v  Gross,  21  Penn. 
(9  Harris)  251.  By  Rule  7,  of  Chancery 
i'ractice  in  Massachusetts,  tlie  plaintifT, 
when  his  ca^^e  require-*  it,  may  propose  spe- 
cific interrogatories.  See  Belknap  e.  Stone, 
1  All.-u,  572.  In  New  Hampshire,  "the 
prayer  for  an  answer  and  f>r  answers  to 
i  terrogatories,  except  where  the  plaintiff 
relies  on  the  discover^'  of  the  defendant, 
may  be  omitted."  Rule  of  Chancery,  3, 
36  New  Hamp  605,  Appx.  In  Maine,  "a 
general  interrogatory  only  shall  be  intro- 
duced, and  it  shall  be  sufficient  to  require 
a  full  iin-wer  to  all  the  matters  alleged." 
Rule  1,  37  .Maine,  581,  Appx.  As  to  what 
i~,  or  amounts  to,  the  general  interrogatory, 
see  Ames  v   King,  9  Allen,  258. 

3  Ante,  p.  319. 

^  It  will  be  sufficient  if  the  interrogato- 
ries are  left  at  the  solicitor's  office  without 
beinij  delivered  to  him  personally.  Bowcn 
V.  Price,  2  De  G.,  M.  &  G.  899. 


FORM    or    THE    BILL.  375 

copy  of  sueli  interrogatories,  or  of  such  of  them  as  shall  be  appli-  Cii.  VI.  §  5. 
cable  to  the  particular  defendant  or  defendants ;  and  no  defendant 
shall  be  called  upon  or  required  to  put  in  any  answer  to  a  bill 
unless  inteiTogatories  shall  have  been  so  filed,  and  a  copy  thereof 
delivered  to  him  or  his  solicitor,  within  the  time  so  to  be  limited, 
or  within  such  further  time  as  the  Court  shall  think  fit  to  direct." 

By  the  15th  and  following  General  Orders  of  the  7th  of  August, 
1852,  it  is  directed  that, — 

"  The  interrogatories  for  the  examination  of  the  defendant  to  a 
bill  may  be  in  a  form  similar  to  the  form  set  out  in  Schedule  (C.) 
to  these  Orders,  with  such  variations  as  the  nature  and  circum- 
stances of  each  jiarticular  case  may  require. 

"  In  cases  in  which  the  plaintifi"  requires  an  answer  to  any  bill 
from  any  defendant  or  defendants  thereto,  the  interrogatories  for 
the  examination  of  such  defendant  or  defendants  are  to  be  filed 
within  eight  days  after  the  time  limited  for  the  appearance  of  such 
defendant  or  defendants. 

"If  the  defendant  appear  in  person,  or  by  his  own  solicitor, 
within  the  time  limited  for  that  pur})ose  by  the  rules  of  the  Court, 
the  plaintiff  is,  within  eight  days  after  the  time  allowed  for  such 
aj)pearance,  to  deliver  to  the  defendant  or  defendants  so  required 
to  answer,  or  to  his  or  their  solicitor  or  solicitors,  a  copy  of  the 
interrogatories  so  filed  as  aforesaid,  or  of  such  of  them  as  the  par- 
ticular defendant  or  defendants  shall  be  required  to  answer.  And 
the  copy  so  to  be  delivered  is  to  be  examined  with  the  original, 
and  the  number  of  folios  counted  by  the  Clerks  of  Records  and 
"Writs,  who,  on  finding  that  such  copy  is  duly  stamped  and  prop- 
erly written,  are  to  mark  the  same  as  an  ofiice  copy. 

"If  any  defendant  to  a  suit  commenced  by  bill  do  not  a2)pear 
in  person,  or  by  his  own  solicitor,  within  the  time  allowed  for  that 
purpose  by  the  rules  of  the  Court,  and  the  plaintiff  has  filed  inter- 
rogatories for  liis  examination,  the  plaintiff  may  deliver  a  copy  of 
such  interrogatories  so  examined  and  marked  as  aforesaid,  to  the 
defendant,  at  any  time  after  the  time  allowed  to  such  defendant  to 
a|)pear  and  before  his  ai)pearance  in  person  or  by  his  own  solicitor; 
or  the  ])laintiff  may  deliver  a  copy  of  such  intei-rogatories,  so  ex- 
aniined  and  marked  as  aforesaid,  to  the  defendant  or  his  solicitor, 
after  tlie  apjtearancc  of  such  defendant  in  ])erson  or  by  his  own 
solicitor,  but  within  t'iglit  days  after  such  api)earan<'c. 

"A  defendant  recjuired  to  answer  a  bill  must  jnit  in  his  i>li'a, 
answer,  or  demurrer  thereto,  not  derauning  alone,  williiii  fourteen 
days  from  tlie  delivery  to  him  or  his  solicitor  of  a  co]ty  of  tlic 
interrogatories  which  he  is  required  to  answer;  but  tlie  Court 
shall  have  full  jiower  to  enlarge  the  time,  from  time  to  time,  upon 
ajiplication  being  made  to  the  Court  for  that  j)urj)ose. 


376  THE  lULL. 

On.  VI.  §5.         "After  the  tiiiio  nlloM  o»l  by  Order  IC,  for  filino;  interrogatories 

^^ > — -^     lor  the  exaiiiiiiMtioii  of  any  defendant,  no  interroij^atories  are  to  be 

tiled  for  the  examination  of  sueli  defendant,  without  s))ecial  leave 
of  the  Court,  to  be  aj)]died  for  ui)on  notice  of  motion." 

The  form  of  interrogatories  referred  to  in  the  15th  Order,  is  as 
follows :  — 

"In  Chancery. 

Jolui  Lee I'laintiif. 

James  Styles  ^ 

and  { Defendants. 

Ilcnry  Jones.  ) 

Interrogatories  for  the  Examination   of  the  above-named  Defendants   in 
anstoer  to  the  Plaintiff^s  Bill  of  Complaint. 

"  1.  Does  not  the  defendant  Henry  Jones  claim  to  have  some 
charge  upon  the  farm  and  premises  comprised  in  the  indenture  of 
mortgage  of  the  first  of  May,  one  thousand  eight  hundred  and 
fifty,  in  the  plaintiff's  bill  mentioned? 

"  2.  What  are  the  particulars  of  such  charge,  if  any,  the  date, 
nature,  and  short  eiFect  of  the  security,  and  what  is  due  thereon  ? 

"3.  Are  there  or  is  there  any  other  mortgages  or  mortgage, 
charges  or  charge,  incumbrances  or  incumbrance,  in  any  and  what 
manner  affecting  the  aforesaid  premises,  or  any  part  thereof? 

"4.  Set  forth  the  particulars  of  such  mortgages  or  mortgage, 
charges  or  charge,  incumbrances  or  incumbrance ;  the  date,  nature, 
and  short  effect  of  the  security ;  what  is  now  due  thereon ;  and 
who  is  or  are  entitled  thereto  respectively ;  and  when  and  by 
Avhom,  and  in  what  manner,  every  such  mortgage,  charge,  or 
incumbrance  w^as  created. 

"  The  defendant  James  Styles  is  required  to  answer  all  these 
interrogatories. 

"  The  defendant  Henry  Jones  is  required  to  answer  the  inter- 
rogatories numbered  1  and  2.^ 

"  Y.  Y." 
(name  of  counsel.) 

1  Bv  the  ffirmer  English  practice  the  any  statement  in  the  bill,  unless  the  plain- 
interrogatories,  which  each  defendant  was  tifi' desires  to  do  so  to  obt;iin  a  discovery," 
required  Vt>  answer,  were  specitied  in  a  in  which  case  "  the  interropatories  con- 
note at  the  foot  of  the  bill,  and  such  is  the  tained  in  the  interrogating  part  of  the  bill 
rnle  adopted  by  the  Supreme  Court  of  the  shall  be  divided  as  conveniently  as  may  be 
United  States';  41st  Equity  Rule  of  the  from  each  other,  and  numbered  cnnsecu- 
Supreme  Court  of  the  United  States,  Jan-  tivcly,  1,  2,  3,  &c.,  and  the  interrogatories 
uar\- Tenn,  1&42;  Story  Kq  I'l.  §  847,  note.  which  each  defendant  is  required  to  an- 
Tiie  'JSth,  41st,  42(1."  43d,  and  44th  of  swer,  shall  be  specified  in  a  note  at  the 
said  ?>qnitv  Rules  declare,  "that  it  shall  fof)tofthe  bill,  in  the  form  and  to  the  efl'ect 
not  hereafter  be  necessarv  to  inten-ngate  a  following;  that  is  to  say,  The  defendant 
defendant  specially  and  particularly  upon  (A.  B.)  is  required  to  answer  the  interrog- 


FORM    OF    THE    BILL. 


377 


The  foiTB  of  interrogatories  given  is  so  precise,  that  it  is  scarcely  Ch.  VI.  §  5. 
necessary  to  refer  to  tlie  fonuer  practice  on  the  subject.  Of  course 
a  defendant  is  not  bound  to  answer  any  thing  in  the  bill  to  which 
he  is  not  jirecisely  interrogated.^  It  was  always  the  rule  that  the 
inteiTogatories  must  in  all  cases  be  confined  to  the  substantive 
charge  or  allegation,  and  that  the  plaintiif  cannot  extend  his  inter- 
rogatories in  such  a  manner  as  to  compel  a  discovery  of  a  distinct 
matter  not  included  in  the  allegation  or  charge ;  '^  and  there  is 
nothing  in  the  present  Orders  to  affect  that  principle. 


7.    The  Prayer  for  Belief. 

The  prayer  for  relief  is  generally  divided  into  two  parts  :  viz.,   special  and 
the  prayer  for  specific  relief,  and  the  prayer  for  general  relief^  general. 


atories  numbered  respectively  1,  2,  3,  &c. ; 
and  the  office  copj-  of  the  bill  taken  by 
each  defendant  shall  not  contain  anv  in- 
terrogatories, except  those  which  such  de- 
fendant is  so  required  to  an>wcr,  unless 
such  defendant  shall  require  to  be  furnish- 
ed with  11  copy  of  the  whole  liill."  — ''  The 
note  at  the  foot  of  the  bill,  specifyinj^  the 
interrogatories,  which  each  defendant  is 
required  to  answer,  shall  be  considered  and 
treated  as  part  of  the  bill,  and  the  addition 
of  anv  such  note  to  the  bill,  or  any  altera- 
tion in  or  addition  to  such  note  after  the 
bill  is  filed,  shall  be  considered  and  treated 
as  an  amendment  of  the  bill."  —  "  Instead 
of  the  words  of  the  bill  now  in  use,  pre- 
ceding the  interrogating  part  thereof,  and 
beginning  with  the  words.  To  the  end, 
therefore,  there  nhall  hereafter  be  used 
■words  in  the  form  and  to  the  effect  follow- 
ing: To  the  end,  therefore,  that  the  said 
defendants  may,  if  they  can,  show  why 
your  orator  (the  plaintiff)  should  not  have 
the  relief  hereliy  prayed,  and  may,  upon 
their  several  and  respective  corporal  oaths, 
aiirl  acconliiitr  to  the  best  and  utmost  of 
thi'i.r  sevi-ral  knowledge,  remembrance, 
information,  and  belief,  full,  true,  direct, 
and  [lerfect  an-wer  make  to  such  of  the 
Beverai  interrogatories  hereinafter  num- 
bered and  set  forth,  as  by  the  note  hereun- 
der written,  they  are  respectively  required 
to  answer;  that  is  to  sav,  '1.  Whether, 
&c.;  2.  Whether.  &c."'  —  "  A  defendiint 
shwll  be  at  liberty,  by  answer,  to  decline 
answering  an^v  interrogatory  or  part  of  an 
interrogators,  from  answering  which  he 
might  have  r>r'itei'ted  himself  liy  demurrer; 
and  111'  shall  be  at  iihcrly  so  to  decline, 
notwithslim'ling  he  shrdl  answer  other 
parts  of  the  hill,  fpim  which  he  might  have 
prntucted  him«Hir  by  dennirrer."  These 
nilc«  are  borroweil  from  tlie  former  Knglifih 
Rules  in  ('hancerv  upon  the  same  subject. 
Stnrv  Kii.  I'l   §  S47,  note. 

•  In  Nliissachii'-etts  ('hancery  Practice, 
imder  Itiilf  4,  wli^n  the  r'asc  requires  it,  the 
plaintiff  may  prf)pose  s])ecific  inlermgalo- 
ries.     Uule  b  provides  that  the  defendant 


shall  be  required  to  answer  fully,  directly, 
and  particularly  to  every  material  allega- 
tion in  the  bill,' as  if  he  had  been  thereto 
particularly  interrogated.  See  Methodist 
Episcopal  Church  v.  Jnques,  1  .John.  Ch, 
65,  The  practice  in  New  Hampshire  con- 
forms with  the  above  ride  in  Massachu- 
setts. Miles  V.  Miles,  27  N.  II.  440,  and 
such  is  understood  to  be  the  practice  where 
there  is  no  rule  on  the  subject,  lb.  445; 
see  Storv  Eq.  PI.  §  38 ;  Hagthorp  v.  Hook, 
1  Gill  &  J.  270;"  Salmon  v.  Claggett,  3 
Bland,  125.  The  general  interrogatory  is 
in  substance  as  follows;  viz  :  "That  the 
defendant  may  full  answer  make,  to  all  and 
singular  the  premises,  fully  and  particular- 
ly, as  though  the  same  were  repeated  and 
he  speciallv  interrogated,"  &c.  See  Ames 
V.  King,  9  Allen,  258. 

2  James  v.  M'Kernon,  6  John.  543  ; 
Woodcock  V.  Bennett,  1  Cowen,  734 ;  Jle- 
chanics'  Bank  v.  Levy,  3  Pais;e,  606;  Con- 
sequa  v  Fantiing,  3  Jolin.  Ch.  596;  Kisor 
V.  Stancifer,  Wright,  323.  But  a  variety 
of  questions  nniy  be  founded  on  a  sinjile 
charsi',  if  they  are  relevant  to  it.  Story 
lv|  PI.  §  37.  It  may  he  noticed  here,  that 
in  Attorney-General  v.  Whorwood,  1  Ve- 
se}',  524,  where  interrogatories  in  a  bill 
were  directed  to  particular  facts  which 
were  not  charged  in  the  preceding  part, 
and  the  defendant,  though  not  bound  to 
answer  them,  did  so,  and  the  answer  was 
replied  to;  Lunl  H'irdwicke  held  that  the 
informality  in  the  manner  of  charging  was 
sujiplied  by  the  answer,  and  that  the  facts 
were  jiroperly  ])ut  in  issue  ;  "  for  a  matter 
miy  he  put  in  issue  by  the  answer  as  well 
as  by  the  bill,  and,  if  replied  to,  cither 
partv  mav  examine  to  it."  1  Vese.v,  538; 
Storv  K<|!  I'i.  §  30. 

'"^  The  latter  can  never  be  profierly  and 
safely  omitted;  because,  if  the  phiintitf 
should  mistake  the  relief,  to  which  he  is 
entitled,  in  his  spocial  prayer,  the  Court 
nniy  yet  ali'ord  him  the  ndief  to  which  he 
Ins  a  right,  under  the  jirayer  of  general 
relief,  provided  it  is  sucli  relief  as  is 
agreeable   to  the  case  made   by  the  bill. 


o  —  o 


THE    BILL. 


rii.  VI.  §  r.. 


Spocial. 


l^ofu'ioncy 
■^iipjilioil 
iiiiilor  ])rayer 
\\iT  ,1,^'iR'ral 
^•liot'; 

Imt  such 
relief  must  be 
consistent 
with  relief 
specifically 
prayed,  and 
ease  made 
by  biU. 


Declaration 
that  defeud- 


Altlioiiu,h  tlicro  is  no  doubt  but  tli:it  a  uiero  prayer  for  general 
relii't"  was  formerly,  in  most  cases,  sufficient  to  enable  the  plaintiff 
t«)  obtain  such  a  decree  as  his  case  entitled  hitn  to,^  yet  it  was 
tlie  usual  practice  to  precede  the  request  for  relief  generally,  by  a 
statement  of  the  specific  nature  of  the  decree  which  the  plaintiff 
considered  liimself  entitled  to,  under  the  circumstances  of  his  case; 
and  now,  the  jtlaintiff  must  specifically  pray  for  tlie  relief  to  which 
he  may  conceive  himself  entitled,  as  Avcll  as  for  general  relief;^ 
and  where  he  is  entitled  to  no  other  relief  against  any  defendant, 
he  must  pray  for  costs  :^  witli  the  one  exception,  that  he  may 
make  the  servant  of  a  corporation  a  defendant,  for  the  purpose  of 
discovery.* 

This  ])art  of  the  bill,  therefore,  should  contain  an  accurate  speci- 
fication of  the  matters  to  be  decreed;  and,  in  corajDlicated  cases, 
the  framing  of  it  requires  great  care  and  attention :  for,  although 
where  the  prayer  does  not  extend  to  embrace  all  the  relief  to 
wdiich  the  plaintiff  may  at  the  hearing  show  a  right,  the  deficient 
relief  may  be  supplied  under  the  general  prayer,  yet  such  relief 
must  be  consistent  with  that  specifically  prayed,  as  well  as  with 
the  case  made  by  the  bill :  for  the  Court  will  not  suffer  a  defendant 
to  be  taken  by  surprise,  and  permit  a  j^laintiff  to  neglect  and  pass 
over  the  prayer  he  has  made,  and  take  another  decree,  even  though 
it  be  according  to  the  case  made  by  his  bill.^     Therefore,  in  /Soden 


Ld.  Red.  38,  45;  Coop.  Eq.  PI.  13,  14; 
English  V.  Foxall,  2  Peters,  595;  Colton 
V.  Hoss,  2  Paige,  396 ;  Driver  v.  Fort- 
ner,  5  Porter,  10;  Thomason  v.  Smith,  7 
Porter,  144;  Peck  v.  Peck,  9  Yerger,  301; 
Isaacs  V.  Steele,  3  Scam.  104;  Strange  v 
Watson,  11  Ala.  324;  .Jordnn  v.  Clarke,  1 
C.  E.  Green  (N.  J.).  243;  Siniplot  v.  Sim- 
plot,  14  Iowa  (6  With.),  449;  Wilson  v. 
Horr,  15  Iowa  (7  With  ),  489;  Espinola  v. 
Blasco,  15  La.  Ann.  426;  Vandaut  v.  All- 
moii,  23  111.30;  (iraliam  v.  Berrvman,  4 
C.  E.  Green  (N.  J.),  29,  34;  Read'v.  Cra- 
mer, 1  Green  Ch.  277;  Landis  v.  Olds,  9 
Min.  90.  Relief  not  speciticallv  pr.ayed,  is 
within  the  genpral  relief  Beaumont  v. 
Bdultbee.  5  Sumner's  Vesey,  485;  Story 
Eq.  PI.  §  41,  note.  If  there  is  no  yirayer 
of  general  relief,  then  if  the  [)laintifl'shoulii 
mistake  the  relief  to  whieli  he  is  entitled, 
no  other  relief  c:in  be  granted  to  him,  and 
his  suit  must  fail,  at  least  unless  an  amend- 
ment of  the  prayer  is  obtained.  Story  Eq. 
PI.  §  41;  Driver  v.  Fortner,  5  Porter,  10; 
Morrison  v.  Bowman,  29  Cal.  3.37;  Tho- 
mason V-  Smith,  7  Porter,  144;  Peck  v. 
Peck,  9  Yerger,  301  ;  Hal.sted  v.  Meeker, 
3  C.  E.  Green  (N.  J.),  13*5.  For  a  form  of 
prayer  for  relief  in  a  bill,  see  Story  Fq  PI. 
§  40  note,  41  note:  Colton  v.  Ross,  2  Paige, 
39C,  and  ca^es  there  cited. 

In  a  bill  between  f>aitners,  a  praj-er  that 
the  defendant  niaj'  be  held  to  render  an 
account  of  all  moneys  and  effects  of  the 


firm  received  by  him,  and  of  all  other 
matters  relatitig  to  the  concern,  is  equiva- 
lent to  a  prayer  for  general  relief.  Miller 
V.  Lord,  11  Pick.  11.       . 

In  New  Hampshire,  tlie  bill  may  con- 
clude, "  and  thereupon  the  plairititf  prays," 
setting  forth  the  speciid  relief  to  which  he 
supposes  himself  entitled,  "  nnd  for  such 
other  relief  as  may  be  just."  If  an  in- 
junction or  other  special  order,  pending 
the  suit,  is  required,  it  may  be  specially 
asked  for.  Rule  of  Chancery,  3,  38  N. 
Hainp.  605,  606.  So  also  in  21st  Equity 
Rule  of  the  United  States  Courts.  In 
Iiii liana,  the  Court  will  grant  any  relief 
c:illeil  for  by  the  case,  and  the  issue  made, 
without  regard  to  the  prayer.  Hunter  v. 
McCoy,  14  Uv\.  528. 

1  Cook  V.  Martyn,  2  Atk.  2,  3;  Grimes 
V.French,  iO.  141;  Partridge  ?;.  Haverofr, 
11  Ves.  570,  574;  Wilkinson  v.  lieal,  4 
Mad.  408. 

2  15  &  16  Vic.  c.  86,  §  10;    see  form  of 

bill.  Vol.  in. 

3  Beadles  v.  Burch,  10  Sim.  332,  337; 
4  .Jur.  189;  Bowles  v.  Stewart,  1  bch.  & 
Lef  227. 

■*  Dummer  v.  Corporation  of  Chippen- 
ham. 14  Ves.  245;  L<$  Texier  v.  Mar- 
gravine of  Ans|)ach.  15  Ves.  164;  Ld.  lied. 
188;  ante,  pp.  142,  14.3,  296,  322. 

5  Lau'lis  r.  Olds,  9  Mill.  90.  A  particu- 
lar prayer  for  relief,  although  very  proper 
and  convenient,  is  not  essential,  since  under 


FORM    OF    THE    BILL. 


379 


V.  Sod€7i^^  where  a  bill  was  filed  against  a  woman  to  comjiel 
her  to  elect  between  the  provision  made  for  her  by  a  will,  and  that 
to  which  she  was  entitled  under  a  settlement,  and  the  case  made 
by  the  bill  was  solely  calculated  to  call  upon  her  to  elect.  Lord 
Eldon  held,  that  a  declaration  that  she  had  elected,  so  as  to  con- 
clude her,  could  not  be  maintained  under  the  prayer  for  general 
relief:  being  inconsistent  both  with  the  case  made  by  the  bill,  and 
with  the  specific  prayer  that  she  should  make  her  election.  And 
so,  Avhere  a  bill  ^  was  filed  by  a  person  in  the  character  of  mort- 
gagee, praying  a  sale  under  a  trust,  to  which  it  appeared  he  was 
not  entitled,  the  Court  would  not  jjermit  him,  under  the  general 
prayer,  to  take  a  decree  that  the  defendant  might  redeem  or  be 
foreclosed ;  although  it  was  the  relief  which  properly  belonged  to 
his  case.®     And  in  like  manner,  where  a  bill  was  brought  for  an 


Ch.  VI.  §  5. 


ant  had 
elected,  not 
granted, 
under  prayer 
that  he  may- 
elect. 


No  decree  of 
foreclosure, 
under  prayer 
for  sale. 


a  general  prayer  for  relief  a  plaintiff  niaj' 
pr.iy  at  the  bar  a  specific  relief  not  partic- 
ularly prayed  fur  in  the  bill,  if  otherwise 
entitled  to  the  s;ime.  Wilkinson  v.  IScal, 
4  Mad.  408;  Cook  r  Martyn,  2  Atk.  2; 
Grimes  u.  French,  2  Atk.  141;  Colton  v. 
Koss.  2  Paige,  396;  Foster  v.  Cooke,  1 
Hawks.  509;  Lloyd  v.  Brewster,  4  Paige, 
537;  Lingan  r.  Hfenderson,  1  RInnd,  2.')2; 
Driver  v.  Forncr,  5  P..rter,  10;  Tliornpson 
V.  Sinitlison,  7  Porter,  144;  Peck  v.  Pi-ck, 
9  Yerger.  301;  Allen  v.  Coffman,  1  IJibb, 
469;  Wilkin  f.  Wilkin,  1  John.  Ch.  Ill; 
Cook  t'.  Manciu=,  .5  .John.  Ch.  89;  Br^wn 
V.  McDonald,  1  Hill,  302  ;  (Jibson  v.  M'Cor- 
mick,  10  Gill  ^^-  .1.  60;  Townsend  v.  Dun- 
can, 2  I51and  4-j;  Marine  and  Fire  Ins.  &c. 
V.  Karlv  U.  M.  Charlt.  279;  Hcpplier  ?;. 
Buck,  5  B.  M  .n.  90,  98:  Thomas  v.  Hife, 
6  B.  Mon.  .593.  Tlie  relief  given  under  the 
general  prayer  niu>t  be  agreeable  to  the 
case  made  6y  the  bill.  Story  V.(\.  PI.  §  41 ; 
Chalmers  r.  Chambers,  6  Ilarr.  &  .1.  29; 
IIol)-on  V.  .^^Artbur,  16  Peters,  1S2;  Re:id 
t'.  Cramer,  1  Creen  Ch.277;  Franklin  i'. 
Osjiood,  14  John.  .527;  English  v.  Foxall, 
2  Pet'Ts,  59.0 ;  Kibi.rr  'Wliiteman,  2  liar. 
401;  Pennock  I'.  Kla,  41  N.  II.  189,192; 
Ciissady  f.  Woodliury,  13  Iowa  (5  With  ), 
113.  For  the  (Ji'urt  will  gr:int  such  relief 
only  as  the  ca<e  stxtcd  will  justify,  and 
will  not  ordinarily  be  so  indulgent  as  to 
perm i I  ii  bill  framed  for  one  i)urpr)se  to 
unHwer  another,  cspeciiillv,  if  the  defend- 
ant may  be  surprised  or  prejudiced  thereby. 
And  where  then;  is  no  otisfructioii  to  the 
jxirticiiliir  relief  praj-ed,  tlie  plaintiff  can- 
not abandon  that,  and  ask  a  dilferent 
decree  under  the  general  prayer.  Allen  v. 
Coffinan.  I  I'.ibb,  409;  Pillow  v.  Pillow,  5 
Ycrfrer,  420;  'i'liomi)son  v  Sinith>-on,  7 
I'orier,  144;  Fo^^fer  v.  Cooke,  1  Hawks, 
609;  Colton  f.  Itoss,  2  Paige,  396;  Chal- 
miTS  r.  Chambers,  6  Mar.  &  J.  29;  Gibson 
V.  M'Corniick,  10  (Jill  &  .1.  06;  Town-end 
V.  Dunran,  2  I'.land,  45;  King  v.  Ko.ssetf, 
■2  Y.  &  J.  .33;  see  Kailey  v.  He' ton,  8 
Wend.  339;  1  Ilolf.  Ch    Pr.  49,  and  note; 


Read  v.  Cramer,  1  Green  Ch.  277;  Pleasants 
V.  <ilasscock,  1  Sm.  &  M.  Ch.  17;  Pennock 
V.  Ela.  41  N.  H.  189. 

In  Treadwell  v.  Brown,  44  N.  H.  551,  it 
W!!s  held,  that  under  the  pr,ayer  for  general 
relief,  the  plaintiff  ma.v  have  such  relief 
as  he  is  entitled  to,  without  regard  to  any 
defect  in  the  prayer  for  special  relief,  26 
Law  Kep.  48;  Franklin  v.  Greene,  2  Allen, 
519;  Danforth  r.  Smith,  23  Vt.  247 ;  pro- 
vided it  does  not  conflict  with  that  specifi- 
caliv  pr  ived  for.  Stone  i'.  Andi-rson,  26 
N.  H.  500;  Hilb'ary  r.  Hurdle,  6  Gill,  105. 
Where  the  bill  sets  forth  two  grounds  for 
relief,  and  pr.iys  for  special  relief  on  one 
ground,  and  also  for  general  relief,  but  the 
parties  arc  not  sufficient  for  any  other  than 
the  special  relief,  the  bill  is  iiot  bad  tor 
multifiiriou^ness,  but  the  special  relief  will 
be  granted.  JIayne  v.  Griswold,  3  Sandf. 
S.  C.  463. 

In  a  foreclosure  suit,  if  the  mortgnge  is 
forfeited,  and  the  plainthf  entitled  to  a 
decree  of  foreclosure  at  the  time  of  the 
commencement  of  the  suit,  a  decree  for 
the  whole  amount  due  upon  the  inortgage, 
whether  it  becomes  due  before  or  after  the 
filing  of  the  bill,  is  strictly  within  the 
prayer  for  relief,  and  such  as  the  case  stated 
will  justifv.  .lordan  v.  Clarke,  1  C.  E. 
Green  (N.  J.),  243. 

1  ('iteil  by  Lord  Eldon,  in  Hiern  v.  Mill, 
13  Ves.  119. 

2  Palk  !'.  Lord  Clinton,  12  Ves.  48,  57; 
see  iiKo  Jones  r.  J<ines,  3  Atk.  110,  111; 
Chapuiati  v.  Chapmati,  13  Beav.  308;  15 
Jur.  265;  Johnson  i'.  Fesscnmeyer,  25 
Beiiv.  88,  96;  3  De  G.  &  J.  13;  Story  En. 
PI.  §  42. 

'"^  A  bill  was  filed  to  have  a  mnrtrrago 
deed  recorded,  which  had  been  omitted  to 
l)c  recorded  within  si.\  mouths,  in  which 
was  a  general  prayer  for  relief  A  decree 
of  sal("  of  tli('  mortgaged  promises  w.as  held 
not  to  be  within  the  relief  i)rayed  by  the 
bill.  Clialmers  V  ChaTni)ers,  6  Ilarr.  &  .L 
29;  see  Cliumbers  v.  Chalmers,  4  Gill  &  J. 
420. 


380 


THE    IHLL. 


On.  VI.  § 


Acoouiit  of 
rents  iiiul 
profits  not  (li- 
ivoteil  uniliT 
a  jirayor  t"or 
specific  per- 
formance by 
vendor. 

Specific  per- 
formance of 
an  ajjreenicnt 
not  decreed, 
■\vliere  parol 
variation 
jiroved ; 

l)nt  in  snits 
for  tithes, 
plaintiff  may 
have  a  decree 
for  a  modus 
proved  by 
defendant. 

Plaintiff  may 
liave  relief 
under  general 
prayer,  when 
the  facts 
which  entitle 
him  are  put 
in  issue. 


nnnuity  or  roiit-chnvtje  nmlor  a  will,  nnd  tlie  counsel  for  tlio  i)lain- 
tilt"  ])v:iycHl  :it  the  bar  that  thoy  miulit  <lroi)  tlic  domanfl  for  tlie 
aiimiity,  and  insist  uj)()n  the  land  itsolf,  Lord  TIardwicko  denied 
it :  beeauso  it  came  within  the  rule  before  laid  down.^  Upon 
the  same  ])rincii»le,  where  a  A^endor  filed  a  bill  for  a  specific  per- 
formance anainst  a  ])urchaser,  who  had  been  in  possession,  under 
the  contract,  for  several  years,  but  filled  to  establish  his  right  in 
consequence  of  a  defect  in  his  title,  the  Court  refused,  under  the 
prayer  for  general  relief,  to  direct  an  account  of  the  rents  and 
profits  against  the  purchaser,  although  he  had  stated  by  his  answer 
that  he  was  Avilling  to  pay  a  fair  rent.^  And  so,  where  a  bill 
was  filed  for  the  specific  j:)erformance  of  a  written  agreement,  and 
])arol  evidence  was  read  to  prove  a  variation  from  it,  the  bill  was 
dismissed  with  costs :  the  plaintiff  not  being  allowed  to  resort  to 
the  substantial  agreement  proved  on  the  part  of  the  defendant.* 
But  though,  in  general,  a  plaintiff  can  only  obtain  the  decree  he 
seeks  by  his  bill,  the  case  of  a  ))laintiff  in  a  suit  for  tithes  is  differ- 
ent :  for  there,  though  a  plaintiff  may  fail  in  establishing  his  right 
to  tithes  in  kind,  he  may  yet  have  a  decree  for  a  modus  admitted 
by  the  defendant's  answer.* 

The  rule,  with  regard  to  the  nature  of  the  relief  which  a  plain- 
tiff may  have  under  the  prayer  for  general  relief,  was  laid  down 
by  Lord  Eldon,  in  Jliern  v.  Mill.^  His  Lordship  there  said,  that, 
as  to  this  point,  "the  rule  is,  that  if  the  bill  contains  charges, 
putting  facts  in  issue  that  are  material,  the  plaintiff  is  entitled  to 
the  relief  which  those  facts  will  sustain,  under  the  general  prayer ; 
but  he  cannot  desert  specific  relief  prayed,  and  under  the  general 
jjrayer  ask  specific  relief  of  another  description,  unless  the  facts 
and  circumstances  charged  by  the  bill  will,  consistently  with  the 
rules  of  the  Court,  maintain  that  relief."  ®  In  that  case,  a  bill  had 
been  filed  by  an  equitable  mortgagee  against  the  mortgagor,  and 
a  person  who  had  purchased  from  him  with  notice  of  the  incum- 
brance, and  it  prayed  an  account,  and  in  default  of  payment  a 
conveyance  of  the  estate ;  and  although  it  charged  the  purchaser 
with  notice,  it  did  not  pray  any  specific  relief  against  him  indi- 


1  Grimes  v.  French,  2  Atk.  141. 

2  Williams  v  Sliaw,  3  Russ.  178,  n. 

3  Legid  V.  Miller,  2  Ves  S.  299;  see  also 
Mortimer  v.  Orchard,  2  Ves.  J.  243;  Legh 
i".  Ilaverfield,  5  Ves.  452,  457 ;  Ilanbury  v. 
Litchfield,  2  M.  &  K.  629,633.  But  al- 
tliough,  in  pucli  a  case,  the  plaintiff  cannot 
liave  a  decree  for  a  different  iirrreemeiit 
from  that  set  up  by  his  bill,  tlie  defendant 
may  have  a  decree  on  the  agreement,  such 
as  he  has  proved  it  to  be.  Fife  v.  Clayton, 
13  Ves.  546;  1  C  P.  Coop.  t.  Cott.  351. 
The  old  course  required  a  cross-bill,  but 
the  practice  now  is  to  decree  a  specific 
performance  at  the  instance  of  the  defend- 


ant, upon 'the  offer  by  the  plnintiff  in  his 
bill  to  perform  the  agreement  specifically 
on  his  part;  /hid.  See  also  Gwynn  v. 
J^ethbrigge,  14  Ves.  585. 

4  Cart  V.  Ball,  1  Ves.  S.  3. 

6  13  Ves.  119;  see  also  Brown  v.  Sewell, 
11  Hare,  49,  more  fully  reported  on  this 
point,  17  .lur.  708;  and  Brooliest;.  Boucher, 
3  N.  U.  279,  M.R.,  where  relief  was  grant- 
ed under  the  general  praver;  and  II ill  v. 
Great  Northern  Kail  way  Company,  5  l)e 
G.,  M.  &  G.  66;  18  Jur.'685,  where  it  was 
refused. 

6  See  Casady  v.  Woodbury,  13  Iowa  (5' 
With.),  113. 


FORM    OF    THE    BILL. 


381 


vidually.     Lord  Eldon,  however,  thought  that  the  relief  asked    Cn.YL§5. 

against  him  at  the  hearing  was  consistent  with  the  case  made  by 1 ' 

the  bill,  and  accordingly  decreed  an  account  to  be  taken  of  what 
was  due  to  the  jjlaintilf  by  the  mortgagor :  to  be  paid  by  the  pur- 
chaser, who  was  to  have  his  election  to  pay  the  money  and  keep 
the  estate.^  xVnd  so,  in  Taylor  v.  Tabrum^  where  a  bill  was 
filed  against  two  trustees,  alleging  that  only  one  of  them  had 
acted  in  the  trusts,  and  praying  relief  against  that  trustee  only, 
to  which  the  two  trustees  put  in  an  answer,  admitting  that  they 
had  both  acted  in  the  trusts.  Sir  Lancelot  Shadwell  V.  C.  made 
a  decree  against  the  two,  charging  them  both  with  the  loss  occa- 
sioned by  the  breach  of  trust.  It  is  to  be  observed  that,  in  order 
to  entitle  a  plaintiff  to  a  decree,  under  the  general  prayer,  different 
from  that  specifically  prayed,  the  allegations  relied  upon  must  not 
only  be  such  as  to  afford  a  ground  for  the  relief  sought,  but  they 
must  have  been  introduced  into  the  bill  for  the  pm-jDOse  of  showing 
a  claim  to  relief,  and  not  for  the  mere  purpose  of  corroborating  the 
plaintiff's  right  to  the  specific  relief  prayed :  otherwise,  the  Court 
would  take  the  defendant  by  surprise,  which  is  contrary  to  its 
principles.^  Therefore,  where  a  vendor  filed  a  bill  for  a  specific 
performance,  but,  owing  to  his  not  being  able  to  make  out  a  title 
to  some  part  of  the  property,  was  unable  to  obtain  a  decree  for 
that  purpose,  it  was  held,  that  he  could  not,  under  the  prayer  for 
general  relief,  obtain  an  inquiry  into  the  management  of  the  prop- 
erty during  the  time  it  was  in  the  vendee's  possession,  although 
the  bill  did  contain  charges  of  mismanagement :  which,  however, 
had  been  introduced,  not  with  the  view  to  obtain  compensation, 
but  to  establish  the  fact  of  acceptance  of  the  title  by  the  defend- 
ant.* 

The  principle  upon  which  the  Court  acts,  under  these  circum-  Fraudulent 
stances,  receives  considerable  illustration  from  what  fell  from  Lord   ^^^^.^^^^  ^o  be 
Kedesdale,   in  lioche  v.  31or(j(dl.^      The   bill   in   that  case  stated   delivered  up, 
various  dealings  between  the  plaintiff  and  defendant,  imputing  a"gcneral  ° 
fraud  and  unfair  dealing,  and  various  usurious  charges,  overcharges  account, 
and  mistakes  in  accounts  delivered,  and  pi-ayed  a  discovery  of  the 
several  transactions,  and  a  general  account,  and  also  general  relief. 
To  this  bill  the  defendant  pleaded  a  release  made  by  the  plaintiff; 


I  13  Ves.  114,  123. 

•■i  «  Sim.  2hl. 

<*  .S'-e  llie  remarks  of  .Sir  W.  Pa^e  Wood 
V.  (;.  (Lord  IlathiTley)  in  Oilier r  Smurtii- 
waile,  I..  K.  '>  V.(\.  437,  441,  quoted  ante, 
307  note;  Laiidis  v.  Olds,  9  Min.  90. 

*  bieveiis  V.  tjuppy,  3  1{uhs.  171,  1^5; 
see  also  Ferraiiy  v.  iloi)non,  'i  I'liil.  '.Jij'i, 
!io7;  Cliapman  c.  Chnpnian,  13  Heav.  30^; 
.15  .lur.  'J.*!'),  ho  where  a  bill  was  tiled  lor 
the  gpecilic  execution  of  a  eontraet  for  the 


purchase  of  land  alleged  to  be  evidenced 
by  a  written  niemoi  auduin,  and  that  allega- 
tion was  not  sustained  by  the  pnjof,  it  was 
held,  that  the  plaintitf  could  not,  under  the 
])rayer  for  general  relief,  obtain  ciiiiipcnsa- 
lioii  tor  improveiiieiits  upon  the  lands 
feniith  V.  Smith,  1  Ired.  Va\.  83.  On  a  bill 
to  resciml  a  contract,  the  Court  cannot 
decree  a  specitic  execution.  Kochester  v, 
Anderson,  l.itt.  bel.  Ca.  14G. 
6  2  Sch.  &  Lef.  721,  729. 


382 


THE   BILL. 


Cii.  VI.5  ;.. 


Rule  strictly 
enforced  in 
cases  of  fraud. 


Interest  on  a 
balance,  not 
decreed 
under  general 
relief. 


Mild  a  question  arose,  whether,  if  tlie  release  a])})eare«l  to  be  Ibuuded 
oil  a  vieious  eonsideration,  and  was  in  itself  void,  the  Court  could 
set  it  aside,  there  beiii^"  no  S})eeiiie  ])rayer  for  that  purpose  ;  and 
Lord  Kedesdale,  in  delivering  his  o])inion  in  the  House  of  Lords 
upon  the  point,  expressed  himself  as  follo\V^s:  "It  has  been  ob- 
jected that  the  bill  does  not  state  the  release,  and  pray  that  it 
may  be  set  aside.  It  seems  doubtful  whether  the  release  has  been 
put  in  issue  by  the  bill;  but  whether  it  is  so  or  not,  if  the  release 
appears  to  be  founded  on  a  vicious  consideration,  it  is  in  itself 
void,  and  the  Court  need  not  set  it  aside,  but  may  act  as  if  it  did 
not  exist.  The  bill  prays  the  general  account,  and  all  the  relief 
necessary  for  the  purpose  of  obtaining  that  account.  This  prayer 
is  sufficient.  It  never  was  thought  of  that  a  bill  for  an  account  of 
fraudulent  dealings  must  specially  pray  that  e^'ery  bond,  every 
instrument  taken  by  the  defendant  without  sufficient  considera- 
tion, should  be  set  aside.  The  prayer  for  general  relief  is  suffi- 
cient lor  the  purpose;  and  upon  that  prayer,  the  Court  may  give 
every  relief  consistent  with  the  case  made  by  the  bill,  and  con- 
tinually does  give  relief  in  the  manner  specifically  prayed  by  the 
bill,  and  sought  for  only  by  the  prayer  for  general  relief." 

The  rule,  that  the  Court  will  only  grant  such  relief  as  the  plain- 
tiff is  entitled  to,  upon  the  case  made  by  the  bill,  is  most  strictly 
enforced  in  those  cases  where  the  plaintiff  relies  upon  fi-aud.  Ac- 
cordingly, it  has  been  laid  down,  that  where  the  plaintiff  has  rested 
his  case  in  the  bill  upon  imputations  of  direct  personal  misrepre- 
sentation and  fraud,  he  cannot  be  permitted  to  support  it  upon 
any  other  ground ;  ^  but  if  other  matters  be  alleged  in  the  bill, 
which  will  give  the  Court  jurisdiction  as  the  foundation  of  a 
decree,  the  proper  course  is  to  dismiss  only  so  much  of  the  bill 
as  relates  to  the  case  of  fraud,  and  to  give  so  much  relief  as  under 
the  circumstances  the  plaintiff  may  be  entitled  to,^ 

It  is  to  be  observed  that  the  Court  will  not,  in  general,  decree 
intei-est  upon  a  balance,  unless  where  it  is  specifically  asked  for  by 
the  bill.**  Where,  however,  from  peculiar  circumstances,  inter- 
est was  not  }iroperly  due  at  the  time  the  bill  was  filed,  and  a  right 
to  interest  has  subsequently  accrued,  the  Court  has  directed  interest 
to  be  computed,  although  there  was  no  prayer  to  that  effect  in 
the  bill.     Thus,  in  Turner  v.  Turner^^  interest  was,  by  order  on 


1  Wil<ie  V.  Gibson,  1  H.  L.  Ca.  605; 
Glascott  V.  Lang,  'l  I'liil.  310,  322;  I'arrw. 
Jewell,  1  K.  &  J.  671;  Lutt"  v.  Lord,  11 
Jur.  N.  S.  50,  L.  C.  The  use  of  the  word 
"fraud"  does  not  bring  tlie  case  within 
this  rule,  unless  the  case  alleged  is  one  of 
fraud  properly  so  calleil.  JMarsliall  v.  Slad- 
clen,  7  Hare,  42»,  443;  14  Jur.  106,  109; 
M'Calmontt;.  Kankin,  8  ilare,  116;  14  Jur. 
475. 


2  Arclibold  v.  Commissioners  of  Chari- 
table Bequests  for  Ireland,  2  H.  L.  Ca.  440, 
459;  Harrison  v.  Guest,  6  De  G  ,  M.  &  G. 
424,438;  2  Jur.  N.  S.  911;  In  Head  v. 
Cramer,  1  Green  Ch.  277,  a  bill  was  liied 
for  reliel'on  the  ground  ol'  Iraud,  and  relief 
was  granted  on  tlie  ground  of  mistake. 

3  Weymouth  v.  lloyer,  1  Ves.  J.  416, 
426. 

4  IJ.  &  W.  39,.  43,  and  see  Hollings- 


FORM    OF    THE    BILL. 


383 


further  directions,  directed  to  be  computed  upon  the  baUmce  in 
executors'  hands,  although  not  prayed  by  the  bill :  because,  at  the 
time  the  bill  was  filed,  there  did  not  appear  to  have  been  any 
money  in  their  hands,  and  the  bill  could  not  advert  to  those  cir- 
cumstances vs^hich  arose  subsequently. 

Upon  the  principle  that  the  Court  will  not  grant  a  different 
reUef  from  that  prayed  by  the  bill,  it  was  held  by  Sir  John  Leach 
V.  C.  that  where  a  bill  merely  prayed  a  commission  to  examine 
witnesses  abroad,  in  aid  of  an  action  at  Law,  the  Court  could  not 
grant  a  motion  that  the  plaintifl"  might  be  at  liberty  to  examine 
one  of  the  witnesses,  who  had  come  to  this  country  and  was  about 
to  go  away  again,  de  bene  esse,  but  said  that  the  bill  might  be 
amended  for  that  purpose.^ 

But  although  the  Court  will  not,  under  the  general  prayer, 
grant  a  different  relief  fi-om  that  prayed  by  the  bill,  yet,  when  it 
appears  that  the  plaintifl"  is  entitled  to  relief,  although  it  be  differ- 
ent from  that  which  he  has  specifically  prayed,  it  will  sometmies 
allow  the  cause  to  stand  over,  Avitli  liberty  to  the  j^laintifl'  to 
amend  his  bill.^  This  point  was  decided  by  Lord  Rosslyn,  in 
Beaumont  v.  Boulthee^  in  which  case  it  appears  that,  after  pub- 
lication had  passed,  the  relief  prayed  for  specifically  was  thought 
not  to  be  that  to  which  the  plaintifl"  was  entitled ;  he  therefore 
applied  for  liberty  to  amend,  by  adding  an  additional  prayer  for 
relief^. which  was  resisted  upon  the  ground  that  the  answer  put  in 
was  applicable  to  the  specific  relief  already  prayed;  but,  after 
much  discussion.  Lord  Rosslyn  determined  that  it  was  com])etent 
to  the  jdaintifl'  to  amend,  by  adding  the  additional  prayer.  In 
l^alk  V.  Lord  Clinton^  above  referred  to,  it  appeared  at  the  hear- 
ing that  the  plaintiff"  was  not  entitled  to  the  specific  relief  prayed 
for,  and  that,  in  order  to  enable  the  Court  to  grant  the  relief  upon 
tlie  case  made  by  his  bill,  whicli  might,  properly,  be  given,  viz.,  a 
foreclosure  of  a  mortgage,  it  \V(juld  be  necessary  to  bring  an  addi- 
tional party  before  the  Court :  an  order  was  accordingly  made 
giving  the  plaintiff  leave  to  amend  his  bill  by  adding  parties,  and 
praying  such  relief  as  he  might  be  advised. 

The  instances,  however,  in  which  this  will  be  done  are  confined 
to  those  where  it  appears,  from  the  case  made  by  the  bill,  that  the 
plaintiff  is  entitled  to  relief,  although  different  from  that  sought 


Cii.  VI.  §  5. 


Examination 
dt  bene  esse, 
not  permitted 
under  prayer 
for  commis- 
sion. 


In  some 
cases,  the 
Court  will 
allow  cause 
to  stand  over, 
with  liberty 
to  amend 
prayer. 


worth  V.  Shakcshuft,  14  IJeav.  492;  Daven- 
port V.  SlufJoi  d,  (/».  31'.»,  3:34  ;  2  Du  G.,  iM.  & 
G.  901;  .loluiHon  v.  I'remlergast,  'iH  liuav. 
480;  8CC  iilsD  IJovd  V.  Jones,  12  Sim.  41)1; 
Fr>'  V.  Fry.  10  .)iir.  N.  S.  9S3,  V.  G.  S. ; 
and  poll,  Chap.  X.\X.,  Further  C'omidera- 
liim. 

1  Atkin.sw.  Palmer,  5  Mad.  Hi. 

2  See   I'ennock    i'.   I, la,  41   N.  H.    189. 
Where  the  facts  set  forth  in  Ihe  bill  would 


Where  the 
amendment 
involves  the 
introduction 
of  a  new 
party. 


Only  done 
where  it 
appears  that 
the  plaiutilf 


not  authorize  other  reliefthan  that  speci;illy 
prayed  lor,  tiie  prayer  will  not  he  amended, 
lliilstcd  V.  Meeker,  3  C.  K.  Ureen  (N.  J.), 
i:jt;,  Vi'J. 

a  5  V'es.  4S5,  495;  7  Ves.  599,  on  a  re- 
hearing by  Lord  KIdon;  stated  on  this 
])oiut,  (try.  in  I'alk  t'.  Lonl  Clint<ni,  12  \'es. 
U;j;  see  also  Cook  i>.  Martvn,  2  Aik.  2. 

*  12  Ves.  48,  (54,  C6. 


384 


THE    BILL. 


Cn.  VL  §  5. 


is  entitloil  to 
rolii't",  tlunigh 
iiat  to  thiit" 
siH'cilically 
prayed ; 


but  plaiutitV 
cannot  make 
a  new  case. 


Greater  lati- 
tude in  cases 
of  infants ; 


and 'informa- 
tions for 
charities. 

Of  alternative 
prayer: 


l)y  tl\o  specific  ]>raver :  where  the  ohjoct  of  tlic  proposed  amenrl- 
nicnt  is  to  make  a  now  case,  it  will  not  be  })erinitte(l.  Thus, 
where  a  bill  was  tiled  for  (he  specific  performance  of  an  agreement 
for  a  lease  to  the  ])laintitf  alone,  and  it  was  stated,  by  the  defend- 
ant's answer,  that  the  agreement  had  been  to  let  to  the  plaintilF 
and  anotlier  person  jointly,  but  the  plaintiflf  nevertheless  rejdied  to 
the  answer,  and  proceeded  to  establish  a  case  of  letting  to  himself 
alone,  in  Avhich  he  failed  :  Lord  lledesdale,  upon  application  being 
made  to  him  to  let  the  cause  stand  over,  with  liberty  to  the  plain- 
tilF to  amend,  by  adding  the  other  lessee  as  a  party,  said  that  such 
a  proceeding  would  be  extremely  im])roper;  it  was  not  like  letting 
a  case  stand  over  to  a(,ld  a  party  against  whom  a  decree  in  a  i)lain 
case  conld  be  made,  but  for  the  pnrpose  of  making  a  new  case ;  for 
a  new  case  it  would  be  if  founded  on  a  new  agreement.^  In  that 
case,  his  Lordship  stated  that  the  ordinary  practice,  where  a  party 
has  mistaken  his  case,  and  brings  the  cause  to  a  hearing  under  such 
mistake,  is  to  dismiss  the  bill,  without  prejudice  to  a  new  bill ;  and 
this  practice  was  adopted  by  him  in  Lindsay  v.  Liynch^  and  is  in 
accordance  with  the  decree  of  Sir  William  Grant  M.  R.  in  Wooll- 
man  v.  Hearn^  and  has  been  subsequently  followed  by  Lord  Lynd- 
hurst,  in  Stevens  v.  Guppy^ 

But  although  the  Court  is  thus  strict  in  requiring  that,  where 
the  i^lJiintiff  prays  specific  relief,  it  must  be  such  as  he  is  entitled 
to  from  the  nature  of  the  case  made  by  the  bill,  yet  where  infants 
are  concerned  this  strictness  is  relaxed  ;  and  it  has  been  deter- 
mined, that  an  infant  plaintiff  may  have  a  deci'ce  upon  any  matter 
arising  upon  the  state  of  his  case,  though  he  has  not  particularly 
mentioned  or  insisted  upon  it,  or  prayed  it  by  his  bill.^ 

In  cases  of  charities,  likewise,  the  Court  will  give  the  proper  di- 
rections, without  any  regard  to  the  propriety  or  impropriety  in  the 
l^rayer  of  the  information.^ 

It  sometimes  happens  that  the  plaintiflf,  or  those  who  advise 
him,  are  not  certain  of  his  title  to  the  specific  relief  he  wishes  to 
pray  for ;  it  is,  therefore,  not  unusual  so  to  frame  the  prayer  that, 
if  one  species  of  relief  sought  is  denied,  another  may  be  granted. 
Bills  with  a  prayer  of  this  description,  framed  in  the  alternative, 
are  called  bills  with  a  double  aspect.''     But,  it  seems  that  the  alter- 


1  Deniston  ?;.  Little,  2  Sch.  &  Lef  11, 
n  ;  Watts  v.  Hyde,  2  Phil.  406;  11  Jur. 
979;  see  also  Griggs  v.  Staplee,  2  l)e  G.  & 
S.  572;  13  .Jur.  29;  Phelps  v.  Prothero,  2 
De  G.  &S.  274;  12  .lur.  733. 

2  2  Sch.  &  Lef.  1. 

3  7  Yes.  211,  222. 
*■  3  Russ.  171,  1&6. 

6  Stitpilton  V.  Stajjilton,  1  Atk.  6;  see 
ante,  p.  77. 

8  Attorney-General  v.  Jeanes,  1  Atk. 
355;  see  ante,  p.  14. 


7  Bennet  v.  Vade,  2  Atk.  325;  Ld.  Red. 
39;  Story  Kq.  PI.  §  40,  and  cases  in  note. 
If  the  plaintiff  (louljts  his  title  to  the  relief 
he  wishes  to  pray,  the  bill  should  be  friimed 
with  a  double  aspect,  so  that,  if  tlie  Court; 
should  decide  against  him  in  one  view  of 
the  case,  it  may  3'et  afford  him  assistance 
in  another.  Stoiy  Eq.  PI.  §  42;  Colton  v. 
Ros.s,  2  Paige,  396 ;  Lloyd  v.  Brewster,  4 
Paige,  537;  Cooper  Eq.  PI.  14;  M'Connell 
V.  M'Connell,  11  Vt.  290;  Strange  v.  Wat- 
son, 11  Ala.  324;  Shields  v.  Barrows,  17 


FORM    OF    THE    BILL. 


385 


native  prayers  must  not  be  founded  on  inconsistent  titles ;  thus,  a 
plaiutitF  cannot  assert  a  will  to  be  invalid,  and  at  the  same  time 
claim  to  take  a  benefit  on  the  assumption  of  its  validity.^ 

It  is  a  principle  of  Equity,  that  a  person  seeking  relief  in  Equity 
must  himself  do  what  is  equitable ;  '^  it  is  therefore  required,  in 
many  cases,  that  a  plaintiff  should,  by  his  bill,  offer  to  do  whatever 
the  Court  may  consider  necessary  to  be  done  on  his  part  towards 
making  the  decree  wliich  he  seeks  just  and  equitable,  with  regard 
to  the  other  parties  to  the  suit.  Upon  this  principle,  where  a  bill 
is  filed  to  compel  the  specific  performance  of  a  contract  by  a  de- 
fendant, the  })laintiff  ought  by  his  bill,  to  submit  to  perform  the 
contract  on  his  part ;  and  it  is  to  be  observed,  that  the  effect  of 
such  submission  will  be  to  entitle  a  defendant  to  a  decree,  even 
though  the  plaintiff  should  not  be  able  to  make  out  his  own  title 
to  relief,  in  the  form  prayed  by  his  bill.^ 

Upon  the  same  principle,  it  was  formerly  required,  that  a  bill 
for  an  account  should  contain  an  offer  on  the  part  of  the  plaintiff 
to  pay  the  balance.  If  found  against  him ;  but  it  seems  that  such 
an  offer  is  not  now  considered  necessary.*  And  so,  where  a  surety 
brought  an  action  upon  an  indemnity  bond  against  his  princii^al, 
to  recover  moneys  which  lie  had  been  compelled  to  pay  on  his  ac- 
count, and  the  principal  tiled  a  bill  in  Equity  for  an  injunction, 
and  to  have  the  bond  delivered  up  to  be  cancelled,  suggesting 


Ch.  vl  §  5. 


entitles  a 
defendant  to 
a  decree, 
witliout 
cross-bill. 

Offer  to  pay 
balance  of 
account ; 


not  now 
necessary. 


How.  U  S.  1.30;  Gerrish  u.  Towne,  3  Grav, 
66,  87;  Murphy  f.  Clark,  1  Sin.  &  M.  Cli. 
221;  Stein  v.  Robertson,  30  Ahu  286; 
Walker  f.  Deverenux,  4  Paij^e,  229;  Fos- 
ter V.  Cook,  1  Hawks,  509;  Liug;in  v. 
Henderson,  1  liland,  252;  l^k'asaiits  v. 
Classcock,  1  Sni.  &  M.  17,  24,  20;  Kibler 
I'.  Whiteinan,  2  llarr.  401;  Foulkes  v. 
Davies,  L.  K.  7  K(|.  42.  I'lie  bill  may  not 
only  be  framed  wiUi  a  double  aspect,  but 
m  ly  be  so  amended  as  to  be  of  tliat  char- 
acter. The  alternative  case  stated  must, 
however,  be  tlie  louiidation  for  precisely 
tlie  same  relief.  U'lien  the  pr.iyer  ol  a  bill 
is  that  the  Court  will  .set  aside  a  contract 
on  the  ground  of  Iraud,  tiie  plaintiff  cannot 
•  amend  by  sub.>ti'utin;{  a  praver,  that  the 
Court  would  either  set  it  aside  on  the 
ground  of  fraud,  or,  it  it  was  valid,  would 
enforce  its  i-pecilic  performance.  Shiehls 
V.  15  irrow,  17  How.  U.  S.  130;  .see  Pcu- 
senneau  v.  I'enseuueau,  22  Mis.  (1  Jones) 
27. 

A  prayer,  a.xsigning  several  reasons  fur 
vacatin^i  a  deed,  is  considered  as  so  many 
Feparute  firayert,  and  if  one  rea-*on  be  valid, 
it  IS  error  to  reject  ilie  whole  prayer. 
American  K.\cliange  H.ink  r.  Inloes,  7 
Mil.  a^O.  In  New  York,  legal  redress 
and  e(|iiitable  r(d;ef  may  be  demanded 
in  the  »atiie  coin|ilaint;  and  either,  or  both, 
if  the  circumstances  of  the  case  permit, 
may  be  afforded  by  the  Court.  New  Vork 
Ice  Co.  v.  N.  \V.  Ins.  Co.,  23  N.   Y.  357; 

VOL.   1. 


but,  in  order  to  entitle  a  part^''  to  one  or 
the  other,  he  must  ask  it  speciticalh'  in 
his  onipluiiit.  tjtevensou  v.  Buxton,  15 
Ab.  I'r.  355. 

1  Wright  V.  Wilkin,  4  De  G.  &  J.  141; 
see  also  Kawlings  v.  Lambert,  1  J.  &.  11. 
458;  Marsh  v.  keith,  1  Dr.  &  S.  342;  6 
Jur.  N.  S.  11S2;  Tliomasv.  Hobler,  SJur. 
N.  S.  125,  L.  C;  Lett  i'.  I'arry,  1  H.  &  M. 
517;  Onions  u.  Cohen,  13  W.  li.  426,  V.  C. 
W. ;  Davies  v.  Otty,  2  Ue  G.,  J.  &  S.  238. 
Alternative  relief  cannot  be  prayed  against 
one  delendant  in  case  relief  cannot  be  ob- 
tained against  another  defendant.  Clark  v. 
Lord  Rivers,  L.  R.  5  E(i.  91. 

^  1  Story  Kip  Jur.  ^  64  c. ;  Bates  v. 
Wheeler,  1  Scam.  54;  Cooper  o.  Brown, 
2  .M'Le.in,  495;  Dougherty  c.  Humpson,  2 
Blackf.  273. 

3  1-ite  V.  Clayton,  13  Ves.  546;  1  C.  P: 
Coop.  t.  Gott.  351;  Green  u.  Covillauil,  10 
Cal.  317;  McKleroy  v.  I'ulane,  34  Ala.  78; 
Story  Kq.  I'l.  §  394,  note ;  Btdl  v.  Tiiomiisoii, 
34  Ala.  633;  Oliver  v.  I'ahiier,  11  Gill  Hi, 
J.  426;  Hatcher  v.  Hatcher,  1  McMuUan 
Ch.  311. 

■•  (.'(jiumbian  Government  v.  Rothschild, 
1  Sim.  94,  lo;i;  Clarke  «.  Tijiping,  4  Beav. 
588,  593;  6  Jur.  25;  Barker  c  Walters,  8 
Beav.  92,  96;  9  Jur.  73;  Toulmin  u.  Reid, 
14  beav.  499,  505;  Inman  v.  Wearing,  3 
\)it  G.  &,  S.  729,  733;  .see  1  Smith  Ch.  I'r. 
(2d  Am.  ed.)  86;  Wells  v.  Strange,  0  Geo. 
22. 


25 


386 


THE    BILL. 


(^11,  VI.  §  r.. 


Wlipn  mort- 
pajxor  must 
olVor  to 
n'doi'm  inort- 
gtigee. 
In  bills  to 
set  aside 
securities, 


plaintiff  must 
ofl'er  to  pay 
what  is  due. 

Secus,  in 
bankruptcy. 


Waiver  of 
penalty  or 
forfeiture. 


fr.ind,  but  witlKnit  ofloiiiisjj  to  iiKli'iunify  llio  (lofcMKlaut,  the  Court 
ol"  Kxi'lioquiT  lhoUL;;lil,  lliat  tlie  \v:nit  ol'im ollrr  \u  the  bill  to  make 
satisfaction,  was  fatal  to  the  bill,  and  allowed  a  donuirrcr,  which 
had  been  jiut  in  by  tlie  defendant.^ 

In  like  manner  it  has  been  held,  that  a  morts^agor  cannot  make 
a  mortnagee  a  i)arty  to  a  bill  in  respect  of  his  mortgage  estate, 
without  offering  to  redeem  him.- 

It  is  upon  the  same  ground  that  Courts  of  Equity,  in  cases 
where  a  contract  is  rendered  void  by  a  statute,  require  that  a  bill 
to  set  aside  such  contract  should  contain  an  offer  on  the  part  of 
the  ])laintiff  to  pay  to  the  defen(bint  what  is  justly  due  to  him. 
Thus,  where  a  bill  was  filed,  praying  that  an  instrument  or  security 
given  for  an  usurious  consideration  (and  void  under  the  usury  laws 
then  in  force)  might  be  delivered  up  to  be  cancelled,  the  only 
terms  ujion  which  a  Court  of  Equity  would  interfere  were  those  of 
the  j)laintiff  paying  to  the  defendant  Avhat  was  bond  fide  due  to 
him,^  and  where  the  plaintiff  did  not  offer  to  do  so  by  his  bill,  a 
demurrer  was  allowed.*  It  seems  that  there  is  no  difference,  in 
this  respect,  between  a  cross-bill  and  an  original  bill.^  The  course 
of  proceeding  in  bankruptcy,  however,  differs  from  that  in  Courts 
of  Equity ;  for  the  rule  in  bankruptcy  is,  that  a  debt  made  void  by 
statute  is  void  altogether,  and  cannot  be  proved  :  because  the 
creditor  has  no  legal  remedy  by  which  he  can  recover ;  and  unless 
the  assignees  and  creditors  voluntarily  consent  to  the  payment  of 
what  is  really  due,  neither  the  Court  of  Bankrui:)tcy  nor  the  Lord 
Chancellor,  or  Lords  Justices,  have  power  to  order  it ;  and  appli- 
cations of  this  nature  have  frequently  been  refused.^ 

It  is  a  rule  in  Equity,  that  no  person  can  be  compelled  to  make 
a  discovery  which  may  expose  him  to  a  penalty,  or  to  any  thing 


1  Godbolt  V.  Watts,  2  Anst.  543. 

2  Dalton  V.  Hayter,  7  Beav.  313,319; 
Inman  v.  Wearing,  3  De  G.  &  S.  729; 
Attornej'- General  v.  Hardy,  1  Sim.  N.  S. 
338,  355;  15  Jur.  441;  Knebell  v.  White, 
2  Y.  &  G.  Ex.  15,  20.  If  the  bill  does  not 
contain  an  offer  to  account,  and  the  decree 
does  not  direct  jjiaiiitiff  to  pay  what  may 
be  due  to  defendant,  the  Court  cannot  at 
the  lurthcr  hearing  make  such  an  order. 
Mollis  V.  Bulpett,  13  W.  R.  492,  V.  C.  K. 

3  It  is  against  conscience  that  the  bor- 
rower should  have  full  relief,  and  at  the 
same  time  pocket  the  money,  which  may 
have  been  granted  at  his  own  mere  solici- 
tation. He  who  seeks  equit}'  at  the  hands 
of  a  Court  of  Equity,  may  well  be  required 
to  do  equity.  1  Story  Eq.  .lur.  §  301; 
Fonb.  Eq.  B.  1,  ch.  1,  §  3,  note  {h)\  Jordon 
V.  Trumbo,  6  Gill  &  J.  103;  Fulton  Bank 
V.  Beach,  1  Paige,  429;  Crawford  v.  Har- 
vey, 1  lilackf.  3S2;  M'Daniells  r.  Barnum, 
5  Vt.  279;  Fanning  v.  Dunham,  6  John. 
Ch.  142,  143,  144;  Rogers  v.  Rathbun,  1 


John.  Ch.  367;  Campbell  v.  Morrison,  7 
Paige,  158:  Judd  v.  Seaver,  8  Paige,  548; 
Cole  V.  Savage,  1  Clarke,  482.  A  Court 
of  Equity  will  not  aid  a  plea  of  usury,  at 
Law,  by  compelling  a  discovery,  unless  the 
debtor,  in  his  bill,  tenders  the  sum  actually 
borrowed.  Tupper  v.  Powell,  1  John.  Ch. 
439;  Rogers  v.  Rathbun,  1  John.  Ch.  367. 
So  the  Court  will  not  allow  an  answer  to 
be  amended  for  the  purpose  of  setting  up 
the  defence  of  usury,  unless  the  defendant 
consents  to  pay  the  amount  actually  due. 
Fulton  Bank  v.  Beach,  1  Paige,  429;  Story 
Eq.  PI.  §  630. 

•*  Mason  v.  Gardiner,  4  Bro.  C.  C.  436; 
Scott  V.  Nesbit,  2  Bro.  C.  C.  641,  649;  2 
Cox,  183;  Whitmorej;.  Francis,  8  Pri.  616. 

5  Mason  V.  Gardiner,  4  Bro.  C.  C.  ed. 
Belt,  438,  n.;  Story  Eq.  PI.  §  630. 

6  Kx  parte  Thompson,  1  Atk.  125;  Ex 
parte  Skip,  2  Ves.  S.  489;  Kx  parte  Ma- 
ther, 3  Ves.  373;  Kx  parte  Scrivener,  3  V. 
&  B.  14;  Archbold's  Bankruptcy,  110. 


FORM    OF    THE    BILL. 


387 


in  the  nature  of  a  forfeiture.  As,  however,  tlie  plaintiff  is,  in 
many  cases,  himself  the  only  person  who  would  benefit  by  the 
penalty  or  forfeiture,  he  may,  if  he  pleases  to  waive  that  benefit, 
have  the  discovery  he  seeks.^  The  effect  of  the  waiver,  in  such 
cases,  is  to  entitle  the  defendant  (in  case  the  plaintiff  should 
proceed  upon  the  discovery  which  he  has  elicited  by  his  bill,  to 
enforce  the  penalty  or  forfeiture)  to  come  to  a  Court  of  Equity 
for  an  injunction :  which  he  could  not  do  without  such  an  express 
waiver.  2 

It  is  usual  to  insert  this  waiver  in  the  prayer  of  the  bill,  and  if 
it  is  omitted  the  bill  will  be  liable  to  demurrer.  Upon  this 
ground,  where  an  information  was  filed  by  the  Attorney-General, 
to  discover  copyhold  lands,  and  what  timber  had  been  cut  down 
and  waste  committed,  and  the  defendant  demurred,  because,  al- 
though the  discovery  would  have  exposed  the  defendant  to  a 
forfeiture  of  the  place  wasted  and  treble  damages,  the  Attorney- 
General  had  not  waived  the  forfeitures,  the  demurrer  was  allowed.^ 
And  so  it  has  been  held,  that  a  demurrer  will  lie  to  a  bill  by  re- 
versioner, for  a  discovery  of  an  assignment  of  a  lease  without  license, 
if  it  does  not  expressly  waive  the  forfeiture.*  Upon  the  same 
principle,  if  a  rector  or  impropriator,  or  a  vicar,  file  a  bill  for  tithes, 
he  must  waive  the  pjenalty  of  the  treble  vahie,  to  which  he  is  en- 
titled by  the  statute  of  2  &  3  Edward  VI. :  otherwise,  his  bill  will 
be  liable  to  deinurrer.^  It  seems,  however,  that  if  the  bill  pray  an 
account  of  the  single  value  of  the  tithes  only,  such  a  prayer  will 
amount  to  an  implied  waiver  of  the  treble  value,  and  that  an  in- 
junction may  be  granted  against  suing  for  the  i^enalty  of  the  treble 
value,  as  well  upon  this  implied  waiver  as  upon  the  most  express.^ 
It  is  to  be  observed  also,  that  if  the  executor  or  administrator  of 
a  parson  bring  a  bill  for  tithes,  he  need  not  offer  to  accept  the 
single  value,  as  the  statute  of  Edwai-d  VI.  does  not  give  to  such 
persons  a  right  to  the  treble  value.'' 

And  it  seems,  that  if  a  plaintiff  has  made  a  gratuitous  offer  by 
his  bill,  he  cannot  afterwards  withdraw  it ;  '*  but  it  is  in  the  discre- 
tion of  the  Court  whether  or  not  to  enforce  it.'' 

Where  no  account,  payment,  conveyance,  or  other  direct  relief 
is  sought  against  a  party  to  a  suit,  Avho  is  not  an  infimt,  this  portion 


Ch.  XL  §  5. 


Where 
waiver 
omitted,  bill 
demurrable. 


1  In  Mason  v.  Lake,  2  Bro.  P.  C  ed. 
Tomi.  4!*.0,  497,  leave  appears  to  have  been 
given  to  amend  u  ijili,  by  waivinf^  penal- 
tins  ami  lorteitiires,  alter  a  demurrer  upon 
that  ground  iillowed.  See  United  States 
of  AnK'riea  v.  Mcllae,  L.  \l.  4  Ivp  .'527,  3:33, 
338-340;  S.  (J.  I>.  U.  3  Ch.  Ap.  7!);  Attor- 
ney-General I'.  Vincent.  Hunb.  li>2. 

'^  lyord  LJxbrid;5e  v.  Staveland,  1  Ves.  S. 
66. 

'  Attorney-General  v.  Vincent,  Bunb. 
192. 


*  Lord  Uxbridge  v.  Staveland,  1  Ves.  S. 
56. 

6  Ld.  Red.  195;  Anon.,  1  Vern.  60. 
«  Wools  V.  Waliey,  1  Anst.  100. 

7  Anon.,  1  Vern.  00;  see  also  Attorney- 
General  V.  Vincent,  nhi  gup. 

»  I'elly  ('.  Watlu^n,  7  Hare,  371;  14  .lur. 
9,  13;  I'.ilter  v.  Waller,  2  Do  (J.  &,  S.  410, 
420;  Kendall  v.  Mar-sters,  2  Ue  G.,  F.  &  J. 
200. 

»  Knight  V.  Bowyer,  2  De  G.  &  J.  421, 
447;  4  Jur.  N.  S.  06'J. 


Waiver 
unnecessary, 
when  bill 
prays  single 
value  of 
tithes ; 


and  in  suits 
by  executors 
of  tithe 
owners. 


Gratuitous 
ort'or  by  bill 
cannot  be 
withdrawn. 

Where  no 
direct  relief 
sought 
against  a 
party. 


388 


THE    BILL. 


Oi.  vr.  §  5. 


Prayer  for 

provisional 
onii'rs : 


Injunction 
not  usually 
granted 
before  decree, 
unless 
expressly 
prayed  for; 


Sectts,  after 
decree. 


Perpetual 
injunction. 


Prayer  for 
ne  exeat 
regno. 


of  tlio  l>ill  may  also  contain  a  jirayor  tliat  sucli  party,  upon  being 
sorvod  with  a  copy  oftlio  bill,  may  be  bouml  by  all  the  proceedings 
in  the  cause.^ 

P\)r  the  piu-pose  of  ]>reserving  the  property  in  dispute  pending 
a  suit,  or  to  prevent  evasion  of  justice,  the  Court  eitlier  makes  a 
special  order  on  the  subject,  or  issues  a  ])rovisi()n.al  writ:  sucli  as, 
the  writ  of  injunction  to  restrain  the  defendant  from  j)roceeding 
at  Common  Law  against  the  plaiutiif,  or  from  comniitting  waste, 
or  doing  any  injurious  act ;  the  writ  of  ne  exeat  rer/no,  to  restrain 
the  defendant  from  avoiding  the  plaintitf's  demands  by  quitting 
the  kingdom;  or  other  writ  of  a  similar  nature.  When  a  bill 
seeks  to  obtain  the  special  order  of  the  Court,  or  a  provisional  writ 
for  any  of  these  purposes,  a  prayer  for  the  order  or  particular  writ 
which  the  case  requires  .should  be  inserted,  and  the  bill  is  then 
commonly  named  from  the  writ  so  prayed  :  as,  an  injunction  bill, 
or  a  bill  for  a  writ  of  ne  exeat  regno."^ 

As  a  general  rule,  the  Court  will  not  grant  an  injunction,  unless 
expressly  prayed  by  the  bill.^  A  prayer  for  general  relief  will  not 
be  suflicient  to  authoi-ize  it :  *  for,  as  against  the  general  words,  the 
defendant  might  make  a  different  case  than  he  would  against  a 
prayer  for  an  injunction.^  It  seems,  however,  that  there  are  ex- 
ceptions to  this  rule  ;  and  that,  in  some  cases,  the  Court  will  grant 
an  injunction,  though  not  prayed  for,® 

It  is  to  be  observed,  that  the  rule  not  to  grant  an  injunction, 
unless  specially  prayed,  applies  only  to  cases  where  it  is  required, 
provisionally,  until  the  hearing ;  but  that  after  decree,  the  Court 
will  interpose  by  injunction,  although  it  is  not  asked  for  by  the 
bill." 

Where  an  injunction  is  sought,  not  as  a  provisional  remedy 
merely,  but  as  a  continued  protection  to  the  rights  of  the  plaintiff, 
the  prayer  of  the  bill  must  be  framed  accordingly.^ 

The  ])rayer  for  ne  exeat  regno  resembles  mutatis  mutandis.^  that 
for  an  injunction.®  But,  though  it  is  usual,  it  is  not  necessary  that 
the  bill  should  pray  the  writ,  as  the  intention  to  go  abroad  may 


1  Order  X.  11;  see  post,  Chap.  VII.  §  1, 
Service  of  a  copy  of  the  bill  on  formal  de- 

fendnnts. 

2  Ld.  Red.  46. 

3  iSavorv  t).  Dver,  Amb.  70;  Storv  Eq. 
PI.  §  41;  iCden  hij.  (2d  Am.  ed.)  73,  74; 
2  Story  Eri-  .Jiir  §§  fce2,  803;  Walker  v. 
Devereaux,  4  I'aijjje,  248;  Lewiston  Falls 
JIaiiuf  C').  ('.Franklin  Co.,  04  .Maine,  402. 

4  Wriglit  V.  Atkyns,  1  V.  &  B.  313,  314. 
6  Savory  v.   Dyei-,  ubl  sup.      In    cases 

where  the  writ  of  injunction  is  sought,  it 
shouM  not  only  be  included  in  the  prayer 
for  relief,  but  also  in  the  pi-;iyer  for  process. 
Story  Kq.  Pi.  §  44;  Kden  Inj.  (2d  Am.  ed.) 
73,  74 ;  Lewiston  Falls  Manuf.  Co.  v.  Fnink- 
lin  Co.,  54  Maine,  402,  404;  Wood  v.  Bra- 


dell,  3  Sim.  273;  Union  Bank  v.  Kerr,  2 
Md.  Ch.  Decis.  460. 

«  Blomfield  v.  Eyre,  8  Beav.  250,  259; 
9  Jur.  717. 

7  Wright  V.  Atkj-ns,  ubi  sup. ;  Paxton 
V.  Douglas,  8  Ves.  620;  Jackson  v.  Leaf, 
1  J.  &  W.  229,  232;  ClarKe  v.  Eirl  of  Or- 
mond,  .Jac.  122;  He3'nelli;.  Sprye,  I  Ue  <}., 
M.  &  (i.  600,  690;  and  see  post,  Chap. 
XXXV'I.  Injunctions. 

**  Ld.  Red.  47;  and  see  post,  Chap. 
XXXVI.  §  3;  Walker  v.  Devereaux,  4 
Paige.  229. 

'■>  Upon  the  same  bill,  a.ne  exeat,  as  well 
as  an  injunction,  may  be  granted.  Bryson 
V.  Fetty,  1  Bland,  182. 


FORM    or    THE    BILL. 


389 


arise  in  the  progress  of  tlie  cause  ;  and  if,  when  the  bill  is  filed,  the  di.  VL  §  5. 
defendant  does  not  intend  to  leave  the  kingdom,  it  would  be  high-  "^  y  •' 
ly  improper  to  pray  the  writ :  as  a  groundless  suggestion  that  the 
defendant  means  to  abscond  would  press  too  harshly,  and  would 
also  operate  to  create  the  very  mischief  which  the  Court,  in  per- 
mitting the  motion  for  it  to  be  made  without  notice,  means  to 
prevent.^  In  the  case,  however,  of  Sharp  v,  Taylor;^  where  the 
plaintiff  knew,  at  the  time  of  the  filing  of  the  bill,  that  the  defend- 
ant was  going  abroad,  Sir  Lancelot  Shadwell  V.  C.  refused  to 
grant  a  Avrit  of  ne  exeat  regno^  in  consequence  of  its  not  having 
been  prayed  for  by  the  bill.^ 

In  addition  to  the  pailiculars  already  mentioned  as  necessary  Bill  must  be 
parts  of  a  bill,  the  bill  should  also,  in  the  heading,  be  expressed  to   Si'Sn  the 
be  between  the  intended  plaintiffs  and  defendants ;  the  names  of  parties. 
the  defendants  should  be  rei)eated  at  the  end,  as  defendants  to  the  J^^^^^^^.*"^' 
bill;*  and  a  note  should  be  appended  of  the  name  and  address  of  name  and 
the  plaintiff's  solicitor  and  agent,  or  of  the  plaintiff's  name  and  ^^^^^^"^l 
place  of  abode,  where  he  sues  in  person.^     The  branch  of  the  Court  solicitor, 
to  Avhich  the  cause  is  to  be  attached,  must  also  be  marked  on  the  ?^  [;[:J4onf 
bill,  previous  to  its  being  filed.*^  branch  of 

Court. 

8.  Prayer  for  Process? 

The  next  part  of  the  bill  consists  of  the  prayer  for  process  ;  ^  it 
has  'before  been  stated  that  where  no  account,  payment,  convey- 
ance, or  other  direct  relief  is  sought  against  a  party  to  a  suit,  who 
is  not  an  infant,  tlie  jdaintiff  is  now  enabled,  if  he  thinks  fit,  to 
pray  by  his  bill  tliat  such  a  party,  upon  being  served  with  a  copy 
of  the  bill,  may  be  bound  l^y  all  the  proceedings  in  the  cause ;  ^ 
but  with  res)»ect  to  all  other  defendants  the  process  prayed,  in  or- 
dinary cases,  is  a  writ  oi  subpoena ;  and  tliis  part  of  the  prayer  is 

1  Collin-on  v.  ,  18  Vcs.  353;  Moore       Ord.  HI.  2.  3,  5.  and  post,  p.  397.     For 

V.  HuiUon.  G  Mad.  21fe;  IJarned  r.  Laing,        forms,  .see  Vol.  III. 

13  Sim.   255;    0   .lur.   1050;    7  .lur.  383;  6  Oni.  VI.  1;  see ;ws<,  p.  397 ;  and  form 

Ilowkins  r.    Howkins,    1    Dr.  &S.  75;6  of  bill.  Vol    III. 

Jur.  N.  S.  490.  "^   flie  bill  used  to  conclude  in  England 

2  11  Sim.  50;  and  see  remarks  on  that  with  an  elabonite  prayer  for  process;  but 
ca.sc  in  IJarned  r.  Lain},',  u/yt  «"/>.  all   tliat  is  now  r^iuired    in    the   present 

«  Ld.    lied.    4t;,  47;  Storv  Kcj.  PI.  §  43,  Knuli'^li  pra'-ti<e  is,  that  the  names  of  the 

«nd  n..t<-s;  s.-e  Uarl.-v  ».   Nicholson,  1  Dr.  di-fciidaiits  -liould  \w  set  fortli.  and  a  note 

&  War.  00;  2  Dr.  &  War.  W;  1  (Jon.  &  L.  ajipcndcd  witli  the  names  of  the  solicitors 

207,   for  tlie   iiriMcijiles   upon    which    the  for  the  plaintiff.     In  New  Ilampslin-e,  the 

Court  acts  in   urantin^  writs  of  Tie  <xe.<it  praver  for  process,  unless  some  sju'cial  pro- 

retino;    and    see  ;>w<,  Ciiap.   XXXVIII.,  cess  or  order  shall   be  re(|uind,  mav  be 

IVril  of  ne  ixint.  omitted.     Kule  of  Chan<ery,  3,38  N.  H. 

*  The  words.  "  out  of  the  jurisdiction,"  605.     TIk;  want  of  a   prayer  for  process 

or  "»o  be  bound  upon  service  of  a  co|iv  of  renders  the   bill  defective  in  New  .Teisey. 

the  bill,"  slir.uld  be  added  alter  the  n'.me  Writ,'ht    v.   WrKlit.  4    ilabt.  (^^(N.  •    ) 

of  n  delViidant  who  is  abroad,  or  who  is  15:j;  see  Se^ee  v.  Tliomas,  3  I'datclit.  0. 

nieielv  a  Ibrinal  |Mrtv.  C.  11. 

1  Ord.  IX.   2,  and"  Sched.  A.;   Bee  also  8  See  IJelknnp  v.  Stone,  1  Allen,  57i. 

0  Older,  23d  August,  lb41. 


390  THE   BILL. 

t"hi.  VI.  §  5.    conunoiily  as  follows  :  "May  it  please  your  LovJship,  the  premises 
oonsidorod,  to  gTant  under  your  orator  his  JMajesty's  uiost  gracious 

Avrit  [or  Avrits]  of  {<i(f>j)a'na,  to  be  directed  to  the  said ,  and 

to  the  rest  of  the  confederates,  when  discovered,  thereby  coni- 
mandin<:f  them,  and  every  of  them,  at  a  certain  day,  and  under  a 
pain  therein  to  be  limited,  personally  ^  to  l)e  and  ajipear  before  your 
lordshi])  in  this  honorable  Court ;  and  then  and  there,  full,  true, 
dii'ect,  and  perfect  answer  make  to  all  and  singular  the  ])remises  ; 
and  further  to  stand  to,  perform,  and  abide  such  further  order, 
direction,  and  decree  therein,  as  to  your  Lordship  shall  seem  meet. 
And  your  orator  shall  ever  pray,"  &c.'^ 

It  is  to  be  observed,  that  the  above  words  are  not  usually  in- 
serted in  the  draft  by  the  draftsman  who  prepares  the  bill,  although 
they  must  be  added  when  the  bill  is  engrossed.  The  draftsman, 
however,  generally  writes  a  direction,  in  the  margin  of  the  draft, 
for  the  insertion  of  this  prayer,  specifying  the  names  of  the  per- 
sons against  whom  process  is  to  be  prayed ;  and  care  must  be 
taken  in  so  doing  to  insert  the  names  of  all  the  persons  who  are 
intended  to  be  made  defendants  ;  because  it  has  been  held  that  the 
mere  naming  of  a  party  in  a  bill,  without  praying  process  against 
him  as  a  defendant,  is  not  to  be  considered  as  making  him  a  party,^ 
even  where  he  is  out  of  the-  jurisdiction  of  the  Court.*  Some 
doubt  appears  to  have  been  thrown  upon  the  last  proposition  by 
the  decision  of  Sir  J.  Leach  V.  C.  in  Haddoch  v.  Thomlinson^  in 
which  his  Honor  expressed  an  opinion  that  AAdiere  a  party  inter- 
ested in  the  subject  of  a  suit  is  charged  by  the  bill  to  be  out  of  the 
jurisdiction  of  the  Court,  but  is  not  named  in  the  prayer  for  pro- 
cess, the  omission  will  not  render  the  record  defective ;  although 
it  is  usual  and  convenient  that  process  should  be  prayed  against 
them,  in  order  that  if  they  come  within  the  jurisdiction,- process 
may  issue  against  them  without  amending  the  bill.  In  a  subse- 
quent case,  however,  before  Sir  C.  Pepys  M.  R.  the  point  again 
came  under  the  notice  of  the  Court,  when  his  Honor,  —  after  re- 
ferring to  a  manuscript  report  of  another  case  before  Sir  J.  Leach," 
in  which  that  learned  Judge  had  said,  that  it  was  not  enough  to 
state  that  persons  who,  in  respect  of  interest,  were  necessary  par- 

1  In  the  case  of  a  corporation  a  proper  former  practice  in  New  York,  parties  might 
form  would  omit  the  word  "  personall}','"  be  treated  as  ilefendants,  by  a  clear  state- 
and  after  the  word  "  ajipear,"  in  this  line,  ment  in  the  bill  to  that  effect,  without 
insert '•  according  to  law."    1  Ilotf.  Ch.  53.  pruj'ing  the  s(ii/j(E«a.     The  reason  given 

2  Hind.  17.  was,  that  in  tliat  State  the  subpoena  was 
3"  Story  Kq.  PI.  §  44.    A  person,  whom       issued  of  course,  and  that  a  formal  prayer 

the  bill  prays  to  be  made  a  party,  does  not  was  unnecessary  to  entitle    the    plaintiff 

thereby  become  a  pirty;  to  make  him  sucli,  to  process,     lirasher  v.  Van  Cortlandt,  2 

Erocess  must  be  issued  and  served  upon  John.   Ch.  245;  Elmendorf  r.  Delancy,  1 

im.     Bond  v.  Hendricks,  1  A.  K.  Mavsii.  Hopk.  555. 

594;  see  Huston  v.  M'Clartv,  3  Litt.  274;  4  Windsor  v.  Windsor,  2  Dick.  707. 

Verplanck  v.  Merc.  Ins.  Co.',  2  Paige,  438;  6  2  S.  &  S.  219. 

Lyle  V.  Bradford,  7  Monroe,  113.     By  the  ^  Manos  v.  De  Tastet. 


FOKM    OF   THE    BILL. 


391 


ties,  were  out  of  the  jurisdiction,  but  that  the  bill  must  go  on  to  Cn.  vi.  §  5. 
pray  process  against  them,  —  said  that  he  was  of  opinion  that  the 
principle  of  the  manuscript  case  ought  to  be  followed,  and  there- 
fore allowed  a  demurrer  which  had  been  taken  ore  tenus  for  want 
of  a  necessary  party,  who  had  been  charged  to  be  out  of  the  juris- 
diction, but  against  whom  no  process  had  been  prayed  when  he 
should  come  within  it.^ 

If  the  defendant  be  a  peer  of  the  realm,  or  entitled  to  the  privi- 
lege of  peerage,  he  has  a  right  before  a  subpoena  is  issued  against 
him,  to  be  informed,  by  letter  from  the  Lord  Chancellor,  of  the 
bill  having  been  filed ;  this  letter  is  called  a  letter  missive,  and 
must  be  accompanied  by  a  copy  of  the  bill.  In  consequence  of 
this  privilege  of  peerage,  the  practice  is,  that  in  all  cases,  where 
peers  are  defendants,  the  usual  prayer  for  process  is  preceded  by  a 
prayer  for  a  letter  missive,  in  the  following  words :  "  May  it  please 
your  Lordship  to  grant  unto  your  orator  your  Lordship's  letter 

missive,  to  be  directed  to  the  said  Earl  of ,  directing  him  to 

appear  and  answer  your  orator's  said  bill,  or  in  default  thereof^  his 
Majesty's  most  gracious  writ  of  subpoena^''  &c? 

When  the  Attorney-General  is  made  a  defendant  to  a  suit,  as  he 
is  always  supposed  to  be  in  Court,  the  bill  does  not  pray  any  sub- 
pcena  against  him,  but  merely  that,  upon  being  attended  with  a 
copy  of  the  bill,  he  may  appear  and  put  in  an  answer  thereto.^ 


1  Tavlor  v.  Fisher,  Roll's  Sittin?;s  after 
Hil.  Term,  1835.  MS.;  see  Story  Eq.  PI. 
§  44  and  note;  Mitt'ord  F^q.  Pi.  bv  .leremv, 
165;  Milligan  v.  Milledfje,  3  Crancli,  226; 
Lavihart  v.  Keilly,  3  Desaus.  590.  The  22d 
Equity  Rule  of  tlie  Supreme  (Jourt  of  the 
United  States,  .January  Term,  1842,  lias 
provided,  that  "  If  any  persons,  other  th;in 
those  named  as  defendants  in  tiie  bill,  shall 
appear  to  be  necessary  or  pntper  piirties 
thereto,  the  bill  shall  aver  the  rea^^on  why 
they  are  not  made  parties,  by  showing  tliein 
to  be  without  the  jurisdiction  of  the  Court, 
or  tiiat  thej'  cannot  be  Joined  without  oust- 
int;  the  jurisdiction  of  the  (Jourt  as  to  the 
otiier  parties.  And  as  to  persons  who  are 
without  the  jurisdiction,  and  may  properly 
be  made  parties,  the  Ijiil  may  pray,  tiiat 
process  mav  issue  to  make  them  parties  to 
tliebill,  if  the}'  should  come  witliin  the  ju- 
ris lietinn."  the  2:Jd  Kule  is  iis  follows: 
"  The  prayer  for  process  <>(  suhpirjin  in  the 
bill  shall  contain  the  names  of  all  the  de- 
fendants nauii^d  in  the  introductory  part  of 
the  bill,  and  if  any  of  them  arc  known  to 


be  infants  under  age,  or  otherwise  under 
guardianship,  shall  state  the  fact,  so  that 
the  Court  may  take  order  thereon  as  jus- 
tice may  require,  upon  the  return  of  the 
process.  If  an  injunction,  or  writ  of  ne 
exedt  regno,  or  any  other  special  order 
pending  the  suit  is  asked  for  in  the  prayer 
for  relief,  that  shall  be  suiiieient,  without 
repeating  the  same  in  the  prayer  for  pro- 
cess." Provision  is  made  for  service  of 
notice  on  defendants  residing  out  of  the 
Commonwealth,  in  the  Rules  for  the  Reg. 
of  Prac.  ia  Chan.,  in  Massachusetts, 
Rule  5. 

2  Hind.  18.  In  the  case  of  corporations 
aggregate,  the  proces.s  of  subpama  is  the 
same  as  in  ordinary  cases;  but  the  bill 
sometimes  prays,  that.in  case  of  their  de- 
fault to  appear  and  answer  the  bill,  the 
writ  of  distringas  may  issue  to  compel 
them  to  do  so.  Coop.  Ecp  PI.  10,  17; 
Harvevc.  East  Ind.  Co.,  2  Vern.  3i)6;  1 
Harris"  Ch.  I'r.  149;  Story  Eq  PI  §  44. 

3  Ld.  Red.  40. 


THE   BILL. 


Section  VI,  —  In  what  Cases  the  JRlll  must  he  accompanied  by  an 

Affidavit. 


In  suits  to 
ohtaiu  benefit 
of  lost 
iustruiucnts ; 


Tlioro  are  certain  cases  in  Avliicli  it  is  necessary  tliat  the  bill 
sliouM  be  accompanied  by  an  aflidavit,  to  be  filed  with  it,  and  in 
which  the  omission  of  such  accompaniment  will  render  the  bill 
liable  to  demurrer.^  Thns,  when  a  bill  is  filed  to  obtain  the  benefit 
of  an  instrument  upon  which  an  action  at  Law  would  lie,  upon  the 
ground  that  it  is  lost,  and  that  the  plaintiff  in  Equity  cannot  there- 
fore have  any  relief  at  Law,  the  Com-t  recpiires  that  the  ])ill  should 
be  accompanied  by  an  aflidavit  of  the  loss  of  the  instrumoit.'-^  If, 
however,  the  objection  is  not  taken  by  demurrer,  but  the  cause 
proceeds  to  a  hearing,  and  the  answer  of  the  defendant  admits  the 
loss  or  destruction  of  the  instrument,  then  the  Court  has  jurisdic- 
tion, and  the  objection  for  want  of  the  affidavit  will  be  overruled.' 
So,  in  suits  for  the  discovery  of  deeds  and  writings,  and  for  relief 
founded  upon  such  instruments,  if  the  relief  prayed  be  such  as 
might  be  obtained  at  Law,  on  the  production  of  deeds  or  writings, 
the  plaintiff  must  annex  to  his  bill  an  affidavit  that  they  are  not  in 
his  custody  or  power,  and  that  he  knows  not  where  they  are,  \xnles8 
they  are  in  the  hands  of  the  defendant.* 

But  a  bill  for  a  discovery  merely,  or  which  only  prays  the  delivery 
of  deeds  or  writings,  or  equitable  relief  grounded  upon  them,  does 


1  Where  no  preliminary  order  is  re- 
quired, it  is  not  generally  necessary  that 
bills  should  be  sworn  fo,  although  the  an- 
swer under  oath  is  not  waived.  Atwater 
V.  Kiiiinan,  Harring.  Ch.  243;  .lerome  v. 
Jerome,  5  Conn.  352.  A  bill  in  Equity  to 
redef'm  mortgaged  premises  need  not  be 
verified  by  affidavit.  Hilton  v.  Lothrop, 
46  Maine,  297;  Dinsmore  v.  Grossman,  53 
Maine,  441.  A  bill  need  not  be  sworn  to 
in  Massachusetts.  Burns  v.  Lynde,  6 
Allen,  306.  In  North  Carolina,  "  an  affi- 
davit of  the  truth  of  the  matters  contained 
in  his  bill  "  is  n<cessary  to  give  jurisdic- 
tion to  the  Court  ol'  llquity,  under  the 
Statute  (Rev.  Code,  c.  7),  and  the  want  of 
such  affidavit  is  a  good  ground  tor  a 
general  demurrer  Barringeri'.  Andrews, 
5  .fones  F,q.  (N  C.)  348.  There  is  no  rule 
in  tlie  United  States  Circuit  Court  for 
Massachusetts,  requiring  an  oath  to  be  filed 
with  the  liill.  Woodworth  v.  Edwards,  3 
Wood.  &  M.  12". 

2  Ld.  Red.  124;  Wjilmslev  v.  Child,  1 
Ves.  S.  341;  Wriglit  v.  Lonl'.Maidstone,  1 
K.  &  J.  701;  1  .Jur.  N.  S.  1013;  Whit- 
church V.  Gi  Iding,  2  I'.  Wms  541;  Pen- 
nititrton  V.  Governir,  1  Blackf.  78;  Talia- 
ferro V.  Eoote,  3  Leigh,  68 ;  I'eart  v.  Taylor, 


2  Bibb,  556;  Story  Eq.Pl.  §  288;  Ld.  Red. 
123,  224;  Livingslon  v.  Livingston,  4  John. 
Ch.  204;  Le  Roy  v.  Vpeder,'l  John.  Ch. 
417;  Mund;ivy.  Shatzell,  Litt.  Sel.  Ca.  373; 
Lynch  v.  Willard,  6  John.  Ch.  342,  346.  For 
the  reason  of  the  rule,  see  post,  394, 395,  note. 
In  Thornton  v.  StewKrt,  7  Leigh,  128,  it  was 
held  that,  although  regularly  an  nffidavit 
of  the  loss  of  the  bond,  &c.,  ought  to  be 
filed  with  a  bill  for  relief  upon  a  lost  bond, 
j-et  if  such  iifhdavit  is  not  so  filed,  but  is 
filed  afterwards  in  the  progress  of  the 
cause,  this  is  suflHcient.  See  Cabell  v. 
Megginson,  6Munf  202;  Jerome  v.  Jerome, 
5  Conn  352;  Bennett  v.  Waller,  23  111. 
97.  For  the  form  of  an  aflRdavit  in  such 
cases,  see  1  GrantCh.  Vr.  (2d  ed.)  13;  and 
see  post.  Chap.  XXXIV.,  §  2,  Bills  of  Dis- 
covery, Vol.  III. 

8  Cros.se  V.  Bedingfield,  12  Sim.  35;  5 
Jur.  836;   Bennett  v.  Waller,  23  III. 

4  M'Elweew.  Sutton,  1  HilKJli  33;  Story 
Eq.  ri.  §§  388,  313;  Findley  v.  Hinde,  1 
Peters,  244  ;  Livingston  v.  Livingston,  4 
John.  Ch.  294;  Campbell  v.  Shelilon,  13 
I'ick.'S,  18  to  20,  per  Shaw  C  J.  F.t 
form  of  affidavit,  see  Vol  III  ,  and  for  firm 
of  demurrer,  for  want  of  it,  see  2  Van 
lley.  76. 


WHEN    BILL    MUST    BE    ACCOMPANIED    BY    AFFIDAVIT. 


393 


not  require  such  an  afBdavit.^  It  was  decided,  in  King  v.  King^ 
that  an  affidavit  is  also  unnecessary  in  the  case  of  a  bill  for  discov- 
ery of  an  instrument  which  has  been  fraudulently  cancelled  by  the 
defendant,  and  to  have  another  deed  executed  :  for,  in  such  a  case, 
if  the  plaintiff  had  the  cancelled  instrument  in  his  hands  he  could 
make  no  use  of  it  at  Law,  and,  indeed,  the  relief  prayed  is  such  as 
a  Court  of  Equity  only  can  give  ;  but,  in  Rootham  v.  Dcmson^  the 
authority  of  King  v.  King  appears  to  have  been  questioned,  and  a 
different  decision  come  to.  In  that  case,  the  bill  was  filed  for  the 
discovery  of  the  contents  of  a  bond  which  had  been  given  to  the 
plaintiffs,  as  parish  officers,  as  an  indemnification  for  the  expense 
of  a  bastard  child,  and  which  was  alleged  in  the  bill  to  have  been 
defaced  and  cancelled  by  tearing  off  the  signature  of  the  obligor, 
so  that  the  bond  was  no  longer  in  force  ;  the  bill  also  prayed  an 
account  and  payment  of  what  was  due  on  the  bond,  as  well  as  the 
execution  of  a  new  one  for  the  future  indemnification  of  the  trus- 
tees. To  this  bill  the  defendant  demurred  :  "  for  that  the  plaintiffs 
ought,  according  to  the  rules  of  the  Coui't,  to  have  made  an  affidavit 
of  the  bond  being  defiiced  and  avoided,  as  stated  in  the  bill ; "  and 
the  demurrer  was  allowed.  It  is  to  be  observed,  that  the  L.  C.  B. 
Macdonald,  in  his  judgment,  appears  to  have  proceeded  upon  the 
gi'Oimd  that  the  plaintiffs  had  not  confined  themselves  to  seeking  a 
discovery  and  re-execution  of  the  bond,  but  had  gone  on  to  pray 
for  payment  of  the  sum  already  due  :  though,  certainly,  that  dis- 
tinction does  not  appear  to  have  been  recognized  by  the  learned 
Baron  Thompson,  Avho  delivered  his  opinion  upon  the  occasion. 
It  is,  however,  submitted  that  the  reason  given  for  the  decision  in 
King  v.  King  is  quite  satisfactory :  for,  as  the  ground  fof  the  in- 
terference of  a  Court  of  Equity  in  such  a  case  is  not  the  loss,  but 
the  cancellation  of  the  instrument,  so  as  to  render  it  impossible  to 
use  it  at  Law,  no  relief  will  be  granted  by  the  Court  until  it  is  sat- 
isfied that  the  cancellation  has  taken  place,  by  the  production  of 
the  cancelled  instrument ;  whereas,  in  the  case  of  the  loss  of  a  doc- 
ument, the  Court  has,  in  general,  no  means  of  satisfying  itself  that 
the  flocument  has  been  lost  but  the  assertion  of  the  party  himself: 
which  it  consequently  requires  should  be  made  upon  oath. 

Another  case,  in  which  it  Avas  required  that  the  bill  should  be 
accompanied  by  an  affidavit,  was,  where  a  bill  was  filed  under  the 
Stat.  .53  Geo.  III.  c.  loO,  which  \,as  passed  for  the  ]mri»ose  of  limit- 
ing the  responsibility  of  ship-owners  in  certain  cases.     This  Act  is 


Ch.  YI.  §6. 


1  Ld.  Red.  54:  sr>e  1  Ve».  S.  841,  344; 
Whitchurch  i'.  (Joldin?.  2  I'.  Wins  541; 
Anon.,  3  Atk.  17;  liormcr  c.  l''(irt(!sciio, 
if).  13-2;  M'Klwcc  r.  Siilton,  1  Hill  (Jh.  33; 
Story  Kf|.  I'l.  §  2SH.  When;  thi;  subject- 
matter  oi'  the  writiiif,'  is  properly  cof^niz- 
able  in   Equity,  an  utUdavit  of  the  luss  is 


not  necessarv.  I'eurt  v.  Tavlor,  2  Bibb, 
566;  Ld.  Ked.  124;  Liiigbt  v.  Morgan,  1 
Cuines  Ca.  Kr.  345;  S.  C.  1  John.  Ch.  9; 
Camnbell  v.  Slieldoii,  13  Tick.  18  to  20. 

'^  Mos.  192;  iind  .see  Ld.  Ued.  124. 

3  3  AiJSt.  869. 


No  lonpcpf 
required  in 
.suit.s  to  limit 
the  re.sponsi- 
bility  of 
ship-owners. 


394 


THE .  BILL. 


Cu.  vr.  §0. 


Need  not  ho 
sworn  siinul- 
taiioously 
■\vitli  liliuir 
bill. 


Affidavit 
required  in 
suits  to 
perpetuate 
testimony ; 


and  inter- 
pleader suits. 


t'X|)rossly  n'i)o:ilo(l  by  tlie  17  &  18  Vie.  c.  120,  §  4  ;  and  as  the  Acts 
now  in  force  ^  tor  tlie  above  purpose  contain  no  provision  similar 
to  ll>;it  contained  in  tlie  Act  of  Geo.  III.,  witli  reference  to  an 
atVulavit  .u'companying  tlie  bill,  it  is  to  be  assumed  that  such  an 
ailidavit  is  no  longer  necessary. 

Even  in  cases  in  wliicli  the  legislature  has  expressly  directed 
that  the  affidavit  should  be  "  annexed  to  the  bill,"  it  is  not  neces- 
sary tliat  the  affidavit  should  be  sworn  at  the  same  time  as  the  bill 
is  tiled  :  but  it  is  the  usual  practice,  in  all  cases  in  which  an  affi- 
davit is  necessary,  to  have  it  sworn  a  day  or  two  before  the  bill  is 
flled.2 

The  other  cases,  in  which  bills  are  required  to  be  accompanied 
by  an  affidavit,  may  be  mentioned  here,  although  they  do  not  come 
within  the  description  of  bills  which  are  now  the  subject  of  discus- 
sion. These  are  :  bills  for  the  ])urpose  of  perpetuating  the  testi- 
mony of  witnesses,  where,  from  circumstances,  such  as  the  age  or 
infirmity  of  witnesses,  or  their  intention  of  leaving  the  coimtry,  it 
is  jirobable  the  plaintiff  would  lose  the  benefit  of  their  testimony : 
in  which  case,  an  affidavit  of  the  circumstances,  by  means  of  which 
the  testimony  may  probably  be  lost,  must  be  annexed  to  the  bill :  ^ 
and  bills  of  interpleader,  Avhich  also,  to  avoid  a  demurrer,  must  be 
accompanied  by  an  affidavit  by  the  plaintiff  that  there  is  no  collu- 
sion between  him  and  any  of  the  parties.* 

1  "The  Merchant  Shipping  Act,  1854  " 
(17  &  18  Vice.  10<t),PartIX.  §§504,  514; 
"  The  Meichiint  Shipping  Amendment 
Act,  1862"  (25  &  26  Vic.  c.  63),  §  64. 

2  Wiilker  V.  Fletcher,  1  Phil.  115;  12 
Sim.  420,  422;  6  ,Tur.  4;  hut  see  Francome 
V.  Francome,  13  W.  R.  355,  L.  C;  11  Jur.  N. 
S.  123.  The  affidavit  is  usually,  but  need 
not  be,  attached  to  the  bill.  Jones  v.  Shep- 
herd, 29  Beav.  293;  7  .Jur.  N.  S.  250; 
Affirmed  by  L.  C  7  Jur.  N.  S.  228;  sub 
nom.  Shepherd  v.  .Tones,  3  De  G.,  F.  &  J. 
56.  It  may  be  made  an  exliibit  to  the  bill. 
See  forms  of  affidavit  in  Vol .  III. 

3  Ld.  Red.  150;  Phillips  v.  Carew,  1  P. 
Wms.  116;  Laiglit  ?;.  Morgan,  1  (Jaines's 
Cas.  in  Error,  344;  S.  C.  IJohn.  Ch.  429; 
Story  Eq.  PI.  §§  304,  309.  The  reason 
given  for  requiring  tlie  at!idavit  is,  that 
the  proceeding  has  a  tendency  to  change 
the  jurisdiction  of  the  subject-matter  from 
a  Court  of  Law  to  a  Court  of  Equity.  Ld. 
lied.  150,  151;  Story  Kq.  PI.  309.  "This 
reason,"  says  Mr.  Justice  Story,  "  is  per- 
haps not  quite  satisfactory."  —  "A  better 
ground  would  seem  to  be,  that  the  bill  has 
a  tendency  to  create  delays,  and  may  be 
used  as  an  instrument  unduly  to  retard 
the  trial;  and,  therefore,  an  aflidtivit,  that 
the  bill  is  well  founded,  is  required.  The 
affidavit  should  be  positive  as  to  the  ma- 
terial facts."  Story  Kq.  PI.  §  309 ;  and  see 
post,  Chap.  XXX IV.  §  4,  Bi'lls  to  Perpetu- 
ate. Testiriumy.  For  form  of  demurrer  for 
want  of  such  affidavit,  2  Van  lley.  78. 


4  Ld.  Red.  49;  Bignold  v.  Audland,  11 
Sim.  23;  Hamilton  v.  Jlarks,  5  De  G.  & 
S.  638.  In  Larabrie  v.  Brown,  1  De  G.  & 
J.  204;  23  Beav.  607,  leave  was  given  to 
file  an  interpleader  bill  qunntum  vttleat,  on 
affidavit  of  the  plaintiffs'  solicitor,  the 
plaintiffs  being  abroad,  and  time  pressing; 
but  the  affidavit  of  the  phiintiffs  was  after- 
wards, by  leave  of  the  Court,  filed  and  an- 
nexed to  the  bill,  nunc  pro  tunc.  Braith- 
waite's  Pr.  27.  Where  tliere  were  several 
plaintiffs  residing  in  distant  places,  leave 
was  given,  on  a  like  affidavit,  and  an  in- 
junction granted  for  a  limited  time,  on  an 
undertakiiis;  to  file  the  usu;il  affidavit. 
Nelson  v.  Barter,  10  Jur.  N.  S.  611;  12 
W.  K.  857,  V.  C.  W.;  2  H.  &  M.  334; 
and  nee  post,  Chap.  XXXIV.  §  3,  Bills  of 
Interpleader ;  see  Wood  v.  Lyme,  4  De  G. 
&  Sm.  16;  Edrington  v.  Allsbrooks,  21 
Texas,  186;  Eden  Inj.  (2d  Am.  ed.)  401, 
402;  Shaw  v.  Coster,  8  Paige,  339;  Tobin 
V.  Wilson,  3  J.  J.  Marsh.  67;  Manks  v. 
Holroyd,  1  Cowen,  691;  Ld.  Red.  143. 
Such  an  affidavit  is  not  necessary  in  Con- 
necticut. Nash  V.  Smith,  6  Conn.  421 ; 
see  .Jerome  v.  Jerome,  5  Conn.  352.  For 
form  of  affidavit,  see  Vol.  III.  For  form 
of  demurrer  for  want  of  such  an  affidavit. 
Willis,  442;  Equity  Drafts  (2d  Am.  ed.), 
77. 

A  bill  praying  for  an  injunction,  gener- 
ally requires  a  special  aflidavit  to  support 
it.  Eden  Inj.  (2d  Am.  ed.)  380,  381;  1 
Barb.  Ch.  Pr.  43,  44,  617;  1  Hoff.  Ch.  Pr. 


WHEN   BILL   MUST   BE    ACCOMPANIED    BY    AFFIDAVIT. 


395 


It  is  to  be  observed  that,  in  cases  of  this  nature,  advantage  can 
only  be  taken  of  the  omission  of  an  affidavit,  by  demurrer ;  and 
where  a  phiintifT,  instead  of  demurring  on  this  ground  in  the 
first  instance,  put  in  a  plea  to  the  whole  bill,  which  was  overruled, 
he  was  not  allowed  to  demur,  ore  tenus,  on  the  ground  that  the 
necessary  affidavit  was  not  annexed.^ 


Ch.  VI.  §  6. 


Omission  of 
affidavit  can 
only  be  taken 
advantage  of 
by  demurrer. 


78;  Hatch  v.  Eustnphieve,  1  Clarke  (N. 
Y.),  63;  Hammersley  v.  Wyckoff,  8  Paige, 
72;  Campbell  v.  Morrison,  7  Paige,  157; 
Holdrege  v.  Gwynne,  3  C.  E.  Green  (N.  J.), 
26,  32 ;  Perkins  V.  Collins,  2  Green  Ch.  482 ; 
Bank  of  Orleans  r.  Skinner,  9  Paige,  305; 
Bogert  V.  Haight,  9  Paige,  297;  see  Wood- 
worth  V.  Edwards,  3  Wood.  &  M.  120.  It 
may  be  verified  by  an  attorney.  Edrington 
V.  Allsbrooks,  2rTexas,  186;"  Youngblood 
V.  Sehamp,  2  McCarter  (N.  J.),  42. 

In  Maine,  "bills  of  discovery,  and  those 
praving  for  an  injunction,  must  be  verified 
by  bath."  Chan.  Uule  1,  37  Maine,  581. 
T^his  rule  relates  to  the  pure  and  simple  bill 
of  discovery.  Dinsmore  v.  Crosstnan,  53 
Maine,  441;  Hilton  f.  Lothrop,  46  Maine, 
297. 

Where  the  facts,  on  which  the  claim 
for  an  injunction  i.s  made,  are  not  within 
the  knowledge  of  the  plaintiff,  he  should 
state  the  facts  in  his  bill  as  upon  his  intbr- 
mation  and  belief,  and  annex  the  affidavit 
of  the  person  fr<jni  whom  he  obtained  the 
information,  or  some  other  person  who  can 
swear  positively  to  the  trutli  of  the  material 
allegations  in  the  bill.  Campl)ell  v.  Mor- 
rison, 7  Paise,  157;  Bank  of  Orleans  v. 
Skinner,  9  Paige,  305;  1  Hoff.  Ch.  Pr.  425; 
Youngblood  v.  Sehamp,  2  McCarter  (N. 
J.),  42,  43.  But  in  bills  charging  fraud, 
and  pra^-ing  a  discovery,  or  in  any  case, 
where,  in  the  nature  of  things,  positive 
proof  cannot  be  expected,  the  additional 
verification  may  be  dispensed  with,  and 
the  injunction  may  issue  on  the  afiidavit 
of  the  pliiintift'  founded  on  belief  alone. 
Youngblood  V.  Sehamp,  2  McCarter  (N. 
J.),  42;  Attorney-Generiil  v.  Hank  of  Co- 
lumbia, 1  Paige,  611;  Campbell  v.  Mor- 
rison, 7  Paige,  157.  In  New  .Jersey,  the 
affidavits  of  the  plaintiff,  made  after  filing 
the  bill,  are  not  competent  to  be  read 
upon  a  motion  for  an  injunction  and 
the  appointment  of  receivers.  Such  af- 
fidavits should  be  subjoined  to  the  bill, 
ami  filed  with  it.  Hrandred  »;.  Paterson 
Miichine  Shop,  3  Green  Ch.  294,  309.  In 
Delaware,  a  creditor's  bill  must  contain  the 
averments  re(|uired  liy  the  loiJtli  Itnle,  and 
those  averments  must  be  sworn  to  in  the 
jurat.     Clark  i\  Davis,  Marring.  Ch.  227. 

When  a  writ  of  ne  exerU  rei/iio  is  asked 
for,  an  allifhivit  is  necessary  as  a  founda- 
tion for  obt  lining  it.  1  Harb.  Ch.  Pr.  049, 
650;  Rice  r.  Hale,  5  Cush.  23H;  1  Ilolf. 
Ch.  Pr.  90;  Porter  »'.  Spencer,  2. John.  Ch. 
109;  Sevmour  i'.  Ila/.^ird,  1  .John.  Ch.  1; 
Thorner.  Ilalsev,  7  .lolm.  Ch.  191;  (Jer- 
noo  r.  l}occ;ilinc,  2  Wash.  <;.  C.  130;  Gil- 
bert V.  Colt,  1  llopk.  500;  Mattocks  v. 
Tremaine,  3  John.  Ch.  75. 


When  a  corporation  aggregate  is  plaintiff, 
the  bill,  from  the  necessity  of  the  case,  must 
be  verified  by  some  officer  or  agent  of  the 
corporation,  and  the  bill  should  be  signed 
bv  the  officer  making  the  oath.  Bank  of 
Orleans  v.  Skinner,  9  Paige,  305;  1  Barb. 
Ch.  Pr.  44;  1  Hoflt.  Ch.  Pr.  78,  79,  96; 
Youngblood  v.  Sehamp,  2  McCarter  (N. 
J.),  42,  43.  When  a  bill  is  to  be  verified 
by  the  oath  of  an  asrent  or  attorney  of  the 
plaintifi',  it  should  be  drawn  in  the  same 
manner  as  a  bill  which  is  to  be  sworn  to 
by  the  plaintifi"  himself;  stating  those 
matters  which  are  within  the  personal 
knowledge  of  such  agent  or  attorney  posi- 
tively; and  those,  which  he  has  derived 
from  the  information  of  others,  should  be 
stated  or  charged  upon  the  information 
and  belief  of  the  plaintifi'.  And  the  oath 
of  the  agent  or  attorney  verifying  the  bill, 
should  state  that  the  agent  has  read  the 
bill,  or  heard  it  read,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of 
his  own  knowledge,  except  as  to  the  mat- 
ters which  are  therein  stated  to  be  on  the 
information  and  belief  of  the  plaintiff,  and 
that  as  to  those  matters  the  deponent  be- 
lieves it  to  be  true.  Bank  of  Orleans  v. 
Skinner,  9  Paige,  305;  Justices  v.  Cosby, 
5  Jones  Eq.  (N.  C.)  254.  Where  it  is  nec- 
essary that  a  bill  should  be  sworn  to  for 
the  purpose  of  calling  for  an  answer  on 
oath,  it  is  not  necessarv  that  the  allega- 
tions of  the  bill,  verified  by  oath  merely  for 
that  purpose,  should  be  sworn  to  positively. 
It  is  suflicient  that  the  person  verifying  the 
bill  swears  to  his  belief  of  the  charges  con- 
tained in  it.  Veeder  v.  Moritz,  9  Paige, 
371;  Triebert  v.  Burgess,  11  Md.  452. 

An  afiidavit  to  a  bill,  (fuin  timet,  stating 
that  the  facts  in  the  bill  relating  to  the 
plaintiff's  own  acts  are  true,  and  those  re- 
lating to  others,"  he  believes  to  be  true,  is 
sufficient.  Collins  v.  Barksdale,  23  Geo. 
602.  And  generally,  in  all  bills  which  are 
to  be  verified  by  "affidavit,  as  well  as  in 
answers  and  petitions,  the  several  matters 
stated,  charged,  averreid,  admitted,  or  de- 
nied, are  re(|uire(l  to  be  stated  positively, 
or  upon  information  and  belief  only,  ac- 
cording to  the  fact.  Marsh  1'.  Marsh,  1  C. 
E.  Green  (N.  J.),  396,  397;  2  liarb.  Ch. 
Pr.  680;  3  llotf  Ch.  Pr.  (Appx.)  371. 

1  Hook  V.  Dorman,  1  S.  &  S.  227,  231; 
Crosse  1'.  Bedingtield,  12  Sim.  35;  5  Jur. 
8.36;  Allen  v.  StMto  Hank,  1  Dcv.  &  Batt. 
Eq.  6  ;  l''indlev  v.  Hind,  1  Peters,  244; 
WOodworth  1).  I''d wards,  3  Wood  &  M.  120. 
jMir  the  form  of  demuirer  in  such  ca.sos,  see 
Wniis,  l.'il.  The  afiidavit  mav  be  amend- 
ed bv  leave  of  the  Court,  llamilton  v. 
Marts,  5  De  G.  &  S.  638. 


396 


THE    BILL. 


Cn.  VI.  § 


All  tho 
phiiiitill's 
slumlil  join 
in  atHiiavit. 

Service  of 
copy. 


If  tlioro  are  several  ])laiiitiils,  all  must  join  in  the  atlidavit,  unless 
a  satisfactory  cx]>lanati(ni  l)o  ^iven  for  their  non-joinder.^  If  a 
corporation  is  |ilaii)till"  ihe  atliilavit  may  be  made  by  tlie  secretary 
or  other  resi)onsil»le  otlicer.  The  allldavit  may  he  written  or  printed ; 
antl  a  coj^y  of  it,  but  not  necessarily  an  office  copy,  should  bo  scaled 
at  the  Record  and  Writ  Clerks'  office,  and  annexed  to  each  copy  of 
the  bill  sealed  there  for  service,^  and  served  therewith. 


Bill  must  be 
printed ; 


but  if  for 
injunction, 
tie  exeat,  or  to 
make  ward  of 
Court, written 
bill  may  be 
filed,  on 
undertaking 
to  tile  printed 
bill  within 
fourteen  days. 

If  printed  bill 
not  duly  filed, 
written  bill 
will  be  taken 


Section  VII.  —  Printing  and  Filing  the  Bill. 

Afler  a  bill  has  been  dr;iwn  or  perused,  and  signed  by  counsel,  it 
must  (exce])t  in  the  cases  mentioned  below)  be  printed  on  cream- 
wove,  machine-drawing,  foolscap  folio  paper,  19  lbs.  per  mill  ream, 
in  pica  type,  leaded,  with  an  inner  margin  about  three-quarters  of 
an  inch  wide,  and  an  outer  margin  about  two  inches  and  a  half 
wide.^  Dates  and  sums,  occurring  in  the  bill,  are  to  be  expressed 
by  figures.'* 

Where  a  bill  prays  a  writ  of  injunction,^  or  ne  exeat  regno,  or  is 
filed  for  the  purpose  of  making  an  infant  a  ward  of  Court,  but  in 
no  other  cases,®  a  written  bill  may  be  filed,  upon  the  undertaking 
of  the  plaintiff,  or  his  solicitor,'  to  file  a  printed  copy  within  four- 
teen days.^  Written  bills  must  be  written  upon  paper  of  the  same 
description  and  size  as  that  on  which  bills  are  printed ;  ^  and  the 
costs  of  a  written  bill  will  not  be  allowed,  unless  specially  directed 
by  the  Court  in  disposing  of  the  costs  of  the  cause. ^° 

If  the  printed  bill  be  not  duly  filed,  the  Record  and  Writ  Clerk 
is  to  take  the  written  copy  off  the  file  ; "  and  the  plaintiff  or  his 
solicitor,  who  has  jDcrsonally  undertaken  to  file  such  printed  copy, 


1  Uraithwaite's  Pr.  27,  and  Gibbs  v. 
Gibbs,  there  cited;  and  for  form  of  affida- 
vit in  that  case,  see  Vol.  III. 

2  Braithwaite'.s  Pr.  27.  No  fee  is  pay- 
able on  filing  an  affidavit  with,  or  annexed 
to,  a  bill.     Ibid. 

3  15  &  16  Vic.  c.  86,  §  1,  but  see  §  9; 
Ord.  IX.  3.  It  is  the  business  of  the 
plaintiff  to  get  the  bill  printed,  by  such 
printer  as  he  niny  select.  The  proof  of  the 
Dill  should  be  very  carefully  examined  and 
corrected  (for  which  a  fee  of  2d.  per  folio 
is  allowed  by  the  Resul.  to  Ord.  2d  Sch.), 
as  no  bill  will  be  filed  as  a  printed  bill, 
unless  alterations  (if  any )  are  made  in  type. 
Braithwaite's  Pr.  25.  But  a  j)rinted  bill 
with  written  alter.itions  may  be  filed  as  a 
written  hill,  where  a  wri'ten  bill  could  be 
filed.  Ibid.  Somedirectionsas  to  the  miin- 
ner  in  which  the  proof  should  be  corrected 
will  lie  found  in  Vol.  III. 

4  Ord   I\.  .3. 

5  Fiilkliind  Islands  Co.  v.  Lafone,  3  W. 
E.  561,  L.  JJ. 


.  6  Yatei!.  Lighthead,  16Jur.  964,V.C.  T. 

■^  For  form  of  undertaking,  see  V^ol.  IJI. 
The  undertaking  may  be  either  indorsed 
on  the  copy  bill  intended  to  be  filed,  or 
be  written  on  a  sei)arate  paper,  to  be  filed 
therewith.     Braithwaite's  Pr.  23. 

8  15  &  16  Vic.  c.  86,  §  6.  The  printed 
copy  must,  of  course,  be  a  copy  of  the 
written  bill  as  it  stands  sit  the  time  the 
printed  copy  is  filed.  Braithwaite's  Pr.  24. 
The  written  and  printed  copies  will  remain 
together  on  the  file.     Ibid. 

»  Ord.  6  March,  1860,  r.  16. 

w  Ord.  XL.  18;  sec  Kit?;.  Burial  Board 
of  Islington,  2  W.  R.  584,  V.  C.  W.  Costs 
of  written  bill  allowed  on  sulisequent  ap- 
plication ;  direction  having  been  acci- 
dentally omitted  ;  but  without  costs  of 
application  Hewitt  v.  White,  12  Jur.  N. 
S.  46;   14  VV.  R.  220,  V.  C  K. 

11  The  practice  of  the  office  i.sto  take  the 
written  bill  off  tlie  file  on  the  fifteenth  day, 
but  it  is  not  destroyed.  Braithwaite's  Pr. 
24. 


PRINTING   ANT)   FILING    THE    BILL.  397 

is  to  pay  to  the  defendant  all  his  costs  of  the  suit,  such  costs  to  be    Ch.  VI.  §  7. 

taxed  and  recoverable  without  further  order;  and  the  certificate  of  ^-^ ^ ' 

the  Record  and  Writ  Clerk  of  the  non-filing  of  the  printed  bill  is  off  the  file 

.  ,  1  -with  costs  to 

to  be  sufficient  authority  to  the  taxing  master  to  tax  the  costs/         be  paid  by 

The  Court  has  a  discretionary  power,  in  a  proper  case,  to  allow  ^^^^  plaintiff. 
the  written  bill  to  be  restored  and  a  printed  bill  to  be  filed  after  l^^\i°  ^^'^ 
the  expiration  of  the  fourteen  days,"  on  an  application,  by  motion,  fo^^yjeen 
to  the  Judge  to  whose  Court  the  cause  is  attached.    If  none  of  the     ^^^' 
defendants  have  entered  an  appearance,  the  application  may,  it  is 
conceived,  be  made  ex  parte:  otherwise,  notice  of  the  motion  must 
be  served  on  such  of  them  as  have  appeared,^  and  be  supported  by 
an  affidavit  accounting  for  the  delay ;  *  and  the  defendants  will  be 
entitled  to  their  costs  of  appearing  on  the  motion.^ 

If  a  printed  bill  be  filed,  and  there  is  a  discrepancy  between  it  Where  . 
and  the  written  bill,  the  defendant  may  move,  on  notice,  that  both  JJ[}j"*j.^  ^^^^ 
bills  be  taken  oft"  the  file.«  ^"i«en  biU. 

The  solicitor,  or  the  plaintifl"  suing  in  person,  must  cause  to  be  Bill  must  be 
printed  or  written  upon  the  bill,  his  name  and  place  of  business,  ^"[^'j^'^mf'' 
or  residence,  and  also,  if  his  place  of  business  (or  residence)  shall  and  address 
be  more  than  tliree  miles  from  the  Record  and  Writ  Clerks'  Office,  golf^.i'Jor|'or^ 
another  proper  iilace,  to  be  called  his  address  for  service  (which  of  plaiiitiff 
must  not  be  more  than  three  miles  ti'om  tliat  office),  where  writs,  per'sou; 
notices,  orders,  summonses,  and  other  written  communications  may 
be  left  for  him ;  and  where  any  such  solicitor  shall  only  be  the  agent 
of  any  other  soUcitor,  he  must  add  to  his  own  name  or  firm  and  place 
of  business  the  name  or  firm  and  place  of  business  of  the  principal 
BolicitorJ 

Every  original  bill  ^  must,  at  the  option  of  the  plaintiff",  be  dis-  and  marked 
tinctly  marked,  at  or  near  the  top  or  upper  part  thereof,  either  with  Ju'^jgeg^*'"® 
the  words  "  Lord  Chancellor,"  or  Avith  the  words  "  Master  of  the 
Rolls ; "  and  if  with  the  words  "  Lord  Chancellor,"  then  also  with 
the  name  of  one  of  the  Vice  Chancellors,  at  the  plaintiff''s  option ; 
and  tlie  Record  and  Writ  Clerks  are  not  to  file  any  bill  which  is 
not  marked  as  above.® 

1  Ord.  IX.  4.  When  proceedings  were  is  given;  see  Bank  of  Hindustan  v.  Ilodg- 
Btayed,  however,  the  wriiten  bill  was  or-  son,  lb04,  il.,  Xo.  275;  IJinkof  Hindustan 
dered  to  be  retained  on  the  file.  l>ord  v.  Hobinson,  18(i4,  H.,  No.  272.  For  forms 
Abingdon  v.  I  lioriiliill,  3  W.  K.  (Jl.'j,  V.  C.  of  motion  paper,  iind  notice  of  motion,  see 
W.     And  so  whi.Tc,  alter  an  in<«»-i/«  order,  Vol.  HI. 

the  suit  was  arranged.    Garland  v.  Kiordan,  «  Moss  v.  Syers,  uhi  sup. 

88  Beav.  448.  "  Falkland  Island  Co.  v.  Lafone,  3  \V.              , 

2  Kerrand  v.  Corporation  of  Bradford,  8  R.  6G1,  ]..  .J.I.  For  form  of  notice  of  mo- 
De  G.,  M.  &  (J.  K'i  :  2  .Jur.  N.  .S.  300;  af-  tion,  see  Vol.  III. 

firming  21  IJeav.  422;  2  Jur.  N.  S.  175.  "  Ord.   III.  2,  5.     For  forms,   see  Vol. 

3  Moss  IV  Svers,  It  Jur.  N.  S.  121U  ;  11        III. 

W.  11.  1047,  V.  C  K.  "  The  word  "  bill"  includes  information. 

*  For  form  of  order,  see  Seton,  1242,  No.  Cons.  Ord.  rrcl.  t)nl.  10  (4). 
1.     An  indorsement,  signed  by  tlie  Kegis-  '■>  Ord.  VI.  1.     Tlie  Judge's  name  may 
trar,  on   ttie  piinled   bill    intended   to  be  be  added  in  writing  to  a  iirinled  bill,  if  in- 
filed,  is  sufficient,  without  drawing  up  a  advertently  omitted.    Brailhwaite's  I'r.  25. 
formal  order,  where  no  direction  as  to  costs 


398 


THE    BILL. 


Cii.  VI.  5 


BilltobofiTed 
at  Record  and 
Writ  Clerk's 
Office. 


When  the  bill  Ims  been  marked  with  the  name  of  a  Judge,  the 
eause  is  attached  to  his  Court ;^  and  exce})t  in  the  ease  oi"  orders 
made  in  vaeation,-'  or  of  orders  of  course,^  all  further  proceedings 
in  the  cause/ and  rehearings' otherwise  than  by  way  of  appeal, 
must  be  had  before  him,  unless  the  cause  or  proceeding  is  removed 
from  his  Court  by  any  sjiecial  order  of  the  Lord  Chancellor,  or  the 
Lords  Justices.^ 

An  order  for  the  transfer  of  a  cause  from  one  branch  of  the  Court 
to  another  Avill  be  made,  whenever  there  is  a  probability  of  conven- 
ience from  so  doing.®  The  order  is  made  upon  motion,''  with  notice ;  * 
but  the  consent  of  the  Judges,  from  Avhom  and  to  whom  the  cause 
is  to  be  transferred,  and  the  leave  of  the  Lord  Chancellor,  or  the 
Lords  Justices,  to  give  notice  of  the  motion,  must  be  first  obtained ; 
the  consent  and  leave  are  usually  given  as  a  matter  of  course,  on 
the  ex  parte  aj)plication  of  counsel.^  If  leave  is  given,  the  motion 
will  be  placed  in  the  Court  paper  for  the  day  appointed  for  the 
hearing.^''  If  one  of  the  causes  is  attached  to  the  Rolls  Court,  the 
order  of  transfer  must  be  made  by  the  Master  of  the  Rolls,  as  well 
as  the  Lord  Chancellor  or  the  Lords  Justices.^^  The  order  of  trans- 
fer, when  passed  and  entered,  should  be  left  with  the  Record  and 
Writ  Clerk,  for  entry  in  his  cause  book.^^ 

The  copy  of  the  bill  being  thus  prepared,  it  is  delivered  to  the 
Clerk  of  Records  and  Writs,  who  thereupon  writes  thereon  the 
date  on  which  it  is  brought  into  his  office,  .numbers  it,  and  receives 
it  into  his  custody.    The  bill  is  then  said  to  be  filed,  and  of  record ; 


1  Ord.  VL  1. 

2  Ord.  VI.  11;  see  Man  v.  Ricket.s,  9 
Benv.  4;  Holloway  v-  Phillips,  17  Jur.  875, 
V.  C.  W.  ;  Price  v.  Gardner,  1  Jur.  N.  S. 
975,  V.  C.  W.;  Bean  v.  Griffiths,  ib.  1045, 
V.  C.  W. 

3  Ord.  VI.  9;  13  &  14  Vic.  c.  35,  §  29  ; 
Magan  v.  Magiin,  16  Jur.  587,  V.  U.  K. 

4  But  see  Ord.  XXXV.  59. 

6  Ord  VI.  5 ;  see  Earl  of  Shrewsbury  v. 
Trappes,  2  Do  G..  F.  &  J.  172;  Foxwell  v. 
Bostock,  12  W.  R.  723,  L.  C.  Upon  any 
Vice-Chancellor  ceasing  to  hold  office,  the 
cause,  unless  removed  by  any  special  order 
of  the  Lord  Chancellor  or  Lords  Justices, 
is  thenceforward  attached  to  the  Court 
of  his  successor.  Ord.  VI.  7.  As  to  the 
power  of  a  Judge  to  make  an  order  af- 
fecting a  fund  standing  to  tlie  credit  of  a 
cause  attached  to  another  branch  of  the 
Court,  see  Wright  v.  Irving,  10  Sim.  625; 
Brysoa  v.  Warwick  Canal  Company,  18 
Jur.  893,  V.  C.  W.;  Weeding  v.  Weeding, 
1  J.  &  H.  424. 

6  Curiewis  v.  Whidborne,  10  W.  R.  261, 
L.  JJ.;  Sideljottom  v.  Sidebottoni,  14  VV. 
R.  507,  L.  JJ.;  see  anie,  p.  70;  and  poit 
Chap.  XIX.  §  1,  Jjismissinij  Bills. 

'  For  forms  of  notice  of  motion,  see  Vol. 
III. 


8  Bond  V.  Barnes,  2  De  G.,  F.  &  J.  387. 

9  For  Ibrm  of  motion  paper,  see  Vol. 
III. 

1"  As  to  service  of  the  notice  of  motion 
and  the  hearing,  see  post,  Chap.  XXXV. 
§  2,  Motions.  The  party  giving  the  notice 
must  be  provided,  at  the  hearing,  with 
copies  of  it  for  the  use  of  the  Court. 

ii  See  5  Vic.  c.  5,§  30;  Seton,  1268;  and 
ante,  p.  70,  note.  F  or  forms  of  order  for 
the  transfer  of  causes,  see  Setpn,  126f<,  Nos. 
1-4.  The  retransfer  ot  a  cause  whicii  has 
been  transferred  under  a  General  Order  is 
obtained  in  the  manner  above  explained: 
as  to  such  retranster,  see  Sidebottom  v. 
Sidebottoni,  7'W.  K.  104,  L.  C.  ;  Tiffin  v. 
Parker,  12  W.  R.  698,  L.  C.;  Piatt )'.  Wal- 
ter, L.  K.  1  (Jli.  Ap.  471,  L.  JJ.  ;  Pietroni 
V.  Transatlantic  Company,  14  W.  R.  783, 
L.  C.  ;  Whittaker  v.  Fox,  ibid.;  Betts  v. 
Rimmel,  ibid  Semble,  tiie  order  is  in  the 
nature  of  an  order  nisi,  and  notice  of  the 
application  need  not  be  given.  Wilson  v. 
Gray,  ibid.  For  form  of  order  for  retransfer, 
see  Seton,  1269,  No.  5.  1  lie  order,  in  such 
case,  can  only  be  made  by  the  Lord  Chan- 
cellor, or  Lords  Justices,  ibid.  For  form  of 
notice  of  motiun,  see  Vol.  III. 

12  Braithwaite's  Pr.  566. 


PRINTING    AND    FILING    THE    BILL. 


399 


but  before  this  process  is  completed   it  is  not  of  any  effect   in 
Court.^ 

K  the  bill  has  been  inadvertently  filed  without  the  signature  of 
counsel,  an  order  as  of  course  may  be  obtained,  on  motion  or  peti- 
tion, gi-s-ing  leave  to  amend  by  adding  such  signature ;  ^  but  any 
defendant  who  has  appeared  may,  before  such  amendment  is  made, 
take  advantage  of  the  irregularity  by  demurrer,  or  by  special  motion 
to  take  the  bill  off  the  file.^ 

The  copy  of  an  information  intended  to  be  filed  must  bear  the 
signature  of  the  Attorney-General,*  To  obtain  this,  a  copy  of  the 
draft  is  left  with  him,  together  with  a  certificate  of  the  counsel  who 
settled  it,  that  it  is  proi)er  for  his  sanction,  and  also  a  certificate  of 
the  solicitor  for  the  relator  that  he  is  a  proper  person  to  be  relator, 
and  is  able  to  pay  costs  ;  ^  and  if  the  Attorney-General  approves  of 
the  dralt,  he  will  then,  on  the  copy  to  be  filed  being  left  with  him, 
together  with  a  certificate  that  it  is  a  true  copy  of  the  draft  as 
settled  by  counsel,''  afiix  his  signature  thereto.  The  information, 
so  signed,  is  then  filed,  in  the  same  manner  as  a  bill. 

The  bill  being  thus  filed,  the  defendant  is  entitled,  after  ajspear- 
ance,  to  demand  from  the  plaintiff"  any  number  of  printed  copies  not 
exceeding  ten,"  on  payment  for  the  same  at  the  rate  of  one  half- 
penny per  folio  ®  of  seventy-two  words.^ 

1  Ord.  I.  35,  45,  48;  Ord.  VIII.  3.  The 
fee  on  filing  the  bill  is  20s.  hif^htr  scale, 
and  10s.  lower  scale;  and  is  paid  by  Cliaii- 
cery  Fee  Fund  Stamps,  aliixed  to  the  bill. 
Where  a  written  bill  has  been  tiled,  no  fee 
is  paj-able  on  filing  the  printed  bill.  Jones 
V.  Batten,  9  Hare  Ap.  57  ;  2  De  G.,  M. 
&  G.  111.  As  to  using  several  stamps,  see 
llrain  v.  Brain,  9  Hare  Ap.  90,  ami  Ord. 
XXXIX.  7.  The  Circuit  Courts  of  the 
United  States,  as  Courts  of  Kquity,  shall 
be  deemed  always  open  for  the  purpose  of 
tiling  bills,  answers,  and  other  pleadings, 
and  for  issuing  and  returning  mesne  and 
final  process,  cVc.  ]>iuity  lUile  1 ;  and,  by 
Equity  Itule  11,  it  i>  pnnided  that  no  pro- 
cess of  iuhjHKua  shall  issue  Irom  the  clerk's 
ollice  in  any  s'uit  in  Equity,  until  the  bill 
is  filed  in  tlie  olHce. 

In  Massachusetts,  the  plaintiff  must  file 
his  bill  betbre  or  at  the  tnne  of  taking  out 
the  sulifiienn  ;  and  no  injunction  or  other 
proceeiiiiig  shall  be  ordereil  until  the  bill 
is  tiled,  unle'-s  for  good  cause  shown.  Itule 
2  of  the  Rules  for  Practice  in  (Jliancer}'. 
In  Vermont,  no  injunction  shall  be  issued 
in  any  case  until  the  bill  shall  have  been 
lilfcd.  (jenl.  Sts.  c.  29,  §§  55,  50;  Howe  v. 
Willard,  40  Vt.  6.")4.  Tlie  cause  is,  in  fact, 
fienditig  in  the  Court  from  the  time  the 
Chancellor  makes  the  order  for  issuing  the 
injunction.     Howe  v.  Willanl,  supra. 

Before  entry  of  a  bill  in  Kquit}'  in  Mas- 
ftachusetts,  it  the  plaintiff  is  not  an  inhabi- 
tant of  the  State,  it  must  be  indorsed  by 
some  sufticient  person,  who  is  such  inhab- 
itant; Geul.  Sts.  c.  123,  §  20;  unless  the 


Cii.  VI.  §  7. 


Name  of 
counsel  may 
be  added  by 
order,  if 
accidentally 
omitted. 


Information 
must  be 
signed  by 
Attorney- 
General. 


Defendant 
entitled  to 
ten  copies 
of  bill,  on 
payment. 


failure  to  have  it  so  indorsed  hns  occurred 
by  accident,  mistake,  or  inadvertence  ;  in 
w'hich  case  the  plaintiff,  at  any  stage  of 
the  cause,  may  have  leave  to  furnish  an 
indorser  upon  suitable  terms.  St.  Mass. 
1865,  c.  45.  A  suit  in  Equity  is  commenced, 
it  seems,  when  the  bill  is  tiled.  McLin  v. 
McXaraara,  2  Dev.  &  Bat.  Ch.  82  ;  Aston 
V.  Galloway,  3  Ired.  Ch.  126. 

By  Chancery  Rule  12,  in  New  Jersey, 
the  clerk  of  the  Court  of  Chancery  is  re- 
quired to  keep  in  his  office  a  docket,  in 
which  he  shall  enter  the  titles  of  all  suits 
brought  in  the  Court,  and  a  memorandum 
ot  every  paper  filed  in  the  same,  under  the 
title  of  the  suit,  with  the  time  of  filing  and 
the  name  of  the  solicitor  of  each  party,  and 
also  an  alphabetical  inde.x  to  the  same ;  and 
the  said  docket  shall  be,  at  all  proper  hours, 
accessible  to  the  bar.  By  the  10th  Equity 
Rule  of  the  United  States  Courts,  upon  the 
return  of  the  siibpceria,  as  served  and  ex- 
ecuted upon  any  defendant,  the  clerk  shall 
enter  the  suit  upon  his  docket  as  pending^ 
in  the  Court,  and  shall  state  the  time  of 
the  entr\'. 

2  Braithwaite's  Pr.  23  ;  and  see  Cop- 
peard  v.  Mayhew,  22  L.  J.  Ch.  408,  M.  It. 

•*  Ante,  p.  312. 

*  Hraithwaite's  I'r.  25. 

^  For  forms  of  these  certificates,  see  Vol. 
III. 

0  Jbid. 

7  15  &  10  Vic.  c.  86,  §  7;  Ord.  IX.  6. 
For  form  of  application,  see  Vol.  III. 

B  Ord.  XL.  19. 

»  Kegul.  to  Ord.  IV.  4. 


400 


THE    BILL. 


Cn.  VI.  §  ■ 


Statuton- 
imnision  as 
to  tlio  n-Ljistrv 
of  a  \n\\\>r 
int'onnatioii 
as  a  lis 
peihiens  : 


How  regis- 
tered. 


Re-registry. 


Satisfaction 
on  the 

register:  how 
entered. 


The  2  &  3  Vie.  c.  11,  §  7,  provides,  tliat  no  lis  ^^cndens  shnW  bind 
a  jnirchascr  or  mortgagee  Avithout  e.xpress  notice  thereof,  unless  and 
until  a  nienu)ranilunv  or  minute  ^  containing  the  name,  and  tlie  usual 
or  last  known  j)laee  of  abode,  and  the  title,  tratle,  or  profession  of  the 
person  whose  estate  is  intended  to  be  aiJccted  thereby,  and  the  Court 
of  Equity,  :i"<l  the  title  of  the  cause  or  information,  and  the  day  when 
the  bill  or  information  was  tiled,  shall  be  left  with  the  Senior  Master 
of  the  Court  of  Common  l*leas  :  who  is  recpiired  by  the  Act  forth- 
Avith  to  enter  the  same  in  a  book,  j^rovided  for  that  purpose,  in  alpha- 
betical order,  by  the  name  of  the  person  whose  estate  is  intended  to 
be  affected  by  such  lis  2}e>idensJ^ 

The  memorandum  or  minute,  containing  the  particulars  required 
by  the  Act,  :nust,  by  the  regulations  of  the  oiRce,  be  on  parchment 
and  a  separate  memorandum  is  required  for  every  defendant  or 
other  person  in  whose  name  tlie  registry  is  proposed  to  be  made.^ 

The  plaintiff's  solicitor,  or  other  person  leaving  this  memoran- 
dum with  the  Senior  Master,  is  required  to  sign  an  admission  of 
having  left  it,  and  to  take  a  receipt  for  it.* 

The  Act  above  cited  also  provides,  that  such  lis  pendens  shall, 
after  the  expiration  of  five  years  from  the  date  of  the  entry  thereof, 
be  null  and  void  against  lands,  tenements,  and  other  hereditaments, 
as  to  purchasers,  mortgagees,  or  creditors,  unless  a  hke  memoran- 
dum or  minute  as  was  required  in  the  first  instance  is  again  left 
with  the  Senior  Master  within  five  years  before  the  execution  of 
the  conveyance,  settlement,  mortgage,  lease,  or  other  deed  or  in- 
strument vesting  or  transferring  the  legal  or  equitable  right,  title, 
estate,  or  interest  in  or  to  any  purchaser,  or  mortgagee  for  valuable 
consideration,  or,  as  to  creditors,  within  five  years  before  the  right 
of  such  creditors  accrued ;  and  so  toties  qnoties  at  the  expiration  of 
every  succeeding  five  years  ;  ®  and  the  Senior  Master  is  forthwith 
to  fe-enter  the  same,  in  like  manner  as  the  same  was  originally 
entered," 

Until  recently,  no  provision  was  made  by  statute  for  the  dis- 
charge of  a  lis  pendens;'^  but  by  the  23  &  24  Vic.  c.   115,  §  2, 


1  For  form  of  memorandum,  so«  Vol. 
III. 

2  As  to  the  doctrine  of  lis  pendens,  inde- 
pendeiitl}-  of  tlie  Act,  see  Su;;d.  V.  &  I'. 
758,  and  cases  cited;  Shelford's  K.  P.  Acts, 
594;  and  since  the  Act,  ibid. ;  Jiellamyv. 
Sabine,  1  De  G.  &J.5GG;  3Jur.  N.  S.y4.3; 
Tyler  v.  Thomas,  2.5  Beav.  47;  Noitclitle 
i-.'Warburton,  8  Jur.  N.  S.  353,  V.  C  S. ; 
ib.  854,  L.  C. 

3  I'ask's  Pr.  12. 

*  J/jid.  A  fee  of  2s.  6d.  is  payable  for 
each  entry.     2  &  3  Vic.  c.  11,  §  7. 

6  By  the  18  &  19  Vic.  c.  15,  §  6,  it  is 
sufficient  if  the  memorandum  is  left  with 
the  Senior  Master,  for  re-regi»try  of  j  udg- 


ments,  decrees,  orders,  or  rules,  within 
five  years  l)efore  the  execution  of  the  con- 
veyance, &c.,  or,  as  to  creditors,  within 
five  years  before  their  rights  accrued;  al- 
tlK^ugh  more  than  five  years  have  elapsed 
since  tlie  hist  previous  registration  before 
such  memorandum  i»  left;  and  so  iuties quo- 
ties  upon  every  re-registry.  As  to  whether 
this  provision  aptilies  to  a  Us  pendens,  see 
2  &  3  Vic.  c.  11,  §  7  ;  Sugd.  V.  k  V.  543. 

6  2  &  3  Vic.  c.  1 1,  §§  4j  7.  For  each  re- 
entry the  fee  is  Is.  ;  see  §§  4,  7.  For  form 
of  memorandum  to  be  used  on  a  re-registry, 
see  Vol.  III. 

7  Fask's  Fr.  117. 


AMENDING    THE    BILL. 


401 


it  is  now  enacted,  that  the  Senior  Master,  upon  the  filing  with  him  Ch.VI.  §  8. 
of  an  acknoAvledgment  by  the  plaintiff  in  the  form  or  to  the  effect 
therein  mentioned,^  shall  be  at  liberty  to  enter  a  satisfaction  or 
discharge  as  to  any  registered  jiending  suit  or  lis  pendens  ;  and  he 
may  issue  certificates  of  the  entry  of  any  satisfiiction  or  discharge.^ 
The  practice  which  prevailed  prior  to  this  Act,  and  which  may 
still  be  resorted  to,  for  the  purpose  of  getting  the  registry  of  a 
lis  pendens  discharged,  is  to  obtain  an  order  in  the  cause,  as  of 
course,  at  the  Rolls,  on  a  petition  presented  by  the  plaintiff,*  or 
by  a  defendant  or  other  person  interested,  with  the  consent  of  the 
plaintiff's  soUcitor  subscribed  to  the  petition;*  or,  where  the 
plaintiff  will  not  consent,  by  a  special  petition  or  summons  ^  in 
the  cause,  which  must  be  served  on  the  plaintiff's  solicitor,  and  be 
supported  by  evidence  showing  that  the  purposes  for  which  the 
suit  was  registered  have  been  satisfied.  This  order  is  filed  with 
the  Senior  Master :  and  the  person  leaving  it  is  required  to  sign  an 
admission  of  having  left  it,  and  to  take  a  receipt  for  it.  The 
officer  will  thereu])on  enter  on  the  register  a  memorandum  of  the 
date  of  the  order,  and  affix  thereto  a  stamp,  bearing  the  word 
"  satisfied." « 


Section  VIII.  —  Amending  the  Bill. 

When  a  plaintiff  has  preferred  his  bill,  and  is  advised  that  the 
same  does  not  contain  such  material  facts,  or  make  all  such  per- 
sons parties,  as  are  necessary  to  enable  the  Court  to  do  complete 
justice,  he  may  alter  it,  by  inserting  new  matter,'  or  by  adding 
such  persons  as  shall  be  deemed  necessary  parties ;  or  in  case  the 
original  bill  shall  be  found  to  contain  matter  not  relevant,  or  no 
longer  necessary  to  the  plaintiff's  case,  or  to  name  as  parties  per- 
sons who  may  be  disjiensed  with,  the  same  may  be  struck  out ;  the 
original  bill,  thus  added  to  or  altered,  is  tenned  an  amended  bill.* 


1  For. the  form  of  such  acknowledgment, 
see  Vol.  III. 

2  The  (ee  for  entering  satisfaction  is  2s. 
6f/.,  and  for  Ilie  certilicate  U.  2.3  &  24 
Vic  c.  11.x  §  2. 

8  For  form  of  petition,  see  Vol  III.;  and 
for  form  of  order,  see  I'a.sk's  I'r.  12.'i. 

■•  P'or  ffirm  of  consent,  see  Vol.  III. 

S  Fowl.;r  I'.  Lil-s,  V.  (J.  S.,  ill  Chambers, 
15  June,  1H5.5,  Ue/,'.  Lib.  A.  103". 

*  See  l'a.sk'.s  I'r.  117. 

T  If  at  the  tim«  of  filing  the  bill  the 
r)laiiit;fl'  had  no  title  to  the  relief  jiraycd, 
lie  cannot  miikc  out  a  title  by  intriMlucing 
by  iimendnient  facts  whicli  have  siibse- 
qiieotly  occurred.  Attoriicv-tJrneral  v. 
r-rtreeve  of  Avon,  11  W.  K"lO.'.l,  L.  J.I.; 
sec  also  (Jodfrev  v.  Tucker,  33  Ileav.  2b0; 
»  Jur.  N.  S.  1188;  cases  cited,  33  Beav. 

VOL.  I. 


26 


28.5  n.;  Beardmore  r.  Gregory,  2  H.  &  M. 
491 ;  11  Jur.  N.  S.  363.  Vwitra,  Talbot  v. 
Lord  Hadiier,  3  M.  &  K.  252. 

8  Iliiidc,  21.  A  written  bill  may  be  thus 
amended,  as  well  as  a  printed  bill;  see 
iMcDoupaliJ  I'.  Wiilili.nl,  14  (ieo.  C0.5;  ;»s^ 
411  to  413,  note  and  Rules  of  the  Courts  of 
the  United  States,  Massachusetts,  and  New 
Hampshire,  there  stated.  Amendments 
can  only  be  granted  where  the  bill  is  de- 
fective in  parties,  or  in  prayer  for  relief, 
or  in  the  omisMon  or  mistake  of  ii  fact  or 
circumstance  connected  with  the  substance, 
but  not  forming  the  substance  itself,  nor 
repugnant  thereto.  The  latter  part  of  this 
princi|)leap|(lies  to  all  jileailiiigs  in  i;i|uity, 
a.s  well  as  to  bills.  Verplanck  v.  Meirl.  Ins. 
Co.,  lF;dw.  Ch.  4(;;  Lyon  r,.  Tallmiidge,  1 
John.  Ch.  184;  Kogeru  v.  Kogers,  1  I'aigc, 


In  what  cases 
done: 


By  inserting 
new  matter 
or  parties. 

By  omission 
of  matter  or 
parties. 


U)-2 


THE   BILL. 


rii.  VI.  §  s. 


Amended 
bill  must  t>e 
addressed  to 
the  same 
Judge. 

Suit,  when 
necessiirv, 
only  deemed 
pendent  from 
time  of 
amendment. 


r>)it,  althouiili  it  is  tlu'  practico  to  call  a  bill  tlms  altored  an 
miiu'ikUmI  bill,  the  aiiu'iKliUL'iit  is  in  iact  osteonicd  but  as  a  con- 
tinuation of  the  original  bill,  and  as  forming  part  of  it;  for  both 
the  original  and  aincniUMl  bill  constitute  but  one  record:^  so 
much  so,  that  where  an  original  bill  is  fully  answered,  and  amend- 
ments are  afterwards  made,  to  which  the  defendant  does  not  an- 
swer, the  whole  record  may  be  taken,  ^;;'0  coi^fesso,  generally,-  and 
an  order  to  take  the  bill  2^>'0  co)ifesso  as  to  the  amendments  only 
will  be  irregular."  An  amended  bill  must  therefore,  in  all  cases, 
be  addressed  to  the  same  Lord  Chancellor,  Lord  Keeper,  or  Lords 
Commissioners,  to  whom  the  original  bill  was  addressed,  although 
a  change  has  taken  place  in  the  custody  of  the  Greal  8eal  between 
the  times  of  tiling  the  original  bill  and  the  amendment.*  But 
so  far  as  the  pendency  of  a  suit  can  aftect  either  the  parties  to  it, 
or  strangers,  matter  brought  into  a  bill  by  amendment  will  not 


424;  Rowon  v.  Cross,  4  John.  Ch.  375; 
Renwick  »•.  Wilson,  6  John.  Ch.  81  ;  Bel- 
knap V.  Stone,  1  Allen,  572;  Carey  v. 
Smith,  11  Geo.  539;  Larkins  v.  Diddle,  21 
Ala.  252.  Being  regarded  only  with  ref- 
erence to  the  furtherance  of  Justice,  amend- 
ments, as  a  general  rule,  are  in  the  discretion 
of  the  Court,  especially  in  matters  of  mere 
form.'  Smith  v.  Babcock,  3  Sumner,  410; 
Garlick  v.  Strong,  3  Paige,  440;  McKlwain 
V.  Willis,  3  Paige,  505;  Howell  iJ.  Sebring, 
1  McCarter  (N.  J.),  84.  Amendments  are, 
therefore,  always  allowed  with  great  lib- 
erality, until  the  proofs  are  closed,  Cock 
V.  Evans,  9  Yerger,  287,  except  where  the 
bill  is  upon  oath.  Cock  v.  Evans,  ubi 
supra;  Cunningham  v.  Pell,  6  Paige,  655. 
Jn  case  the  bill  is  upon  oath,  there  is 
greater  caution  exercised  in  reference  to 
amendments.  Ibid. ;  Verplanck  v.  Merct. 
Ins.  Co.,  1  Kdw.Ch.  46;  Swift r.  Eckfoni,  6 
Paige,  22;  Lloyd  v.  Brewster,  4  Paige,  538; 
I'arker  v.  Grant,  1  John.  Ch.  434  ;  Kogers 
V.  Rogers,  1  Paige,  424  ;  Whitmarsh  v. 
Campbell,  2  Paige,  67.  So  where  the  ob- 
ject of  the  amendment  is  to  let  in  new  facts 
or  defences,  there  is  greater  reluctance  on 
the  part  of  the  Court  to  allow  the  amend- 
ment where  it  depends  upon  parol  proof, 
than  where  it  depends  on  written  instru- 
ments omitted  by  accident  or  mistake.* 
Smith  V.  Babcock,  3  Sumner,  410  ;  Callo- 
way V.  Dobson,  1  ]$rock.  ll'J.  And  the 
Court  will  not  allow  amendments  by 
inserting  facts  known  to  the  plaintiff  at 
the  time  of  tiling  his  bill,  uidess  some  ex- 
cuse is  given  for  the  omission.  Whitmarsh 
V.  Campbell,  2  Paige,  67;  Prescott  v.  llub- 
bell,  1  Hill  Ch.  217.  Nor  where  the  mat- 
ter of  the  proposed  amendment  m'ght  with 
reasonable  ddigence  have  been  in.serted  in 
the  original  bill.  North  Amer.  Coal  Co. 
V.  Dyett,  2  Edw.  Ch.  115. 

When  a  jdaintift"  wishes  to  amend  a 
Bworn  bill,  he  must  state  the  proposed 
amendments  di.stinctl}',  so  that  the  Court 
can  see  that  they  are  merely  in  addition 


to  the  original  bill,  and  not  inconsistent 
therewith.  He  must  also  swear  to  the 
truth  of  the  proposed  amendments,  and 
render  a  Viilid  excuse  for  not  incorporating 
them  in  the  original  bill;  and  the  applica- 
tion to  amend  must  be  made  as  soon  as  the 
necessity  for  such  amendment  is  discov- 
ered. Koger-i  i;.  Rogers,  1  Paige, 424;  Whit- 
marsh V.  Campbell,  2  Paige,  67  ;  Verplanck 
V.  Merct.  Ins.  Co.,  1  Edw.  Ch.  46;  Altree 
V.  Horden,  3  Lond.  Jurist,  81.  As  to  the 
stage  of  the  cause  at  which  applications 
for  leave  to  amend  should  be  made  and 
acted  upon,  see  Hewett  v.  Adams,  50 
Maine,  271;  Clark  v.  Society  in  Keene,  46 
N.  H.  272,  anil  cases  cited  ;  Codington  v. 
Mott,  1  McCarter  (N.  J.),  430. 

1  Vere  v.  Glj-nn,  2  Dick.  441  ;  Hoyt  v. 
Smith,  28  Conn.  466;  Kurd  v.  Everett,  1 
Paige,  124;  Walsh  «.  Smyth,  3  Bland,  9, 
20  ;  U'Grady  v.  Barr}',  1  Irish  Eq.  56; 
Story  Eq.  Pi.  §§  332,  885;  Carey  v.  Smith, 
11  Geo.  539. 

2  Jopling  V.  Stuart,  4  Ves.  619.  Where 
the  plaintitt'  amends  his  bill  after  answer, 
if  a  further  answer  of  the  amended  bill 
becomes  necessary,  and  is  not  waived,  the 
defendant  must  put  in  a  further  answer  to 
the  amendment;  or  the  plaintiff  will  be 
entitled  to  an  order  taking  the  whole  bill, 
as  amended,  as  confessed.  Trust  &  Fire 
Ins.  Co.  V.  Jenkins,  8  Paige,  589;  see 
Thomas  v.  Visitors  Fred.  Co.  School,  7 
(iill  &  J.  369;  (bowman  v.  Lovett,  10 
Paige,  559;  Tedder  «.  Stiles,  10  Geo.  1. 

8  Bacon  v.  Gritiith,  ib.  n. ;  and  sec  Lan- 
don  V.  lieady,  1  S.  &  S.  44. 

*  If  the  description  of  the  plaintiff,  or 
his  next  friend,  is  not  the  same  as  when 
the  bill  was  tiled,  the  new  description 
should  appear  in  the  amended  bill.  Kerr 
V.  Gillespie,  7  Beav.  269,  271;  8  Jur.  .50; 
but  the  name  of  his  solicitor  cannot  be 
altered,  unless  an  order  to  change  the  so- 
licitor has  been  obtained.  Braithwaite's 
Pr.  299. 


AMENDING    THE    BILL.  403 

have  relation  to  the  time  of  filing  the  original  bill,  but  the  suit  Ch.  vi.  §  8. 

vrill  be  so  for  considered  as  pendent   only  from  the  time  of  the  " r ^ 

amendment.^ 

Where  there  is  a  bill  and  cross-bill,  and  the  plaintifi"  in  the  orig-  plaintiff,  br 

inal  suit  amends  his  bill  before  answer,  he  will  lose  his  priority  f^'ending, 

«.,,..,.  I  J       IOS(iS  Ills 

oi  suit,  and  his  right  to  have  an  answer  before  he  is  called  u])oii  to   iniority  over 
answer  the  cross-bill.^  cross-bill. 

Amendments  to  a  bill  are  of  two  sorts  :  those  which  relate  to  amundin^s  by 
parties,  and  those  which  affect  the  substance  of  the  case.^     Under  aj'^r^it'o"  <>* 
a  common  order  to  amend,  as  the  plaintiff  may  be  advised,  the  ■^'"^  '^^' 
plaintiff  may,  before  a  defendant  has  appeared  to  the  bill,  strike 
out  the  name  of  such  defendant,  or  the  name  of  a  co-i)laintiff,  or 
add  plaintiffs  or  defendants ;  *  after  appearance,  the  plaintiff,  under 
such  an  order,  may,  it  seems,  before  answer,  add  the  names  of 
plaintiffs  or  defendants;  but  he  cannot  strike  out  the  names  of 
plaintiffs  or  defendants :  and  under  a  common  order  to  amend  by 
adding  parties,  the  plaintiff  cannot,  after  answer,  alter  his  bill,  by 
putting  in  the  names  of  other  persons  as  co-plaintiffs  with  hiniself,^ 
or  after  ajipearance  by  striking  out  the  names  as  plaintiffs  of  any 
persons  filling  that  character  upon  the  original  record :  ®  nor  can 
he  introduce  any  allegation,  against  the  original  defendants,  which 
is  not  necessary  to  explain  the  amendment.'' 

In  some  cases,  special  orders  may,  however,  be  obtained  for  the   Special  order: 
purjjose  of  altering  the  co-plaintiffs ;  but  as  a  diminution  of  the   ^^'le"  neccs- 
number  of  plaintiffs  has  the  effect  of  lessening  the  defendant's  se-  '"'^^' 
curity  for  costs,  an  order  will  not  be  made  to  strike  out  the  names 
of  plaintiffs  without  the  Court  also  providing,  at  the  same  time, 
that  security  for  the  costs  of  the  suit  shall  be  given,^  unless  such 
security  be  waived  by  the  defendants.     In  the  case  of  Jirown  v. 
Sawer,^  one  of  two  co-jilaintiffs,  who  had  authorized  the  institu- 


218. 


1  L<I.  Red.  330;  Long  v.  Burton,  2  Atk.       South.  &  North.  Ind.  R.R.  Co.,  1-3  Allen, 


400,  406. 


2  Steward  ».  Roe,  2  P.  Wms.  434;  .John-  ^  ,See  Braithwaite's  Pr.  300. 

son  r.  Freer,  2  Cox,  371;  Noel  v.  Kinf,',  2  5  Lock  r.  liaglev,   1  W.  N.  Ch,  M.  R. ; 

Mad.  3'J2;  and  see  jx-sl,  Chan.  XXXIV^  but  see  Ilicbens  r.  CouKreve,  1  Mm.  500: 

§    1,   Cross    Ihlls.      But    if   the    j)lainti(r  see  also  Milligaii  v.  Mitchell,   1  JI.  &  C. 

amend.M   his   bill   before  he  knows  of  the  433,  442;  see  1  C.  P.  Cojm.  t.  Cott.  35; 

filing  of  the  cross-bill,  he  does  not  lo.se  his  Story  Kq.  PI.  §  541,  note;  Millerr.  MeCan' 

priority,    (iray  r.  IJai^,  13  Beav.  05.    The  7  J'aige,  451.                                                    ' 

rule  stated  in  the  t(;.\t  applies,  it  is  con-  o  LYUowes  v.  Deere,  3  Beav.  353;  Slog- 

ceived,    to    a    concise   statement,    wliich,  gett  v.  Collins,  13  Sim.  456;  7  Jur.  63!»; 

under  15  &   10  Vic.  c.  HO,  §   I!»,  may  be  see  Mason  v.  York  &  Cumb.  K.K.  Co.,  5'i 

dulistituted    for  a  cross-bill.     See  Mcrtens  Maine,  107. 

«.  Ilaigh,   1  J.  &  II.  231;   0  Jur.  N.   S.  '  Gibson  v.  Inpo,  5  Ilarc,  150;  11  .lur. 

'*?*'•  655;    Barlow  v.  M'Miirrav,   L.  R.  2  Kci. 

»  By  fttatutc  m  Massachusctt.'f,  amend-  420;  12  Jur.  N.  S.  51'J,  V"  C.  S. 

tncnfs  may  be  allowed  by  changing  suit.s  »  For  f.irm  of  order,   see    Sefon,    1253, 

at  Law  mill  pro<c..diiigs  in  F,r|uity,  or  pro-  No.  7;  Swceiiv  v.  Hull,  Sausse  &  S.  602. 

cec.lingM  III    K(piity  into  suits  at    Law,   if  «  ;j  Heav.   .508;  5  Jur.   500;  see  llartr. 

the  same  be  iie<essary  to  enable  the  [.lain-  Tulk,  0  Hare,   Oil,  013;  Bather  v.  Kears- 

titl  to  siiMain  bis  a.linn  for  the  cause  for  ley,  7   IJeav.   545;  M'Leod  v.   Lvtilelon,  1 

winch  It  was  intended  to  be  brought.     St.  Drew.  30;  Drake  v.  Svmes,  7  .'lur.  N.  S. 

1865,  c.  170,  §  1;  see  Williston  v.  Mich.  309,  L.  JJ. ;  3  De  G.,  !•'.  &  J.  401.     As  to 


404 


THE    RILL. 


On.  VI.  §  8. 


Order  to 
strike  out  the 
name  of  a 
plaintiff,  on 
terms  of  giv- 
ing security 
for  costs,  is 
not  a  matter 
of  course. 


Where 
allowed. 


tion  of  llie  suit,  refused  to  proceed  in  it ;  n  motion  was  tlicre- 
upon  made,  on  heli.ilf  of  the  other  co-phiintifF,  that  she  ntiglit  be 
at  liberty  to  amend  tlie  l)ill  by  striking  out  the  name  of  the  co- 
plaintitli"  wlio  had  refused  to  jiroceed,  and  by  making  him  a  defend- 
ant, and  that  he  might  be  ordered  to  pay  the  costs  oceasione<l  by 
such  amendment,  and  also  the  costs  of  giving  any  security  for  costs 
which  the  defendants  or  any  of  them  might  be  dechired  entitled  to 
in  consequence  of  such  amendment,  and  incidental  thereto,  and 
also  the  costs  of  and  incident  to  that  a])|)lication,  to  be  taxed  as 
between  solicitor  and  client.  Lord  Langdale  M,  R.,  in  giving 
judgment  upon  the  motion,  said:  "The  suit  cannot  be  prosecuted 
unless  the  alteration  is  made,  and,  therefore,  justice  will  not  be 
done  unless  the  alteration  is  made ;  I  think,  therefore,  that  this 
order  must  be  made,  but  on  such  terms  as  will  be  just  towards  the 
defendants,  and  by  securing  the  costs  of  suit  already  incurred ;  and 
the  co-plaintiff  having,  by  revoking  the  authority,  made  this  ap- 
plication necessary,  ought  therefore  to  pay  the  costs."  ^ 

It  must  not  be  considered  as  a  matter  of  course  to  obtain  an 
order  to  strike  out  the  name  of  a  person  who  has  once  been  made 
a  plaintiff  in  a  cause,  even  upon  the  terms  of  giving  security  for 
costs.  In  the  case  of  the  Attorney-  General  v.  Cooper  ^  an  applica- 
tion was  made,  by  a  number  of  relators  named  in  an  information, 
to  strike  out  the  names  of  several  of  themselves.  Lord  Cottenham, 
in  refusing  the  motion,  observed :  "  It  cannot  be  justly  said,  that 
all  that  the  relators  have  to  establish  in  support  of  such  an  ap- 
plication is,  that  the  defendants  will  not  be  prejudiced  by  such  an 
alteration;  they  must  show  that  justice  will  not  be  done,  or  that 
the  suit  cannot  be  so  conveniently  prosecuted,  unless  the  alteration 
is  made.  I  cannot  give  them  such  an  advantage  as  they  ask,  and 
permit  them  to  alter  the  record,  merely  because  they  may  have  a 
different  wish  at  one  time,  from  that  which  they  may  have  at 
another  time :  which  may  be  the  result  of  mere  caprice." 

In  the  case  of  Hall  v.  Lack^  where  it  appeared  that  the  asso- 


the  course  where,  after  decree,  the  solicitor 
of  the  plaintiffs  ceases  to  practice,  and  one 
of  them  refuses  to  concur  with  the  rest  in 
appointing  a  successor,  see  Butlin  v.  Ar- 
nold, 1  II.  &  M.  715.  For  form  of  notice 
of  motion  in  such  ca.se,  see  Vol.  III. 

1  Ilewett  (.'.  Adams,  50  Alaine,  271.  It 
is  within  the  discretion  of  the  Court  to 
permit  a  bill  to  be  amended,  by  substi- 
tuting the  name  of  a  new  for  the  original 
plaintiff,  even  after  answer  tiled;  but  it 
must  be  upon  the  payment  of  all  the  costs, 
up  to  the  time-  of  the  amendment,  as  well 
as  of  the  amendment  itself.  .Jennings  v. 
Springs,  1  IJailey  Kq.  181;  Winthrop  v. 
Farrar,  11  Allen,  -398. 

So  an  amendment  may  be  allowed  even 


after  a  hearing  on  bill,  answer,  and  proofs. 
(,'lark  V.  Society  in  Keene,  40  N.  H.  272; 
Codington  v.  Mott,  1  McCarter  (N.  J.), 
430. 

The  Court  may  impose  other  conditions 
of  amendment  besides  the  payment  of 
costs.  IJellows  V.  Stone,  14  N.  H.  175; 
Bowen  v.  Idley,  G  Paige,  53 ;  Claris  v.  So- 
cietv  in  Keene,  40  N.  H.  275. 

•^'W  M.  &  C.  258,  201 ;  1  Jur.  790. 

8  2  Y.  &  C.  C.  (J.  031 ;  see  also  I'lunket 
V.  Joice,  2  Sch.  cSi;  Lef.  159,  nnU,  p.  72; 
Jones  V.  Kose,  4  Hare,  52;  where  leave 
given  to  strike  out  "on  behalf  of  them- 
selves and  all  other  .shareholders."  Hart 
V.  Tulk,  6  Hare,  012;  Drake  v.  Symes,  7 
Jur.  N.  S.  399,  L.J  J.;  3  De  G.  K  &  J. 
491. 


AJVIENDING    THE    BILL. 


405 


ciation  of  a  cestui  que  (rust  and  trustee,  as  co-plaintiffs  on  tlie 
record,  might  materially  injure  the  interests  of  the  former,  Sir 
J.  L.  Knight  Bruce  V.  C.  gave  leave  to  amend  the  record,  by- 
striking  out  the  name  of  the  trustee  as  plaintiff,  and  making  him 
a  defendant. 

Leave  may  also  be  obtained  to  amend  a  bill,  by  the  addition  of 
persons  as  co-plaintiffs.^  After  answer,  however,  the  addition  of  a 
co-plaintiff  is  not  a  matter  of  course,  but  is  discretionary  in  the 
Court;  and  it  would  apj)ear,  that  Avhere  a  plaintiff  applies,  after 
answer,  for  leave  to  amend  his  bill,  by  adding  a  co-]ilaintiff,  he 
must,  in  support  of  his  ajiplication,  show  that  the  person  proposed 
'to  be  added  is  willing  to  become  a  co-plaintiff.-  An  order  for 
leave  to  amend  by  adding  a  plaintiff  after  i-eplication  has  been 
refused,  where  the  plaintiff  has  been  guilty  of  laches.^ 

A  bill  of  discovery  cannot  be  amended  by  adding  parties  as 
plaintiffs.  This  was  held  to  be  the  law  of  the  Court  by  Lord 
Eldon,  in  XorcZ  Cholmoyideley  v.  Ijord  Clinton^^  whei*e  a  bill  had 
been  filed  by  cestui  que  trusts,  in  aid  of  an  ejectment  at  Law,  and 
the  defendant  pleaded  facts  to  show  that  the  legal  estate  was  in  the 
trustees.  The  difficulty  in  the  case  was,  however,  got  over  by  the 
plaintiffs  consenting  to  the  allowance  of  the  plea,  and  moving  to 
amend  by  inserting  a  statement  to  show  that  the  legal  estate  was 
in  trustees,  and  that  a  count  had  been  introduced  in  the  declara- 
tion in  ejectment  on  the  demise  of  the  trustees. 

An  order  made  at  the  hearing  for  leave  to  amend,  by  adding 
parties,  will  not  authorize  the  introduction  of  co-plaintiffs ;  ^  but 
the  Court  will  sometimes  allow  a  bill,  which  has  originally  been 
filed  by  one  individual  of  a  numerous  class,  in  his  own  right,  to 
stand  over  at  the  hearing,  for  the  purpose  of  being  amended  by  the 
introduction  of  the  words :  on  behalf  of  himself,  and  all  others 
of  the  class.  Thus,  in  Lloyd  v.  Loaring,^  where  a  demurrer  was 
allowed,  because  the  parties  affected  to  sue  in  a  corporate  cajiacity, 
leave  was  given  to  amend,  by  making  them  sue  in  their  individual 
rights  as  members  of  a  copartnership,  on  behalf  of  themselves  and 
others. 

It  has  l>een  said,  tliat  the  Court  will,  at  any  time  l)i'ft)re  the 
hearing,  suffer  parties  t(»  be  added  by  amendment,  upon  a  ]>roper 
case  being  shown ;  ^  and   that  even   after  a  decree,  and  before  it 


Ch.  VI.  §8. 


Addition  of 
plaintifis, 
after  answer, 
is  not  of 
course. 


Refused, 
where  laches. 


No  plaintiffs 
can  be  added 
to  a  bill  of 
discovery. 


Order  to 
amend  at 
hcarinj^,  hj 
adilhvj;  par- 
tics,  will  not 
autliorize 
introductiou 
of  new 
plaintitt's. 


I'artics  may 
1)0  added  at 
Muv  time 
bcil.rc  tbi! 
licariiiir ; 


^  Man^jlian  r.  I'llakc,  F..  H.  ■'!  Ch.  Ap. 
32;  Winthrop  I,-.  Kurrur,  II  Allen,  Ji'.m. 

^  The  (IdvcrnorH  <if  l.ucton  Free  School 
r.  Smith,  MI..I.  17,  19;  Loch  v.  Uaglcy, 
1  W.  N.  fir,,  M.  R. 

8  Milwiird   r.  Oldfuld,  4  Price,  325. 

*  2  Mi-r.  71,  74;  anrl  nee  /xigt,  Chap. 
XXXIV.  §  2,  /y/Z/x../'  l)Uc<,r>-,;,. 

s  MilliKan  r.  Mitrhcll,  1  M.'  &  f.  4;!.3, 
442;  Story  liq.  I'l.  §  5il,  note;  Miller  v. 


Mcf'an,  7  I'ai^co,  451 ;  see  Noves  r.  Sawvcr, 
3  Vt.  IGO;  Arendel  v.  IJlackwcIl,  1  IJev. 
Ch.  354. 

6  (i  Yes.  773,  778;  sec  also  Attorney- 
General  r.  Newcomhe,  14  Ves.  1,  (i;  <i<i<>il 
V.  niewitt,  13  Ves.  397,  401;  and  mile,  |>i). 
2:iH,  242. 

■  CfHidwin  V.  Goodwin,  3  AtU.  370:  see 
Forbes  V.  Stevens,  10  .lur.  N.  S.  SHI.  V.  ('. 
W. ;  4  N.  R.   380,   L.  J.I ;  Story  Ivi.  I'l. 


40(1 


THE    BILL. 


Cm.  VI.  5  S. 


and  oven 
iiflor  (ItiToo. 

K\  uloiu'o 
:u;ainst  par- 
tio.-;  atliiud. 


Facts  (UH'iir- 
riiiij  since  l>ill 
lilcd,  can  be 
introdmcd  l>y 
atuendnicut : 


if  the  cause  is 
in  a  state  to 
allow  of  an 
auiendiuent ; 


has  been  enrolled,  persons  intoresteil  may,  by  petition,  be  made 
]>artie8  and  let  into  it,  it'  their  rioht  be  interwoven  with  tlie  other 
plaintliVs,  and  settled  (in  general)  by  the  decree  :  tliey  paying  the 
plaintitl's  a  proportionable  part  of  the  charges  of  the  suit.^ 

If  i>arties  are  added  after  the  expiration  of  the  time  for  giving 
notice  of  the  cross-examination  of  the  Avitnesses,  the  evidence  of 
such  witnesses  cannot  be  read  against  the  parties  so  added.^ 

It  is  not  within  the  province  of  this  work  to  point  out  tlie  cases 
in  which  amendments  may  become  requisite,  for  the  purpose  of 
altering  the  case  upon  the  record  as  against  the  defendants  already 
before  the  Court,  or  to  what  extent  they  may  be  made.  It  is  to 
be  observed,  however,  that  the  rule  Avhich  formerly  existed,  that  a 
plaintiff  ought  not  to  introduce  facts,  by  amendment,  which  have 
occurred  since  the  filing  of  the  original  bill,'  has  been  abolished ; 


§  887;  Cooper  Eq.  PI.  333;  Ld.  Eed. 
325;  Hutchinson  v.  Reed,  1  Hoff.  Ch. 
316;  Gordon  v.  Holland,  3  Ired.  Ch. 
362;  Codington  v.  Mott,  1  McCarter  (N. 
J.),  430;  Park  v.  Ballentine,  6  Blackf. 
223.  In  respect  to  amendments  as  to 
parties,  Courts  are  more  liberal  than  in 
respect  to  other  amendments.  A  Court  of 
Equity  will  not  dismiss  a  bill  absolutely, 
for  want  of  proper  parties,  if  the  plaintiff 
shows  enough  to  give  color  to  his  claim  for 
relief  against  the  parties  not  before  the 
Court.  Allen  ».  Smith,  1  Leigh,  331;  see 
ante,  294,  note;  Thorn  t'.  Germand,  4  John. 
Ch.  363;  Pleasants  v.  Logan,  4  Hen.  & 
M.  489.  Upon  a  creditor's  bill  against 
an  insolvent  corporation  for  a  receiver,  &c., 
the  plaintiff  may  pray  a  discover}^  of  the 
stockholders  liable,  and  having  obtained  it 
maj'  amend  his  bill  by  making  such  stock- 
holders parties.  Morgan  v.  New  York  & 
Albany  R.R.  Co.,  10  Paige,  290;  see 
^IcDougald  V.  Dougherty,  14  Geo.  674; 
Hewett  V.  Adams,  .50  Maine,  271 ;  McLel- 
lan  V.  Osborne,  51  Maine,  118. 

1  Wyatt's  P.  R.  301.  Amendments  are 
allowed  in  Equity  with  great  liberality, 
but,  as  a  general  rule,  amendments  which 
seek  to  make  a  new  case  inconsistent  with 
that  originally  made,  if  allowable  at  all, 
should  be  applied  for  and  made  belbre  the 
cause  is  at  issue.  But  mere  formal  amend- 
ments, such  as  the  introduction  of  new 
parties,  or  amendments  to  the  prayer  of 
the  bill,  to  meet  the  exigency  of  the  case, 
■will  be  made  up  to,  and  at,  the  linal  hear- 
ing. Codington  v.  Mott,  1  McCarter 
(>r.  J.),  4.30  ;  see  Philhower  v.  Tod,  3 
Stockt.  (N.  J.)  54,  312;  Bucklev  v.  Cross, 
Saxton.  504;  Mavor  w.  Dry,  2  S.  &  S. 
113;  Henry  v.  Brown,  4  Halst.  Ch.  245; 
Rodgers  V.  Rodgcrs,  1  Paige,  424:  Whit- 
marsli  v.  Campbell,  2  Paige,  07;  V^erplanck 
V.  Merct.  Ins.  Co.,  1  Hdw.  Ch.  46;  Pratt 
V.  Bacon,  10  Pick.  123. 

2  Pratt?'.  Parker,  1  Sim.  1,  5;  .Lamest'. 
James,  4  Beav.  578;  5  Jur.  1148;  Quan- 
tock  V.  BuUen,  5  Mad.  81.  After  the  wit- 
nesses in  a  cause  have  been  examined,  and 


the  proofs  closed,  no  amendment  of  the 
bill  IS  allowed,  except  in  matters  of  mere 
form,  unless  under  very  special  circum- 
stances. Bowen  «'.  Idley,  6  Paige,  467; 
Story  Eq.  PI.  §  887;  Clark  v.  Society  in 
Keene,  40  N.  H.  272;  Tilton  v.  Tilton,  9 
N.  H.  394;  Bellows  v.  Stone,  14  N.  H. 
175 ;  Doe  v.  Doe,  37  N.  H.  268 ;  see  Wil- 
bur t'.  Collier,  1  Clark,  315;  Shephard  v. 
Merrill,  3  John.  Ch.  423;  Smith  v.  Burn- 
ham,  4  Harr.  &  J.  331;  Stewart  v.  Duvall, 
7  Gill  &  J.  180;  Ross  v.  Carpenter,  6 
McLean,  382. 

8  See  Longworth  v.  Taylor,  1  McLean, 
514.  Amendnients  to  a  bill  are  always 
considercMl  as  forming  a  part  of  the  original 
bill.  'I'liey  refer  to  the  time  of  tiling  the 
bill ;  and  the  defendant  cannot  be  required 
to  answer  any  thing  which  has  arisen  since 
that  time,  fturd  i'.  Everett,  1  Paige,  124; 
Walsh  I'.  Smyth,  3  Bland,  9,  20;  O'Gradv 
V.  Barry,  1  Irish  Eq.  56;  Story  Eq.  Pl. 
§§  332,  885.  Unless,  indeed,  the  defend- 
ant has  not  put  in  his  answer,  in  which 
case  the  bill  may  be  amended  by  adding 
supplemental  matter.  Story  Eq.  I'l.  §  885; 
Candler  f.  Pettit,  1  Paige,  168;  <3gden  f. 
Gibbons,  Halst.  (N.  J.)  Dig.  172.  Conse- 
(|uently  an  original  t)ill  cannot  be  amended 
by  incoq)()rating  (herein  any  thing  which 
arose  sub.sequently  to  the  commencing  of 
the  suit.  This  should  be  stated  in  a  sup- 
plemental bill.  Stafford  v.  Howlett,  1 
Paige,  200;  Saunders  v.  Frost,  5  Pick. 
276 ;  see  Sanborn  v.  Sanborn,  7  Gray,  142. 
Generally,  a  mistake  in  the  bill  in  the 
statement  of  a  fact  should  be  corrected  by 
an  amendment,  and  not  by  a  right  state- 
ment of  the  fact  in  a  supplemental  hill. 
Strickland  v.  Strickland,  12  Sim.  253; 
Story  Kq.  PI.  §§  332,  614;  Stafford  v.  Hew- 
lett," 1  Paige,  200. 

When  tlut  cause  has  proceeded  so  far, 
that  an  amendment  cannot  bo  made,  or  if 
material  facts  have  occurred  subse(|uently 
to  the  commencing  of  the  suit,  the  (,'ourt 
will  give  the  plaintiff  leave  to  file  a  sup- 
plemental bill.  And  where  such  leave  is 
given,  the  Court  will  permit  other  matters 


AMENDING    THE    BILL. 


407 


and  the  facts  and  circumstances  occurang  after  the  institution 
of  a  suit  may  be  introduced  into  the  bill  by  amendment,  if 
the  cause  is  otherwise  in  .a  state  in  which  an  amendment  may 
be  made,^  and  if  not,  they  may  be  added  by  supplemental  state- 
ment.^ 

Where  an  answer  of  a  defendant  states  facts  which  are  material 
to  the  plaintifi''s  case,  but  which  have  not  been  stated  in  the  bill, 
it  is  not  necessary  that  the  plaintiff,  in  order  to  avail  himself  of 
them  at  the  hearing,  should  introduce  such  facts  into  his  bill  by 
amendment,  although  perhaps  the  most  convenient  course  would 
be  to  do  so.^  Where,  therefore,  it  is  important  to  the  plaintiff 
that  a  fact  disclosed  in  the  answer  should  be  further  inquired  into, 
or  avoided  by  some  further  statement,  the  practice  is  often  re- 
soi-ted  to  of  introducing  such  fact  from  the  answer  of  the  defendant 
into  the  bill ;  and  Avhere  a  plaintiff,  not  being  satisfied  with  the 
answer,  amended  his  bill,  stating,  by  way  of  pretence,  a  quotation 
from  the  answer,  and  negativing  it,  and  insisted  that  the  facts 
would  appear  differently  if  the  defendant  would  look  into  his  ac- 
counts. Sir  Thomas  Plumer  V.  C.  held,  that  the  matter  so  intro- 
duced was  not  impertinent.* 

Great  latitude  is  allowed  to  a  plaintiff  in  making  amendments, 


Cn.  YI.  §  8. 


and  if  not,  by 
supplemental 
statement. 


Amendment 
not  necessary 
to  put  facts 
stated  by  an- 
swer iu  issue ; 


unless  to 
avoid  their 
effect,  or  to 
found  an 
inquiry. 


to  be  introduced  into  the  supplemental  bill, 
■which  mi-iht  have  been  incorporated  in  the 
orij:jinal  bill  bv  way  of  amendment.  Staf- 
ford r.  Ilowlett,  1  Paige,  2J0;  see  Ver- 
planck  V.  Merct.  Ins.  Co.,  1  Edw.  46; 
rinch  r.  Anthony,  10  Allen,  470. 

Cases,  however,  do  sometimes  occur 
where  the  introduction,  by  amendment, 
of  matters  which  have  occurred  since  the 
date  of  the  original  1)111  will  l>e  permitted 
bv  the  Court;  thus,  where  the  ])laiutiff  has 
ail  inchoate  right  at  the  time  of  preparing 
ills  original  bill,  which  merely  re(|uiies 
some  tbruial  act  to  render  his  title  perfect, 
and  such  formal  act  is  not  comi)k'ted  until 
afterwards,  the  introduction  of  that_  fact  by 
amcndnii'iit  will  be  permitted.  The  case 
of  an  e.xecutor  filing  a  bill  before  probate, 
and  afterwards  oljtaining  probate,  is  an 
instance  of  this  kind.  Ilumphrcvsu.  Hum- 
phrcvs, ;}  1'.  Wms.  UH:  Ibadfbrd  v.  Felder, 
2  M'Cord  Ch.  170;  liillout  v.  Morse.  2 
Hayw.  17.j;  Ihitlcr  r.  Huller,  4  I.itt.  201  ; 
Ulackwell  r.  Hlackwell,  .):!  Ala.  r,7.  A  bill 
WU.H  amended  so  as  to  charge  that  an  infant 
defendant  hail  attained  her  full  age,  therc- 
bv  to  coniprl  b<T  to  answer  as  an  adult. 
Kili[)  >°.  Ilanna,  2  Illaiid,  20. 

I  |."i  &  HI  Vic.  c.  H(i,  §  .>t;  see  Tudway 
r.  .b.n.-,  1  K.  &  J.  fiOl  ;  "Forbes  r.  St.'vens, 
uhi  »ii/).  ;  and  see  Attorncv-( Jeneral  ''. 
Portreeve  of  Avon,  11  W.  It.  1050,  lO.")!, 
L.  .).!.;  Codfrcy  v.  Tucker,  :W  Heav.  280; 
0  .lur.  N.  S.  818;  r.eardmon!  v.  tiregorv, 
2  n.  &  M.  4!)1;  11  .lur.  N.  S.  WVi;  aiid 
<a«es  citfd,  ;i.'l  Hcav.  2H:!,  n. ;  Foiilkes  i'. 
Davies,    L.    IC.    7    Ivi-   42,    40;  Attorney- 


General  V.  Cambridge  Consumers'  Gas  Co., 
L.  K.  4  Ch.  Ap.  71. 

2  15  &  10  Vie.  c.  80,  §  53;  see  Eogers 
V.  Solomons,  17  Geo.  508:  Ord.  XXXII. 
2;  and  see  jxist,  Cha]).  XXXIII.,  Revivnr 
and  Supplement.  An  abatement  cannot  be 
thus  remedied.  Commercll  v.  Hall,  2  Drew. 
194;  S.  C.  nam.  Commerell  v.  Bell,  18 
.jur.  141;  Williams  r.  .lackson,  5  .lur.  N. 
S.  204;  7  W.  K.  104,  V.  C.  W. ;  Webb  v. 
Wardle,  11  .lur.  N.  S.  278,  V.  C.  K. 

8  Attwood  V. ,   1   Russ.    .353,  .361; 

Maun,'  V.  Lewis,  10  Yerger,  115;  Rose  v. 
Mynatt,  7  Yerger,  30;  but  see  Thomas  v. 
Warner,  15  Vt.  110;  Dupouti  v.  Mussy,  4 
Wash.  C.  ('.  128.  But  where  it  is  impor- 
tant to  the  i)l.-iinliff,  tliat  facts  disclosed  in 
the  answer  should  be  further  in(|uired  into, 
or  avoided  by  some  further  statement,  such 
facts  may  be  introduced  into  the  bill  from 
the  answer  of  the  defendant,  by  way  of 
amendment.  Seelye  V.  Bochm,  2  Alad. 
17ti;  Spencer  r.  V;in  Duzen,  1  I'aige,  555. 
But  no  admission  in  an  answer  can,  under 
any  circumstances,  lay  a  foundation  for 
relief  under  anv  specilic  head  of  K(|uitv, 
unless  it  be  sul)stantially  set  forth  in  the 
bill.  .lackson  v.  Ashton,  11  Peters,  22i). 
The  l)ill  should  be  amended  so  as  to  state 
the  contract  set  u|i  iu  the  answer,  if  that  is 
to  be  relied  u]ion  liu-  a  decree.  Byrne  i". 
Romaine,  2  Kdw.  Ch.  445.  But  it'  is  not 
necessary  or  proper  to  amend  the  bill  Ibr 
tli(^  purpose  of  traversing  defensive  aver- 
ments brouglit  forward  by  the  answer. 
Lanier  J-.  Hill,  30  Ala.  111. 

*  Seelye  r.  P.oelim,  2  .Mad.  170,  180. 


Great  latitude 
allowed  in 
amendment 


•108 


THE    RILL. 


C"ii.  VI.§8. 


hut  not  by 
insisting,  in 
the  alterna- 
tive, on  such 
different 
agreement. 


Bill  of  dis- 
cover}'cannot 
be  converted 
into  a  bill  for 
relief,  semble ; 

nor  bill  for 
relief,  into 
bill  of 
discover}'. 


and  tlio  Court  has  even  gone  to  tlic  extent  of  permitting  a  bill  to 
be  eonverteil  into  an  information  ;  ^  it  has  also  been  held,  where 
a  plaintirt"  tiled  a  bill,  stating  an  agreement,  and  the  defendant  by 
his  answer  admitted  that  there  was  an  agreement,  but  different 
from  that  stated  by  the  plaintiff,  that  the  i)laintiff  might  amend 
his  bill,  abandoning  his  first  agreement,  and  ])rayu)g  for  a  decree 
according  to  that  admitted  by  the  defendant.''^  In  that  case, 
however,  the  amendment  was  ])ermitted,  because  the  bill  in  its 
original  form  might  have  been  j)rei)ared  under  a  mistake  or  mis- 
conception of  counsel,^  and  the  plaintiff,  having  afterwards  dis- 
covered the  error,  was  allowed  by  the  Court  to  abandon  his 
original  case,  and  insist  upon  the  one  alleged  by  the  defendant ; 
but  the  Court  will  not  carry  its  liberality  further,  and  ])ermit  a 
plaintiff  to  amend  his  bill,  so  that  he  may  continue  to  insist  upon 
the  agreement  originally  stated,  and  if  he  fails  in  that,  to  get  the 
benefit  of  the  one  admitted  by  the  defendant.  Upon  this  prin- 
ciple, where  the  original  bill  ])rayed  the  specific  performance  of  an 
agreement,  and  the  defendant  denied  the  agreement  as  stated  in 
the  bill,  but  admitted  a  different  one,  whereupon  the  plaintiff 
amended  his  bill,  continuing  to  insist  on  the  original  agreement, 
and  praying  in  the  alternative,  if  not  entitled  to  that,  to  have  the 
execution  of  the  admitted  agreement :  Lord  Redesdale  dismissed 
the  bill  Avith  costs,  but  without  prejudice  to  any  bill  the  ])laintiff 
might  be  advised  to  file,  to  obtain  a  performance  of  the  admitted 
agreement.^ 

It  seems  that,  as  a  general  rule,  the  Court  will  not  permit  a  bill, 
filed  for  the  mere  purpose  of  discovery,  to  be  converted  into  one 
for  relief,  by  the  addition  of  a  prayer  for  relief,^  though  it  has  been 
allowed  in  some  cases;  ®  and  it  seems,  that  a  bill  for  relief  cannot 
be  converted  into  a  bill  for  discovery  by  striking  out  the  prayer ; '' 
thus,  in  Zord  Cholmondeley  v.  Lord  Clinton^^  where  the  defend- 
ants, having  answered  the  bill,  obtained  an  order  for  the  plaintiff 
to  elect  whether  he  would  proceed  at  Law  or  in  Equity,  where- 


1  President  of  St.  Mary  Magdalen  v. 
Sibthoq),  1  Russ.  154. 

2  Per  I^d.  Kedesdale,  Lindsay  v.  Lynch, 
2  Sch.  &  Lef.  9;  Harris  v.  Knickerbocker, 
5  Wend.  638;  S.  C.  1  Paige,  209;  see 
Bellows  V.  Stone,  14  N.  H.  175.  This  has 
been  allowed,  even  after  a  hearing  on  the 
bill,  answer,  and  evidence.  Bellows  v. 
Stone,  mifn-n. 

8  See  McElwain  v.  Willis,  3  Paige,  505. 

*  Lindsav  i>.  Lynch,  2  Sch.  Ik  Lef.  1 ; 
866  also  \(''oollam  v.  Hearn,  7  Yes.  211, 
222;  and  Deniston  v.  Little,  2  Sch.  &  Lef. 
11.  n.  ('(). 

5  Butterworth  v.  Bailev,  15  Ves.  .358, 
361;  Jackson  r.  Strong.  M'Lcl.  245;  Par- 
ker V.  Ford,  1  Coll.  506;  and  see  post, 
Chap.  XXXIV.  §  2,  Bills  of  Discovery. 


6  Hildyard  v.  Cressy,  3  Atk.  303 ;  Crow 
V.  Tyrell,  2  Mad.  397,  409;  Lousada  v. 
Temjiler,  2  Russ.  561,  565;  Severn  v. 
Fletcher,  5  Sim.  457. 

7  An  application  to  the  Court  in  Massa- 
chusetts, for  relief  in  Equity,  which  does 
not  contain  a  prayer  for  process  to  be 
ser\-ed  on  the  defendant,  or  conclude  with 
the  general  interrogatory  as  recjuired  by 
the  Rules  for  Practice  in  Chancery  in  that 
State,  may  be  regarded  as  a  bill ;  and  if 
properly  amended,  relief  may  be  granted 
(in  it.  iJelknap  J^  Stone,  1  Allen,  572;  see 
Wright  V.  Wright,  4  Ilalst.  Ch.  (N.  J.) 
143. 

8  2  V.  &  B.  113. 


AMENDING    THE    BILL. 


409 


upon  the  plaintiff  elected  to  proceed  at  Law,  and  moved  to  dismiss 
his  bill  as  far  as  it  sought  relief,  and  to  amend  the  record  by  strik- 
ing out  the  prayer  for  relief,  the  motion  was  refused  :  Lord  Eldon 
being  of  opinion,  that  the  better  course  for  the  plaintiff  would  be 
to  dismiss  his  bill,  and  file  another  for  discovery  only ;  which  was 
accordingly  done.^ 

Any  amendment  of  a  bill,  however  trivial  and  unimportant, 
authorizes  a  defendant,  though  not  required  to  answer,  to  put  in 
an  answer,  making  an  entirely  new  defence,  and  contradicting  his 
foi-mer  answer.^  Thus,  in  Bolton  v.  Bolton^  Sir  Lancelot  Shad- 
well  V.  C.  on  this  ground  refused,  with  costs,  a  motion  to  take 
an  answer  to  an  amended  bill  off  the  file  :  although  it  was  filed 
nearly  three  years  after  the  bill  had  been  amended,  and  eight 
years  after  the  original  answer,  and  contradicted  the  original 
answer,  introducing  no  less  than  four  new  issues  or  defences.  An 
amendment  of  the  bill  does  not,  however,  enable  a  defendant  who 
has  answered  the  original  bill  to  demur  to  an  amended  bill  upon 
any  cause  of  demurrer  to  which  the  original  bill  was  open,*  unless 
the  nature  of  the  case  made  by  the  bill  has  been  changed  by  the 
amendments.* 

No  alteration  can  be  made  in  any  pleading,  or  other  matter, 
after  it  has  been  filed,  and  by  that  means  become  a  record  of  the 
Court,  without  the  sanction  of  an  Order.^  Orders  for  leave  to 
amend  bills,  may,  subject  to  the  rules  and  regulations  hereafter 
pointed  out,  be  obtained  at  any  period  of  the  cause,  previously  to 
the  hearing.'' 

An  order  for  leave  to  amend  a  bill  may  be  obtained  at  any  time 
before  answer,  upon  motion  or  petition  without  notice ;  ^  and  for 


Cii.  VI.  §  8. 


After  amend- 
ment, defend- 
ant may 
make  a  new 
defence ; 


but  may  not 
demur  to 
what  he  has 
answered ; 

unless  case 
changed 
by  the 
amendment. 

Amendment 
only  made 
upon  order. 


Order  is  of 
course,  if  be- 
fore answer; 


1  2  Mer.  71.  In  the  above  case,  Gurish 
V.  Donovan,  2  Atk.  IGO,  was  cited  in  arjju- 
nient  in  support  of  tlie  niotiim;  liut.  upon 
retercnce  to  the  Il^-gistrars'  l)oiik,  it  ap- 
[K-an'd  that  the  order  for  strikiiifi  out  the 
prayer  was  maile  by  consent,  and  that  an 
an.swer  was  put  in  by  tlie  defendant  after 
the  order  was  made.  2  V.  &  B.  114,  n. 
(a);  s<'('  antf^  402.  note. 

2  Miller  V.  Whittaker,  33  111.  380;  Trust  . 
&  Fire  Ins.  Co.  r.  Jenkins,  8  I'aifjc,  581); 
Bowen  f.  Idlcy,  0  l*ai<;e,  40;  see  IJasan- 
quet  V.  Marsham.  4  Sim.  .O"-};  Hichardson 
V.  Richardson,  .5  I'aif^e,  ."jS;  Thomas  v.  Vis- 
itors of  Fred.  Co.  School,  7  (lill  U  J. 
309.  In  this  last  case  an  additional  an- 
swer to  nn  amended  bill  was  ordered  to  l)e 
taken  off  the  file,  because  not  lilerl  with 
leave. 

«  2:ith  June,  1831,  MSS.,  ex  relatione 
BennwM. 

*  Attornev-Oeneral  v.  Cooper,  8  Hare, 
100;  see  also  Wyllie  w.  Kllice,  0  Han-,  .105. 
For  case  prior  to' 37  Ord.  Au^.,  1«41  (now 
Ord.  XIV.  !l),  see  F.llicc  v.  (joodson,  3  M. 
&C.  O.Vt,  001;  2  Jur.  24U. 


6  Cresy  v.  Bevan,  13  Sim.  354. 

6  See  Thomas  v.  Visitors  of  Fred.  Co. 
Society,  7  Gill  &  J.  309. 

"!  See  Luce  r.  Graham,  4  .lohn.  Ch.  170; 
Hunt  r.  Holland,  3  Taitjc,  78. 

«  (,)rd.  IX.  8.  As  many  orders  as  may- 
be re(|uired  may  be  thus  obtained,  and  if 
interrofjatories  have  been  tiled,  and  it  is 
neccsary  to  amend  them,  the  Order  may 
give  leave  to  do  so.  Braitliwaite's  \'r.  31iJ; 
see  form  of  Order,  Seton,  12.')2,  No.  2.  The 
following  rules  on  the  subject  of  amend- 
ments wiTi'  adojitcd  by  the  Sujinnic  Court 
of  the  I'nitiMl  States,  January  Tinii,  1842. 
"  The  ])laiutifl"  shall  be  at  liberty,  as  a 
matter  of  course,  and  without  payment  of 
costs,  to  amend  his  bill  in  any  matters 
wb;itsoe\-cr,  before  any  copy  has  been  taken 
out  of  the  Clerk's  otlice,  and  in  anv  small 
matters  afterwards,  such  as  lilliug  up 
blaidts,  correcting  errors  of  dates,  misno- 
mer of  parties,  misdescription  of  premises, 
clerical  errors,  and  generally  in  matters  of 
form.  Hut  if  he  anu'iid  in  a  material  [)oiut 
(as  ho  may  do  of  course),  aftiT-a  copy  ha.s 
been  so  taken,  before  any  answer,  or  plea, 


410 


THE    BILL. 


Cm.TT.  5  S. 


or  for  iiurpose 
of  addiiifj 
parties  before 
cause  set 
down; 

or  of  roefifv- 
ing  clerical 
errors. 


Ilio  ]nirposo  of  add'mcT  parties  only,  an  order  for  leave  to  amend 
may  bo  obtained  in  like  manner  at  any  time  before  the  eanse  is 
set  down  for  hearint? ;  ^  but,  as  we  have  seen,  if  the  order  is  ob- 
tained after  the  time  for  giving  notice  of  the  cross-examination 
of  the  witnesses,  the  evidence  cannot  be  read  against  the  parties 
so  added.2 

An  order  for  leave  to  amend  a  bill,  only  for  the  purpose  of 
rectifying  some  clerical  error  in  names,  dates,  or  sums  may  be 
obtained  at  any  time,  upon  motion  or  petition  without  notice.' 
The  order  should  specify  the  errors  which  are  to  be  corrected,^ 

has  been  sworn  to  by  tlie  party.  If  the  de- 
fendant demurs  to  the  bill  (or  want  of  par- 
ties, or  other  defect,  which  does  not  go  to 
the  equity  of  the  whole  hill,  the  ])hiintiff 
may  amend  at  any  time  before  the  demur- 
rer is  set  down  i'or  ar)j,ument,  or  within 
fourteen  da^'s  after  the  demurrer  is  lilcd, 
and  notice  thereof  given  to  him,  upon  the 
payment  of  a  term  fee.  Kules20,  21.  And 
upon  the  coming  in  of  the  answer,  if  the 
plaintitf  shall  find  it  necessary  to  amend 
his  bill,  in  order  to  meet  the  case  made 
by  the  answer,  he  may  do  so,  by  furnishing 
to  the  defendant  a  certified  copy  of  the 
amendment.  Rule  22.  See  Gerrish  v. 
Black,  99  Mass.  31,5.  For  the  rule  in 
Maine,  see  3d  Rule  of  Chancerj'  Practice, 
37  Maine,  581;  see  Seelye  v.  Boehm,  2 
Mad.  176;  1  Barb.  Ch.  Pr.  208-210. 

In  New  Hampshire,  amendments  may 
be  made  to  the  bill,  answer,  or  ])leadings, 
in  proper  cases,  upon  the  (jrder  of  the  Judge 
in  vacation,  and  upon  such  terms  "as  he 
may  impose;  the  amendments  being  sub- 
ject, however,  to  the  order  of  the  Court. 
Rule  18,  of  Chancery  Practice,  38  N.  II. 
608.  For  forms  of  motion  paper  and  peti- 
tion, see  Vol.  III. 

1  Ante,  pp.  293,  294;  Goodwin  v.  Good- 
win, 3  Atk.  370;  Brattle  v.  Waterman,  4 
Sim.  125;  Brvan  v.  Wastell,  Kay  Ap.  47; 
18  Jur.  346;"  Gill  v.  Rayner,  1  K.  &  J. 
395;  see,  however,  Hitchcock  v.  Jacques, 
9  Beav.  192. 

2  Anie,  pp.  293,  294,  405;  Quantock  v. 
BuUen,  5  Mad.  81;  Pratt  r.  Barker,  1  Sm. 
1,  5;  J;imps  V.  James,  4  Beav.  578;  5  Jur. 
1148. 

8  Ord.  IX.  9.  The  signature  of  counsel 
is  not  required  to  an  amendment  of  this 
description;  but  such  an  ameiulment  uill 
render  inoperative  an  or.ier  to  take  a  bill 
pro  con/esKo;  Weightman  v.  Powell,  2  Ue 
G.  &  S.  570;  12  Jur.  958;  ste,  however, 
Cheeseborougli  v.  Wright,  28  Beav.  173. 
As  to  the  necessity  of  reserving  the  bill 
after  such  an  amendment,  see  Bnrnes  v. 
Riilgway,  1  Sm.  &  G.  Ap.  18.  The  de- 
fendant may,  where  he  apprehends  danger 
from  a  clerical  mistake,  ni  stating  a  deed 


or  demurrer  to  the  bill,  he  shall  pay  to  the 
defendant  the  costs  occasioned  thereby, 
and  shall,  without  delay,  furnish  him  a 
fair  copy  thereof,  free  of  expense,  with 
suitable  references  to  the  jilaces  where  the 
same  are  to  be  inserted.  And  it  the  amend- 
ments are  numerous,  he  siiall  furnish  in 
like  manner  to  the  defendant  a  copy  of  the 
whdli'  bill  as  amended,  and  if  there  be 
more  than  one  defendant,  a  copy  shall  be 
furnished  to  each  defendant  affected  there- 
by." Equity  Rule,  28.  "After  an  answer, 
or  ])lea,  or  demurrer,  is  put  in,  and  before 
repliiation,  the  plaintiff  may,  upon  mo- 
tion or  petition,  without  notice,  obtain  an 
order  from  any  judge  of  the  Court,  to 
amend  his  bill  on  or  before  the  next  suc- 
ceeding nde  day,  upon  payment  of  costs, 
or  without  paynient  of  costs,  as  the  Court 
or  judge  thereof  may  in  his  discretion 
direct.  But,  af'ter  replication  filed,  the 
plaintiff  shall  not  be  at  liberty  to  with- 
draw it  and  to  amend  his  bill,  except  upon 
a  special  order  of  a  judge  of  the  Court, 
upon  motion  or  petition,  after  due  notice 
to  the  other  party,  and  upon  proof  by  affi- 
davit, that  the  same  is  not  made  lor  the 
pui-pose  of  vexation  or  delay,  or  that  the 
matter  of  the  proposed  amendment  is  ma- 
terial, and  could  not  with  reasonable  dili- 
gence have  been  sooner  introduced  into 
the  bill,  and  upon  the  plaintiff's  submit- 
ting to  such  other  terms  as  may  be  imposed 
by  the  judge  for  speeding  the  cause." 
Ilquitv  Rule,  29.  "If  the  plaintiff,  .so 
obtaining  any  order  to  amend  his  bill 
after  answer,  or  plea,  or  demurrer,  or  after 
replication,  shall  not  file  his  amendments, 
or  amended  bill,  as  the  case  may  require, 
in  the  clerk's  office,  on  or  before  the  next 
succeeding  rule  day,  he  shall  be  considered 
to  have  abandoned  the  same,  and  the  cause 
shall  [iroceed,  as  if  no  apjiiication  for  any 
amendment  had  been  made."  liquity  Rule, 
30;  Story  Eq.  PI.  §  886,  note. 

By  the  Rules  of  Practice  in  Chancer}'  in 
Massachusetts,  the  plaintiff  may  amend 
his  bill  at  anv  time  before  answer,  plea,  or 
demurrer,  filed,  of  course,  and  without 
payment  of  costs;  Imt  if  the  defendant's 
appearance  shall  have  been  entered,  the 
plaintiff  shall,  at  his  own  expense,  furnish 
the  defendant  with  a  certified  copy  of  the 
amended  bill.  No  amendment,  however, 
shall  be  allowed,  as  of  course,  to  a  bill  which 


*  Braithwaite's  Pr.  304;  and  see  form  of 
Order,  Seton,  1251,  No.  1. 


AMENDING    THE    BILL,  41 1 

If  a  demurrer  to  the  whole  bill  is  not  set  clown  for  argument    Cn.  VI.  §  8. 
within  twelve  days,  or  a  demurrer  to  part  of  the  bill  within  three    ""       y       ■' 
we^ks,  after  filing  the  same,  the  plaintiif  must,  within  such  respec-  J™^^*^ 
tive  times,  serve  an  order,  which  may  be  obtained  on  motion  or  ^here  de- 
petition  of  course,  for  leave  to  amend  the  bill :    otherwise,  the  ^^""^^„°* 
demurrer  will  be  held  sufficient.^ 

If  a  plea  to  the  Avhole  or  a  part  of  a  bill  is  not  set  down  for  where  plea^ 
argument  within  three  weeks  after  the  filing  thereof,  the  plaintiff 
must  within  that  time  serve  an  order,  which  may  be  obtained  on 
motion  or  petition  of  course,  for  leave  to  amend  the  bill,  or  under- 
take in  writing  to  reply  to  the  plea :  otherwise,  the  plea  will  be 
held  good.^ 

Where  a  demurrer  has  been  overruled,  it  is  irregular  to  obtain   Order  of 

1  n    .  T         course  irreg- 

an  order  of  course  to  amend  pending  an  appeal :  and  m  sucli  a  ^i^r^  after 
case,  the  order  was  discharged  with  costs,  and  the  amendments  J^.'JJ.;.'^^^^ 

expunged.^  pending  an 

In  like  manner,  it  is  irregular  to  obtain  an  order  of  course  to  J^ako  pend- 
amend,  pending   an  inquiry  which   of  two  suits   is  most  for  an  ing  inquiry 

.    „       .     ,  ^^  .  as  to  infant's 

infant  s  benefit.*  suits. 

If,  at  the  time  the  order  for  amendment  is  made,  none  of  the  y^^^^^  ^osts 
defendants  have  appeared,  the  plaintiff  may  amend  without  pay-  ^'|^-^^)|J^^gJJj_ 
ment  of  any  costs.^  If  any  of  the  defendants  have  appeared,  but 
have  not  answered,  or,"  having  answered,  the  plaintiff  requires  no 
further  answer  from  them,  the  plaintiff  may  amend  Avithout  pay- 
ment of  any  costs  to  tliein ;  but  the  plaintift"  must  pay  20s.  to  each 
defendant,  or  set  of  defendants,  who  have  answered,  and  from 
whom  the  plaintiff  requires  a  further  answer.^ 

"Where  no  furtlier  answer  is  required,  the  order  should  contain   Form  of 

,  ,  ^  ,  .       .^  .     .  17  order,  where 

a  recital  to  that  effect :  otherwise  it  is  irregular.'  no  furtlier 

It  is  now  proposed  to  consider  the  circumstances  under  which  a  answer 

.  ,       ,         required. 

bill  may  be  amended  after  answer.^     Where  there  is  a  sole  dc-    ,^,^^pj,^^i„g 
fendant,  or  where    there  being  several   defendants,  they  all  join  after  answer, 
in  the  same  answer,  the   plaintiff  may,  after   answer  and  before   ""^.n.^'Jlon: 

or  otlifT  iiistrumf  nt.  in  a  till,  have  Hie  bill  8  Ainslie  v.  Sims,  17  Henv.  174. 

anicmli- I  -o  a-  to  idi-ntify  the  inslruiiient  4  Fletcher  v.  Moore,  11  Beav.  C17;  13  Jur. 

on  whch  till-  -uit  is  hn.uKlit,  ^md  (irevcnt  1063. 

a  s<c'  rid  suit  on  tli-  siiuie.     Ontario  I'.ank  <>  Saundpr.*  v.  Frost,  5  Pick.  259:  Droul- 

c.  SclHrnieriiorn,  10  I'ai;;.',  100.     A  mere  lard   v.    Baxter,    1    Scam.    101;    Hule   20, 

cicricd  err<  r  inav  be  inniniled    in   !i   hill,  Mass.  Clianeery,  imte,  410,  note. 

evcnHltirfmuhleeree.    Doniiel  v  f.  F.wart,  «  ylH/c,  410,  note. 

3  l.'i.h.  Kq  IK.    Foifomisof  motion  paper,  7  lJ,idilinf;ton  r.   VVoodlcy,   9  Sim.  380; 

and  ncftinn.  fee  Vol.  III.  2  Jur.  017;    lirocze  v.  Knglish,  2    Hare, 

1  Ord.  -XIV.  14,  ir,.     As  to  the  effect  of  63S. 

holding   a   d.-mninT    sutlicient,   see  /lont,  »  See  Dronllard  r.  Baxter,  1  Scam.  191 ; 

Ctinp    XIV.   §   .0.     For  lornis   of  motion  Holes  2'Jth  and  30th  of  the  Kquiiy  Hub's 

paper  and  pe|jti<m,  sec  Vol.  III.  of    tin;    Supreme    Court    of    the    Fiiited 

2  Ord.  XIV.  17.  Ab  to  the  effect  of  States  Holes  20;h  and  22n(l  of  tlio  Huk'S 
holdinu  a  phwi  .'uiricicnt,  see  fX'Kt,  Chap.  for  Chancery  Practice  in  Mussachsctts, 
XV.  6  .1.     Ai  d  sec  CaiiipliiU  i).  .lo\ci-.  L.  ante,  410,  note. 

K.  2  r.q.  377,  V.  (J.  W.     For  lorm-'  of  mo- 
tion paper  und  petition,  sec  Vol.  III. 


412 


THE    BILL. 


Cii 

.  VI.  §  8. 

will 

TO  (uie 

tins 

wit; 

wtu 

^ri>  sovoriil 

aiis 

wers. 

Voluntan- 
answiT  suffi- 
cient, as  soon 
as  put  in. 

Vacations 
excluded  in 
computation. 

Times  of 
vacation. 


In  the 

Accountant- 
General's 
Office. 


Days  of  com- 
mencement 


roplirntion  or  iindt'rtMkincj  to  ivply,  obtuin  one  order  of  course  for 
leave  to  aiueiul  tlie  bill,  at  any  time  Mithiu  four  weeks  after  the 
answer  is  to  be  deemed  or  is  held  to  be  suffieieut ;  ^  and  where 
there  are  several  defendants  who  do  not  join  in  the  same  answer, 
the  jtlaintitf  (if  not  precluded  from  amendiuLi^,  or  limited  as  to  the 
time  of  amendiuL?  by  some  former  order),  may,  after  answer,  and 
before  replication  or  undertaking  to  reply,  at  any  time  within  four 
weeks  after  the  last  of  the  answers  required  to  be  put  in  is  to  be 
deemed  or  is  held  to  be  suffi(^ient,  obtain  one  order  of  course,  for 
leave  to  amend  his  bill.^  An  order  of  course  cannot,  however, 
be  obtained,  in  either  of  these  cases,  after  any  defendant,  being 
entitled  to  move,  has  served  a  notice  of  motion  to  dismiss  the  bill 
for  want  of  prosecution.^ 

A  voluntary  answer  is  deemed  sufficient  as  soon  as  it  is  put  in  ; 
and  therefore,  in  that  case,  the  period  of  four  weeks  commences 
to  run  as  soon  as  it  is  filed.* 

In  computing  the  period  for  obtaining  orders  for  leave  to  amend 
bills,  the  times  of  vacation  are  not  to  be  reckoned.'' 

It  will  be  convenient  here  to  state  the  diiferent  times  of  vacor- 
tion.  The  vacations  observed  in  the  several  offices  of  the  Court, 
except  in  the  office  of  the  Accountant-General,  are  four  in  every 
year:  viz.,  the  Easter  Vacation,  the  Whitsun  Vacation,  the  Long 
Vacation,  and  the  Christmas  Vacation.  (1)  The  Easter  Vacation 
commences  and  terminates  on  such  days  as  the  Lord  Chancellor 
every  year  specially  directs.  (2)  The  Whitsun  Vacation  com- 
mences on  the  third  day  after  Easter  Term,  and  terminates  on  the 
second  day  before  Trinity  Term  in  every  year.  (3)  The  Long 
Vacation  commences  on  the  10th  day  of  August,  and  terminates 
on  the  28th  day  of  October  in  every  year.  (4)  The  Christmas 
Vacation  commences  on  the  24th  day  of  December  in  every 
year,  and  terminates  on  the  6th  day  of  the  following  month  of 
January.® 

The  vacations  in  the  office  of  the  Accountant-General  are  the 
same  as  in  the  other  offices :  except  as  to  the  Long  Vacation, 
which  commences  and  terminates  on  such  days  as  the  Lord  Chan- 
cellor every  year  directs.'' 

The  days  of  the  commencement  and  termination  of  each  vaca- 


1  Ord.  IX.  10.  Before  replication,  the 
order  to  amend  is  of  course.  Buckley  v. 
Corsp,  Saxton,  504. 

2  0  d.  IX.  11.  To  avoid  anotice  to  dis- 
miss, the  order  of  course,  under  rr.  10,  11, 
must  nlKO  be  served;  see  Ord.  XXXI II.  10 
(1).  Ord  IX.  11.  applies  to  hills  of  dis- 
covery-  I'ede  V.  Stoiuiart,  11  Beav.  591. 

8  Ord.  IX.  12;  i^ce  jX'St,  416,  n. 
*  Kofjers  v.  Frver,  2  W.  K.  67;   2  Eq. 
Rep.  253,  V..C.  K. 


5  Ord.  XXXVII.  13  (1);  and  see  post, 
p  420. 

6  Ord.  V.  4  (1-4).  The  duties  of  the 
Vacation  .ludjie  commence  »s  each  Court 
rises,  althouiih  the  vacation  may  not  have 
actually  commenced.  Frnncis  v.  Browne, 
8  .lur.  "N.  8.  7b5;  10  W.  R.  811,  L.  C;  see 
Ord.  VI.  11,  as  to  power  of  one  judge  to 
act  for  another  during  vacation. 

^  Ord.  V.  5. 


AMENDING    THE    BILL. 


413 


tion  are  included  in  and  reckoned  part  of  such  vacation.^  And 
the  Lord  Chancellor  may  from  time  to  time,  by  special  order, 
direct  any  of  the  vacations  to  commence  and  terminate  on  days 
different  from  the  fixed  days  before  mentioned.^ 

When  the  bill  has  been  once  amended  after  ansAver,  under  an 
order  of  course,  the  plaintiff  is  not,  except  for  the  purpose  of 
rectifying  clerical  errors  in  names,  dates,  or  sums,^  or  of  adding 
parties,*  entitled  to  another  order  of  course,  giving  him  leave  to 
amend  his  bill;^  and  this  applies,  notwithstanding  that  some  of 
the  defendants  may  answer  subsequently  to  the  date  of  the  amend- 
ment,® and  that  those  defendants  who  have  already  answered 
consent  to  the  application  for  the  order  J 

For  the  purpose  of  determining  whether  an  order  of  course  to 
amend  can  be  obtained,  an  answer  held  to  be  insufficient,  or  the 
insufficiency  of  which  is  admitted  by  the  defendant,  must  be  con- 
sidered as  no  answer;  and,  consequently,  an  order  to  amend  after 
such  insufficient  answer,  or  after  a  demurrer  or  plea  overruled,^ 
is  of  course,  and  does  not  preclude  the  plaintiff  from  obtaining  a 
further  order  of  course  for  the  amendment  of  his  bill,  after  a  suffi- 
cient answer  has  been  put  in.^  It  must,  however,  be  recollected 
that  an  answer  is  deemed  sufficient  until  it  has  been  held  in- 
sufficient ;  ^°  and,  further,  that  an  amendment  of  the  bill,  made 
previously  to  the  answer  being  held  insufficient,  operates  as  an 
admission  of  the  sufficiency  of  the  answer ;  consequently,  however 
insufficient  an  answer  may  be  in  fact,  an  amendment  of  the  bill 
before  it  is  held  insufficient,  will  have  the  effect  of  preventing  any 
fu  ther  order  to  amend  from  being  obtained,  as  of  course. 

After  exceptions  for  insufficiency  have  been  submitted  to,  or 
allowed,  the  jtlaintiff  may  obtain  an  order,  as  of  course,  on  motion 
or  petition, ^^  that  he  may  be  at  liberty  to  amend  his  bill,  and 
that  the  defendant  may  answer  the  amendments  and  exceptions 
together.*'^     If  the  bill  has   been  already   amended   under   such 

11  For  forms  of  motion  paper  and  peti- 
tion, sec  Vol.  III. 

12  Mayiie  v.  Hocliin,  1  Dick.  255;  Adney 
V.  I'lood,  1  Mad.  449;  Dipper  i\  l)uriint, 
3  Mer.  405;  m'c  K^nwick  v.  Wilson,  6 
John.  Cli.  81;  M'Meclien  r.  Story,  1  Hland, 
184;  Barnes?".  Dickinson,  I)ev.  ICq.  326; 
Head  r.  Consc(|u»,  4  Wasii.  V.  C.  174.  In 
Massachusetls,  upon  the  (•ouiinK  in  of  tlie 
answer,  if  the  plaintili'  i-hall  tiiid  it  neces- 
sary to  amend  his  bill,  in  order  to  meet 
the  case  made  by  the  answer,  lie  may  do  so 
by  furnishin};  to  the  ih-fenMant  a  certified 
CO])}'  of  the  amendment;  and  the  jdaintilF 
may  also,  at  the  same  time,  except  to  the 
dctcndintV  answer  to  the  bill,  :is  oi-i(,'inaily 
filed.  And  in  such  ca-e,  if  the  defenilant 
shall  stilimit  to  answer  further,  <>r  shall 
be  orilcrcd  to  answer  further,  he  shall 
answer  the  amendments  of  the   bill,  and 


Ch.  VI.§8. 

'-       Y — —^ 

and  termi- 
nation are 
included. 

In  what  cases 
order  of 
course  to 
amend 
cannot  be 
obtained. 


After  insuffi- 
cient answer. 


Order  to 
amend,  and 
to  answer 
amendments 
and  excep- 
tions 
together. 


1  Ord.  V.  4  (5). 

2  Ord.  V  6. 

'  (Jrd.  IX.  9;  ante,  p.  410. 

*  yinle,  pp.  294,  405,  406,  409. 
1  Old.  \\.  13. 

«  Attorn.  y-General  v.  Nethcrcoat,  2  M. 
&  C.  604;  1  .Jur.  63.');  huncombe  v.  Lewis, 
10  Beav.  273;  Winthrop  v.  Murray,  7 
Hare,  150. 

7  Baitihrigge  v.  Baddeley,  12  Beav.  152; 
13  .Iiir.  MU'. 

*  But  pending  an  appeal,  nn  order  of 
course,  alter  a  cti'murr<:r  overruled,  is  ir- 
regiihir.     Ain-*lie  v.  Sim->,  17  Beav.  174. 

«  Mendiz.ibel  v.  Ilullelt,  1  li.  &  M.  324; 
Bird  V.  lluHilcr,  ilj.  325;  Chase  v.  l)un- 
hiiin,  1  I'aig'-,  572. 

>•  Se'-  SibUiM  V.  Lawric,  2  K.  &  J.  277, 
n. ;  Lafone  r.  Falkland  Islands  Co.,  2  K. 
&  J.  276. 


414 


THE    BILL. 


Cn.Yl.  §8. 


Further  like 
order. 

I?ut  further 
answer  before 
the  order  is 
served,  ren- 
ders it 
irregular. 

Second  order 
irreiruhir, 
though  lirst 
not  acted  on. 

Orders  of 
course  ob- 
tained on 
petition  at 
tlie  Rolls,  or 
liiotiuu. 


Special 
orders,  when 
necessary, 
obtained  at 
Chambers,  on 
summons. 

Ser\'ice  of 
summons. 

Costs. 


Affidavit  in 
support ; 


an  order,  nnd  exceptions  arc  taken  to  the  answer  to  the  amended 
bill,  aiul  are  submitted  to  or  allowed,  the  plaintiff  may  have  a 
further  order,  as  of  conrse,  to  amend,  and  that  the  defendant 
may  answer  the  amendments  and  e\'eej)ti(>ns  together.^  If,  how- 
ever, the  defendant  can  pnt  in  his  fnrther  answer,  before  he  is 
served  with  the  order  to  answer  the  tuneiidinents  and  exee))tions 
togetlier,  tlie  phuntitf  will  lose  the  benefit  of  snch  order,  and  the 
defendant  may  move,  on  notice,  to  discharge  it  for  irreguhirity."'^ 
"Where  the  ])laintiff  did  not  amend  liis  bill  within  the  period 
allowed  for  that  purpose,  it  was  hehl,  that  a  second  order  of  course 
for  leave  to  amend  Avas  irregular.^ 

All  the  apj)lications  to  amend  hitherto  considered  are  of  course, 
and  require  no  notice.  They  are  usually  obtained  on  a  petition 
of  course  at  the  Rolls ;  but  they  may  also  be  made  on  motion  of 
course,  in  the  Court  of  the  Judge  to  whose  Court  the  cause  is 
attached.^ 

In  all  cases,  other  than  those  above  pointed  out  in  which  an 
order  may  be  obtained  as  of  course,  the  plaintiff  must,  if  he  desires 
to  amend  his  bill  after  answer,  make  a  special  application  to  the 
Judge  for  leave  to  do  so.  This  apj^lication  is  made  by  sunnnons 
at  Chambers.^  The  summons  must  be  served  on  the  solicitors  for 
all  the  defendants  who  have  appeared  to  the  bill.  The  Judge,  at 
the  time  of  making  the  order,  usually  disposes  of  the  costs  of  the 
application.^ 

If  this  special  application  is  made  within  the  j^eriod  of  four 
weeks  from  the  time  when  the  answer,  or  last  of  the  answers, 
required  to  be  put  in  is  to  be  deemed  or  is  held  to  be  sufficient, 
it  will  not  be  granted  Avithout  an  affidavit  to  the  effect :  1.  That  the 
draft  of  the  proposed  amendments  has  been  settled,  approved, 
and  signed  by  counsel ;  and,  2.  That  such  amendment  is  not 
intended  for  the  purpose  of  delay  or  vexation,  but  because  the 
same  is  considered  to  be  material  for  the  case  of  the  plaintiff.' 


shall  furnish  a  sufficient  answer  to  the 
bill  as  originally  tiled  at  the  same  time. 
Rule  22  of  the  Massachusetts  Rules  for 
Chancery  Practice;  see  Gerrish  v.  Black, 
99  Mass.  315;  ante,  410,  note.  Under  the 
general  rule  allowing  the  plaintiff  to 
amend,  upon  an  insufficient  answer,  he 
cannot  amend  by  leaving  out  the  name  of 
the  defendant,  and  thus  discontinue  the 
suit  against  him,  without  costs.  Chace  v. 
Dunliam,  1  I'aige,  572;  see  Wilkinson  v. 
Belsher,  2  15ro.  C.  C  272. 

i  Mendizaljcl  v.  Ilullett,  1  R.  &  M.  324; 
Bird  V.  Hustler,  ib.  325. 

2  Mayne  v.  Hochin,  1  Dick.  255 ;  Bethune 
V.  Bateman,  ib.  2t*G;  Kno.x  v.  Symmonds, 
1  Ves.  J.  87,  88;  Paty  v.  Simp-on,  2  Cox, 
392;  Partridge  v.  Haycraft,  11  Ves.  570, 
678;  Pariente  .1).  Bensusan,  13  Sim.  522; 


7  .Jur.  618;  Hemming  iJ.  Dingwall,  8  Beav. 
102.  For  form  of  notice  of  motion,  see 
Vol.  HI. 

3  Dollv  V.  Challin,  11  Beav.  61 ;  and  see 
Watson  V.  Life,  1  M'N.-&  G.  104;  13  Jur. 
479. 

4  Ord.  VL.  5.  And  see  post,  Chap. 
XXXV.  §  1,  Interlocutory  Applications  and 
Orders.  For  forms  of  motion  paper  and 
petition,  see  Vol.  HL 

5  15  &  16  Vic.  c.  80,  §§  26,  27;  Order 
XXXV.  2.  For  form  of  summons,  see 
Vol.  HL 

6  See  23  Ord.  Dec,  1833;  Sand.  Ord. 
781;  Beav.  Ord.  51;  Ord.  XXXV.  61. 
And  see,  as  to  costs  of  amendments  gener- 
ally, Ord.  XL.  7,  8. 

■^  Ord.  IX.  14;  for  form  of  affidavit,  see 
Vol.  HL 


AMENDING    THE    BILL. 


415 


Such  affidavit  must  be  made  either  by  the  plaintiiF  and  his  solicitor, 
or  bv  the  solicitor  alone,  in  case  the  plaintiff,  from  being  abroad 
or  otherwise,  is  unable  to  join  therein.^  The  affidavit  of  the 
solicitor's  clerk  is  not  sufficient,  although  the  facts  be  within  his 
knowledge ;  and  where  the  fjicts  are  within  his  knowledge  only, 
the  Court  requires  an  affidavit  from  him,  as  well  as  the  solicitor,^ 
In  the  case  of  an  information,  the  affidavit  may  be  made  by  the. 
solicitor  of  the  infonnant,^  or  by  the  solicitor  of  the  relators  only.* 
So,  also,  if  a  corporation  is  plaintiff,  an  affidavit  by  the  solicitor  of 
the  corporation  is  sufficient.^  Where  there  are  several  co-plaintiffs, 
only  one  need  join  in  the  affidavit ;  and  where  the  sole  plaintiff  is 
an  infant,  the  affidavit  should  be  made  by  the  next  friend  and  the 
solicitor. 

After  the  plaintiff  has  filed  or  undertaken  to  file  replication,  or 
after  the  expiration  of  four  weeks  from  the  time  when  the  ansv\'er, 
or  the  last  of  the  answers  required  to  be  put  in,  is  to  be  deemed, 
or  is  held  to  be  sufficient,  a  special  order  for  leave  to  amend  will 
not  be  granted  without  a  further  affidavit  showing  that  the  matter 
of  the  proposed  amendment  is  material,  and  could  not,  with  rea- 
sonable diligence,  have  been  sooner  introduced  into  the  bill.® 
The  affidavit  must  also  show  the  nature  of  the  proposed  amend- 
ments, in  order  that  the  Judge  may  decide  as  to  their  materiality; '' 
and  must  state  the  facts,  so  as  to  enable  the  Judge  to  determine 
whether  reasonable  diligence  has  been  used.* 

If  the  plaintiff  amends  his  bill  after  answer  by  adding  parties, 
the  period  of  four  weeks  will  still  be  reckoned  from  the  time  when 
the  answer,  or  the  last  of  the  answers  required  to  be  put  in  to  the 
original  bill,  is  to  be  deemed,  or  is  held  to  be  sufficient.® 


1  Ord.  IX.  16;  Attorney-General  r.  Cor- 
poration of  London,  13  lieav.  313.  As  to 
tTo.-s-exaniinaliiin  upon  the  aflidiivit,  see 
','iiiliolii;  l'uljli>hing  Company  i'.  Wyman, 
11  W.  K  39i»,  V.  C.  W. 

'^  Ctiriftt's  Hospital  v.  Grainger,  1  Phil. 
634,  639;   10  ,Iur.  37. 

*  Aitorney-General  v.  Corporation  of 
London,  ubi  sup. 

*  Attorney-General  v.  Wakeman,  15 
Sim.  3.'j(!i;  10  Jur.  5.09. 

'  Chri-t's  Hospital  v.  Gniinger,  ufn  sup. 

'  (ird.  IX.  15;  Tlioni  v.  (ierinaml,  4 
.John.  Ch  3'13.  If  the  plaintiff  tiles  a  rep- 
lication to  the  answer  after  he  is  npprised 
of  the  iiece>sity  of  an  ainendnient  to  his 
bill,  he  precludes  himself  from  makin<:; 
»uch  amendment.  Vermilyea  v.  Odell,  4 
I'aigi',  ]2\.  1  he  application  to  amend 
shoulil  he  niadi-  as  soon  as  tiie  necessity 
for  an  aincndineiit  is  discovered,  llogers 
t-.  Unger-,  1  I'nige,  424;  Phitt  V.  .S(4uire, 
6  Ciish.  557;  Codington  v.  Mutt,  1  McCar- 
ter  (N.  .J.),  430;  Howell  >:  l.ehring.  1  Mc- 
Carter  (  X.  .1  ),  84,  90 ;  lor  foiui  of  alhdavit, 
«ee  Vol.  IIL 


7  Phillips  V.  Godinp;,  1  Hare,  40;  5  Jur. 
1105;  Attorney-General  v.  Fishmonirera' 
Company,  4  ^l.  &  C.  1,  8;  C.  P.  Coop. 
385;  Stuart  v.  Lloyd,  3  M'N.  &  G.  181; 
15  .Jur.  411;  Cullett  v.  Preston,  3  M'N.  & 
G.  432,  438;  15  Jur.  975;  Brown  v.  Kick- 
etts,  2  John.  Ch.  425.  And  see  as'  to 
sulliciency  of  aflidavit,  Attorney-Cieiieral 
V.  Corporation  of  London,  13  lieav.  313. 
In  Payne  v  Little,  14  .hir.  358,  the  M.  K, 
held  ihiit  it  was  sutiicient  if  some  of  the 
proposed  amendments  were  mentioned  in 
the  atlidavit.  Price  v-  Salusbury,  32  Beav. 
44G. 

•*  Stuart  V.  Lloyd,  and  Collett  v.  Preston, 
ubi  sup.  Although  reasonable  diligence 
cannot  be  thus  shown,  the  application 
niu.st  be  made  to  the  judge  by  Mninnoiis. 
As  to  the  jiower  of  the  Court,  and  .ludge 
at  ( 'hambers,  to  eidarge  the  time  lor  doing 
anv  net.  or  taking  anv  proceeding,  see  Grd. 
XX XV 11.  17,  18;  Potts  v.  VVhitmore,  10 
Beav.  179. 

'•'  ISertolacci  i'.  Johnstone,  2  Ilarc,  632; 
8  Jur.  751. 


Ch.  VI.  §  8. 


by  whom  to 
be  made. 


TVhere  fur- 
ther affidavit 
required. 


No  additional 
time  obtained 
by  adding 
new  parties 
by  amend- 
ment. 


416 


THE    BILL. 


but  nol  after 
replication, 
semble ; 

or  notice  of 

motion  to 
dismiss. 


After  evi- 
dence closed. 


Amendment 
by  adding 
parties  alter 
evidence 
closed,  with- 
out with- 
drawing 
replication. 


The  rules  laid  clown  in  the  CJenoral  Orders,  as  to  obtaining 
orders  of  course  to  anuMul,  do  not  appear  to  have  been  framed 
with  a  view  to  meet  those  cases  where  no  answer  is  required,  and 
none  is  })ut  in  ;  consequently,  it  has  been  held,  that  it  was  not 
irregidar  to  obtain  an  order  of  course  to  amend  after  the  plaintiff  had 
served  a  notice  of  motion  for  a  decree,  and  the  defendant  had  liled 
his  affidavits  in  opposition  to  such  motion.^  It  would  seem,  that 
if  the  motion  had  been  set  down  for  hearing,  an  order  of  course 
wotUd  have  been  irregular.'-  It  is  conceived  that,  after  rei)lication 
has  been  filed,  or  the  plaintift'  has  undertaken  to  file  it,  an  order 
of  course  to  amend  cannot  be  obtained,  even  where  no  answer  has 
been  required  or  put  in ;  ^  and  where  a  defendant,  being  entitled 
to  move,  has  served  a  notice  of  motion  to  dismiss  for  want  of  })ros- 
ecution,  the  plaintift'  can  in  no  case  obtain  an  order  of  course  to 
amend ;  ^  but  the  limits  above  pointed  out  appear  to  be  the  only- 
restraints  on  the  right  of  the  plaintiff"  to  obtain  an  order  of  course 
to  amend,  Avhere  no  answer  is  jiut  in. 

After  the  evidence  is  closed,  the  bill  cannot  be  amended  in  any 
other  respect  than  by  adding  parties ;  and  no  new  allegation  can 
be  introduced,  or  material  fact  put  in  issue,  which  was  not  so 
before.^  And  where  a  plaintiff"  by  a  false  suggestion  that  the 
cause  was  at  issue  only,  had  obtained  an  order  for  liberty  to  amend 
his  bill,  by  the  addition  of  a  prayer  which  had  been  accidentally 
omitted,  the  order  was  discharged,  ui)on  the  application  of  the 
defendant  at  the  opening  of  the  cause,  when  it  came  on  for  hear- 
ing.® 

It  is  said'  that,  after  publication  has  passed  (that  is,  after  the 
evidence  is  closed),  there  is  no  instance  of  a  plaintiff"  obtaining  an 
order  to  amend,  without  withdrawing  his  replication.  The  ob- 
servation, however,  appears  to  be  a  mere  dictum,  and  it  certainly 
cannot  apply  to  cases  where  the  amendment  is  merely  by  adding 
parties.  In  Hahergham  v.  Vincent^  Lord  Thurlow  intimated  an 
opinion,  that  after  a  decree  had  been  made,  passed,  and  entered, 
without  bringing  before  the  Court  a  personal  representative  who 
had  become  so  after  the  bill  was  filed,  he  might  be  added  by 
amendment,  and  that  a  motion  for  the  purpose  would  be  regular, 
provided  it  was  only  for  the  pm-pose  of  making  him  a  witness  to 


1  Gill  r.  Rayner,  1  K.  &  J.  395;  and  see 
anlf,  iiri.  411,  412. 

^  liniL  Goodwin  v.  Goodwin,  3  Atk. 
370.  A  motion  tor  a  decree  would  for  this 
purpose,  it  is  apprehended,  be  considered 
a  liearinj;  of  the  cause. 

3  Urd.  IX.  15. 

4  Old.  IX.  12;  but  if  the  notice  be  witli- 
drawn,  matters  will  be  remitted  to  their 
former  condition.  Briggs  f.  Beale,  12  VV. 
li.  M4,  V.  C.  W. 


6  Goodwin  v.  Goodwin,  3  Atk.  370; 
Milligan  v.  Mitchell,  1  M.  &  C.  433,  442; 
Thompson  v.  Judge,  2  Drew.  414;  Horton 
V.  Brocklchurst,  29  Beav.  503;  Forbes  f. 
Stevens,  10  .lur.  N.  S.  861,  V.  C.  VV.;  but 
see  S.  C  4  N.  K.  386,  L.  J.J. 

6  Harding  v.  Cox,  3  Atk.  583. 

7  1  Atk.  51. 

8  1  Ves.  J.  68;  see,  however,  1  C.  P. 
Coop.  t.  Cott.  40,  n. 


AMENDING    THE    BILL.  417 

what  was  done  in  the  Master's  office  ;  but  that,  if  there  was  any    Ch.  VI.  §  8. 

thing  in  the  decree  affecting  him  in  the  way  of  an  order  to  pay,   '• >r ' 

snch  an  order  would  be  out  of  the  power  of  the  Court. 

Where  it  is  intended  to  amend  a  bill,  after  replication  filed,  by  in  what  cases 
the  addition  of  new  facts  or  charges,  the  proper  course  is  to  apply  necessary  to 
for  leave  to  withdraw  the  replication  and  amend;  and  it  seems  replication, 
that  an  order  of  this  description  may  be  obtained,  upon  an  appli-  amendment. 
cation  in  Chambers,  supported  by  the  affidavits  required  by  the 
General  Orders  above  referred  to,^  at  any  time  before  the  closing 
of  the  evidence.^     The  order  may  be  made  without  prejudice  to 
the  evidence  already  gone  into  being  used.^ 

Sometimes  the  Court,  at  the  hearing,  will  order  a  cause  to  stand  Leave  to 
over,  with  liberty  to  the  plaintiff  to  perfect  his  case  by  amend-   ^™*^j,"^  **  ^® 
ment,  upon  his  paying  the  costs  of  the  day.*     Thus,  as  we  have 
seen,  if,  at  the  liearing,  the  record  appears  to  be  defective  for  want  where  defect 
of  proper  parties,  the  Court  will  allow  the  cause  to  stand  over,  for  '^^  parties 

...  '  apparent; 

the  plaintiff  to  amend  his  bill  by  adding  parties ;  ^  or,  where  the 
parties  are  too  numerous  to  be  brought  before  the  Court,  to  alter 
the  form  of  the  bill,  by  making  it  a  bill  by  the  plaintiffs,  on  behalf 
of  themselves  and  all  others  of  the  same  class.^     This  practice  is 
not  confined  to  amendment,  by  adding  parties  :  it  will  be  extended 
to  permit  the  plaintiff  to  show  why  he  cannot  bring  the  necessary 
parties  before  tlie  Court.^     And  if  the  record  is  defective  by  rea-  where  mis- 
son  of  a  misjoinder  of  plaintifls,  the  Court  may  direct  such  amend-  J"'"*^"'      • 
ments  as  may  be  necessary,  in  order  to  grant  such  relief  as  any  of 
the  plaintiffs  may  be  entitled  to,  and  at  the  hearing,  before  such 
amendments  are  made,  treat  any  of  the  plaintiffs  as  if  he  were  a 
defendant.*     And  so,  as  we  have  seen,^  the  Court  will  sometimes, 
at  the  liearing,  permit  the  prayer  of  the  bill  to  be  amended,  so  as  where  prayer 
to  make  it  more  consistent  with  the  case  made  by  the  plaintiff  ^^i'th^case"*^ 
than  the  one  he  has  already  introduced.^"     And  where  a  ])laintifl'  made  by  bill; 
had  amended  his  bill,  and  by  accident  had  omitted  to  insert  in  the  oro"'i"ed  by 

•'  accident. 

1  For  form  of  summons,  see  Vol.  III.  9  Ante,  p.  383. 

■■^  llorton  V.  lirocklehurst,  VJ'J  lieav.  503;  W  Clifton  v    Haig,  4  Dcsaus,  330,  cited 

Cliaiiipiieys  v.   IJuchan,  3    l>rew.    5;    see  post.  Hi),  \n   note;    i>yon  v.  Tallniadge,  1 

Thorn  f.lierinand,  4. John.  Ch.3C3;  Story  John.  Ch    184.     If  a  toninil  chargeof  thiud 

l•>^.  I'l.  §  8ij7;  IJiai.sdull  v.  Stevens,  1(J  Vt.  were  necessiiry,  l)iit  hail  been  omitted,  the 

17'J;  IJrown  v.  Kicketts,  2  John.  Ch.  425.  C'-uit  would  grant  leave  to  amend  even  at 

3  liicarlo  v.  Cooper,  cited   Seton,  1253.  the  hearing.     Wamburzee  v.  Kennedy,  4 

*  This  may  be  done,  when  the  cause  is  i)e>aus.  480.     But  alter  a  defendant  has 

heard  on  motion  for  decree.    Thomas  t".  put  in  his  answer  on  oath,  the  jjlaintifF 

Bernard,  7  W.  K.  271,  V.  C.  K.  cannot  amend  his  bill  and  inclu.le  in  such 

^  Aiile,]>p.  2!»0,  2'Jl;  and  see  Leyland  amendnnnt  a  waiver  of  the  answer  of  tlie 

V.  Leyland,  10  VV.  U.  14'J,  V.  C.  K  ;  Story  defendant  on  o.itii,  so  as  to  deprive  him  of 

Lq.  I'l.  §  btil.  ■  ■  the  benefit  of  his  answer  to  the  amend- 

Antf,    p.   244;    and   see    Gwatkin    v.  ments,  so  far  iis  it  may  be  responsive  to 

Campbell,  1  Jur.  N    S.  131,  V.  C.  W.  the  bill.     lUirras  t'.  looker,  4   I'aige,  227; 

■^  Mdligan  v.  .Mitchell,  1  M.   &  C.  511,  Bingham  v.  Ycomans,  10Cush.5»;  Chace 

615;  (iib.son  v.  Ingo,  5  Hare,  150.  i-.    Holmes,  2  (iray,  431;    Hule  8,  of  the 

»  15  &  Ki  Vic   c.  80,  §  4'J;  mile,  p.  303;  Mass.  Kules  for  Chancery  Practice, 
and  sec  Lee  v.  Blackstone,  Scton,  1113, 
No.  2. 

VOL.  I.  27 


418 


TIIE    BILL. 


Ch.  VI.  5  8. 


Not  {jencrally 
allowed, 
except  as  to 
jMirties : 


where  matter 
not  put  in 
issue  with 
sufficient 
'certainty: 

where 
improper 
submissions 
on  behalf  of 
infants. 

where  infant 
heir-at-law 
made  co- 
plaintiff. 


At  the 

hearing  of  an 
appeal. 


aniondeil  bill  the  prayer  for  relief,  altlimigh  it  was  in  the  orij^inal 
bill,  the  Court  put  oif  the  cause,  in  order  that  the  i)laintitf  might 
have  an  opportunity  to  rc-amend  his  bill  by  inserting  it.^ 

Usually,  amendments  are  allowed  at  the  hearing  only  for  the 
purpose  of  making  the  record  complete  as  to  parties,  or  adapting 
the  prayer  to  the  ease  made  by  the  bill.^  Upon  the  question  of  al- 
lowing amendments  for  other  purposes  at  the  hearing,  Sir  George 
Turner  L.  J.,  in  the  case  of  Lord  DarnUy  v.  The  London^ 
Chatham,  and  Dover  Hallway  Company,^  observed  :  "  It  is  impos- 
sible to  lay  down  any  general  rule  ;  all  depends  upon  the  cir- 
cumstances ;  but,  s])eaking  generally,  I  shouhl  say  that  leave 
should  be  given  when  the  matters  proposed  to  be  introduced  are 
connected  with  the  matters  in  issue,  but  should  be  refused  when  it 
is  not  so."  *  Thus,  where  a  matter  has  not  been  put  in  issue, 
with  sufficient  precision,  the  Court  has,  upon  hearing  the  cause, 
given  the  plaintiff  liberty  to  amend  the  bill,  for  the  purjsose  of 
making  the  necessary  alteration.^ 

Wherever  improper  submissions  have  been  made  in  a  bill  on 
behalf  of  infants,  the  Court  will,  at  the  hearing,  order,  that  the 
bill  shall  be  amended,  by  striking  out  the  submission.^  Upon 
the  same  principle,  where  an  infant  heir-at-law  had  been  made  a 
co-plaintiff,  Lord  Redesdale  ordered  the  cause  to  stand  over,  with 
liberty  to  the  plaintiff  to  amend  his  bill,  by  making  the  heir-at- 
law  a  defendant ; ''  and  where  a  matter  has  not  been  put,  by  the 
bill,  properly  in  issue,  to  the  prejudice  of  an  infant,  the  Court  has 
generally  ordered  the  bill  to  be  amended.^ 

The  Court  has  even  gone  to  the  extent  of  allowing  the  plaintiffs, 
at  the  hearing  of  an  appeal,  to  amend  their  bill,  by  converting  it 
from  a  bill  into  an  information  and  bill,  or  information  only.^ 


1  Hardingv.  Cox,  3  Atk.  563;  Story  Eq. 
PI.  §  887. 

2  Wiitts  V.  Hyde,  2  Phil.  406,  411;  11 
Jur.  079;  and  see  Belhimy  v.  Sabine,  2 
Phil.  425,  447. 

8  9  .Jur.  N.  S  4.52,  453;  11  W.  R.  388, 
391;  1  De  G.,  J.  &  S.  204,  219,  220;  and 
see  Gossop  v.  Wright,  9  Jur.  N.  S.  592; 
11  W.  R.  C32,  V.  C.  K. 

<  In  Walker  v.  Armstrong,  8  De  G.,  M. 
&  G.  531;  2  Jur.  N.  S.  959,  however,  the 
L.  JJ.  allowed  a  bill  to  be  amended  at  the 
bearing,  by  rai-ing  ;in  entirely  new  case; 
viz.,  Ibe  rectification  of  a  deed. 

6  Ld.  Ked.  326;  Filkin  v  Hill,  4  Bro.  P. 
C.  ed.  Tonil.  640;  iwm.  Hill  v.  Eyre,  1  De 
G.,  J.  &  S.  217,  21t),  220;  nnd  see  observa- 
tions of  L.  J.  Turner  on  ihis  Ciise,  in  Lord 
Darnley  v.  London,  Chatham,  and  Dover 
Railwaj'  Comjjany,  9  Jur.  N.  S.  452;  11 
\V.  K.  391;  see  also  Watts  v.  Lord  Eglin- 
ton,  1  C  P.  Coop.  t.  Cotl.  423;  Kn^x  v. 
Gye,  9  Jur.  N.  S.  1277,  V.  C.  W.;  12  VV. 
R.  1125,  L.  J  J. ;  Forbes  v.  Stevens,  10  Jur. 
N.  S.  861,  V.  C.  W.;  4  N.  K.  366,  L.  JJ.; 


p-irth  V.  Kidlej',  ib.  415,  L.  JJ. ;  Hume  v. 
Pocock,  L.  K.  1  Eq.  662;  12  Jur.  N.  S. 
223,  V.  C.  S.;  see  Consilley  v.  Peck,3  Cal. 
75;  McDougald  v.  Willifoid,  14  Geo.  065. 
For  form  of  orders  to  amend  at  the  hearing, 
see  Seton,  1113,  Nos.  1,  2;  and  see  io. 
1114-1116. 

c  Serle  v.  St.  Eloy,  2  P.  Wms.  386,  ante, 
p.  77. 

7  Plunket  V.  .loice,  2  Sch.  &  Lef.  159. 

8  Ld.  Ked.  327. 

3  President  of  St.  Mary  Magdalen  Col- 
lege V.  Sibtliorp,  1  liuss.  154;  ante,  p.  12. 
Leave  will  be  granted  to  amend  in  the 
Court  of  Appeals,  if  it  there  be  found 
nece.ssiiry,  in  order  to  let  in  the  whole  merits 
of  the  ciise.  Lenoirv.  Winn,  4  Desaus.  65; 
Kod;;ers  v.  Jones,  1  M'Cord,  Ch.  226; 
W'Kim  V.  OJom,  3  Bland,  407  ;  Drummond 
V.  Ma;rnider,  9  Crancli,  122;  l^ewis  v  Dar- 
ling, 16  How.  U.  S.  A  petition  in  Chan- 
cery in  Connecticut  can  be  amemled  utter 
the  facts  in  the  case  have  been  found  by  a 
committee.  Camp  v.  Waring,  25  Gonu. 
620. 


AMENDING    THE    BILL. 


419 


But,  although  the  Court  will  sometimes,  at  the  hearing,  allow 
the  cause  to  stand  over,  with  liberty  for  the  plaintiff  to  amend  his 
bill,  the  plaintiff  ought  to  be  careful,  before  the  cause  comes  on,  to 
have  the  record  in  a  proj^er  state,  so  as  to  enable  the  Court  to 
make  a  complete  decree:  for  the  plaintiff  himself  cannot,  when  the 
cause  comes  on  for  hearing  (unless  under  particular  circumstances, 
or  with  the  consent  of  the  defendant),  obtain  leave  to  amend  his 
bill,  even  upon  the  usual  terms  of  paying  the  costs  of  the  day;  ^ 
and  if  a  decree  were  to  be  obtained  upon  pleadings  which  are 
defective  in  a  material  point,  it  would  afterwards  be  hable  to  be 
set  aside  for  error.^ 

It  frequently  happens  that,  upon  the  argument  of  a  demurrer, 
the  Court,  where  the  ground  for  demurring  can  be  removed  by 
amendment,  has,  in  order  to  avoid  putting  the  plaintiff  to  the 
expense  of  filing  a  new  bill,  instead  of  deciding  upon  the  de- 
murrer, given  the  plaintiff  liberty  to  amend  his  bill,  on  payment 
of  the  costs  incurred  by  the  defendant ;  "  because,  after  a  demurrer 
allowed  to  the  whole  bill,  the  bill  is  so  completely  out  of  Coiut 
that  no  -amendment  can  take  place  :  *  and  where  the  demurrer 
is  for  want  of  parties,  the  Court,  in  general,  annexes  to  the  order 
allowing  the  demurrer  a  direction  that  the  plaintiff  shall  be  at 
liberty  to  amend  his  bill  by  adding  parties  thereto.^  Where,  pre- 
viously to  the  filing  of  a  general  demurrer,  a  notice  of  motion  for 
an  injunction  had  been  served,  leave  was  given,  on  allowing  the 
demurrer,  to  amend  within  ten  days,  without  prejudice  to  the 
notice  of  motion.® 

The  Court,  in  allowing  a  plea,  frequently  gives  leave  to  amend;'' 


Ch.  VI.  §  8. 


Leave  to 
amend ;  upon 
argument  of 
demurrer; 


where  demur- 
rer for  want 
of  parties. 


1  Leave  may  be  granted  to  amend  the 
prayer  »t'  the  bill  iifter  hearinj;.  (Jlifton  u. 
liaise,  4  Desaus.  .330.  If  a  formal  cliargo 
of  fraud  were  necessarj',  but  had  been 
omitted,  the  Court  would  give  leave  to 
nmoiid  even  at  the  hearing.  Wamburzee 
V.  Kennedy,  4  Desau.s.  480. 

2  Wyatt's  P.  K.  299.  As  to  obtaining 
leave  to  iimend  at  the  henrinj;  of  an  inter- 
locutory application,  ^ee  Harnett  v.  Noljle, 

1  .1.  &  \V.  -iiT;  Faie  t;.  (Jlegg,  7  Jur.  N  S. 
11.30;  9  W.  K.  210,  M.  R. 

'  See  Marshall  i'.  Love'ass,  Cam.  &  Nor. 
239,  204;  lieii/.ein  v.  I.ovelass,  Cam.  & 
Nor.  520;  IloHid.iyr.  IJionlon,  12  Geo.  417. 
Alter  a  special  demurrer  to  a  bill,  the 
pliiintiir  may  have  leave  to  amend,  on 
paymi-nt  ot  costs.  Ko-e  v.  King,  4  Hen. 
&  .\liinf  47.0.  So  where  a  mere  formal 
objection  to  a  bill  was  made  by  demurrer 
ore  Itnus,  the  pbiintilf  was  permitted  to 
amend,  (iarlick  v.  ."strong,  3  I'aigc,  440. 
So  also  np'ni  the  allowance  of  a  d(!rnurrer 
for  w.int  of  erjuity,  upon  the  ground  <>(  a 
formiil  defect  in"  the  bill.  M'Klwain  v. 
Wil  is,  .3  |'nig(.,60r, ;   lluntw.  kousmanicre, 

2  Ma.son,   342;    Beauchamp   v.   (iibbs,  1 
Bibb,  483. 


By  Rule  21  of  Chancery  Practice  in  Mas- 
sachusetts, "  if  the  defendant  shall  demur 
to  the  bill  for  w;int  of  parties,  or  other 
defect  which  does  not  go  to  the  equity  of 
the  whole  bill,  the  plaintiff  may  ainend,  at 
any  time  betbre  tlie  demurrer  is  set  down 
Ibi-  jirgumeiit,  or  within  lourteen  linys  alter 
the  demurrer  is  filed,  and  notice  thereof 
given  to  him,  upon  the  payment  of  a  term 
fee." 

*  Lord  Coningsby  v.  JekvU,  2  P.  Wms. 
300;  2  Kq.  Ca.  Ab.  69,  pi.  3;  Smith  v. 
Barnes,  1  Dick.  07;  .see  also  Mason  v.  Lake, 
2  Bro.  P.  C.  ed.  I'oml.  4U!J,  497;  Bre^sen- 
den  V.  Decreets,  2  Clia.  Ca.  197;  Lloyd  v. 
Loaring,  0  Ves.  773,  779.  A  difl'erent  rule 
prevails  in  Massachusetts.  Jlerchants' 
I'jank  of  Newburyport  v.  Stevenson,  7 
Allen,  491;  see  ;><;«?,  note  to  section  "of 
the  elfect  of  allowing  demurrers." 

6  As  to  the  time  allowed  to  amend, 
where  u  demurrer  or  ])lea  to  the  whole  or 
part  of  a  bill  is  not  set  down,  see  Ord.  XIV. 
14,  1.5,  17;  (uile,  p.  373. 

«  Hawlings  v.  Lambert,  1  J.  &  II.  458; 
Ilardmj;  v.  Tingev,  10  .lur.  N.  S.  S72;  12 
W.  K.  703,  V.  C.  K. 

7  Ld.  Ked.  281;  Doyle  v.  Muntz,  5  Ilaro, 


Leave  to 
amend, 
after  plea  is 
allowed ; 


420 


THE    BILL. 


Cii.  VI.  §  8. 

»— — ^^ ' 

or  ovi-rrulod. 


Order  to 
amend,  pend- 
ing; judgiuent 
of  pi  fa, 
irretcular. 


Where  plea 
replied  to, 
order  to 
withdraw 
repHeation 
and  amend 
must  be  on 
special 
application. 


Time  allowed 
to  amend 
after  order 
obtained. 


it  intist  not,  however,  be  nndorstood  that  this  is  by  any  means  a 
matter  of  course,  even  "where  the  plea  covers  only  part  of  the  bill.^ 
Leave  to  ameiul  has  also  been  given  "where  a  plea  was  overruled, 
Avith  leave  to  ])lea(l  de  novo.^  After  the  allowance  of  a  ])lea,  an 
order  for  leave  to  amend  the  bill  is  special ;  and,  on  the  up})lica- 
tion  for  it,  the  jilaiutilf  must  specify  the  amendment  he  intends  to 
make.^ 

It  may  be  observed  in  this  place,  that  where  a  plea  for  want  ot 
parties  was  put  in  to  a  bill  of  discovery,  which  had  been  filed  in 
aid  of  an  ejectment  at  law,  on  the  ground  that  the  trustees  in 
whom  the  legal  estate  was  vested  were  not  co-plaintiifs  with  the 
cestui  que  trusts,  and  upon  argument  a  case  was  directed  for  the 
opinion  of  a  Court  of  Law,  but  the  parties  not  being  able  to  agree 
upon  the  case,  the  plaintiffs  moved  for  leave  to  amend  the  bill  by 
adding  the  trustees  as  co-plaintiffs.  Lord  Eldon  refused  the  motion, 
as  being  irregular  while  the  judgment  on  the  plea  was  pending.* 
Afterwards,  however,  upon  the  plaintiffs  moving  that  the  Vice- 
Chancellor's  order,  directing  the  case  to  be  stated,  might  be  dis- 
charged, and  that  the  plaintiffs  might  be  at  liberty  to  amend  their 
bill,  by  the  introduction  of  facts  to  show  that  the  legal  estate  was 
in  the  trustees,  and  that  there  was  a  count  in  the  declaration  in 
ejectment  on  the  demise  of  such  trustees,  the  Lord  Chancellor 
made  such  an  order,  but  upon  condition  of  the  plaintiffs  consenting 
to  the  plea  being  allowed.^ 

It  seems  that,  where  a  plea  has  been  rephed  to,  the  plaintiff" 
may,  in  some  cases,  have  leave  to  withdraw  his  repUcation  and 
amend,  but  that  such  leave  is  not  a  matter  of  course,  and  can  only 
be  obtained  on  a  special  application  ;  ®  and,  therefore,  where  an 
order  to  withdraw  replication  to  a  plea,  and  to  amend,  was  ob- 
tained on  a  motion  of  course,  it  was  discharged  for  irregularity, 
and  the  amended  bill  was  ordered  to  be  taken  off"  the  file.'' 

After  the  plaintiff"  has  obtained  an  order  to  amend,  he  has,  in 
all  cases  in  which  no  other  time  is  limited  by  such  order,  fourteen 
days  after  the  date  of  the  order,  "within  which  he  may  amend  his 


509,  518;  10  Jur.  914;  Tudway  v.  Jones, 
1  K.  &  .J.  6'jl ;  and  see  Barnett  v.  Gratton, 
8  Sim.  72.  Leave  to  amend  given  after 
allowance,  without  costs,  of  plea  of  defend- 
ant's bankruptcy.  Jones  v.  Biniis,  33 
Beav.  362;  10  Jur.  N.  S.  119. 

1  Taylor  v.  Shaw,  2  S.  «S:  S.  12;  Neck 
V.  Gains,  1  De  G.  &  S.  223;  11  Jur.  763; 
see  alsoOrd.  XIV.  10;  and  post,  Cliap.  XV. 
§  6,  Pleas. 

2  Chadwick  v.  Broadwood,  3  Beav.  316 ; 
6  Jur.  359. 

s  Taylor  v.  Shaw,  2  S.  &  S.  12 ;  Neck 
V.  Gains,  1  De  G.  &  S.  223;  11  Jur.    763. 


*  Lord  Cholmondeley  v.  Lord  Clinton,  2 
Mer.  71. 
6  lb.  74. 

6  Carleton  v.  L'Estrange,  T.  &  R.  23; 
Barnett  v.  Grafton,  8  Sim.  72;  and  see 
Urd.  XIV.  18. 

7  Carleton  v.  L'Estrange,  ubi  sup.  It  has 
been  held  that,  as  Rule  29  of  tlie  Circuit 
Court  of  the  United  States  makes  no  pro- 
vision for  amending  a  bill  alter  issue  joined 
and  depositions  taken,  it  is  to  be  construed 
as  proliibiting  it,  at  least  except  under 
very  special  circumstances.  Ro»8  v.  Car- 
penter, 6  McLean,  3S2. 


AMENDING    THE    BILL. 


421 


bill.^  If  he  does  not  amend  -within  the  time  limited,  or  within 
the  fourteen  days,  the  order  becomes  void,  and  the  cause,  as  to 
dismissal,  stands  in  the  same  situation  as  if  such  order  had  not 
been  made.^  The  fact  of  the  plaintiff  not  making  his  amend- 
ment within  this  period  will  not,  however,  preclude  him  from 
obtaining  another  similar  order  of  course  to  amend,  upon  the 
same  terms,  if  the  original  order  was  obtained  before  any  answer 
was  put  in.' 

If  the  plaintiff  is  unable  to  amend  the  bill  within  the  time  lim- 
ited by  the  order  to  amend,  or,  if  no  time  is  thereby  limited,  with- 
in the  fourteen  days,  he  should  apply  by  summons,  before  the  time 
has  expired,  for  an  enlargement  of  the  time.*  The  summons  must 
be  served  on  all  the  defendants  who  have  appeared  to  the  bill ; 
and  the  order  is  drawn  up  at  Chambers/ 

In  a  proper  case,  an  order  may  also  be  obtained,  on  a  summons 
served  in  like  manner,^  to  cnlai-ge  the  time  allowed  by  the  General 
Orders  of  the  Court,  to  obtain  an  order  to  amend.''  The  order  is 
dra^Ti  up  at  Chambers.^  The  usual  course,  however,  is  to  obtain 
the  common  order  within  due  time,  and  then  to  apply,  before  the 
fourteen  days  have  exj)ired,  for  an  extension  of  time  to  amend 
under  it. 

In  computing  the  time  for  amending  the  bill,  the  times  of  vaca- 
tion are  not  to  be  reckoned :  ^  if,  therefore,  the  time  would  expire 
in  vacation,  and  it  is  intended  to  deprive  the  plaintiff  of  this  ad- 
vantage, the  order  should  be  so  framed  as  to  direct  the  amend- 
ment to  be  made  on  or  before  some  specified  day. 

When  an  order  to  amend  has  been  irregularly  made,  the  defend- 
ant may  move  on  notice  to  discharge  it ;  ^^  it  will,  however,  be 
considered  as  valid  until  it  has  been  discharged:"  and  the  irregu- 
larity will  be  waived  if  the  defendant  accept  costs  under  it.^- 


Ch.  VI.  §  8. 


Enlarging 
time  to 
amend ; 


or  to  obtain 
an  order  to 
amend. 


1  Ord.  IX.  17.  This  order  applies  to  all 
orders  to  amend,  whether  of  course  or 
special ;  sec  ('ridland  i'.  Lord  de  Mauley,  2 
De  (i.  &  8.500;  12.Jur.  1015;  AnnistcMd 
V.  Durham,  11  Beav.  4'2«;  13  .lur.  330; 
Bainl»riK(^e  v.  Baddeley,  12  Beav.  152;  13 
Jur.  SiOT.  These  cases  were  decided  on 
the  former  orilers;  in  the  e.x'sting  onlers, 
the  woriH  have  bfien  somewhat  altered, 
apparently  to  meet  this  (|uestion.  For  a 
case  on  the  present '>rders,  see  Tampier  t'. 
Ingle,  1  N.  U.  159,  V.  C.  K. 

a  Ord.  IX.  24. 

*  Nicholsrin  I'.  Telle,  2  Fteav.  i'J~ ;  see, 
however,  where  the  iilaintid' had  excepted, 
Dolly  r.Challin,  11  lieav.Ol.  The  service 
of  nn  order  to  Mtn'iid  dues  not  pnivent  the 
defendant  from  filing'  his  answer.  Mack- 
erell  r.  l-'isher,  14  Sim.  004;  9  .Fur.  574. 

*  Ord.  IX.  17,  21;  Ord.  XXXIII.  11; 
Dolly  V.  Challin,  ubi  tup. ;   lia.  nbrigge  t;. 


Baddeley,  12  Beav.  152,  154;  13  Jur.  997. 
For  form  of  summons,  see  Vol.  III. 

5  For  form  of  order,  see  Vol.  III. 

6  Ibid. 

7  Ord.  XXXVII.  17,  18;  see  Potts  v. 
Whitmorc,  10  Beav.  177,  179. 

"  For  a  form,  see  Vol.  III. 

9  Ord.  XXXVII.  13  (I).  For  times  of 
vacation,  see  ante,  p.  412 

1"  I'otts  r.  Whitmorc,  10  Beav.  177; 
Il'irsley  v.  Fawcett,  i/>.  191 ;  Peile  i'.  Stod- 
(lart,  11  jTi.  591;  Bainbrigge  v.  Baddeley, 
12  i(l.  152;  Bennett  v.  Iloneywood,  1  W. 
U.  490,  V.  C.  K.  For  form  of  notice  of 
motion,  see  \'ol.  III. 

11  Bhikc  r.  Blake.  7  Beav.  514;  Chuck 
V.  Cremer,  2  I'hil.  113;  C.  P.  Coop.  t.  Cott. 
33H. 

12  Tarlefon  v.  Dyer,  1  R.  &  M.  1,  6; 
King  of  Spain  v.  Ilullett,  ib.  7,  n.;  see 
also  Kendall  v.  Beckett,  1  Kuss.  152; 
Bratubton  v.  Carter,  2  Sim.  458. 


Where  order 
to  amend 
should  limit 
a  time. 


Irregular 
order  to 
amend  valid 
till  dis- 
charged; 
but  irregu- 
larity may  be 
waived. 


422 


THE    BILL. 


Cu.  VI.  ^  S. 


Son- ice  of 
oriler. 

When  reprint 
of  bill  will  bo 
noaissarv. 


Amended  bill 
must  be 
signed  by 
counsel ; 
and  an 
amended 
information 
by  Attoriiey- 
Cleneral  also, 
on  certificate 
of  counsel. 
Reprint  of 
information. 

Amend- 
ments: how 
made; 


An  order  to  atneiid,  wliothcr  of  course  or  special,  shotikl  bo 
served,  without  delay,  on  such  of  the  defendants  as  have  appeared 
to  the  hill,  either  in  ])(M-son  or  ])y  their  solicitors :  as  the  order 
only  operates  from  the  time  of  service.^ 

If  the  amendments  extend,  in  any  one  place,  to  180  words,  or 
two  folios,^  or  if  the  bill  has  been  so  often  amended  that  the 
amendment  to  be  inserted  cannot  be  interlined  on  the  record,  or 
is  so  considerable  as  to  blot  or  deface  it,  a  reprint  of  the  bill  will 
be  necessary.^ 

The  draft  of  the  amended  bill  is  settled  and  signed  by  counsel  ;* 
and  in  addition  to  the  signature  of  counsel,  the  draft  of  an  amend- 
ed information,  or  the  re])rint,  if  there  be  one,  must  be  signed  by 
the  Attorney-General  : ''  otherwise,  the  defendant  may  move  that 
it  be  taken  off  the  file.*'  Before  signing  the  amended  information, 
the  Attorney-General  requires  a  certificate  from  the  counsel  who 
settled  it  that  the  amendments  are  proper  for  his  sanction,'  The 
same  rules,  as  regards  reprinting,  a])ply  to  infonnations  as  to  bills. 

If  a  re])rint  of  the  bill  is  not  required,  the  Record  and  Writ 
Clerk  will  insert  the  amendments  in  the  record,  on  the  draft 
amended  bill,  signed  by  counsel,  being  left  with  him,  together 
with  the  order  directing  the  amendments,  and  aprcecij^e;  ^  and  the 
draft  and  order  will  be  afterwards  returned  on  application.  Where 
a  reprint  is  necessary,  the  amended  bill  must  be  printed  and  filed 


1  Price  V.  Webb,  2  Hare,  515. 

2  A   folio    for    this    purpose   is   ninety 
•words.    Biaithwaite's  Pr.  305,  n. 

8  Ord.  IX.  18;  Stone  v.  Davies,  3De  G., 
M.  &  G.  240;  17  Jur.  685.  A  bill  cannot 
be  amended  by  parth'  printed  and  partly 
written  tilterations.  Nnvlor  v.  Wright,  7 
De  G.,  M.  &  G.  403;  3  .Jur.  N.  S.  95.  As 
to  bills  filed  before  2d  November,  1852, 
the  old  prnctice  as  to  amending  them  con- 
tinues. Ord.  IX.  23.  Keprint  required 
■where  the  amendments,  although  under 
two  folios  in  any  one  place,  would  have 
rendered  the  bill  very  difficult  to  read;  the 
Clerks  of  Records  and  Writs  have  a  dis- 
cretion. John  V.Lloyd;  L.  H.  1  Ch.  Ap. 
64;  11  Jur.  N.  S  898.  In  Pierce  v.  West, 
3  Wash.  C.  C  354,  it  is  held,  that  the 
amendment  should  be  by  a  separate  bill, 
and  not  by  interlining  the  originsil  bill. 
So  in  Walsh  v.  Smyth,  3  Wand,  9,  21. 
This,  however,  is  not  the  ))ractice  in  all 
cases.  See  Luce  v.  Graham,  4  .John.  Ch. 
170;  Willis  v.  Evans,  2  B  &  U.  225; 
State  Bank  v.  Reeder,  Hiil.«t.  N.  J.  Dig. 
172.  By  these  cases  it  appears  that  if 
there  be  not  much  new  matter  to  be  intro- 
duced, it  is  to  be  done  by  iiiterpi>lation; 
but  if  much,  it  is  to  be  done  on  another 
engrossment,  to  be  annexed  to  the  bill,  in 
order  to  preserve  the  record  from  being 
defaced.  The  plaintiff  maj-,  however,  set 
forth  in  the  amended  bill  all  the  charges 
of  the  original  bill.  Kitzpatrick  v.  Power, 
1  Hogan,  24 ;  but  see  Walsh  v.  Smyth,  3 


Bland,  9,  21;  Luce  v.  Graham,  4  John. 
Ch.  170;  Willis  V.  Evans,  2  B.  &  B. 
225.  In  Walsh  v.  Smvth,M/>t  siip-n,  it  was 
held,  that  the  original  bill  should  be  re- 
cited in  the  amended  bill  no  further  than 
is  necessary  to  introduce  the  amendments, 
so  as  to  avoid  impertinency.  See  also 
Luce  V.  Graham,  uhi  supra ;  Bennington 
Iron  Co.  V.  Campbell,  2  Paige,  159;  Pierce 
V.  West,  3  Wash.  C.  C.  354.  When  amend- 
ments are  made  to  a  billj  if  the  plaintiff 
file  or  serve  an  entire  new  bill,  incorporat- 
ing therein  as  well  the  original  matter  as 
the  amendments,  he  must  distinctly  desig- 
nate the  amendments  in  the  new  bill. 
Bennington  Iron  Co.  v.  Campbell,  2  Paige, 
159;  see  also  Hunt  v.  Holland,  3  Paige, 
82;  Luce  v.  Graham,  4  John.  Ch.  170. 
Where,  after  a  hearing,  a  bill  was  amended, 
in  order  to  bring  in  a  new  party,  but  no 
new  fact  was  stated,  it  was  held  unneces- 
sary to  serve  process  anew  upon  the  de- 
fendant. Longworth  v.  Taylor,  1  McLean, 
514. 

■»  Ante,  p.  312.  Ord.  VIII.  1,  2;  see 
Kirkley  v.  Burton,  5  Mad.  378.  The 
amendments  should  be  carefully  distin- 
guished.    Braithwaite's  Pr.  304. 

5  Braithwaite's  Pr.  25,  309. 

6  Attorney-General  v.  Fellows,  1  J.  & 
W.  254 ;  for  forms  of  notice  of  motion,  see 
Vol.  IH. 

"!  For  form  of  certificate,  see  Vol.  III. 
8  For  a  form,  see  Vol.  III.     The  fee  is 
10s.     Braithwaite's  Pr.  305. 


AMENDING    THE    BILL. 


423 


in  the  manner  before  explained  in  treating  of  original  bills :  ^  and 
a  like  fee  is  payable  on  filing  the  amended  bill.^  The  order  to 
amend  must  be  produced  at  the  time  the  reprint  is  filed. 

The  record  of  the  bill,  when  amended,  is  marked  with  the  date 
of  the  order,  and  the  day  on  which  the  amendment  is  made ;  ^  and 
an  entry  of  the  amendment,  and  of  the  date  of  making  it,  and  of 
the  order,  is  made  in  the  Record  and  Writ  Clerk's  Book ;  and  the 
amended  bill  is  deemed  to  be  filed  at  and  from  the  date  of  uuiking 
the  amendment.* 

The  like  course  is  pursued,  where  the  bill  requires  to  be  re- 
amended.* 

Where  the  order  to  amend  is  made  upon  pajonent  of  costs,  or 
where,  by  the  coiirse  of  the  Court,  fixed  costs  are  payable  on 
amendment,®  such  costs  should  be  paid  or  tendered  before  any 
further  proceedings  are  had : ''  otherwise,  the  defendant  may  apply 
to  the  Court  to  stay  such  proceedings  lantil  the  plaintift'  has  ful- 
filled the  condition,  by  making  the  required  pajTuent.^  The  sum 
of  20s.  being  frequently  very  inadequate  to  remunerate  the  defend- 
ant for  the  expense  incurred  by  the  plaintiff  amending  his  bill,  it 
has  been  provided  by  the  General  Orders  of  the  Court,  that  where 
a  plaint ift'  is  directed  to  pay  to  the  defendant  the  costs  of  the  suit, 
the  costs  occasioned  to  a  defendant  by  any  amendment  of  the  bill, 
shall  be  deemed  to  be  part  of  such  defendant's  costs  in  the  cause 
(except  as  to  any  amendment  Avhich  may  have  been  made  by 
special  leave  of  the  Court,  or  which  shall  ap])ear  to  have  been 
rendered  necessary  by  the  default  of  such  defendant) ;  but  there 
shall  be  deducted  from  such  costs  any  sum  which  may  have  been 
j>aid  by  the  plaintiff,  according  to  the  course  of  the  Court,  at  the 
time  of  any  amenilment;^  and  that  where,  upon  taxation,  a  plain- 
tiff, who  has  obtained  a  decree  with  costs,  is  not  allowed  the  costs 
of  any  amendment  of  the  bill  upon  the  ground  of  its  having  been 
unnccessaiily  made,  the  defendant's  costs,  occasioned  by  such 
arnciidraent,  shall  be  taxed,  and  the  amount  thereof  deducted  from 
tlie  costs  to  be  ))aid  by  the  defendant  to  the  plaintitt".^" 

If  the  jtlaintitf  amends  his  bill  alter  he  has  obtained  an  injunc- 
tion, it  is  usual,  although    not  indispensable,  for  the  order  giving 


Ch.  VL  §  8. 


how  recorded. 


Re-amend- 
ments. 

Costs  payable 
on  amending: 


Defendant's 
costs  are  costs 
in  the  cause, 
where  plain- 
tift'  fails, 


unless  bill 
amended  by 
special  leave, 
or  through 
defendant's 
default ; 


and  may  be 
deducted 
from  plain- 
tit}"'s  costs, 
where  lie  suc- 
cecMJs,  and 
ainciidment 
unnecossar)'. 

Amend- 
ment: after 
injunction ; 


>  Ante,  p.  396  et  seq.  ;  15  &  16  Vic.  c.  86, 

§«• 

2  ReRui.  to  Ord.  Sclied.  IV.;  IJniith- 
wailn's  I'r.  SO."). 

'  Tlnn:  Amended  —  dsiyof ,186 — , 

by  order  dated day  of ,  186 — . 

*  (Ird.   IX.  1!». 

'  A  I  laintiir  who  has  amended  his  bill 
by  sprcial  h'avc  miiy  ol)tain  an  order  of 
coiife  to  rc-ainend  upon  tin-  iinswer  to  the 
amended  bill  coming  in.  Dunn  v.  Ferrior, 
L.  E.  8  liq.  '248. 


8  Ante,  p.  411. 

7  liut  see  Thomas  v.  Tavlor,  14  W.  R. 
49.3,  L.  J.J. 

«  lireeze  v.  English,  2  Hare,  638.  The 
cost'*  of  a  demurrer  prepared,  but  not  filed, 
at  the  time  of  amending  the  hill,  will  be 
costs  in  the  cause,  hainbrigge  v.  .Moss,  8 
K.  &  .(.  6'2;  3  .lur.  N.  S.  107.  The  cosis 
are  usually  paid  iit  tlie  time  tlie  order  to 
amend  is  -erved. 

«  Ord.  XL.  7. 
W  Ord.  XL.  8. 


424 


THE   BILL. 


Cii.  VI.  §  s. 


after  ne  exeat 
reyno ; 


after  undor- 
takinir  by 
defeudaut ; 


or  after  notice 
of  motion  for 
injunction,  or 
receiver; 


liim  liborty  to  aiiioiul,  to  ho  ox])rosscMl  to  be  "without  prejudice  to 
tin'  injunction;"  and  the  order  of  course  to  amend  maybe  ob- 
tained in  this  fonn.^  AVhere,  however,  an  ii\junction  had  been 
obtained  until  answer  or  further  order,  in  a  suit  l)y  a  sole  jdaintiif, 
it  was  held  that  the  injunction  Avas  dissolved  by  addijisj;  a  co- 
plaint  itt',  under  an  order  to  amend  in  which  those  words  were  not 
inserted.'- 

A  writ  of  ne  exeat  regno  is  not  lost  by  a  subsequent  amendment 
of  the  bill ;  it  is,  therefore,  unnecessary  that  the  order  should  be 
expressed  to  be  without  prejudice  to  the  writ.^ 

Where  a  motion  for  an  injunction  had  been,  by  arrangement, 
turned  into  a  motion  for  decree,  times  being  fixed  for  the  filing  of 
affidavits  on  both  sides,  and  the  defendant  undertaking  not  to  do 
certain  specified  acts  until  the  hearing,  it  was  held,  that  the  plain- 
tift',  by  amending  his  bill  after  the  time  fixed  for  filing  his  afiidavits, 
broke  the  terms  of  the  arrangement,  and  the  defendant  was  ac- 
cordingly discharged  from  his  undertaking.* 

If  tlie  )»laintiif  amends  his  bill  after  he  has  given  a  notice  of  a 
motion  for  an  injiuiction,^  or  for  a  receiver,^  he  thereby  waives 
the  notice ;  and  must  pay  the  defendant's  costs  of  the  motion.'' 


1  Mason  v.  Murray,  2  Dick.  530 ;  War- 
burton  j;.  I.ondon  and  Hlack.\vall  Railway 
Compnny,  2  Beav.  253;  Woodroflfe  v. 
Daniel,  9  Sim.  410;  see  Kennedy  v  Lewis, 
14  Jur.  166;  Seton,  873,  V.  C  K.  B. ;  see 
also  Ferrand  v.  Hamer,  4  M.  &  C.  143, 145 ; 
3  Jur.  236  ;  Pratt  v.  Archer,  1  S.  &  S.  433; 
Pickering  f.  Hanson,  2  Sim.  488;  Henwick 
V.  Wilson,  6  Jolin.  Gh.  81;  Ay^rs  v.  Val- 
lentine,  2  Edw.  Oh.  451.  An  injunction 
bid  will  not  be  amended  unle,ss  the  pro- 
posed iimendnients  are  distinctly  stated  to 
the  Court,  and  veritied  by  the  oath  of  the 
plaintiff;  nor  unless  a  sufficient  excuse 
i.s  rendiTcd  for  not  iiicorjiorating  them 
in  the  original  bill.  Rogers  v.  Rogers,  1 
Paige,  424;  Carey  v.  Smith,  11  Geo.  539; 
see  West  v.  Coke,  1  Murphy,  191.  In 
JlassachuseUs, '■  no  amendments  shall  be 
allowed,  as  of  course,  to  a  bill  which  has 
been  sworn  to  by  the  party."  Rule  20,  of 
the  Rules  for  ClTancery  Practice.  And  so, 
generally,  where  the"  bill  is  upon  oath, 
there  is  greater  caution  exercised  in  refer- 
ence to  amendments.  Cock  v.  Evans,  9 
Yerger,  287;  Verijlanck  v-  Merct.  Ins.  Co., 

I  Kdw.  Cli.  46;  Swift  f.  Ecklbrd,  6  Paige, 
22;  Lloyd  v.  Brewster,  4  Paige,  538;  Par- 
ker V.  Gran',  1  .John.  Ch.  434;  Rogers  v. 
Rogers,  1  Paige,  424;  Whitmarsh  v.  Camp- 
bell, 2  Paige,  67.  And  the  Court  may  re- 
quire the  amendments  to  any  sworn  bill  to 
be  themselves  sworn  to.  Semmes  v.  lioy- 
kin  27  Geo.  27;  see  Latham  v.  VViswall,  2 
Ired.  Ch.  2'J4;  McDougald  v    Dougherty, 

II  Geo.  570.  The  amendments  made  to  a 
sworn  bill  must  be  consistent  with  the 
original  bill;  and  they  must  be  made  with- 
out striking  out  any  part  of  the  original 


bill,  but  by  introducing  a  supplemental 
statement.  Verplanck  v.  Merct.  Ins.  Co  , 
1  Edw.  Ch.  46;  Carey  i'.  Smith,  11  (Jeo. 
539;  Rogers  v.  Rogers,  1  Paige,  424;  Whit- 
marsh  V.  Campbell,  2  Paige,  67.  An  ap- 
plication to  strike  an  allegation  from  a 
sworn  bill,  or  to  make  alterations  in  it, 
should  be  accompanied  with  afiidavits  to 
show  how  the  mistake  occurred.  North 
River  Bank  v.  Rogers,  8  Paige,  648;  Whit- 
marsh  i;  Campbell,  1  Paige,  67;  Everett  v. 
Winn,  1  Sm.  &  M.  67.  And  the  truth  of 
the  matter  proposed  as  an  amendment 
should  be  sworn  to  in  addition  to  i\\^  jurat 
upon  the  petition  for  leave  to  amend. 
Rogers  v.  De  Forest,  3  Edw.  Ch.  171.  But 
no  alteration  should  be  made  in  the  orig- 
inal bill  on  file,  but  the  amended  bill  must 
be  engrossed  anew,  and  annexed  to  the 
original.  Layton  v.  Ivans,  1  Green  Ch. 
387. 

2  Attorney-General  v.  Marsh,  16  Sim. 
572;  13  .Jur"  317;  and  see  Sharp  v.  Ash- 
ton,  3  V.  &  B.  144;  King  v.  Turner,  6 
Mad.  255;  and  iwst,  Chap.  XXXVI.  §  2, 
Injunctions. 

'3  Grant  v.  Grani,  5  Russ.  189;  see  post, 
Chap.  XXXVIIL  §  4,  iVe  exeat  reqno. 

4  Clark  V.  Clarke,  13  W.  R.  133,  V.  C. 
W. 

6  Martin  v.  Fust,  8  Sim.  199;  Gouth- 
waite  V.  Rippon,  1  Beav.  54;  Monypenny 
V. ,  1  VV.  R.  99,  V.  C.  K. 

6  Smith  V.  Dixon,  12  W.  R.  934,  V.  C  S. 

7  Monypenny  v. ,  uhi  sup. ;  Lon- 
don and'Blackwall  Railway  Company  v. 
The  Limehouse  Board  of  Works,  3  K.  &  J. 
123;  Smith  v.  Dixon,  ubisup. 


AMENDING   THE    BILL. 


425 


Where  after  notice  of  motion  for  an  injunction  had  been  served,  a 
general  deniiirrer  to  the  bill  was  allowed,  leave  was  given  to  amend, 
without  prejudice  to  the  notice  of  motion.^ 

Where  a  defendant  is  in  contempt  for  want  of  answer,  the 
plaintiff  will,  if  he  amend  his  bill,  be  considered  to  have,  by  his 
own  act,  purged  the  defendant's  contempt ;  ^  but  where  a  defend- 
ant has  been  brought  to  the  bar  of  the  Court  for  his  contempt  in 
not  answering,  and  refiises  or  neglects  to  answer  (not  being  idiot, 
lunatic,  or  of  unsound  mind),  the  Court  may,  upon  motion  or 
petition,  of  which  due  notice  has  been  given  personally  to  the 
defendant,  authorize  the  plaintiff  to  amend  his  bill,  without  such 
amendment  operating  as  a  discharge  of  the  contempt,  or  rendering 
it  necessary  to  proceed  with  the  process  of  contempt  de  novo.^ 

The  amendment  of  the  bill,  even  for  the  pui-pose  of  rectifying 
a  clerical  error,  renders  a  previous  order  to  take  the  bill  pro  con- 
fesso  inoperative :  *  unless  the  amendment  was  made  in  pursuance 
of  an  order,  obtained  under  the  Act  last  referred  to. 

If  the  plaintiff  takes  advantage  of  an  order  to  amend,  so  as 
entirely  to  change  his  case,  and  to  make  the  bill  a  perfectly  new 
one,^  or  if  the  amendments  introduced  into  the  bill  are  not,  in 
other  respects,  warranted  by  the  order  to  amend,  the  defendant 
may  m(3ve,  on  notice  to  the  plaintiff,  that  the  amended  bill  may 
be  taken  off  the  file,  or  that  the  amendments  may  be  struck  out, 
and  the  record  restored  to  its  original  state  ;  and  that  the  plaintiff 
may  be  ordered  to  pay  the  defendant's  costs  occasioned  by  the 
amendment,  and  of  and  consequent  on  the  application,  or  to  place 


Ch.  VT.  §  8. 


Amendment 
purges  de- 
fendant's con- 
tempt in  not 
answering, 


unless  made 
by  special 
order,  reserv- 
ing plaintiff's 
rights. 


Amendment, 
after  order  to 
take  bill  ^j/'O 
conftsso, 
renders  it 
inoperative. 

Proceedings, 
where  bill 
irregularly- 
amended. 


Costs: 


1  Rawliiips  V.  Lambert,  1  J.  &  H.  458; 
ani]  see  Harding  tv  Tingev,  10  Jur.  N.  S. 
87-2;  12  W.  R.  703,  V.  C  "K. 

2  Hall  V.  Etches,  1  R  &  M.  324;  Gray 
V.  Cam  [.bell,  ih.  323. 

8  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  15, 
r.  10;  and  fee  post,  Chap.  X.,  Process  to 
compel,  and  in  dt fault  of  Answer. 

<  Weightrnan  »;.  I'owell,  2  De  G.  &  S. 
670:  Vl  .Jnr.  958. 

''  A  parly  under  the  privilege  of  amend- 
ing, shall  not  introduce  matter  which 
would  constitute  a  new  bill.  Vei'planck  v. 
Merct.  In.s.  Co.,  I  Kdw.  Ch.  4G;  Crabb  )'. 
Thomas,  25  Ala.  212;  Lambert  r. -lones, 
2  I'.  &  II.  144;  Shields  v.  Harrow,  17 
How.  r  .S.  1:J0;  I'Vniio  r.  Cdultcr,  14 
Ark.  (1  Ibirl). ).'{;»;  <'aiev  v.  .Smith,  11  Cm. 
63i»;  Snead  v.  .M(<,'oull,"l2  How.  U.  .S.  407; 
Heweit  r.  Adams,  50  .Maine,  271,  278. 
After  a  decisinri  upon  ii  plea  to  the  juris- 
diction, that  a  bill  in  Ivpiily  lift  ween  inem- 
V>erH  i>f  M  ma  n  II  fact  u  ring  cor  I  lora' ion  cannot 
be  snsta  ncd,  the  <_\nnl  will  not  grant  tho 
phiinliir  li'iivti  to  amend,  by  averring  that 
the  c(>i|ioration  \vm\  been  dis-olved;  this 
being  in  ell'ect  to  nwike  a  new  and  distinct 
ca"»e.  I'Mit  »'.  Bacon,  10  I'iek.  123.  Nor 
will  the  Court,  where  a  vendee  of  land  has 


brought  a  bill  for  a  rescission  of  the  con- 
tract, permit  him  to  change  the  priyer  of 
his  bill  and  claim  a  specific  execution 
thereof.  Shields  v.  Barrow,  17  How.  U.  S. 
130;  Williams  ii.  Starke,  2  \\.  Mon.  196, 
197.  A  second  mortgiigee  of  land  brought 
a  bill  against  the  first  mortgagee,  to  re- 
deem the  first  mortgage,  and  the  Court 
postponed  the  jilaintifV's  mortgage,  on  ac- 
count of  misre|)rcscntations  made  by  him, 
so  as  to  let  in  and  give  priority  to  a  subse- 
quent morttiage  of  a  part  of  the  same  land 
to  the  defendant;  the  Court  refused  to 
grant  leave  to  tlie  plaintiff  to  amend  his 
bill  for  the  purpose  of  enabling  him  to 
proceed  under  it  for  the  redemption  of  .such 
subse()ucnl  mortga^je.  I'latt  v.  Sipiire, 
5  Cush.  551.  See  .Sanbnni  r.  Snnlxirn,  7 
Gray,  142;  Lambert  v.  .lones,  2  1'.  &  M. 
144.'  Hut  in  snme  cases  it  has  l)een  held, 
that  a  pbiintilf  who  h:i8  filed  a  bill  for 
specific  perfornnince  of  a  contract  may, 
uii'ler  circum-tanccs,  amend  his  bill  and 
pray  for  a  rescission  of  the  contract,  ami 
for  such  other  relief  as  he  may  b(!  entitled 
to  I'anilli).  McKinley,9  Grattan  ( Va.).  1; 
Codington  v.  Mott,  1  McCarter  (N.  J.), 
430;  llewelt  r.  Adams,  60  Maine,  271. 


426  THE   BILL. 

Cn.  VI.  §8.     ilu'  (lofoudant  in  the  s:uno  pcisilion  with  regard  to  costs  that  he 
would  liavo  been  in  it'  the  |>l:iintil1j  instead  of  amending,  had  dis- 
missed his  original  hill  with  eosts,  and  tiled  a  new  one.^     Thus, 
oiitiioiv  where  a  ]ilaintirt'  originally  tiled  his  bill  against  the  defendant  as 

now  liiso  i>y  Jijs;  bailiff  oi-  airent,  in  respect  of  certain  farms,  praying  an  account 
agamst  lum  u))on  that  lootmg,  and  afterwards  upon  an  issue  bemg 
directed  to  try  whether  the  plaintiff  was  or  was  not  a  mortgagee 
of  such  farms,  and  tlie  jury  finding  that  he  was,  the  ])laintiff 
amended  his  bill  by  stating  the  mortgage,  and  converting  his 
former  prayer  for  relief  into  a  prayer  for  a  foreclosure :  upon  the 
defendant's  moving  tliat  the  amended  bill  might  be  taken  off  the 
file.  Lord  Eldon  held,  that  the  defendant  was  entitled  to  all  the 
costs  sustained  by  him,  beyond  what  he  would  have  been  ])ut  to  if 
the  bill  had  been  originally  a  bill  for  a  foreclosure,  and  made  an 
order  accordingly:  although,  as  the  amended  bill  had  been  set 
down  for  hearing,  he  did  not  go  the  length  of  ordering  it  to  be 
taken  off  the  file.^ 
or  strikes  out  Upon  the  same  principle,  where  a  plaintiff  takes  advantage  of 
parts'^''^"*^  an  order  to  amend,  to  strike  out  a  portion  of  his  bill :  though  he 
does  not  alter  the  nature  of  it,  yet,  if  expenses,  have  been  occa^ 
sioned  to  the  defendant  by  the  part  which  has  been  struck  out, 
which,  in  consequence  of  its  having  been  so  struck  out,  co'uld  not 
be  awarded  to  hira  at  the  hearing,  the  Court  will,  upon  motion, 
with  notice,  order  such  costs  to  be  taxed  and  paid  to  the  defend- 
ant.^ Thus,  where  a  plaintiff  filed  a  bill  which  was  of  great 
length,  and  prayed  relief  in  a  variety  of  matters,  to  wdiich  the 
defendants  put  in  answers,  w^hich  w^ere  also  of  great  length,  after 
which  the  plaintiff,  by  virtue  of  a  common  order  to  amend,  amend- 
ed his  bill  and  filed  a  new  engrossment,  which  was  very  short,  and 
confined  to  one  only  of  the  objects  of  relief  prayed  by  the  original 
bill :  upon  the  defendants  moving  that  the  order  to  amend  might 
be  discharged,  and  the  bill  dismissed  with  costs,  or  that  the  plain- 
tiff might  pay  to  them  the  costs  of  putting  in  their  answer  to  so 
much  of  the  original  bill  as  did  not  relate  to  the  relief  prayed  by 
the  amended  bill.  Lord  Northington  directed  that  the  order  for 

1  Buttock  V.  Perkins,  1  Dick.  110,  112;  No.  10;  and  for  forms  of  notice  of  motion, 

Dent  «.  Wiirriel,  ib.  3.39;  Smitli  v.  Smitli,  see  Vol.  III. 

G.  Coop.  141;    Mrtvor  v.  Dry,  2  S.  &  S.  2  Smitli  v.   Smitli,  uhi  sup.;    and  see 

11.3,  116;  Attorney-Generat  v.    Cooper,  3  Mavor  v.  Dry,  and  Parker  t;.  Nickson,  «6» 

M.  &  C.  258,  262;    1  Jur.   790;    Allen   v.  sup.;    see,   liowever,  Allen  v.  Spring,  ubi 

Sprinp,  22  Beav.  61.5;  Thomas  w.  Hernard,  sup.,  wliere  sucti  a  motion  was  refused; 

7  VV.  K.  271,  V.  C.  K. ;  Eagle  r.  Lc  Breton,  and  it  seems  it  will  ont  v  bf^  granted,  where 

cited  Seton,  12.54;  and  see  Ainslie  v.  Sims,  tlie  case  made  is  entirety  new.    Thomas  v. 

17  Beav.  174;  Parker  v.  Nickson,  4  (iitf.  Bernard,  v!n  sup.     The  defendant  should 

311;  9  .Tur  N   S.  864;   Bartow  v.  M'Mur-  not  enter  into  evidence,  as  to  any  charjres 

rav,  L.  K.  2  Eq.  420,  424;  12  Jur.  N.  S.  struck    out   bv   amendment.     Stewart   v. 

519,  V.  C.  S.;  Lloyd  w.  Brewster,  4  I'ai?e,  Stewart,  22  Beav.  393. 

638.    For  form  of  order  see  Seton,  1253,  ^  {.'or  form  of  notice  of  motion,  see  Vol. 

III. 


AMENDING    THE    BILL. 


427 


amending  the  bill  should  stand,  but  that  the  plaintiff  should  pay- 
to  the  defendants  the  further  sum  of  five  pounds,  beyond  the  sum 
of  twenty  shillings  mentioned  in  the  order.^  And  where  a  cause, 
at  the  hearing,  was  ordered  to  stand  over,  with  liberty  to  the 
plaintiff  to  amend  by  adding  parties,  and  the  plaintiff  took  advan- 
tage of  that  order  to  strike  out  several  charges  which  had  neces- 
sarily led  the  defendant  into  the  examination  of  witnesses,  and  to 
add  others,  the  Court,  upon  motion,  ordered  that  part  of  the 
amendment  to  be  discharged,  and  the  plaintiff's  bill  to  be  restored 
to  what  it  Avas  before :  in  order  that,  at  the  hearing,  the  costs  of 
those  parts  of  the  bill  which  had  been  abandoned  by  the  plaintiff 
might  be  awarded  to  the  defendant.-  Where,  however,  a  bill  was 
filed  for  a  foreclosure  of  a  mortgage  and  for  a  transfer  of  a  sum 
of  stock,  and,  on  the  answer  being  filed,  disclosures  were  made 
which  rendered  it  advisable  to  amend  the  bill  by  striking  out  all 
that  related  to  the  mortgage,  whereby  nearly  one-half  of  the  bill 
and  answer  was  rendered  useless.  Sir  Lancelot  Shadwell  V.  C. 
refused  to  order,  on  motion,  the  2:)laintiff  to  pay  the  defendant's 
costs  occasioned  by  the  amendment,  as  it  appeared  that  the  amend- 
ment was  made  under  the  advice  of  counsel,  and  not  for  the  pur- 
pose of  vexation  or  oppression.*  , 

The  fact  of  an  irregular  amendment  having  been  made,  under 
a  common  order  to  amend,  will  not  be  a  sufficient  reason  for 
ordering  the  bill  to  be  taken  off  the  file,  if  the  record  can  be 
restored  to  the  state  in  which  it  was  before  such  irregular  amend- 
ment was  made.* 


Ch.  VI.  §  8. 


1  Dent  V.  Wardel,  1  Dick.  339. 

2  Balluck  V.  Perkins,  1  Dick.  110;  and 
BPe  Strickland  v.  StricklanH.  3  Beav.  242; 
Leather  Cloth  Coinpanv  d.  Hressey,  3  Giff. 
474,  404;  8  Jur.  N.  S.  425,  429. 


8  Monck  V.  Earl  of  Tankerville,  10  Sim. 
284:  3, Jur.  1167. 

4  Attornev-CJeneral  v.  Cooper,  3  M.  & 
C.  2.58,  262;"  1  ,Jiir.790;  and  see  Ainslie  v. 
Sims,  17  Ueav.  174. 


Amended  bill 
not  ordered 
to  be  taken 
ott'  the  file,  if 
the  record 
can  be  re- 
stored to  its 
former  state. 


CHAPTER  VII. 

PROCESS  BY  SERVICE  OF  A  COPY  OF  THE  BILL  ON  FORMAL 
DEFENDANTS,  AND  PROCEEDINGS  BY  SERVICE  OF  NOTICE 
OF  THE  DECREE. 

Section  1.-^- Process  by  service  of  a  Copy  of  the  JBill  on  formal 

Defendants. 


What  defend- 
ants need  not 
be  served 
■with  the  ordi- 
nar}-  process. 


Sending  copy 
of  bill  on 
person 
against  • 
vhom  no 
direct  relief 
prayed. 


As  soon  as  the  bill  has  been  filed,  the  plaintiff  may  proceed  to 
bring  before  the  Court  the  proposed  defendants  to  the  suit.  We 
have  seen,  however,  that  the  plaintiff  is  enabled,  as  against  certain 
formal  parties,  to  dispense  with  the  ordinary  process  of  the  Court, 
upon  serving  them  with  a  copy  of  the  bill  under  the  General  Order,^ 
and  tliereupon,  in  the  event  of  their  not  voluntarily  apjiearing  after 
such  service,  to  proceed,  without  further  attention  to  their  rights 
or  interests ;  and  that  in  certain  other  cases,  the  plaintiff  may  file 
his  bill,  and  obtain  a  decree  against  some  or  one  of  the  persons 
who  were  formerly  necessary  parties,  upon  serving  the  others  with 
notice  of  the  decree  that  has  been  made.^  It  will  be  convenient, 
therefore,  to  consider,  in  the  first  place,  the  mode  of  proceeding 
where  parties  are  served  with  copies  of  the  bill  under  the  General 
Order,  or  with  notice  of  the  decree,  and  then  the  ordinary  process 
against  other  defendants. 

"Where  no  account,  payment,  conveyance,  or  other  direct  relief 
is  sought  against  a  party  to  a  suit,  it  is  not  necessary  for  the  j)lain- 
tiff  to  require  such  party,  not  being  an  inf;^nt,  to  appear  to  the  bill ; 
but  tlie  plaintiff  niny  serve  such  party,  not  being  an  infant,  with  a 
copy  of  the  bill,  wliether  the  same  be  an  original,  or  amended,  or 
supplemental  bill,^  without  any  indorsement  requiring  such  party 
to  appear  thereto ;  and  such  bill,  as  against  such  party,  must  pray 
that  such  party,  upon  being  served  with  a  copy  of  the  bill,  may  be 
bound  by  all  the  proceedings  in  the  cause.*  But  the  ]»laintiff  may, 
nevertheless,  require  a  party  against  whom  no  account,  payment, 
conveyance,  or  other  direct  relief  is  sought,  to  appear  to  the  bill, 


1  Ord.  X.  11;  an<e,  Chap.  V.,  Parties. 

2  15  &  16  Vic.  c.  fee,  §  42;  ante,  Chap, 
v.,  Partie*. 


3  This   includes    a  bill  of  revivor  and 
supplement;  Wiilcotw.Walcot,  10  Beav.  20. 
■*  Tor  form  of  praj'cr,  soe  Vol.  III. 


SERVICE    OF    COPT    OF   BILL    ON    FORMAL    DEFENDANTS. 


429 


and  may  prosecute  the  suit  against  such  party  in  the  ordinary  way, 
if  he  shaU  think  fit.^ 

This  Order  does  not  authorize  service  of  the  copy  of  the  bill  on 
a  defendant  out  of  the  jurisdiction ;  ^  and  if  a  party  served  dies 
before  the  hearing,  his  personal  representative  cannot  be  brought 
before  the  Court  by  order  of  revivor,  but  an  orginal  bill  must  be 
filed  against  him,^ 

If  the  bill  is  amended  after  service,  a  copy  of  the  amended  bill 
must  also  be  served ;  *  and  if  a  bill  of  revivor  and  supplement,  or  a 
supplemental  bill  is  filed,  it  must  be  served  also  ;  ^  and  so,  it  is  con- 
ceived, must  a  supplemental  statement. 

A  plaintifi",  availing  himself  of  the  course  of  proceeding  intro- 
duced by  this  Order,  must  serve  a  plain,  unstamped,  and  unsealed 
copy  of  the  bill,®  without  any  indorsement  thereon  requiring  the 
party  to  appear  thereto,  upon  each  of  the  defendants  to  be  served  •" 
either  personally,  or  by  leaving  the  same  with  his  servant  or  some 
member  of  his  family  at  his  dwelling-house,  or  usual  place  of 
abode." 

In  the  case  of  a  husband  aad  wife,  where  the  suit  does  not 
relate  to  the  separate  estate  of  the  "ttife,^  service  upon  the  husband 
alone  is  sufficient ;  ^  but  where  it  relates  to  her  separate  estate,  or 
they  are  living  aj)art,  a  co])y  must  be  served  uj^on  or  for  each.^" 

The  service  must  be  within  twelve  weeks  from  the  filing  of  the 
bill,"  unless  the  Court  shall  give  leave  to  make  such  service  after 
that  time.^^  Such  leave  must  be  applied  for  by  motion,  without 
notice,"  and  the  application  must  be  supported  by  affidavits  ex- 
plaining the  cause  of  the  delay.^*  It  seems  that  substituted  ser- 
vice will  not  be  ordered.^'' 

Where  a  plaintiff  serves  a  defendant  with  a  copy  of  the  bill 
under  this  Order,  he  must  cause  a  memorandum  of  such  service,^® 


»  Ord.  IX.  11.  The  54th  Equity  Rule  of 
the  United  States  Courts  is  similar.  As  to 
the  etlect  of  this  Order  l)etweeii  co-deffiul- 
ants,  see  Boyd  v.  Movie,  2  Coll.  316,  321, 
323. 

2  Lorton  v.  Kingston,  2  M'N.  &  G.  139. 
This  case  was  before  the  15  &  16  Vic.  c.  86, 
but  it  would  appear  still  to  apjily;  power 
to  ser\e  the  bill  out  of  the  jurisdiction 
bc'ing  confined  to  the  copv  served  under 
thu^  Act;  see  I'enfold  v.  Ivelly,  12  VV.  U. 
2S6,  V.  ('.  K. 

8  Hardy  r.  Hull,  14  Sim.  21  ;  8Jur.  609. 
The  reason  is,  tliiit  he  has  not  appeared; 
Bee  iilso  Crowfoot  ».  Mander, 'J  Sim.  396; 
EdinKlon  v.  Itanham,  2  Coll.  619;  Bland 
V.  iJavi.son,  21  Beav.  312. 

*  Ord.  X.  11 ;  Anou.,  1  De  G.  &  S.  321; 
Vincent  v.  Watts,  3  MN.  &  G.  248; 
Braithwaite's  I'r.  515. 

'  Ord.  X.  1 1 ;  Wakot  i;.  Walcot,  10  Beav. 
20. 

•  Where  a  printed  bill  has  been  filed,  a 
printed  copy  will  of  course  be  served. 


1  Braithwaite's  Pr.  31 ;  Ord.  X.  1 ;  the 
member  of  the  family  should  be  an  inmate 
of  the  defendant's  house.  Edgson  v.  Edg- 
son,  3  De  G.  &  S.  029. 

"  Salmon  v.  Green,  8  Beav.  457. 

9  Kent  V.  Jacobs,  6  Beav.  48. 

1"  Briiithwaite".s  Pr.  616. 

"  Ord.  X.  17. 

12  Ord.  X.  17,  18;  Horry  v.  Calder,  7 
Beav.  585;  Bell  i'.  Hastings,  ib.  592.  The 
defendant  need  not  be  served  with  the 
Order  enlarging  the  time.  Fenton  v.  Clay- 
ton, 15  Sim.  82.  Where  a  formal  defend- 
ant came  within  the  jurisdiction  after 
decree,  and  after  the  twelve  weeks,  leave 
was  refuscii.  I'enfold  v.  Kelly,  12  W.  R. 
286,  v.  C.  K. 

13  Onl.  X.  18.  For  forms  of  motion  pa- 
per, sec  V'ol.  III. 

"  See  Horrv  v.  Calder,  7  Beav.  586 ;  Bell 
V.  IlHstings,  ib.  592. 

iii  Tlionnis  V.  Selby,  9  Beav.  194. 

i**  For  form  of  memorandum,  see  Vol. 
lU. 


Ch.  VII.  §  1. 


Inapplicable 
to  defendants 
out  of  the 
jurisdiction. 


Amended  or 

supplemental 
bill  must  be 
served,  and, 
semble, 
supplemental 
statement. 

Copy  of  bill : 
how  served. 


Husband  and 
wife. 


Time  within 
which  service 
may  be 
effected. 


Entering 
memoran- 
dum of 
service : 


430 


rORMAL   DEFENDANTS. — NOTICE    OF    THE    DECREE. 


Cn.  VTI.  §  1. 


Proof 
required. 


Where  case 
an  improper 
one  for 


Misnomer, 
how  cured. 


Where 
Ber\'ice  out 
of  time. 


and  of  the  time  when  it  was  eflfecte<l,  to  he  entered  in  the  Record 
and  Writ  Clerks'  Ofliee.  An  order  authorizing  such  entry  to  be 
made  is  necessary,  and  may  be  obtained  on  motion,^  witliout  notice, 
upon  the  Com-t  being  satisfied  of  a  copy  of  the  bill  having  been 
served,  and  of  the  time  when  the  service  was  made.^ 

There  have  been  several  cases  concerning  the  extent  of  informa- 
tion demanded  by  the  Court,  upon  motions  of  this  description ; 
but  the  result  seems  to  be,  that  no  further  proof  is  absolutely  nec- 
essary than  what  is  pointed  out  by  the  Order  itself,  namely,  proof 
by  affidavit,  first,  that  due  service  has  been  effected  upon  each  of 
the  defendants  of  a  copy  of  the  bill,  sworn  to  be  a  true  copy  of  the 
bill  itself;  secondly,  of  the  time  and  ])lace  wiien  and  where  such 
service  was  made,  so  that  the  Court  may  know  that  it  has  been 
effected  within  the  jurisdiction.^  Where  a  party  served  with  a 
copy  of  the"  bill  had  subsequently  appeared,  it  was  considered  an 
admission  of  due  service,  and  no  further  evidence  was  required  ;  * 
and  in  such  a  case,  a  memorandum  of  service  need  not  be  entered.^ 
Proof  has,  in  some  cases,  been  required  that  the  person  upon  whom 
such  service  was  made  was  not  an.infant,  and  that  the  bill  did  not 
pray  an  account,  payment,  conveyance,  or  other  direct  relief  against 
such  person ;  ®  but  the  terms  of  the  Order  do  not  seem  to  render 
it  necessary  that  these  facts  should  be  established  upon  the  motion, 
and  the  later  cases  are  against  the  necessity  for  giving  proof  of 
them.' 

The  plaintiff  would  seem  to  take  the  Order  at  his  own  risk ;  and 
if  the  case  be  one  in  which  he  is  not  entitled  to  proceed  in  this 
manner,  the  whole  process  would  be  nugatory,  and  the  defendant 
would  not  be  bound  by  any  of  the  proceedings  in  the  cause.^ 

Where  the  defendant,  who  had  been  served,  was  misnamed  in 
the  bill,  leave  was  given  to  enter  the  memorandum,  on  production 
of  an  afiidavit  showing  that  the  person  served  was  the  same  person 
as  the  person  referred  to  in  the  memorandum  of  service  ;  ^  and 
where  the  copy  of  the  bill  had  been  served  after  the  expiration  of 
the  twelve  weeks,  without  an  order  enlarging  the  time  being  ob- 


1  For  form  of  motion  paper,  see  Vol.  III. 

2  Ord.  X.  12.  Memorandum  of  service 
ordered  to  be  entered  on  defendant's  ac- 
knowledgment of  having  received  tlie  bill 
bv  post.  liurton  v.  Sljaw,  10  L.  T.  N.  S. 
292,  V.  C.  W. 

3  Wiirreii  v.  Postlethwaite,  1  Coll.  171; 
8  Jur.  282;  and  sec  Haif^h  v.  Dixon,  1  Y. 
&  (J.  C.  C.  IbO.  For  form  of  affidavit,  see 
Vol.  HI. 

4  Maude  v.  Copeland,  1  Coll.  505. 

6  Attorney-General  v.  Donniiigton  Hos- 
pital, 12  Beav.  551. 

6  Goodwin  V.  Bell,  1  Y.  &  C.  C.  C.  181; 
Haigh  V.  Dixon,  ib.  180;  Davis  v.  Prout,  5 
Beav.  102. 


T  Sherwood  v.  Rivers,  2  Y.  &  C.  C.  C. 
166;  7  Jur.  78;  Mawhood  v.  Labouchere, 
12  Sim. 302;  Anon.,  1  Hare,  317, n. ;  Welch 
V.  Welch,  ib.  593;  0  Jur.  599;  Hudson  v. 
Dungworth,  3  Hare,  508;  8  Jur.  1024; 
Jones  V.  Skipwith,  8  Beav.  127.  Tliera 
can  be  no  doubt,  that  the  Court  would  now 
act,  as  to  the  qut-stiou  of  the  prayer,  on  an 
inspection  of  a  print  of  the  bill;  as  it  ap- 
pears it  would  have  done  on  an  inspection 
of  an  office  copy  in  Davis  v.  I'rout,  5  Beav. 
102,  if  one  had  been  in  Court. 

8  Marke  v.  Locke,  2  Y.  &  C.  C.  C.  600, 
506;  Boreham  v.  Bignall,  4  Hare,  633;  7 
Jur.  528. 

»  Witham  v.  Salvin,  16  Jur.  420,  M.  R. 


SERVICE    OF    COPT    OF   BILL    OX    FORMAL    DEFENDANTS.  431 

tained,  leave  was  given  to  enter  a  memorandum  of  service,  on  the   Cn.  YU.  §  1. 
defendant  served  appearing  and  consenting.^  ' 1 ' 

The  Order  ^  merely  confers  upon  the  plaintiff  the  privilege  of  q^.^^^  ^^^ 
adopting  this  course  ;  but  it  is  not  obligatory  upon  him,  and  he  obligatory. 
may,  if  he  thinks  fit,  compel  such  parties  to  appear,  and  in  other 
respects  prosecute  his  suit  against  them  in  the  ordinary  manner. 
The  costs  occasioned  by  such  a  course  must,  however,  be  paid  by 
the  plaintiff,  unless  the  Court  shall  otherwise  direct.^ 

The  question  to  what  parties  the  Order  applies  has  fi-equently  To  what 
arisen ;  but  it  is  not  possible  to  deduce  from  the  cases  any  clear  ^^^^^^^  ^^® 
•rule  upon  the  subject :  though  it  appears  that  it  is  not,  in  general,   applies; 
considered  as  applicable,  where  the  interest  of  the  defendant  is  ad- 
verse to  that  of  the  plaintiff,  even  though  no  further  relief  is  sought 
against  the  defendant  than  the  binding  of  his  rights  by  a  decree. 
The  alterations  in  the  practice  of  the  Court,*  have  rendered  pro- 
ceedings under  the  Order  we  are  now  considering  of  comparatively 
rare  occurrence ;  and  it  is  not,  therefore,  desirable  to  refer  in  detail 
to  tlie  cases  which  have  occurred  ;  but  they  are  collected  in  the  inapplicable 
note.^     It  may  be  mentioned,  however,  that  it  has  been  held,  that  ^o  the  Attor- 
the  Order  does  not  apply  to  the  Attorney-General ;  ®  and  it  seems   ami  to  person 
that  it  does  not  apply  to  a  person  of  unsound  mind.^  mind^«emWe. 

If  the  motion  for  leave  to  enter  a  memorandum  of  service  be  jyff,,ie  of  en- 
granted,  the  Order  made  upon  the  motion  must  be  drawn  up,  passed,   tenn^  mcmo- 
and  entered ;  and  should  then  be  left  with  the  Record  and  Writ   service. 
Clerk  in  whose  division  the  cause  is.^     The  memorandum  is  then 
entered  by  him  in  his  cause  book,  and  the  order  is  returned  to  the 
solicitor,  with  an  indorsement  upon  it  to  show  that  the  memoran- 
dum has  been  entered.^     The  Order  should  be  kept  for  the  purpose 
of  production  at  the  hearing  of  the  cause,^''  and  on  bespeaking  the 
decree  or  order  ;  "  and  at  any  other  period  of  the  cause',  when  the 
regularity  of  the  service  and  the  entry  of  the  memorandum  are 
required  to  be  established.     The  memorandum  must  be  entered, 
before  a  certificate  to  set  down  the  cause  can  be  granted  ;  ^'-  and  a 
certificate  that  no  appearance  has  been  entered  by  the  defendant, 

1  TuRwell  V.  Hooper,  10  Beav.  19.  Adams  v.  Piiynter,  1  Coll.  530,  532;  8  Jur. 

2  Or.J.  X.  11.  1003;  Gaunt  v.  Johnson,  7   Hare,  154;  12 
8  dril.  XI.,.  10;  Abram  t'.  Ward,  0  Hare,        Jur.    10tj7;    Lewelhn  v.  Cobbold,  17  Jur. 

166,  170.  1111,  V.  C.  S. 

*  Ante,  Ciiap.  V.,  Partiet.  *'  (Jhri.stoplicr  v.  Cleghorn,  8  Beav.  314. 

'  .Murke  v.  Locke,  2  Y.  &  C.  C.  C.  500;  ^  i'eniberton  v.  Langinore,  ib.  100. 

Dunci'inbe  u.  Levy,  5   Hare,  232,230;   11  8  j.'or  lorin  of  order,  see  SetuD,   1244, 

Jur.  262;  I>avif.  v.  Davi.s,  4  Hare,  3t-9,  301 ;  No.  3. 

I'owell  V.  C'ocki-rell,  ib.  .067;  Abram  v.  "  Braithwaite's  Pr.  516;  no  fee  is  pay- 
Ward,  uln  tup. ;  LliiviJ  v.  Ll"yd,  1  V.  &  (J.  able,  ib.  517.  For  form  of  indorsement,  see 
C.  <:.  Ibl;  «  ,lur    102;  Clarke  I'.  Tipping,  Vol.  HI. 

9  Beav.  ii^A,  2'j2;  J..bnson  v.  Tucker,  15  'o  Carter  v.   Bentall,  12  L.J.   Ch.   369, 

Sim.  4»;6;    11  Jur.  382;  Hark  lay  v.   Lord  M.  K. 

Keav,  2   Hnre,  306,  309;    Knight  v.  Caw-  n  Keg.  Regul.  15  March,  1800,  r.  24. 

thron,    1    De   (J.    &  S.  714;    12  Jur.  33;  1'^  Bniithwaite's  Tr.  010. 


432 


FORMAL  DEFENDANTS. 


NOTICE  OF  THE  DECREE. 


cu.  vn.  §  2. 


Appear;!  lue 
by  |iarty 
sorvotl  with 
copy  of  liill 
in  common 
form ; 


in  ppcciiil 
form. 


"Within  what 
time. 


Party  ser\-ed, 
but  not  ap- 
pearing, will 
be  bound  by 
the  proceed- 
ings. 

On  appear- 
ing, will  be 
bound  by 
prior  pro- 
ceedings. 


must  be  left  witli  the  Registrar,  on  besjieaking  the  decree  or  order 
made  at  the  liearing/  wlien  the  (h'tendaiit  has  not  appeared. 

A  i>arty  so  served  with  a  cojty  of  the  bill,  may,  if  he  desires  the 
suit  to  be  prosecuted  against  Imiiself  in  the  ordinary  way,  enter  an 
appearance  for  hunself  in  tlie  common  form ;  '^  and  in  such  case, 
the  plaintitl'  must  proceed  against  such  defendant  in  the  ordinary 
way  ;  but  the  costs  occasioned  thereby  must  be  i)aid  by  the  i)arty 
so  ajijiearing,  unless  the  Court  shall  otherwise  direct.^  A  ])arty  so 
served  may  also,  if  he  is  desirous  of  being  served  with  a  notice  of 
the  proceedings  in  the  cause,  but  not  of  otherwise  having  the  suit 
prosecuted  against  himself,  enter  a  special  appearance  in  the  fol-' 
lowing  form :  "  A.  B.  appears  to  the  bill  for  the  puri)ose  of  being 
served  with  notice  of  all  proceedings  therein."  In  this  case,  he 
must  be  served  with  notice  of  all  proceedings  in  the  cause,  and  he 
is  entitled  to  appear  upon  them,  but  he  will  have  to  pay  the  costs 
occasioned  thereby,  unless  the  Court  shall  otherAvise  direct.*  The 
notices  to  be  given  under  this  rule,  must  give  the  defendant  the 
same  length  of  notice  as  if  he  were  proceeded  against  in  the  ordi- 
nary way.^ 

Such  common  or  special  appearances  may  be  entered  within 
twelve  days  after  service  of  a  copy  of  the  bill ;  but  they  cannot  be 
entered  afterwards  without  leave  of  the  Court,  to  be  obtained  on 
notice  to  the  plaintili";  and  terms  may  be  imposed  by  the  Court 
on  such  an  application.*^ 

If  the  defendant  does  not  enter  an  appearance  within  twelve 
days,  the  plaintiff  may  proceed  in  the  cause  as  if  the  person  served 
were  not  a  party ;  and  the  defendant  will  be  bound  by  all  the  pro- 
ceedings, in  the  same  manner  as  if  he  had  appeared  and  answered ; '' 
and  if  he  appears,  after  the  expiration  of  the  twelve  days,  he  will 
be  bound  by  all  proceedings  prior  to  such  appearance.*  An  appli- 
cation for  leave  to  enter  an  appearance,  without  being  bound  by 
prior  proceedings,  has  been  refused.^ 


Section  II.  —  Proceedings  by  Service  of  Notice  of  the  Decree. 


Serving 
parties  with 
notice  of 
the  decree: 
statutory 
provision. 


The  practice  of  serving,  with  notice  of  the  decree,  persons  who 
are  not  named  as  parties  on  the  record,  was  introduced  by  the  42d 
section  of  the  Chancery  Amendment  Act  of  1852.^°     Under  the 


1  Reg.  Kegul.  15  March,  1800,  r.  24. 

2  See  poit.  Chap.  XIII.,  Api)e,aranct. 
8  Ord.  X.  14. 

4  Ord.  X.  15. 

6  Wilton  V.  Kumball,  14  Sim.  56;  8  Jur. 
236. 

6  Ord.  X.  16;  Rigby  v.  Straiigways,  10 
Jur.  998,  V.  C.  E.    For  form  of  order  in 


such  case,  see  Seton,  1249,  No.  5;  nnd  for 
form  of  notice  of  motion,  see  Vol.  III. 

■?  Ord.  X.  13;  Poweil  v.  Cockerell,  4 
Hare,  557,  565. 

8  Ord.  X.  16. 

«  Borehiim  v.  Bignall,  4  Hare,  633. 

10  15  &  16  Vic.  c.  86. 


SERVICE    OF    NOTICE    OF    THE    DECEEE. 


433 


provisions  of  that  section :  (1.)  Any  residuary  legatee  or  next  of 
kin  may,  without  serving  the  remaining  residuarj'  legatees  or  next 
of  kin,  have  a  decree  for  the  administration  of  the  personal  estate 
of  a  deceased  person.-^  (2.)  Any  legatee  interested  in  a  legacy 
charged  upon  real  estate,  and  any  person  interested  in  the  pro- 
ceeds of  real  estate  directed  to  be  sold,  may,  without  serving  any 
other  legatee  or  person  interested  in  the  proceeds  of  the  estate, 
have  a  decree  for  the  administration  of  the  estate  of  a  deceased 
person.^  (3.)  Any  residuary  devisee  or  heir  may,  without  serving 
any  co-residuary  devisee  or  co-heir,  have  the  like  decree.''  (4.)  Any 
one  of  several  cestui  que  trusts  under  any  deed  or  instrument  may, 
without  serving  any  other  of  sach  cestui  que  trusts,  have  a  decree 
for  the  execution  of  the  trusts  of  the  deed  or  instrument.*  (5.) 
In  all  cases  of  suits  for  the  protection  of  projjerty  pending  litiga- 
tion, and  in  all  cases  in  the  nature  of  waste,  one  person  may  sue 
on  behalf  of  himself  and  of  all  persons  having  the  same  interest.^ 
(6.)  Any  executor,  administrator,  or  trustee  may  obtain  a  decree 
against  any  one  legatee,  next  of  kin,  or  cestui  que  trust  for  the  ad- 
ministration of  the  estate,  or  the  execution  of  the  trusts.*^  In  all 
the  above  cases,  the  persons  who,  according  to  the  former  practice 
of  the  Court,  were  necessary  parties,  may  be  served  with  notice  of 
the  decree ;  and  after  such  notice  shall  be  bound  by  the  proceed- 
ings, in  the  same  manner  as  if  they  had  been  originally  made  par- 
ties to  the  suit.'' 

The  notice  of  the  decree  must  be  served  personally,  unless 
otherwise  directed;  and  where  a  husband  and  wife  have  to  be 
served,  the  notice  must  be  served  on  each,  personally,  notwith- 
standing that  the  suit  does  not  relate  to  the  wife's  separate 
estate,  and  that  they  are  residing  together;  but  the  Court  or 
Judge  will,  on  a  proper  case  being  made,  dispense  with  personal 
service.* 

UnHkc  tlie  course  of  proceeding  by  service  of  a  copy  of  the  bill 
under  the  General  Order,  reterred  to  in  the  itreceding  section,  the 
process  by  service  of  notice  of   the  decree    applies   to  infants, 


Ch.  VTI.  §  2. 


>  15  &  16  Vic.  c.  80,  §  42,  r.  1 ;  ante,  pp. 
217,  2.34,  2.'J7,  238.  Where  a  residuary  lega- 
tee, who  liad  been  servefl  with  notice  ol  tlie 
decree,  settled  lier  interest,  tlie  notice  was 
directed  to  be  re-herved  on  the  trustee. 
White  V.  Steward,  1  VV.  N.  h'i,  M.  li. 

"  Uule  2;  antt,  pp.  218,  225. 

8  Hule  3;  iinlf,  [>.  218. 

*  Iiiile  4;  (in/f,  [>.  22<j. 

*  Kule  5;  rtn/r,  p.  244. 

"  Hule  "j ;  ante,  p.  220.  In  ail  the  Rbove 
cn»c«,  the  ( 'ourt,  if  it  shall  see  lit,  nnty 
require  any  other  person  to  be  nuide  a 
pHrty  to  the  suit,  and  niiiy  ^ive  tiie  cc^nduct 
of  tne  suit  to  sucli  persrjii  us  it  iii;iy  deem 
proper,  and  may  make  such  order  in  any 
YOU  I.  28 


particular  case  as  it  may  deem  just  for 
placing  the  del'endant  on  the  record  on  the 
same  touting  in  regard  to  costs  as  other 
parties  having  a  coiiiiiion  interest  with  him 
in  the  matters  in  (juestioii.  Hule  7.  By 
Kule  y,  trustees  represent  benehciaries  ia 
certain  cases;  see  itiUe,  pp.  212,  222,  228, 
250,  257. 

~'  Kule  8;  antt,  pp.  lUO,  191,  217,  218, 
225.  it  is  ini|)i'oper  to  serve,  under  these 
provisions,  notice  of  the  decree  on  any 
other  persons  than  tliose  8|)ecified  in  15  & 
16  Vic.  c.  80,  §  42;  Colyer  i;.  (;olyer,  0  .)ur. 
N.  .S.  2i)4,  V.  ('.  K.;  'and  see  Knight  v. 
I'ocock,  24  Beav.  430;  4  Jur.  N.  .S.  1U7. 

«  liiaithwaitc's  I'r.  520,  521. 


Notice  to  be 
served  per- 
sonally ; 
but  personal 
service  may 
be  dispensed 
with. 


In  the  case  of 
intaiits,  per- 
sons of  un- 
sound mind, 
and  jiartics 


434 


FORMAL  DEFENDANTS. — NOTICE  OF  THE  DECREE. 


Cn.  Vir.  §  2. 
«— — ^, 

out  of  the 
jurisdii-tion, 
spoi'iiil  orIit 
necessary. 


Suininons  for 
dirix'tions  of 
Judge  as  to 
maimer  of 
service : 

on  infants, 


on  persons 
of  unsound 
mind,  not  so 
found. 


Service  must 
be  strictly 
according  to 
directions  of 
judge. 


Order  to 
serve  out  of 
the  jurisdic- 
tion. 

Judge  may 
di-i^pense  with 
service,  or  di- 
rect suDstitu- 
ted  or  special 
service. 


persons  of  unsound  mind  not  so  found  by  inquisition,  and  persons 
out  of  the  jurisdiction  ;  ^  but  in  the  ease  of  infants,  or  persons 
of  unsound  mind  not  so  found  by  inquisition,  tlie  notice  is  to 
be  served  upon  such  person,  and  in  such  manner,  as  the  Judge 
sliall  direct ;  '^  and  an  order  is  necessary  for  leave  to  serve  a  person 
out  of  tbe  jurisdietion.* 

The  applii-ation  for  the  direction  of  the  .Judge,  as  to  the  manner 
of  serving  notice  of  the  decree  on  infants,  and  persons  of  unsound 
mind  not  so  found  by  inquisition,  shoukl  be  made  by  summons 
ex  parte ;  *  and  must  be  supported  by  affidavit  showing,  as  far 
as  the  aj)plicant  is  able:  (1.)  With  respect  to  infants:  The  ages 
of  the  infants ;  whether  they  have  any  parents  or  testamentary 
guardians,  or  guardians  appointed  by  the  Court  of  Chancery; 
where,  and  under  whose  care,  the  infants  are  residing ;  at  whose 
expense  they  are  maintained,  and,  in  case  they  have  no  flither  or 
guardian,  who  are  their  nearest  relations;  and  that  the  parents, 
guardians,  relations,  or  persons  on  whom  it  is  proposed  to  serve 
the  notice,  have  no  interest  in  the  matters  in  question,  or,  if 
they  have,  the  nature  of  such  interest,  and  that  it  is  not  adverse 
to  the  interest  of  the  infants.  (2.)  With  respect  to  persons 
of  unsound  mind  not  found  so  by  inquisition :  Where,  and  under 
whose  care,  such  persons  are  residing,  and  at  whose  expense  they 
are  maintained ;  who  are  their  nearest  relations ;  and  that  such 
relations,  or  persons,  upon  whom  it  is  proposed  to  serve  the  notice, 
have  no  interest  in  the  matters  in  question,  or,  if  they  have,  the 
nature  of  such  interest,  and  that  it  is  not  adverse  to  the  interest 
of  the  persons  of  unsound  mind.^ 

The  order  on  the  summons  is  drawn  up  by  the  Registrar ;  and 
the  service  must  be  effected  in  strict  accordance  with  the  direc- 
tions contained  in  the  order;  and  copy  of  such  order  must  also 
be  served,  at  the  time  of  serving  the  notice  of  the  decree.® 

An  order  to  serve  notice  of  a  decree  on  a  person  out  of  the 
jurisdiction  may  be  obtained  on  an  ex  parte  summons,  supported 
by  affidavit  showing  the  nature  of  his  interest  in  the  suit,  and  the 
place  or  country  where  he  is  supposed  to  be  residing.'^ 

The  Judge  in  Chambers  will  not,  in  general,  in  the  first 
instance,  direct  upon  whom  the  notice  of  the  decree  is  to  be 
served ;  ^  but  he  will  entertain  an  application  to  dispense  with  the 
service  upon  any  person  as  to  Avhom  it  appears  that,  from  absence, 
or  other  sufficient  cause,  it  ought  to  be  dispensed  with,  or  cannot 


1  Chalmers  r.  Laurie,  10  Hare  Ap.  27; 
1  W.  K.  265;  Clarke  ».  Clarke,  9  Hare, 
Ap.  13,  marginal  note;  1  W.  K.  48; 
Strong  v.  Moi.re,  22  L.  J.  Ch.  917,  M.  R. 

2  Ord.  VH.  5. 

8  See  Strong  v.  Moore,  uhi  sup. 

*  For  forms  of  summons,  see  Vol.  HI. 


6  Regul.  8  Aug.,  1857,  r.  7;  for  forms  of 
affidavit,  see  Vol.  HI. 

6  Braitliwaite's  Pr.  523;  see  Seton,  1212. 

'  For  forms  of  summons,  and  affidavit 
in  support,  see  Vol.  III. 

8  See,  however,  De  Balinhard  v.  Bul- 
lock, 9  Hare  Ap.  13. 


SERVICE    OF   NOTICE    OF    THE    DECREE. 


435 


be  made ;  ^  or  to  substitute  service,  or  give  notice  by  advertise-  Oh.  VII.  §  2. 
ment  or  otherwise,  in  lieu  of  such  service.^  The  party  having  ^— — y — -^ 
the  prosecution  of  the  decree  should,  therefore,  in  the  first  place, 
consider  what  persons  not  named  on  the  record  ought,  under  the 
provisions  of  the  Chancery  Amendment  Act  of  1852,^  to  be 
served  with  notice  of  the  decree.  On  this  subject,  he  is  refen-ed 
to  the  former  part  of  this  treatise.*  He  should  then  consider 
whether  the  circumstances  of  the  case,  and  the  nature  of  their 
interest  in  the  suit,  are  such  as  will  justify  an  application  to  the 
Judge  to  dispense  wdth  service  on  any  of  them ;  or  to  sanction 
some  special  mode  of  service  :  as,  on  one  or  more  for  all  the 
members  of  a  class,  or  by  public  advertisement,  or  through  the 
post,  or  on  a  substitute.  An  application  of  this  description  to 
the  Judge  is  usually  required  to  be  made  by  an  ex  parte  sum- 
mons,^ supported  by  evidence  of  the  facts  on  which  it  is  founded ; 
and  where  a  special  mode  of  service  is  directed,  an  order  is 
ordinarily  drawTi  up  by  the  Registrar,  which  will  contain  a  direc- 
tion that  a  copy  of  it  shall  be  served  with  the  notice.  Where 
sendee  is  dispensed  with,  an  order  to  that  effect  is  not  usually 
drawn  up ;  ®  but  the  fact  is  stated  in  the  Chief  Clerk's  certificate 
of  the  result  of  the  proceedings. 

If  service  through  the  post  is  sanctioned,  and  no  special  Service  by 
directions  are  given  as  to  the  mode  of  authenticating  such  service,  post:  how  au- 
it  seems  advisable  to  enclose  the  notice  in  a  letter  addressed  to  the 
person  to  be  served,''  and  to  request  him  to  acknowledge,  through 
the  post,  the  receipt  of  the  notice ;  and  it  would  be  well  to  enclose 
a  form  of  acknowledgment  for  signature.^  The  service,  in  this 
case,  wdll  be  deemed  to  have  been  effected  at  the  date  of  the  letter 
of  acknowledgment.® 

The  Judge  will,  usually,  proceed  to  give  his  directions  as  to  the  where  decree 
manner  in  which  the  decree  is  to  be  prosecuted,  notwithstanding  may  be  prose- 

CUtGQ.  DClOrG 

evidence  is  not  adduced  to  satisfy  him  that  all  proj)er  ])arties  have  service  of 
been  served  with  notice.^"  Indeed,  it  not  unfrequeiitly  happens, 
that  the  persons  to  be  served  cannot  be  known  till  some  of  the 
inquiries  under  the  decree  have  been  prosecuted  at  Chambers:  as 
where  the  members  constituting  a  class  of  residuary  legatees,  or 
next  of  kin,  have  to  be  ascertained;  and  by  directions  being  ob- 
tained for  insertion  of  advertisements  for  creditors  and  other 
claimants  to  come  in,  and  for  the  accounts  to  be  brought  in,  and 
the  inquiries  answered,  before  these   class  inquiries  are  entered 


notice  of  it. 


1  Ibul;  ()T<\.  XXXV.  18. 

2  Orel.  XXXV.  18;  for  form  of  summons 
in  Ruch  ra^e,  .^ee  Vol.  III. 

3  16  &  IG  Vic.  c.  HO,  §  42,  rr.  1-8. 

*  See  nnt^,  pp.  21ii-'JI8,  225,  220,  244. 
^  For  a  form,  see  Vol.  III. 


0  Hut   i"«  sometimes;  see  Gavin  v.  Os- 
borne, cited  Seton,  1213. 

'  l''()r  tbrm  ol  letter,  see  Vol.  III. 

8  For  formsofacknowledf^muiit  and  affi- 
davit I'f  service,  see  Vol.  III. 

'J  IJraitliwait«'s  I'r.  022. 
10  See  Ord.  XXXV.  16. 


436 


FORMAL  DEFENDANTS. NOTICE  OF  THE  DECREE. 


Cu.  VTI.  §  2. 


Moinoran- 
(Imn  to  be 
iiultirsod  on 
iiotioe. 


Sen'ice  of 
copy  equiva- 
leut  to  ser- 
vice of  notice. 

Memoran- 
diun  of 
service  to  be 
entered  at 
Record  and 
Writ  Clerks' 
Otiice. 

Where 
sen'ice 
irregular. 


Certificate  of 
entry.  Copy 
for  Chambers. 


Parties 
served  may 
apply  to  add 


upon,  miu'li  time  in  jirosocutiiig  tlio  dccvee  may  ho  saved,  without 
pivjudii'inL:;  persons  wlio  may  he  snbseipiently  served  with  notice 
of  the  decree,  and  obtain  orders  to  attend  tlie  proceedings. 

Tl\e  notice  ol"  the  decree  must  be  entitled  in  the  cause ;  and  a 
memorandum  must  be  indorsed  thereon,  giving  the  person  served 
notice  that  from  tlie  time  of  service  lie  will  be  bound  by  the 
proceedings  in  the  cause,  in  the  same  manner  as  if  he  had  been 
originally  made  a  party ;  and  that  he  may,  by  an  order  of  course, 
have  Uberty  to  attend  the  proceedings,  and  may,  within  one  mouth 
after  service,  apply  to  the  Court  to  add  to  the  decree.^ 

Service  of  a  copy  of  the  decree  is  regarded  as  service  of  notice 
of  the  decree ;  but  the  copy  must  be  indorsed  in  like  manner  as  a 
notice.^ 

When  any  party  has  been  served  with  notice  of  a  decree,  a 
memorandum  of  service  must,  upon  proof  by  affidavit  that  the 
service  has  been  duly  effected,  be  entered  in  the  office  of  the 
Clerks  of  Records  and  Writs.^ 

When  it  appears  by  the  affidavit  that  the  service  has  not  been 
effected  in  accordance  with  the  ordinary  practice  in  these  cases, 
and  the  Record  and  Writ  Clerk  refuses,  in  consequence,  to  enter 
a  memorandum  of  service  thereon,  the  plaintiff  may  instruct 
counsel  to  apply  to  the  Court,  ex  parte,  for  its  sanction  to  the 
memorandum  being  entered ;  or,  where  directions  for  the  service 
have  been  given  at  Chambers,  or  the  service  is  required  for  the 
purpose  of  proceedings  pending  there,  the  application  should  be 
made  at  Chambers,  ex  2y(^fte,  by  the  solicitor,  without  summons. 
The  sanction,  if  given,  is  evidenced  by  an  indorsement  on  the 
affidavit  to  the  following  effect :  "  Let  the  memorandum  of  service 
be  entered  on  this  affidavit ; "  and  such  indorsement  is  signed  by 
the  Registrar  in  Court,  or  by  the  Chief  Clerk  at  Chambers,  as  the 
case  may  be,  and  will  be  acted  on  by  the  Record  and  Writ  Clerk, 
without  a  formal  order  being  drawn  up.* 

The  Record  and  Writ  Clerk  will  give  a  certificate  of  the  entry 
of  the  memorandum  of  service ;  ^  and  a  copy  of  such  certificate, 
certified  by  the  solicitor,  is  to  be  left  at  the  Chambers  of  the  Judge 
to  whose  Court  the  cause  is  attached.® 

The  party  served  may  apply,  within  one  month  after  service,  for 
leave  to  add  to  the  decree.''     Such  application  is  usually  made 


1  Ord.  XXIII.  20;  for  forms  of  notice 
and  indorsement,  see  Vol.  III. 

'-  Braitlnvaite's  Pr.  519. 

8  Ord.  XXIII.  19.  An  office  copy  of  the 
affidavit,  together  with  \\\<i precipe  to  en- 
ter tlie  memoramlum,  and  smy  exhibits  or 
orders  connected  with  the  affiuavit  ot  ser- 
vice, are  required  to  be  left  at  the  office 
for  examination,  but  will  be  returned  to 
the  solicitor.  For  forms  of  prmcipe  and 
affidavits,  see  Vol.  HI. 


i  See  Braithwaite's  I'r.  521;  and  Be 
Newbold,  there  cited. 

6  The  fee  is  is.  Regul.  to  Order,  Sched. 
4.     For  form  of  certificatf,  see  Vol.  III. 

6  8th  Regulation,  8  Aug.,  1867.  For 
form  of  certificHte,  see  Vol.  III. 

■7  15  &  16  Vic.  c.  8ti,  §  42,  r.  8;  Ord. 
XXXIII.  18;  the  month  is  lunar,  Ord. 
XXXVII.  10.  Where  the  party  to  be 
served  is  out  of  the  jurisdiction,  an  en- 
larged time  may  be  given;  see  Strong  v. 


SERVICE    OF    NOTICE    OF    THE    DECREE. 


437 


by  summons  :  ^  which  must  be  served  on  the  solicitors  of  all  parties 
to  the  cause,  and  of  all  persons  who  have  obtained  orders  to  attend. 
The  party  served  may  also  obtain  an  order  of  course,'^  upon 
petition  at  the  Rolls,  or  on  motion,^  for  liberty  to  attend  all  pro- 
ceedings under  the  decree.* 

Infants,  and  persons  of  unsound  mind  not  so  found,  attend  the 
proceedings  by  their  guardians  ad  liteni^  who  are  appointed  in  the 
same  manner  as  guaraians  ad  liteTn  tO  answer  and  defend  suits ;  ^ 
and  the  Judge  may,  at  any  time  dunng  proceedings  in  Chambers, 
under  any  decree  or  order,  require  a  guardian  ad  litem  to  be 
appointed  for  any  infant,  or  person  of  unsound  mind  not  so  found 
by  inquisition,  who  has  been  served  w^th  notice  of  such  decree  or 
order.® 

Where  a  person  served  Avith  notice  of  the  decree  obtains  an 
order  for  leave  to  attend  the  proceedings,  no  other  evidence  of 
service  of  the  notice  on  him  will  be  required ;  the  Judge  must, 
however,  be  satisfied  of  his  identity  with  the  person  on  Avhom  the 
notice  ought  to  have  been  served. 

A  copy  of  every  order  for  leave  to  attend  proceedings  should 
be  served  on  the  solicitoi's  of  all  parties  in  the  cause,  and  of  all 
persons  who  have  leave  to  attend  the  proceedings ;  and  a  copy, 
certified  by  the  solicitor  to  be  a  true  copy,''  should  be  left  at  the 
Judge's  Chambei-s.* 

No  appearance  is  to  be  entered  at  the  Record  and  Writ  Clerks' 
office  by  a  person  served  with  notice  of  the  decree ;  nor  is  it  neces- 
sary that  any  order  he  may  obtain  to  attend  the  proceedings 
should  be  ]»roduced  or  entered  there.^  The  practitioner  will, 
therefore,  be  unable  to  ascertain  from  the  books  of  that  office  what 
parties  have,  by  obtaining  orders  to  attend  the  proceedings,  enti- 
tled tliemselves  to  be  treated  as  quasi  parties  to  the  suit.  He  must 
seek  this  information  by  search  in  the  books  kept  at  the  entering 
seat  in  the  Registrar's  office,  at  the  Report  office,  and  in  the  Sec- 
retary's office  at  the  Rolls,  for  tlie  entry  of  orders,  and  at  the 
Chambers  of  the  Judge ;  or  by  inquiring  of  the  parties  in  the 
cause,  what  orders  for  leave  to  attend  have  been  served  on 
them. 

If  the  party  served  attends,  without  obtaining  an  order  giving 
him  k^ave,  lie  will  not  be  allowed  his  costs  of  such  attendance, 


Moore,  22  L.  J.  Cli.  t)17,  M.  R.  SienMe., 
the  Attoniey-<!eiieral  may  iippiv  to  add 
to  tlie  decree  after  the  montti.  .fuhiistone 
p.  Hamilton,  11  .lur.  N.  S.  777,  V.  C.  S. 

1  For  fnrm  of  suminons,  see  Vol.  III. 

2  15  &   IG  Vic.  c.  HG,  §  42,  r.  8;  Scton, 
188,  1213. 

*  Kor  formi  of  petition  and  motion  piiper, 
»ce  Vol.  III. 

*  The  order  can  only  be  obtained  by 


those  persons  who,  under  the  former  priic- 
tice,  were  necessary  piirties  to  the  suit. 
Colver  «  Colyer,  9  Jur.  N.  S  294,  V.  C.  K. 

6'f)rd.  VII.  G;  see  rt»i^c,  pp.  160,176; 
Hnd  for  forms  of  motion  paper  and  petition, 
sec  Vol.  III. 

«  Ord.  VII.  7. 

'<    For  form  of  certificate,  see  Vol.  III. 

8  lienul.  8  Aug.,  1857,  r.  8. 

1*  Braithwaite'8  Pr.  520. 


Cn.  VII.  §  2. 


to  decree,  or 
for  leave  to 
attend  pro- 
ceedings. 

Guardians  ad 
litem  \\\a.-f  be 
appointed  of 
infants,  and 
persons  of  im- 
sound  mind. 


Order  to 
attend,  suffi- 
cient evi- 
dence of 
ser\^ice  of 
notice. 


Ser\'iee  of 
order  for 
leave  to 
attend. 

Copy  for 
Chamberg_ 

No  appear- 
ance neces- 
sary by  party 
served  with 
notice. 


Costs  of 
parties  so 
attending. 


438 


FORMAL  DEFENDANTS. — NOTICE  OF  THE  DECREE. 


Ch.  tit.  § 


Agprrioved 
party  may 
petition  for  a 
rehearing,  or 
may  apply 
for  leave  to 
file  bill  of 
review,  if 
question 
cannot  be 
raised  iu  the 
suit. 


Avitlumt  a  special  order  for  that  purpose;^  and  it  is  to  be  ob- 
served, that  the  order  giving  a  party  served  with  notice  of  the 
decree  liberty  to  attend,  does  not  specily  at  Avhose  costs  he  is  to 
attend,  but  his  costs  are  dealt  with  at  the  hearing  of  the  cause  on 
further  consideration ;  and  it  is  conceived  that,  where  the  Court  is 
of  o])inion  that  the  interest  of  the  party  in  question  is  sufficiently 
protected  by  the  jiarties  named  on  the  record,  or  who  have  already 
obtained  leave  to  attend  the  proceedings,  it  will  refuse  to  allow 
liim  any  costs.^ 

A  person  who  has  been  served  with  notice  of  the  decree,  and 
Avho  has  obtained  leave  to  attend  the  proceedings,  may,  if  aggrieved 
by  any  order  in  the  suit,  present  a  petition  of  rehearing  in  the 
usual  manner,*  but  if  he  is  unable  to  raise  the  question  on  the 
pleadings,  the  proper  course  for  him  to  pursue  is  to  move,  on 
notice,  for  leave  to  file  a  bill :  which  would  be  in  the  nature  of  a 
bill  of  review.* 

where  persons  intervening,  -who  were  not 
made  parties  because  they  belonged  to  a 
very  numerous  class,  were  allowed  the 
same  costs  as  if  they  had  been  made  par- 
ties to  the  suit. 

3  Ellison  V.  Thomas,  1  De  G.,  J.  &  S. 
13;  see  post,  Chap.  XXXII.  §  2,  Rehear- 
in  gs  and  Appeals  in  the  Court  of  Chancery. 

4  Kidd  V.  Cheyne,  18  Jur.  348,  V.  C. 
W.;  seei905«,  Chap.  XXXIV.  §  5,  Bills  of 
Review. 


1  Ord.  XL.  28. 

2  See  Ord.  XXXV.  20;  Seton,  187; 
Stevenson  v.  Abington,  11  W.  R.  936,  M. 
R. ;  Re  Taylor,  Daubney  v.  Leake,  L.  R. 
1  Eq.  495,  M.  R. ;  Hubbard  v.  Latham,  1 
W.  N.  105 ;  14  W.  R.  553,  V.  C  K. ;  Wragg 
V.  Morley,  14  \V.  R.  949,  V.  C.  W.,  as  to 
classes  of  parties  appearing  by  different 
solicitors ;  and  see  Bennett  v.  Wood,  7  Sim. 
522;  Hutchinson  v.  Freeman,  4  M.  &  C. 
490;  3  Jur.  694;  Shuttleworth  v.  Howarth, 
4  M.  &  C.   492;  5  Jur.  2;   C  &  P.  228, 


CHAPTER  VIII. 

PROCESS  TO  COMPEL,  AND  PROCEEDINGS  IN  DEFAULT  OF, 
APPEARANCE. 

Section  I.  —  Service  of  the  Copy  of  the  BiU. 


FoRiiERLT,  when  the  bill  was  filed,  the  ordinary  course  of  pro- 
ceeding against  the  defendants  was  to  sue  out  and  serve  a  writ  of 
mibpoena}     This  has,  however,  as  we  have  seen,  been  abolished  j^ 


1  The  former  English  practice  of  com- 
pelling the  appeariince  of  the  defendant  by 
issuins  and  serving  a  writ  of  su/jpwna  is 
still  adhered  to  in  the  Circuit  Courts  of  the 
United  States,  and  in  Massachusetts  and 
some  other  State  Courts.  Under  this  prac- 
tice the  first  step  usually  is,  to  sue  out  and 
serve  a  subpcena,  which  is  a  writ  issuing 
out  of  the  Court,  and  directed  to  the  party 
himself,  commanding  him  t>>  appear  (ac- 
cording to  the  old  form  of  the  writ),  under 
a  certain  penalty  therein  expressed  {sub- 
paenn  centum  lihrarum),  and  answer  to  the 
matters  alleged  against  him. 

It  is  to  be  observed,  that  the  writ  of 
tubpmn/i   differs   from   the   other  writs   of 

Erocess,  in  being  directed  to  tlie  party 
imself,  whereas  the  subsequent  writs  or 
orders  are  directed,  not  to  the  party  him- 
self, but  certain  ministerial  officers,  com- 
manding them  to  take  certain  proceedings 
against  the  defendant,  calculated  to  enforce 
hh  olte  iience. 

It  would  seem,  according  to  the  Ameri- 
can practice,  that  the  billought  in  all  cases 
to  be  filed  before  or  at  tlie  lime  of  issuing 
the   iuii/ttena.     1  Iloff.  i'U.  I'r.  101,  note; 

1  Barb.  Ch.  i'r.  31»9;  rtrt<e,  399,  notes;  Kule 

2  of  (Jhaticery  Practice  in  Massachusetts; 
Kule  11  of  the  Equity  Rules  of  the  United 
States  Courts.  Howe  v.  Willard,  40  Vt. 
654. 

My  the  7th  I>]uity  Rule  f(;r  the  U.  States 
Court",  It  is  jiroviled  that  the  process  of 
iit/jp<enn  shall  t'on^titute  the  proper  mcstie 
process  ill  all  suits  in  Iviuitv,  in  the  first 
mitantre,  to  require  the  deli'iidant  to  a[)|)ear 
and  answer  the  exigency  of  the  bill; 
and  by  Rule  12,  whenever  a  bill  is  filed, 
the  clerk  shall  issue  the  |)ri)cess  of  sulj/>tr,na 
thereon,  as  of  course,  upon  the  application 
of  the  plaintiff,  which  shall  be  returnable 
into  the  Clerk's  ofTu-c.  the  next  rule  day,  or 
the  next  rule  day  but  one,  at  the  election 


of  the  plaintiff,  occurring  after  twenty  days 
from  the  time  of  the  issuing  thereof. 
Where  there  is  more  than  one  defendant, 
a  writ  of  subpcena  may,  at  the  election  of 
the  plaintiff',  be  sued  out  separately  for 
each  defendant,  except  in  the  case  of  hus- 
band and  wife  defendants,  or  a  joint  sub- 
jxena  against  all  the  defendants. 

By  Chancery  Rule  17,  in  New  Jersey, 
the  names  of  all  the  defendants  in  the 
same  cause  shall  be  inserted  in  one  sub- 
pvana,  unless  the  defendants  reside  in 
different  counties,  in  which  case  the  names 
of  all  those  who  reside  in  the  same  county 
shall  be  inserted  in  the  same  subpcena;  by 
Rule  18,  copies  of  tickets  served  with  the 
subpcena  upon  the  defendants  shall  be  an- 
nexed to  and  returned  with  the  subpcena. 

In  Massachusetts,  the  subpcena  on  bills 
in  Equity  shall  be  issued  from  the  Clerk's 
office  either  in  term  time  or  in  vacation 
upon  a  bill  there  filed,  shall  bear  teste  of 
the  first  Justice  of  the  Court,  who  is  not  a 
party  to  the  suit,  and  shall  be  under  the 
seal  of  the  Court,  and  signed  by  the  Clerk. 
Genl.  Sts.  c.  132,  §  18.  The  process  shall 
be  made  returnable  at  the  next  succeeding 
term,  or  at  any  intermediate  rule  day,  at 
the  election  of  the  party  who  takes  it  out. 
Rule  4,  (if  the  Rules  of  Chancery  Practice. 

Ill  Ma'\ne,  "  &  subpo'iia  in  the  form  pre- 
scribed shall  issue  on  the  filing  of  the  bill 
with  the  Clerk;  and  it  may  be  made  re- 
turnable on  a  day  certain  in  or  out  of  term 
time."  Rule  2,  of  the  Rules  of  Chancery 
Practice. 

In  Connecticut,  to  a  bill  in  Chancery 
against  defendants  residing  in  that  State, 
a  citation,  signed  by  a  magistrate,  must 
be  annexed,  which  must  be  served  upon 
the  defendants  at  least  twelve  days  before 

2  Kxcept  as  to  bills  filed  on  or  before  1 
Nov.,  1852;  Ord.  XXVIII.  10. 


Defendant  to 
be  served 
with  printed 
copy  of  bill, 
properly 
stamped  and 
indorsed. 


I  \() 


COMrELLlNG    APrEARANCE.  —  rROCEEDINGS    IN   DEFAULT. 


ill.  viii.§i.    :nul,  instoiid,  tlio  (lotVndants  aro  to  be  served  with  a  printed  copy 
o\'  the  bilV  ]H-operly  stamped  by  one  of  the  Clerks  of  Records 


the  sittinj;  of  the  Court  to  whieh  the  hill  is 
piet'oneil.  Central  IMiuuif.  Co.  v.  Ilarts- 
lioriie.  3  Conn.  199. 

In  Massiuhiisetts,  by  Chancerj'  Unle  1, 
when  the  bill  is  not  inserted  in  an  original 
■writ,  as  provided  by  statute,  tlic  original 
process  to  require  the  appearance  of  defend- 
ants shall  be  a  subpifiia,  in  form  following  :— 
"  Commoiurenlth  of  Massachusetts." 

" ,  ss.    To  A.  B.,  of        (addition.) 

Ghkktinc: 
"  [l.  S.]     We  command  you  that  you  ap- 
pear before  our  Supreme  Judicial  ( 'ourt, 
next  to  be  holden  at  ,  within 

and  for  the  County  of  ,  on  the 

day  of  next,  then  and  there 

to  answer  to  abillof  complaint  exhibit- 
ed against  you  in  our  said  Court,  by  C. 
D.,  of  (addition),   and  to  do 

and  receive  what  our  said  (!ourt  shall 
then  and  there  consider  in  tliat  behalf. 
Hereof  fail  not,  under  the  pains  and 
penalties  of  the  law  in  that  behalf  pro- 
vided. 

"  AVitness  G.  T.  B.,  Esquire,  the 
day  of  ,  in  the  year  ot  our 

Lord 

"  A.  H.,  Clerk:' 

When  the  process  is  made  returnable 
at  a  rule  day,  the  subpoena  shall  be  altered 
accordingly.  Rule  4,  of  the  Rules  of  Prac- 
tice in  Chancery.  The  writ  of  suhpmna 
shall  be  served  by  the  same  officers  and  in 
the  same  manner,  and  the  same  number  of 
days,  at  least,  before  the  day  on  which  it 
is  "returnable,  as  other  original  writs  of 
summons  are  by  law  to  be  served.  Genl. 
Sts.  c.  12.3,  §  31. 

In  New  Hampshire,  "  bills  in  Equity 
may  be  filed  in  term,  or  in  the  Clerk's 
office  in  vacation.  If  filed  in  term,  a 
siibpoend  or  order  of  notice  may  issue,  re- 
turnable at  the  same  term,  if  the  Court 
sliall  so  order,  and  such  further  proceed- 
ings may  be  had  at  the  same  term  as  the 
Court  may  direct.  If  filed  in  vacation,  a 
svbpana  or  order  of  notice  may  be  issued 
by  the  Clerk  as  of  course,  returnable  at 
the  next  law  term."  Rule  11,  38  N.  H. 
607.  Every  such  subpoena  or  order  of 
notice  must  contain  an  order  on  the  de- 
fendants to  deliver  to  the  plaintiffs  solici- 
tor, within  two  months  after  the  service 
thereof,  his  plea,  answer,  or  demurrer, 
otherwise  the  bill  to  be  taken  as  confessed. 
Rule  1.5.  Rule  12  provides  that  "  suhpcenas 
shall  be  served  by  the  same  oflicers  and 
in  the  same  manner  as  oricrinal  writs  of 
summons  are  by  law  to  be  served,  and  the 
plaintiff  shall  al-^o  cause  an  attested  cipy 
of  the  bill  to  be  delivered  to  the  defendant, 
or  left  at  his  usual  place  of  abode,  at  the 
time  of  the  service  of  the  subpoena,  or  with- 
in fifteen  days  afterwards."  As  to  the 
service  of  an  order  of  notice,  Rule  13  pro- 
vides that  "  due  service  of  an  attested  copy 
»f  the  bill  and  order  of  notice,  shown  by 


affidavit  of  the  person  giving  or  leaving 
the  same,  or  bv  return  of  an  officer,  shall 
be  deemed  sufficient  notice  of  the  suit." 
In  this  State,  the  subpwna  is  directed  to  the 
defendant,  and  is  in  form  similar  to  that 
above  for  Massachusetts,  with  the  addition 
of  a  command  to  the  defendant  to  deliver 
to  the  plaintift's  solicitor,  his  answer  in 
writing  to  the  bill,  within  two  calendar 
months  after  the  service  thereof;  otherwise 
the  bill  to  be  tsiken  as  confessed.  See 
Form,  38  N.  H.  624.  The  order  of  notice 
above  provided  for  is  an  order,  signed  by 
the  Clerk,  directing  the  plaintiff  to  give 
notice  to  the  defendant  to  appear  at  the 
next  law  term  of  the  Court,  and  answer 
the  bill,  by  serving  on  him  an  attested 
copy  of  the  bill  and  of  the  order,  at  least 
fourteen  days  before  the  term.  This  order 
further  directs  the  defendant  to  deliver  to 
the  plaintift's  solicitor,  his  answer  in  writ- 
ing, as  in  the  case  of  the  subpmna  above 
referred  to.     See  Form,  38  N.  11.  614. 

In  Maine,  the  subpmna  is  directed  to  the 
sheriff's  of  the  counties  or  their  deputies, 
with  a  command  to  summon  the  defendant 
to  appear  according  to  the  directions  of 
the  subpmna,  to  answer  to  the  plaintiff  in  a 
bill  in  Equity,  and  to  enter  an  appearance 
thereto  by  himself  or  his  attorney.  The 
sheriffs  are  also  ordered  to  make  due  re- 
turn of  their  proceedings.  See  Form,  37 
Maine,  594,  595.  When  the  bill  is  not  in- 
.serted  in  a  writ  of  attachment,  a  subpoena 
in  the  form  prescribed  shall  issue  on  the 
filing  of  the  bill  with  the  Clerk,  and  be 
served  bv  copv,  accompanied  bv  a  cop}'  of 
the  bill.  ■  Rule  2,  37  Maine,  581. 

In  Massachusetts,  a  bill  or  petition  in 
an  Equity  suit,  may  be  inserted  in  an  orig- 
inal writ  of  summons,  or  of  summons  and 
attachment,  and  shall  be  returnable  at  the 
terms  of  the  Court  as  established  in  the 
several  counties,  or  on  the  rule  days  estab- 
lished bv  the  Court.  Genl.  Sts.  c.  113, 
§  3,  ante,  305,  note. 

In  Maine,  the  bill  may  be  inserted  in  a 
writ  of  attachment,  and  when  so  inserted, 
in  addition  to  the  service  required  by  law, 
a  copy  shall  be  left  with  each  defendant, 
or  at  his  last  and  usual  place  of  abode,  or 
he  will  not  be  required  to  file  his  answer 
within  sixty  days.  Rule  2,  37  Maine,  581 ; 
see  Stephenson  v.  Davis,  5<)  Maine,  73,  76. 

When  a  party  is  charged  in  a  bill  in  the 
capacity  in  which  he  is  liable,  as  executor, 
&c.,  it  Is  not  ground  of  demurrer,  that  the 

1  15  &  16  Vic.  c.  86,  §§  2-5.  In  Yeat- 
mnn  v.  Mousley,  2  De  G.,  M.  &  G.  220; 
16  .lur.  1004,  a  bill  was  ordered  to  be  filed, 
although  a  mistaken  transposition  of  the 
names  of  one  of  the  parties  had  been  cor- 
rected in  ink;  and  see  Barnes?).  Ridgwav, 
1  Sm.  &  G.  Ap.  18;  but  now,  no  bill  will 
be  filed,  as  a  printed  bill,  unless  all  altera- 
tions are  made  in  type.  Braithwaite's  Pr. 
25;  ante,  p.  396.  n."  ^e). 


SERVICE    OF    THE    COPT    OF    THE    BILL. 


441 


and  "Wnts  indicating-  the  date  of  the  fihng  of  the  bill,^  and  wdth 
an  indorsement  tliereon,-  directing  the  defendant  to  cause  an 
appearance  to  be  entered  for  him  within  eight  days ;  ^  to  which  is 
added  the  following  note :  "  If  you  fail  to  comply  with  the  above 
directions,  the  plaintiff  may  enter  an  appearance  for  you,  and  you 
will  be  liable  to  be  arrested  and  imprisoned,  and  to  have  a  decree 
made  against  you  in  your  absence."  * 

The  indorsement  need  not  be  printed ;  ^  and  may  be  partly 
printed  and  partly  written :  ^  and  such  variations  may  be  made 
therein  as  circumstances  may  require.''  Consequently,  when  the 
defendant  to  be  served  is  out  of  the  jurisdiction,  the  time  specially 
fixed  by  the  Court  for  him  to  appear  should  be  inserted  in  the 
indorsement,  instead  of  "  eight  days."  *  In  such  a  case,  the  time 
fixed  for  him  to  plead,  answer,  or  demur,  not  demumng  alone, 
should  also  be  inserted  in  the  indorsement,  if  the  plaintiff  intends 
to  serve  him  with  interrogatories."  ^ 

When  the  defendant  is  a  corporation  aggregate,  the  words  "  you 
will  be  liable  to  have  your  lands  and  tenements,  goods  and  chat- 
tels, distrained  upon,  and  other  proceedings  taken  against  you," 
are  substituted  for  the  Avords,  "  you  will  be  ,Uable  to  be  arrested 
and  imprisoned."  ^° 

Where  the  Attorney-General  is  served  with  a  bill,  there  should 
be  no  indorsement  upon  it." 


Cn.  vin.  §  1. 


Indorsement 
may  be 
varied  ac- 
cording to 
circum- 
stances ; 

as  in  case  of 
ser\-ice  out  of 
jurisdiction, 


corporation 
aggregate. 


Service  on 
Attorney- 
General. 


tuhpftna  was  issued  to  him  fjenerally,  not 
stating  the  capacity  in  which  he  is  sued. 
Walton  r.  nprb«'rt,'3  (;reen  Ch.  73. 

On  the  lihng  of  a  bill  in  Er|uity  in  the 
Supreme  Court  of  tlie  United  States  by 
the  State  of  Florida  against  the  State  of 
Georgia,  the  Court  directed  that  pro- 
cess of  suljp(jenn  issue  against  "  The  State 
of  Georgia.''  State  of  Florida  v.  Georgia, 
11  Flow.  U.  S.  20.3. 

The  statute  prohibiting  the  service  of 
civil  process  in  the  city  of  New  York  on 
tlie  days  of  cliarter  elections,  does  not 
afijdy  to  a  mihfitf.nn  and  injunction  issued 
out  of  the  Court  of  (/hancery.  Wheeler 
I'.  Hartlitt,  1  Kdw.  Ch.  323. 

Till-  issuing  of  a  guh//(£nti,  in  New  .Jer- 
»ey,  except  in  ca'ea  to  stay  wa'^tf,  before 
the  filitie  of  the  bill,  is  irregular,  and  if 
promptly  brought  to  the  notice  of  the 
Court,  the  ntlt/MKiid,  on  motion  for  that 
pur|)()se,  will  be  set  aside  as  illegally 
issup'l ;  but  the  irrcsruliirity  i-  purely  tpcli- 
liiral,  anil  is  waivi'il  bv  an  appearance. 
Crowcll  V.  Uotsford,  1  C.  K.  Green  (N.  .1.), 
45K. 

In  Vermont,  it  has  been  held  that  a  fail- 
ure to  havf  service  made  of  the  original 
Buh/Henri  with  the  bill  and  iniunctinn.  sea- 
donalilv  for  the  term  to  which  the  mlijxcna 
was  marie  returnable,  does  not  oj>erate  a 
discontinuance  of  the  proceedings,  so  that 
the  order  of  the  Chancellor,  and  the  in- 


junction issued  in  pursuance  of  it,  become 
vacated  and  void.  Suing  time  having 
expired  before  service  could  be  made,  the 
plaintiff  had  the  right  to  another  suhpana 
returnable  to  the  next  term.  Howe  v. 
Willard,  40  Vt.  654. 

1  15  &  16  Vic.  c.  86,  §  3.  For  a  case 
where  the  defendant  was  served  with  an 
unstamped  copy,  see  Mutton  v.  Smith,  24 
L.  J.  Ch.  147,  v.  C.  W.  As  to  service  of 
unstamped  copies  on  formal  parties,  see 
ante,  p.  429. 

2  15  &  16  Vic.  c.  86,  §  3,  and  Sched., 
as  varied  by  Ord.  IX.  2 ;  and  see  forms  in 
Vol.  III. 

3  A  defendant  may,  however,  appear 
gratis,  1)efore  service  on  him  of  n  copy  of 
the  bill ;  see  post,  Chap.  XTII.,  Appi-nrnnce. 

■»  15  &  16  Vic.  c.  86,  Sched.,  as  varied 
by  Ord.  IX.  2. 

6  Sliarpe  )'.  IJlondeau,  cited  9  Hare  Ap. 
27. 

c  Hraithwaite's  Pr.  80. 

V  15  &  16  Vic.  c.  86,  §  3;  Chatfield  v. 
Berchlohlt,  !t  Hare  Ap.  28. 

8  lliiil.;  Sharpe  r.  Hloiideau,  ib.  27; 
IJaines  r.  Hi<lge,  ihi>l.  ;  1  W.  K.  99. 

"  For  forms,  see  Vol.  III. 

1"  IJraithwaite's  I'r.  29,  n.  As  to  the 
form  of  the  indorsement,  where  the  de- 
fendant is  II  peer,  see  past,  p.  445. 

11  IJraithwaite'8  Pr.  31. 


442 


COMPELLING   APPEARANCE. PROCEEDINGS    IN    DEFAULT. 


Cn.  VIII.§1. 


Scrvico  ou 
poors. 


Letter 
missive. 


Sen-ice  of 
■written  bill. 


Teste  of 
indorsement. 

Stamped 
copy  for 
service. 

Under  a  spe- 
cial order. 

Re-stamping. 


Copy  of  bill: 
how  to  be 
served. 


"Where  affida- 
vit has  been 
filed  with 
bilL 


.Ml  i>oors  of  tlu'  three  kino^loms,  with  or  without  a  seat  in  the 
l^]i|>er  llouse,^  provided  tliey  are  not  members  of  the  House  of 
Commons,'-  and  the  -widows  and  dowagers  of  the  temporal  lords,* 
are  entitled,  before  they  are  served  with  an  indorsed  co])y  of  the 
bill,  to  be  informed  by  a  communication  fi-oni  the  Lord  Chancellor, 
tenned  a  letter  missive,  of  the  fact  of  the  bill  having  been  filed. 
To  obtain  this  letter  missive,  a  petition  for  that  purpose  to  the 
Lord  Chancellor  must  be  left  with  his  Lordship's  secretary :  who 
will  thereupon  prepare  the  letter  missive,*  obtain  his  Lordship's 
signature  thereto,  and  deliver  it  out  to  the  plaintiff's  solicitor. 

Where  a  written  bill  is  filed,  a  written  copy,  stamped  and  in- 
dorsed as  before  explained,  may  be  served  on  any  defendant ;  and 
such  service  will  have  the  same  effect  as  the  service  of  a  printed 
copy.^ 

The  indorsement  must  be  tested  as  of  the  day  on  which  the  copy 
of  the  bill  is  stamped  for  service  ;  and  at  the  time  it  is  presented 
for  the  purpose  of  being  stamped,  Siprcecipe  must  be  filled  up,  and 
filed  with  the  proper  officer.^ 

If  the  copy  of  the  bill  is  to  be  stamped  for  service  in  pursuance 
of  any  special  order,  such  order  must  be  produced  at  the  same 
time.  The  copy  of  the  bill  may  be  altered  and  re-stami)ed  at  any 
time  before  service,  on  another  prcecipe  being  left  with  the  proper 
oflicer.'^ 

When  the  copies  of  the  bill  have  been  stamped  and  indorsed,  in 
the  manner  above  pointed  out,  the  next  step  is  to  serve  each  of 
the  defendants  with  one  of  such  copies.  This,  unless  the  Court 
directs  some  other  mode  of  service,  is  effected,  by  serving  such 
copy  on  each  defendant  personally,  or  by  leaving  the  same  with  his 
servant,  or  some  member  of  his  family,^  at  his  dwelling-house  or 
usual  place  of  abode ;  and  has  the  same  effect  as  the  service  of  a 
suhpcena  formerly  had.^ 

When  an  aftidavit  has  been  filed  with  the  bill,  a  copy  of  such 
affidavit,  but  not  necessarily  an  office  copy,  should  be  sealed  at  the 
Rec^ord  and  Writ  Clerks'  office,  and  annexed  to,  and  served  with, 
each  coi)y  of  the  bill  scaled  there  for  service.^" 


1  Robinson  v.  Lord  Rokebv,  8  Ves.  601. 

2  Ibid. 

8  Harr.  by  Newl.  101. 

<  A  fee  or20s.  higher  scale,  an'i  5.s.  lower 
scale,  is  payable,  in  Chuiicery  fee  fund 
stamps,  on  each  jftter  missive;  Hegul.  to 
Ord.  Sched.  4.  For  forms  of  petition  and 
letter  missive,  see  Vol.  III. 

5  15  &  16  Vic.  c.  86,  §  6. 

6  K;ich  copy  stamped  for  service  must 
bear  a  5s.  Chancery  fee  fund  stamp  if  on 
the  higher  scale,  and  a  1«.  stamp  if  on  the 
lower  scale.  Kegul.  to  Ord.  ScheJ.  4. 
One  praecipe  is  sufficient  for  any  number 


of  copies.     For  forms  of  pi'CBcijye,  see  Vol. 

in. 

7  Hraithwaite's  Pr.  32.  No  fee  is  paj'- 
able  fir  restamping  the  copy,  unless,  as  it 
would  seem,  the  application  is  made  after 
the  expiration  of  twelve  weeks  from  the 
date  of  the  indorsement.  Ord.  XXVIH. 
6,  9;  15  &  16  Vic.  c.  86,  §§4,  5;  Hraith- 
waite's I'r.  32;  Hraithwaite's  Manual,  190. 

8  The  member  of  the  family  should  be 
an  inmate  of  tlie  house.  Edgson  v.  Edg- 
son,  3  Ue  (J.  &  S.  629. 

3  Ord.  X.  1 ;  15  &  16  Vic.  c.  86,  §§  4,  6. 
10  Ante,  pp.  395,  396. 


SERVICE    OF   THE    COPT   OF   THE   BILL. 


443 


Service  on  a  Sunday  is  not  good  service.^  Service  of  a  copy 
of  the  bill  is  either  ordinaiy,  or  extraordinary.  Ordinary  ser\T.ce 
requires  no  leave  fi-ora  the  Court ;  extraordinary  service  requires  a 
special  order  of  the  Court  to  render  it  valid,  and  is  not  used  ex- 
cept under  special  circumstances,  when  the  ordinary  service  cannot 
be  effected. 

When  the  copy  is  left  at  the  dwelling-house,  it  is  necessary  that 
it  should  be  the  place  where  the  defendant  actually  resides ;  ^  and 
the  mere  leaving  the  copy  at  a  defendant's  ordinary  place  of  busi- 
ness, if  he  does  not  reside  there,  will  not  be  good  service ;  ^  and 


Ch.  vin.  §  1. 

Bill  cannot 
be  served  on 
Sunday ; 
Service  is 
either  ordi- 
nary or  ex- 
traordinary. 

Sen-ice  at 
dwelling- 
house, 


1  Mackreth  v.  Nicholson,  19  Ves.  367. 
A  subpcenn  returnable  on  Sunday  is  irregu- 
lar, and  will  not  warrant  the  issuing  of  an 
attachment  for  disobedience  thereof,  as  no 
Court  can  be  held  on  that  dav  for  any  pur- 
pose.    Gould  V.  Spencer,  5  Paige,  541. 

2  Service  on  the  Deputy-Governor  of  a 
prison  was  held  to  be  due  service  on  a 
defendant,  a  prisoner  there.  Newenham 
I'.  Pembcrton,  2  Coll.  54;  9  Jur.  637. 

In  the  United  States  Courts,  the  service 
of  all  su/jpcenas  shall  be  by  a  delivery  of  a 
copy  thereof  by  the  officer  serving  the 
same,  to  the  defendant  personal!}',  or,  in 
the  Ciise  of  husband  and  wife,  to  the  hus- 
band personally,  or  by  leaving  a  copy 
thereof  at  the  dwelling-house  or  usual 
place  of  abode  of  each  defendant,  with 
some  free  white  person,  who  is  a  member 
or  resident  in  the  family.  13th  Equity 
Rule.  The  service  is  to  be  made  by  the 
marshal  of  the  district,  or  his  deputy,  or 
by  some  other  person  specially  appointed 
by  the  Court  for  that  purpose,  and  not 
otherwise;  in  the  latter  case,  the  person 
servmg  the  process  shiill  make  affidavit 
thereof.  15th  Equity  Rule.  Wlieneverany 
Bubjtoenri  shall  be  returned,  not  executed  as 
to  Hny  defendant,  the  piaintiflf  shall  be 
entitled  to  another  siibjuena,  Mies  quoties, 
ajainnt  such  defen'lant,  if  he  shall  require 
it,  until  due  service  is  made.  14th  Equitv 
Rule. 

Ill  Ma^sachusett",  "if  a  party  shall  not 
be  found,  a  copy  of  the  8iibp<Bnn  may  be  left 
at  his  usual  place  of  abode;  anil,  the  truth 
ofthecn.se  being  returned  by  the  officer, 
if  it  t-hall  be  made  to  appear  to  the  Court 
that  the  party  has  actual  notice  of  the 
«Mit,  no  other  service  shall  be  required; 
otherwise,  such  notice  shall  be  given  as 
the  court  shall  order."  Rule  4,  of  the 
Rules  of  Practice  in  Chancery. 

In  >ome  State  -  the  $uh/np.ua  may  be  served 
by  any  [xthoii;  as  in  Nluryland,  Iloye  v. 
Penii,  1  Rlnnd,  29;  Taylor  w.  (Jordon,  1 
Riand,  \''>2:  so  in  New  .Jersey,  West  v. 
Sinilh,  1  (ireen  Ch.  .'509;  but  the  service, 
if  made  bv  any  person  other  than  a  legal 
officer,  mu^t  be  proved.  Hove  v.  Renn,  1 
Bland.  29. 

In  V'errnont,  service  of  a  tnbprena  can- 
nit  he  made  by  an  itidiffV^reTit  person  not 
named  in  it.     Allyn  v.  Davis,  10  Vt.  547; 


Burlington  Bank  v.  Cottin,  11  Vt.  106  As 
to  Kentucky,  see  Trabue  v.  Holt,  2  Bibb, 
393 ;  Barnett  v.  Montgomery,  6  Monr.  327. 
In  New  Hampshire,  where  a  private  person 
may  make  service  of  process  by  copy,  he 
may  himself  certify  and  swear  to  the  copj'. 
Stone  V.  Anderson,  25  N.  H.  221. 

The  service  of  a  suhprena  must  be  within 
the  jurisdiction,  otherwise  it  is  irregular. 
Dunn  V.  Dunn,  4  Paige,  425;  Creed  v. 
Bryne,  1  Hogan,  79;  Johnson  v.  Nagle,  1 
Mollov,  243;  Hawkins  v.  Hale,  1  Beav. 
73;  Erickson  v.  Smith,  46  N.  H.  375.  But 
the  defendant  may  voluntarily  appear  or 
stipulate  in  writing  to  accept  out  of  the 
jurisdiction  a  service  as  regular.  Dunn 
V.  Dunn,  m6j  supra;  Picquet  v.  Swan,  5 
Ma«on,  561 ;  see  Henderson  v.  Hopper, 
Halst.  Dig.  170.  But  in  Tennessee,  where 
service  of  a  subpcenn  has  been  made  upon 
one  material  defendant  in  the  proper  dis- 
trict or  county,  a  subpoena  may  be  served 
upon  any  other  defendant  out  of  the  county 
or  district.  University  v.  Cambreling,  6 
Yerger,  79. 

In  Pratt  v.  Bank  of  Windsor,  Harring. 
Ch.  254,  it  was  held,  that  the  service  of  a 
subpoena  upon  a  defendant  out  of  the  State 
is  irregular.  In  Picquet  v.  Swan,  5  Mason, 
561,  the  plaintiff"  obtained  an  order,  ap- 
pointing a  commissioner  to  make  service 
on  one  of  two  defendants  in  Paris,  and  to 
take  his  answer  to  the  bill.  See  the  mode 
of  proceeding,  ib.  p.  502. 

8  See  Smith  v.  Parke,  2  Paige,  298; 
Dyett  V.  X.  A.  Coal  Co.,  20  Wend.  570; 
Johnston  i'.  Macconnel,  3  l?ibb,  1.  A  copy 
of  the  subpoena  left  at  the  residence  of  a 
party  domiciled  in  the  State,  and  tempo- 
rarily absent  therefrom,  is  sufficient  unless 
it  is  made  to  appear  that  he  has  been  sur- 
prised. Southern  Steam  Packet  Co.  v. 
Roger,  1  Cheeves,  48.  Where  the  defend- 
ant ha's  no  family,  init  boards  or  makes  it 
his  home  in  the  family  of  another,  the  sub- 
poena to  appear  aii<l  answer  may,  in  his 
absence  from  home,  l)e  served  upon  either 
of  the  he  ids  of  the  family,  at  such  place  of 
his  abode,  although  he  has  no  wife  or  ser- 
vant. Rut  to  maKe  such  service  regular, 
the  place  of  service  mu--t  be  his  actual 
place  of  residence  at  the  time,  iind  his  ab- 
Kence  therefrom  must  be  merely  temporary. 
People  V.  Cratt,  7  Paige,  325;  aecBickford 


444 


COMrELLING   ArPEARANCE. — rUOOEEDINGS    IN   DEFAULT. 


Ch.  VIII.§1. 


of  n  Jlcmber 
of  I'arlia- 
lueut. 


Senice  at 
town-house 
of  a  peer. 


Service  upon 
an  infant,  or 
a  person  of 
unsound 
mind  not  so 
found. 


tliorof(irc,  wlicre,  under  the  old  practice,  a  suhpoena,  retiiriinblo 
iininediatcly,^  was  moved  for  upon  affidavit  stating  that  the  de- 
fendant Hvod  at  Epsom,  hut  that  he  had  chanihers  in  the  Temple 
and  resided  there,  Lord  Thurlow  said,  that  as  it  did  not  appear 
that  his  place  of  abode  was  in  the  Temple,  he  could  not  make  the 
order.'^  Where,  however,  a  member  of  the  House  of  Commons, 
having  a  house  at  Southampton  and  no  town  residence,  was  served 
with  a  subjmeiia,  returnable  immediately,  at  a  fricTid's  house  in 
London,  with  whom  he  was  upon  a  visit,  and  for  default  of  ai)pear- 
ance  a  sequestration  had  been  awarded,  Lord  Thurlow  refused  to 
set  aside  the  sequestration  for  irregularity :  saying,  tliat  he  could 
not  suppose  that  the  defendant,  a  Member  of  Parliament,  during 
the  session  of  Parliament  had  no  town  residence,  or  that  the 
residence  above  stated  should  not  be  taken  as  a  residence  quoad 
the  defendant,  whose  duty  it  was  to  attend,  and  who  actually  did 
attend,  the  House.^  And  so,  where  a  letter  missive,  and  subse- 
quently a  su?J2^oena,  had  been  served  at  the  town  residence  of  a  peer 
during  the  sitting  of  Parliament,  Lord  Thurlow  appears  to  have 
been  of  opinion  that  it  was  good ;  *  and  where  a  letter  missive,  and 
afterwards  a  siibpoena,  had  been  served  at  the  town  residence  of  a 
peer,  w^ho  at  the  time  was  abroad, 'and  afterwards  an  order  nisi  for 
a  sequestration  was  issued,  a  motion  to  discharge  the  order  nisi 
was  refused.^ 

Ordinary  service  upon  an  infant  defendant,  or  upon  a  defendant 
of  weak  or  unsound  mind,  not  so  found  by  inquisition,  is  effected 
in  the  same  manner  as  upon  an  adult.^ 


V.  Skewes,  9  Sim.  428.  The  personal  ser- 
vice of  a  suhpana  on  a  defendant,  who  is 
confined  in  the  State's  prison  for  a  term 
of  years,  is  regular.  Phelps  v.  Phelps,  7 
Paige,  500.  So  where  the  service  of  the 
subpcenn  was  made  on  the  keeper  of  the 
State's  prison  instead  of  on  the  defendant, 
who  was  confined  therein.  Johnson  v. 
Johnson,  Walker  Ch.  309.  For  service  on 
a  defendnnt  under  criminal  sentence,  see 
further,  Newenham  v.  Pemberton,  2  Cott. 
54.  The  return  to  a  subp<ena  against  A. 
and  B.,  was  as  follows:  "  Executed  on 
A.,  —  B.  not  found;  "  and  this  was  held 
insufficient  to  found  a  decree.  Pegg  v. 
Capp,  2  Blackf.  275.  In  Illinois,  where  a 
summons  in  Chancery  is  sewed  by  leaving 
it  at  the  residence  of  the  defendant,  tlie 
return  must  show  that  it  was  left  with 
some  person  who  was  a  member  of  the  de- 
fendant's family.  Townsend  v.  Griggs,  2 
Scam.  36.5. 

1  See  Ilinde,  78. 

2  «.  Shaw,  Hinde,  92;  seeMcPher- 

son  V.  Horsel,  2  Bea^ley  (N.  J.),  35. 

8  East  India  Company  v.  Rumbold,  Hil. 
Term  1781,  cited  Hinde,  92. 

4  Attorney-Generals.  Earl  of  Stamford, 
2  Dick.  744. 


6  Thoma.?  v.  Earl  of  Jersey,  2  M.  &  K. 
398;  and  see  Davidson  i\  Marchioness  of 
Hastings,  2  Keen,  509,  513. 

6  See  Ord.  VII.  3.  In  Morgan  ?;.  Jones, 
4  W.  R.  381,  V.  C.  W  ,  substituted  ser- 
vice on  the  medical  officer  or  keeper  of  an 
asylum  in  which  a  lunatic  was  confined, 
was  refused;  personal  service  if  practicable 
being  held  necessary;  and  see  Anon.,  2 
Jur.  N.  S.  .324,  V.  C.  W. 

Process  ought  to  be  served  personally 
on  infants.  Massie  v.  Donaldson,  8  Ohio, 
377;  .Jones  v.  Mason,  N.  C.  Term  R.  125. 
But  service  of  a  subpoena  on  the  father  of  a 
minor  defendant,  if  within  thejurisdiction, 
was  held  sufficient,  although  the  minor  re- 
sided out  of  the  jurisdiction.  Kirwan  v. 
Kirwan,  1  Hoo-aii,  264;  see  1  Barb.  Ch. 
Pr.  !'A,  62;  Bank  of  Ontario  v.  Strong,  2 
Paige,  301.  So  on  the  surviving  parent, 
whether  the  minor  is  more  or  less  than 
fourteen  years  of  age.  Sanders  v.  Godley, 
23  Ala.  473.  But  when  the  parent  and 
child  are  both  parties,  a  service  on  the 
parent  alone  is  not  sufficient  to  bring  the 
mfnnt  before  the  Court.  The  subpiena 
should  be  served  on  tiie  parent  for  the 
infant,   and    this    should   appear  by  the 


SERVICE    OF    THE    COPY    OF    THE    BILL. 


445 


Where  a  husband  and  wife  are   defendants,   ordinary  service  CH.Yin.§i. 

upon  the  husband  alone  is  sufficient ;  ^  and  process  of  contempt   ' y ' 

may  issue  against  him  alone  for  his  wife's  defliult.^  But  if  they  Husband  and 
are  living  apart,  each  should  be  served.  If  the  husband  is  abroad,  ^^^' 
or  cannot  be  served,  and  the  subject-matter  of  the  suit  arises  in 
rio-ht  of  the  A\'ife,  the  plaintiiF  must  obtain,  on  an  ex  parte  motion, 
supported  by  affida\its,  an  order  that  service  upon  her  may  be 
deemed  good  service.^  Service  on  her  alone,  in  the  usual  man- 
ner, will  then  be  sufficient ;  *  but  no  compulsory  process  can  be 
issued  against  her,  grounded  on  such  service,  without  a  pre\ious 
order  of  the  Court.'' 

If  a  corporation  aggregate  be  a  defendant,  the  coj^y  of  the  bill  Corporation 
may  be  served  upon  any  one  of  its  members,  or,  in  the  case  of  a  "„  Ppany. 
public  company,  upon  the  public  officer  appointed  to  be  sued  on 
its  behalf,  or  if  there  be  no  such  officer,  upon  the  chairman, 
manager,  or  secretary*,  either  personally  or  at  the  office  of  the 
company.^  Pro\'ision  is  also  made,  by  various  public  Acts, 
respecting  the  mode  in  which  documents  may  be  served  on  a 
company.'^ 

If  the  defendant  be  entitled  to  the  privilege  of  peerage,  it  has  Peers. 
previously  been  stated  that  he  has  a  right  to  a  letter  missive, 
before  an  indorsed  copy  of  the  bill  is  served  upon  him.*     This 
letter  missive,  with  a  copy  of  the  petition  for  the  same,  and  with 


officer's  return.  Hodges  v.  Wise,  16  Ala. 
6U9. 

Where  a  bill  has  been  served  on  an  in- 
fant, there  is  no  necessity  tor  serving  the 
same  again  on  the  guardian  ad  litem  after 
he  is  appointed.  Joues  v.  Drake,  2  Hay  w. 
237. 

Upon  a  bill  against  a  lunatic  in  the  cus- 
tody of  a  committee,  service  of  process 
upon  the  committee  is  sufficient.  Oates  v. 
Wixjd'^on,  2  Dana,  455. 

1  See  Leavitt  v.  Cruger,  1  I'aige,  421. 

2  Gee  V.  Cottle,  3  M.  &  C  1»0.  The 
affidavit  of  service  should  state  that  the 
service  was  made  on  the  iiusband  and 
wile,  by  serving  tlie  husband.  Steel  v. 
Parsons,  8  Jur.  ti41,  V.  C  K.  II.  For  an 
order,  giving  leave  to  serve  Iiusband  and 
wife  separately  out  of  the  jurisdiction,  the 
fact  ol  the  nmrriHge  being  in  dispute,  see 
Loiigworth  V.  Bellamy,  cited  Setun,  1245. 

"  For  form  of  order,  seeScton,  1240,  No. 
9;  :ind  lor  lornis  of  motion  piiper  and  utH- 
davii,  see  Vol.  111. 

*  Bell  V.  Hyde,  I'rec.  Ch.  .-328;  Dubois 
r.  Hole,  2  V  em.  613;  IJunyan  r.  Morti- 
mer, tj  Mad.  278;  and  see  I'emberton  !'. 
M'Oili,  1  .Jur.  N.  S.  104.3,  V.  C.  W.;  see 
Dvett  N.  A.  Coal  Co.,  20  Wend.  670. 

''  Crahiim  v.  Fitch,  2  De  G.  &,  S.  246; 
12  Jur.  833;  and  see  ante,  p.  183. 

Where  the  plaintiff  seeks  relief  out  of 


the  separate  estate  of  the  wife,  the  subpmna 
must  be  served  on  her  personally,  and  she 
may  put  in  a  separate  answer;  the  hus- 
band in  such  case  being  considered  only 
a  nominal  part}'.  Leavitt  v.^  Cruger,  1 
Paige,  422;  Ferguson  v.  Smith,  2  John. 
Ch.  139. 

In  New  Jersey,  in  cases  where  husband 
and  wife  are  made  defendants,  and  he  only 
is  served  with  process  of  Stti/-«e«a,  the  wife 
being  out  of  the  State,  an  order  of  publica- 
tion shall  be  taken  against  her,  unless  an 
appearance  be  entered  for  her.  Chancery 
Rule,  23. 

0  Braithwaite's  Pr.  33.  The  subpoena, 
in  case  of  a  corporation,  is  usually  served 
on  the  president,  cashier,  secretarj',  or 
other  principal  officer.  1  Barb.  Ch.  Pr. 
52.  Service  on  private  corporators  is  no 
service  on  the  corporation.  De  Wolf  v. 
Mallett,  3  Dana,  214.  Where  the  business 
of  a  company  had  practically  ceased,  but 
the  company  had  never  been  di>solved, 
service  was  ordered  on  the  late  cli airman 
and  secretary.  Gaskell  v.  Chambers,  26 
Beav.  2.52;  5  Jur.  N.  S.  52. 

'  See  8  &  9  Vic.  c.  16,  §  135;  ib.  c.  18, 
§  134 ;  ib.  c.  20,  §  138 ;  25  &  26  Vic.  c.  89, 
§§  62,  63. 

•*  Kobinson  i'.  Lord  Rokeby,  8  Ves,  601 ; 
Vigers  I).  Lord  Audley,  9  Sim.  409;  unit, 
p.  441;  braithwaite's  Pr.  29,  n. 


446 


COMrELLING   ArPEARANCE. — rROCEEDINGS    IN   DEFAULT. 


Cii.  vni.§i.  an  unindorsed  copy  of  tlie  bill,  must  be  served  in  the  same  man- 
ner as  a  eojiy  of  the  bill  in  ordinary  cases.  If  the  peer  does  not 
enter  his  ap])earance  within  eij^ht  days,  the  plaintiff  must  serve 
him  with  a  copy  of  the  bill  indorsed  in  tlie  usual  form :  excejDt 
that  the  words,  "  you  will  be  liable  to  have  your  estate  seques- 
tered, and  other  proceedings  taken  against  you,"  must  be  sub- 
stituted for  the  Avords,  "  you  will  be  liable  to  be  arrested  and 
imprisoned."  ^ 

The  Attorney-General  used  not  to  be  served  with  a  suhpmna^ 
but  with  a  copy  of  the  bill.^  Hence,  now  the  practice  with  respect 
to  the  Attorney-General  will  be  the  same  as  with  respect  to  other 
defendants. 

If  the  plaintiff  amends  his  bill,  he  must  serve  a  copy  of  the 
amended  bill  on  all  the  defendants,*  or,  if  they  have  appeared, 
on  their  solicitors ;  *  or,  where  they  have  appeared  in  person,  at 
the  place  named  for  service ;  ^  and  the  copy  served  must  be 
stamped  by  the  Record  and  Writ  Clerk,  so  as  to  indicate  the  filing 
of  the  amended  bill,  and  the  date  of  the  filing.  Where  the  plain- 
tiff requires  an  answer  to  the  amended  bill,  the  copy  served  should 
be  indorsed  in  the  same  manner  as  the  copy  of  an  original  bill : 
otherwise,  the  cojjy  served  should  be  without  indorsement."  It  is, 
of  course,  to  be  understood,  that  as  to  defendants  added  by  amend- 
ment, the  bill  is  to  be  treated  as  an  original  bill. 

Where  the  plaintiff  is  unable  to  effect  ordinary  service  upon  a 
defendant,  in  the  manner  above  mentioned,  the  Court  will,  in 
many  cases,  permit  service  to  be  effected  upon  the  defendant  him- 
self out  of  the  jurisdiction,  or  to  be  substituted  upon  his  agent 
within  the  jurisdiction.  It  is  expressly  enacted  by  the  late  Act, 
that  the  Court  shall  be  at  liberty  to  direct  substituted  service  of 
thei  bill,  as  it  shall  think  fit ;  "^  but  it  seems  that  this  enactment 


Amended  bill 
to  be  served 
on  all  parties 
or  their 
solicitors. 


Substituted 
service : 


1  Braithwaite's  Pr.  29,  n. 

2  Lord  Red.  39.  Where  the  United 
States  or  a  State  is  interested,  tlie  District 
Attorney  or  the  Attorney-General  must  be 
served  with  a  copy  of  the  bill.  If  he 
omits  to  enter  an  appearance,  an  order 
may  be  obtained  on  petition,  tliat  lie  ap- 
pear within  a  certain  time,  or  the  bill  be 
taken  as  confessed.  1  Hoff.  Ch.  Pr.  108. 
In  Urayson  v.  Virginia,  3  Dall.  320,  it  was 
held  tiiat  when  process  at  Common  Law 
or  in  Equity  siiali  issue  against  a  State,  the 
same  sh.ijl  be  served  upon  the  Governor 
or  cliief  executive  officer,  and  the  Attorney- 
General  of  such  State.  Kules  of  Supreme 
Court  of  the  United  States,  December 
Term,  18o«,  No.  o. 

In  New  Jersey  v.  New  York,  3  Peters, 
461,  it  was  lield  that  where  tiie  bill  is 
brought  by  one  State  against  another,  the 
subpcena  must  be  served  upon  the  Governor 


and  Attorney-General  of  the  defendnnt 
State,  and  a  service  on  the  Governor  alone, 
there  being  no  appearance  entered  for  the 
defendants,  will  not  authorize  the  Court 
to  proceed.  See  Huger  v.  S.  Carolina, 
3  Dall.  339. 

3  Urd.  IX.  20.  The  copy  may  be  partly 
printed  and  partly  written,  if  tlie  amend- 
ment is  not  made  by  a  reprint.   Ifjir/. 

4  Ord.  IX.  21.  It  is  sufficient  to  serve 
one  copy  on  each  solicitor,  notwithstanding 
he  may  be  concerned  for  several  del'encl- 
ants.  Where,  however,  a  solicitor  is 
properly  concerned  as  solicitor  for  one 
defendant,  and  as  agent  for  another,  two 
copies  should  be  served.  Braithwaite's 
Pr.  308;  and  ib.  n. 

5  Ord.  IX.  22. 

6  I5arry  v.  Croskev,  2  J.  &  H.  130. 

7  15  &  16  Vic.  c.  86,  §  5;  and  see  4  &  6 
Will.  IV.  c.  82,  §  2,post,  p.  450. 


SERVICE    OF    THE    COPY    OF    THE    BILL. 


447 


does  not  extend  the  jurisdiction  previously  exercised  by  the  Court 
in  this  respect.^ 

The  principle  upon  which  the  Court  acts  in  directing  substituted 
service  is  clearly  enunciated  by  Lord  Cranworth  C,  in  the  case  of 
Hope  V.  Hope :  ^  in  which  case  he  says,  that,  where  there  is  an 
agent  in  this  country  managing  all  the  aifairs  of  a  defendant  who 
is  abroad,  and  regularly  communicating  -^-ith  him  upon  his  affiiirs, 
or  where  he  has  an  agent  here  specially  managing  the  particular 
matter  involved  in  the  suit,  the  Court  has  felt  that  it  might  safely 
allow  service  upon  the  agent  to  be  deemed  good  service  upon  the 
person  abroad  :  because  the  inference  was  irresistible,  that  service 
so  made  was  service  on  a  person  either  impliedly  authorized  to 
accept  that  particular  service,  or  who  certainly  would  communicate 
the  process  so  served  to  the  party  who  was  not  in  this  country  to 
receive  it  himself  The  object  of  all  service  was  of  course  only  to 
give  notice  to  the  party  on  whom  it  was  made,  so  that  he  might 
be  made  aware  of,  and  able  to  resist,  that  which  was  sought  against 
him ;  and  when  that  had  been  substantially  done,  so  that  the 
Court  might  feel  perfectly  confident  that  service  had  reached  him, 
every  thing  had  been  done  that  was  required.^ 

Where  a  bill  is  filed  to  restrain  an  action  at  law,  and  the  defend- 
ant (the  plaintifi"  in  the  action)  is  out  of  the  jurisdiction,  or  can- 
not be  found,*  the  Court  will  allow  substituted  service  on  the 
attorney  employed  by  him  to  conduct  the  proceedings  at  law,  on 
an  affidavit  proving  those  facts.^ 

Su>)stituted  service  of  the  copy  of  a  cross-bill,  \ipon  the  solicitor 
who  filed  the  original  bill,  will  not  be  ordered ;  but  the  Court  will, 
in  such  a  case,  stay  the  proceedings  in  the  original  cause  until  the 
defendants  have  entered  an  appearance.^ 

In  the  case  of  Hobhouse  v.  Courtney^  the  cases  and  authorities 
upon  the  subject  of  substituted  service  upon  an  agent  were  re- 
viewed. There,  the  defendant,  who  was  out  of  the  jurisdiction,  had 
given  special  authority  to  a  person  within  the  jurisdiction  to  act  as 
his  agent,  with  respect  to  the  property  which  was  the  subject  of  the 


Cn.  vni.  §  1. 


General  prin- 
ciple on 
which  it  is 
directed : 

Hope,  V.  Ilopt. 


When  bill  to 
restrain 
action,  and 
plaintitr  at 
law  is  al)i'oad, 
or  cannot  be 
found. 

Not  ordered, 
in  cross-suit, 
on  plaintitF'3 
solicitor  in 
original  suit, 
but  proceed- 
ings stayed. 

Upon  agent. 


1  See  Hones  v.  Angier,  18  Jur.  1050,  V. 
C.  \V.;  Hope  V.  Hope,  4  De  G.,  M.  &  G. 
328,  341;  and  sec  (Jrd.  X.  2. 

■'■  4  De  (>.,  M.  &  (;.  .'52H. 

8  lh.:wi.  Wiiere  a  hill  was  filed  against 
a  lirm,  one  ineinhcr  of  which  was  resident 
abroad,  sub'-tituted  service  on  the  members 
in  Kngland  was  directed.  Henderson  v. 
(Jiimphell,  13  W.  K,  704,  L.  J.J. 

*  SiMgison  r.  lieavan,  9  Hare  Ap.  20. 
m\\xf..\  Itj  .lur.  1111,  V.  (J.  S.;  Ilaniond  v. 
Walker,  3  .lur.  N.  S.  fihO,  V.  0.  W.;  and 
see  Seton,  877;  Anderson  v.  Lewis,  .'i  Bro. 
C.  (J.  42!);  6  Sim.  OOtJ;  Hailliei".  IJlanchet, 
10  L.  T.  N.  S.  305,  V.  C.  W. 

'  I  he  merits  need  not  now  be  shown  by 
affidavit.    Sergisou  u.  IJeavau,  vlti  sup. 


6  Anderson  v.  Lewis,  ubi  sup.;  and 
Gardiner  v.  Mason,  4  l$ro.  C.  C.  478;  5 
Sim.  506;  and  see  Waterton  v.  Croft, 
5  Sim.  502,  507. 

f  12  Sim.  140,157;  G  Jur.  28;  approved 
and  acted  on  in  Murray  v.  Vipart,  1  Phil. 
621;  y  Jur.  173;  and  see  liankier  n.  I'oole, 
3  De  G.  &  S.  375;  13  Jur.  80U;  Hur.st  v. 
Hurst,  1  De  G.  &  S.  004;  12  Jur.  162; 
Hornby  v.  Holmes,  4  Hare,  306;  9  Jur. 
225,  790;  Dicker  i>.  Clarke,  0  Jur.  N.  S. 
630;  11  W.  K.  635,  V.  C.  K. ;  Barker  v. 
Piele,  11  \V.  K.  658,  V.  C.  K.;  .lacksou  v. 
Shanks,  13  VV.  li.  287,  V.  C.  VV.;  (iauther 
V.  Meincrtzhaagcii,  1  W.  N.  48  V.  C.  W. ; 
Brown  t;.  Crowe,  ib.  80,  V.  C  W. 


448  COMPELLING   ArPEAKANCE. — PROCEEDINGS    IN   DEFAULT. 

Cn.Vin.§l.    suit;   aiul  the  Court  onlercd  service  on  that  })erson  to  be  good 

" Y '    service  upon  the  (lefeudnnt.     An  application  of  a  similar  kind  was 

made  to  Sir  James  Wigram  V.  C,  in  the  case  of  Webb  v.  /Salmon,^ 
and  refuseil  by  him  upon  the  ground,  that  the  persons  upon  whom 
the  substituted  service  was  sought  to  be  effected  were  not  agents 
in  the  matter  of  the  suit  when  the  cori-espondence  with  the  plain- 
tiff's solicitor  commenced,  and  that  they  refused  to  accept  the 
a<>;ency;  there  was  not,  therefore,  that  ap])ointment  of  them,  as 
the  solicitors  or  agents  of  the  defendant,  which,  in  the  case  of 
Jlobhoiise  V.  Courtney^  was  assumed  to  be  necessary.  He  also 
observed,  that  he  was  not  prepared  to  go  beyond  that  case. 
In  Cooper  v.  TFooc?,^  Lord  Langdale  M.  R.  ordered  substituted 
service  on  a  person  who  had  acted  as  the  solicitor  of  the  absent 
defendant,  in  the  subject  of  the  mortgage  to  which  the  suit  related, 
and  who,  there  was  reason  to  believe,  was  in  communication  with 
the  defendant.  And  in  Weymouth  v.  Lambert,^  the  same  judge 
ordered  substituted  service  in  a  creditors'  suit,  on  one  who,  acting 
as  the  attorney  of  the  executor  and  general  devisee  and  legatee, 
resident  in  India,  had  obtained  administration  here,  and  had 
entered  into  receipt  of  the  rents  of  the  real  estate ;  and  Avhere  an 
infant  had  been  taken  out  of  the  jurisdiction  for  the  express  pur- 
pose of  preventing  his  being  served  personally,  his  Lordship 
ordered,  that  service  upon  the  solicitor  and  Six  Clerk  of  the  j)arent 
should  be  good  as  against  the  infant.''  It  is  to  be  observed,  how- 
ever, that  the  principle,  as  laid  down  in  Hope  v.  Hope^  seems  to 
go  beyond  the  case  of  Hobhouse  v.  Courtney. 
Other  The  Court,  in  the  exercise  of  its  discretion,  has  by  special  order 

instances.  permitted  various  other  modes  of  substituted  service  to  be  adopted. 
Thus,  service  at  the  last  place  of  abode  of  the  defendant's  wife, 
has  been  ordered  to  be  good  service.*'  So,  service  by  sending  the 
document  under  cover  to  the  person  to  whom  the  defendant  had 
directed  his  letters  to  be  sent,  has  been  permitted.''  Again,  in  the 
case  of  infants,  substituted  service  upon  the  mother,  in  one  case,' 
and  upon  the  father-in-law  in  another,^  was  ordered  to  be  good 
service. 

1  3  Hare,  251,  255.  6  Pultenej'  v.  Shelton,  5  Ves.  147;  and 

2  5  lieav.  391;  and  see  Heald  v.  Hay,  see  Maiicliester  and  Stafford  Kuilway 
9  W.  K  369,  V.  G.  S.;  Hope  i'.  Carnegie,  Company  v.  How.  17  Jur.  617,  V.  C.  W.; 
L.  K.  1  Eq.  126,  V.  C.  S.  15  &  16  Vic.  c.  W5,  §  6,  ante,  p.  445. 

3  3Beav.  333;  and  see  Howkins  v.  Ben-  ^  Hunt  v.  Lever,  5  Ves.  147;  but  see 
nett,  1  Giir.  215;  6  Jur.  N.  S.  948;  andthe  Gathercole  v.  VViliiinson,  1  L)e  G.  &  S. 
cases  cited  in  the  note  to  Skegg  v.  Simp-  681;  11  Jur.  1096. 

son,  2  L)e  G.  &  8.  454,  456;  and  as  to  ser-  «  Baiter  v.  Holmes,  1  Dick.  18;  and  see 

vice  of  bill,  or  order  of  revivor,  see  Norton  Garnum  u  Marshal,  ib.    Ti  \    S.   C.   nom. 

V.  Hepworth,  1  M'N.  &  G.   54;    13  Jur.  Smith  v.  Marshall,  2   Atk.  70;   Clark  v. 

244;  Hart  v.  Tulk,  6  Hare,  618;  Forster  Waters,  V.  O.  S., cited,  1  Smith's  Pr.  378; 

f.  .Menzies,  16  Beav.  568;  17  Jur.  657.  Hope  v.  Carnegie,  L.  K.  1  En.  126,  V.  C.  S. 

4  Lane  v.  Hardwicke,  5  Beav.  222.  '■>  Tliompson  v.  Jones,  8  Ves.  141. 
6  4  De  G.,  M.  &  G.  328. 


SERVICE    OF    THE    COPY    OF    THE    BILL. 


449 


'■^     The  application  for  the  order  is  made  by  an  ex  2ycirte  mo- 
and  must  be  supported  by  an  affidavit  showing  Avhat  efforts 


"Whenever  an  order  is  made  for  substituted  service,  such  order 
must  be  served  at  the  sainte  time  that  the  bill  is  served,  and  it  must 
be  stated  in  the  order  that  it  is  to  be  served ;  ^  care  should  also  be 
taken  that  the  service  is  effected  in  strict  accordance  with  the  terms 
of  the  order,  and  it  will  then  have  the  same  effect  as  ordinary  ser- 
vice, 
tion 

have  been  made  to  serve  the  defendant,  and  that  all  practicable 
means  of  doing  so  have  been  exhausted,^  and  how  the  substituted 
service  is  proposed  to  be  effected.^ 

It  would  seem  that  the  Court  had  no  authority,  i;nder  its  original 
jurisdiction,  to  serve  process  upon  any  defendant,  whether  a  natural 
born  subject  or  not,  who  was  residing  out  of  the  territorial  limits 
of  its  jurisdiction  unless,  indeed,  the  defendant  was  shown  to  have 
absconded  to  avoid  such  ser\'ice.®  Such  power  has,  however,  been 
conferred  on  it  by  statute,  in  all  cases  in  which  a  suit  has  been  in- 
stituted concerning  lands,  tenements,  or  hereditaments  situate  in 
England  or  Wales,  or  concerning  any  charge,  lien,  judgment,  or 
incumbrance  thereon,  or  concerning  any  money  vested  in  any  Gov- 
ernment or  other  public  stock,  or  public  shares  in  public  companies 
or  concerns,^  or  the  dividends  or  produce  thereof.* 

By  the  statutes  referred  to,  it  is  enacted  : 

First,  that  in  any  such  suit,  uj^on  special  motion,  the  Court  may 
order  and  direct  that  service  in  any  part  of  Great  Britain,  or  Ireland, 
or  in  the  Isle  of  Man,  sliall  be  deemed  good  service  upon  the  de- 
fendants, on  such  terms,  in  such  manner,  and  at  such  time  as  to  the 
Court  shall  seem  reasonable.^ 

Secondly,  that  in  any  such  suit  of  the  same  description,  in  case 
the  defendant  or  defendants  shall  appear  by  affidavit  to  be  resident 


Ch.  VIII.  §  1. 


Application 
for  order : 
how  made. 


Power  of  the 
Court  to  order 
service  out  of 
its  territori.al 
jurisdiction. 

Provisions  in 
the  Foreign 
Process  Acts : 

To  what  suits 
thev  extend ; 


Se^^'ice  in 
Great  Britain 
or  Ireland. 


Service 
abroad : 


1  Jones  V.  Brandonf  2  Jur.  N.  S.  437,  V. 
C.  W.     For  lorm,  see  tjeton,  rJ44,  No.  4. 

^  Wilcoxon  V.  W  ilkins,  'J  Jur.  N.  S. 
H-i;  11  W.  K.  8tl8,  M.  K. ;  but  see  Dicker 
r.  Clarke,  11  W.  K.  705,  V.  C.  K. 

»  KeeU  V.  Hartoii,  4  W.  H.  793,  V.  C.  W. 
For  lorni  of  motion  paper,  see  Vol.  III. 

<  Firili  i\  Uush,  "J  Jur.  N.S.  431;  11  \V. 
K.  till,  v.  C.  K. ;  and  see  Barker  v.  Picle, 
11  VV.  U.  (358,  V.  C.  K. 

'  For  t'oriu  ol  atlidavit,  see  Vol.  III. 

•'  i'er  l^ord  We-^lbury,  L.  C,  Cookiiev  v. 
Anderson,  1  De  G.,  J.  iSc  8.305,382;  Si.Jur. 
N.  S.  73t>;  and  Si^e  toley  v.  Alaiilardet,  1 
be  G.,  J.  &S.  38U;  10  Jur.  N.  S.  'lOl; 
feamuel  v.  Kogcrs,  1  l)e  G.,  J.  &  S.  3'JO; 
Norris  r.  CoUerill,  h  N.  K.  215,  V.  C.  W. 
Where  leave  was  given  to  serve  process 
out  ot  the  jurl^(li(;llon,  the  service  was 
u»ele-8  uiilcHi  the  (ieleiidaiit  entered  an  ap- 
pearance, tor  no  subsequent  proceeding 
could  be  based  ujjon  it.  Cookney  v.  An- 
Oer.-.on,  31  IJeav.  452,  408;  8  Jur.  N.  S. 
1220,  1223;  and  see  note  to  Shaw  f.  Lii.d- 

VOU   I. 


say,  18  Ves.  2d  ed.  496 ;  Fernandez  v.  Cor- 
bin,  2  Sim.  044;  Davidson  v.  Marciiioness 
of  Hastings,  2  Keen,  COU,  010;  Wliitniore 
V.  Kyan,  4  Hare,  012,  015;  10  Jur.  308. 

"  See  Oliicial  iMainiger  ot  the  National 
Association  v.  Carstairs,  9  Jur.  N.  S.  955; 
11  W.  K.  800,  M.  U. 

»  2  &  3  Will.  IV.  c.  33,§  1;  4  &  5  Will. 

IV.  c.  82,  §  1. 

y  2  &  3  Will.  IV.  c.  33,  §  1.  This  Act 
extends  to  Scotland.  Cameron  r.  Cameron, 
2  M.  &  K.  289,  292;  Iniies  v.  Mitchell,  4 
Drew.  141;  1  De  G.  &  J.  423;  Maclean  v. 
Dawson,  4  De  G.  &  J.  150;  6  Jur.  N.  S. 
603;  and  see,  for  cases  under  this  Act, 
Hasluck  V.  Stewart,  0  Sim.  321;  Anderson 

V.  Slaiher,  10  .lur.  383,  !>.(;.;  Tumeric. 
Sowdoii,  12  W.  li.  622,  V.  C.  K.,  where 
service  on  an  infant  was  allowed.  Suits 
connnenced  by  summons  are  within  the 
Acts.  Colieii  V.  Alcan,  1  De  (i.,  J.  &  S. 
398;  10  Jur.  N.  b.  531,  overruling  Lester 
V.  Bond,  1  Dr.  &  S.  392;  7  Jur.  N.  S.  638. 


450 


COMrELLINQ    ArrEARAKCE. — PROCEEDINGS    IN   DEFAULT. 


Cii.  V11I.§1. 


Service  upon 
receiver  or 
steward. 


Substituted 
service. 


General 
Order  X.  7. 


in  Miiy  specified  ])lnoe  out  of  tlio  TTnited  Kin<i;(l<>in  of  Great  Britain 
and  Ireland,  the  Court  may,  u])on  o|»en  motion  of  any  of  the  com- 
plainants in  any  sudi  suit,  fouiuled  upon  an  atlidavit  or  affidavits, 
and  such  otlier  documents  as  may  be  a})])licable  for  the  jnirposc  of 
ascertaining  the  residence  of  the  party,  and  the  particulars  material 
to  identify  snch  Jtarty  and  liis  residence,  and  also  specifying  the 
means  whereby  such  service  may  be  autlienticated,  and  espec^ially 
■whether  there  are  any  British  officers,  civil  or  military,  appointed 
by  or  serving  under  her  Majesty,  residing  at  or  near  such  place, 
order  that  service  of  the  bill  ^  upon  the  party,  in  manner  by  the 
order  directed,  or  in  case  wliere  the  Court  may  deem  fit,  upon  the 
receiver,  steward,  or  otlier  ])erson  receiving  or  remitting  the  rents 
of  the  lands  or  premises,  if  any,  in  the  suit  mentioned,  returnable 
at  such  time  as  the  said  Court  shall  direct,  shall  be  deemed  good 
service  upon  such  party .^ 

Thirdly,  that  if  it  shall  be  made  to  a])pear  by  affidavit  that  any 
defendant,  in  any  such  suit,  cannot  by  reasonable  diligence  be 
personally  served  with  the  bill,^  or  that,  upon  inquiry  at  his  usual 
place  of  abode,  he  could  not  be  found,  so  as  to  be  served  with  such 
process,  and  that  there  is  just  ground  for  believing  that  such  de- 
fendant secretes  or  withdraws  himself^  so  as  to  avoid  being  served 
with  the  process  of  the  Court,  then  and  in  all  such  cases,  the  Court 
may  order  that  the  service  of  the  bill  ^  shall  be  substituted  in  such 
manner  as  the  Court  shall  think  reasonable,  and  dkect  by  such 
order.^ 

Besides  the  provisions  of  the  Acts  above  referred  to,  there  is  a 
General  Order  of  the  Court  which  provides,  that  where  a  defendant 
in  any  suit  is  out  of  the  jurisdiction,  the  Court  may,  upon  appU- , 
cation,  supported  by  such  evidence  as  shall  satisfy  the  Court  in 
what  place  or  country  such  defendant  is  or  may  probably  be  found, 
order  that  a  copy  of  the  bill  xmder  the  stat.  15  &  16  Vic.  c.  86,  §  3, 
and,  if  an  answer  is  required,  a  copy  of  the  interrogatories  may  be 
served  on  such  defendant  in  such  place  or  country,  or  within  such 
limits,  as  the  Court  shall  think  fit  to  direct ;  and  that  such  order 
shall  limit  a  time  after  such  service  within  which  such  defendant 
is  to  appear  to  the  bill :  such  tune  to  depend  on  the  place  or  coun- 
try witliin  which  the  copy  of  the  bill  is  to  be  served  ;  and  where 
an  answer  is  required,  such  order  shall  also  limit  a  time  within 
which  such  defendant  is  to  plead,  answer,  or  demur,  or  obtain  from 


1  The  Acts  provided  for  the  service  of 
the  subpceria  to  appear  to  and  answer  the 
bill;  but  now,  a  properly  stamped  and  in- 
dorsed copy  of  the  bill  must  be  served. 
15  &  16  Vic.  c.  86,  §  3,  ante,  p.  4.39-441. 

2  4  &  5  Will.  IV.  c.  «2,  §  2;  see,  for 
cases  under  this  Act,  Godson  v.  Cook, 
7  Sim.  519;  Parker  v.  Lloyd,  5  Sim.  508, 
510;  Dodd  v.  Webber,  2  Beav.  502;  Green 


V.  Pledj'er,  3  Hare.  165,  168;  Cox  v. 
Bannister,  8  W.  K.  206,  M.  li. ;  Otlicial 
Manager  of  the  National  Association  v. 
Carstairs,  9  Jur.  N.  S.  955;  11  W.  K.  866, 
M.  li. 

3  4  &  5  Will.  IV.  c.  82,  §  2;  and  see  15 
&  16  Vic.  c.  86,  §  5;  ante,  p.  446;  11  Geo. 
IV.  &  1  Will.  IV.  c.  36,  §§  3,  9;  Ord.  X.  6; 
2>ost,  pp.  456-459. 


SERVICE    OF    THE    COPr    OF    THE    BILL. 


451 


the  Court  further  tnne  to  make  his  defence  to  the  bill ;  and  that 
at  the  time  when  such  copy  of  the  bill  shall  be  served,  the  plaintiif 
shall  also  cause  the  defendant  to  be  served  with  a  copy  of  the  order 
giving  the  plaintiff  leave  to  serve  such  co]>y  of  the  bill.^ 

It  is  to  be  observed,  that  the  Acts  of  Parliament  before  referred 
to,  conferring  upon  the  Court  of  Chancery  the  power  of  serving 
process  out  of  the  jurisdiction,  apply  to  suits  of  a  particular  kind, 
and  fiirther,  that  they  fetter  the  exercise  of  the  privilege  by  certain 
restrictions ;  but  the  language  of  the  General  Order  above  men- 
tioned apjilies  to  suits  of  all  descriptions,  and  in  some  respects  dis- 
penses with  the  provisions  which  the  Legislatm-e  had  required.  It 
was  formerly  considered,  that  the  General  Order  enabled  the  Court 
to  direct  service  on  a  defendant  who  had  neither  a  domicile  nor 
])roperty  Anthin  the  jurisdiction,  and  in  any  suit  whatever.  This 
interpretation  of  the  General  Order  was  acted  upon  for  a  long 
series  of  years ;  ■^  but  it  has  been  recently  overruled,  on  the  ground 
that  the  General  Order  only  applies  to  the  cases  within  the  Acts 
above  referred  to  ;  and  it  has  been  held,  that  the  statutes  ^  enabling 
the  Court  to  make  alterations  in  forms  and  mode  of  proceeding,  do 
not  empower  the  Court  to  sanction  the  service  of  the  bill  out  of 
the  jurisdiction,  except  in  cases  within  the  Acts.^ 

Where  it  is  sought  to  serve  thfe  bill  out  of  the  jurisdiction,  it  is 
usual,  and  in  most  cases  desirable,  to  a]»ply  for  leave  to  serve  in- 
teiTogatories  to  the  bill  at  the  same  time  ;^  indeed,  if  it  should  be 
necessary  to  take  the  bill  jy^'o  confesso  against  the  defendant  out 
of  the  jurisdiction,  it  cannot  be  done  unless  interrogatories  have 
])een  served.^ 

The  ai)plication  for  leave  to  effect  service  out  of  the  jurisdiction, 
is  made  by  an  ex  parte  motion,  or  by  summons  at  Chambers.'^  The 
affidavits  in  supi)ort  must  show  the  place  of  residence  at  the  time 
the  apjtlication  is  made,  or  as  near  thereto  as  is  practicable  ;*  and 
an  affidavit  showing  that  the  defendant  was  resident  at  Calais, 
seven  weeks  j>reviously  to  the  aitplication,  was  held  insufficient;^ 
but  tlie  affidavit  need  not,  it  seems,  sliow  more  tliaii  tlie  country 
in  which  the  defendant  resides.^" 


1  Ord.  X.  7  (1)  (2)  (3). 

i  Whitiiiore  r.  IJyaii,  4  Hare,  612,  617; 
10  .Iiir.  '.',y>h\  lili'nkiii>-iip|i  v.  Illonkinsopp, 
2  I'liil.  1;  1  (J.  I*.  Coop.  t.  Cott,  20;  8 
Heav.  C12;  Steele  v.  Stuart,  1  II.  &  M. 
7!t3,79r,;  10. Fur.  N.  S.  15;  (Jurtissf.  Giant, 
S»  .lur.  N.  .S.  766,  M.  It. 

8  3  &  4  Vic.  c.  94;  6  Vic.  c.  5,  §  29;  10 
&  16  Vic.  c.  »6,  §  6:j. 

*  Cookiiev  V.  Anderson,  1  l)e  G.,  .1.  & 
S.  36.',;  I)  ,1m-.  N.  S.  736;  Foley  v.  Miiil- 
lardet,  1  De  (i.,  .1.  &  S.  3h'J;  10  .Jur.  N.  S. 
161;  Samuel  v.  Hopeni,  1  De  G  ,  J.  iSc  S. 
8'J6;  Norri-.  v.  Cofterill,  6  N.  K.  215,  V.  (J. 
AV.;  Itut  !<ee  amirn,  Uruminond  i;.  IJrum- 
mond,  L.  H.  2  Va\.  33.'.;  12  .lur.  N.  S.  5S1, 
V.  C.  S.,  aflinned  by  L.  C.  &  L.  JJ.  1  W. 


Ch.  VIII.  §  1. 


Constniction 
of  the  Acts 
and  Order;  • 


N.  378;  Cory  v.  Jacobsen,  1  W.  N.  290,  V. 
C.  K. 

6  Lcamaii  v.  Brown,  7  \V.  li.  322,  V.  C. 
K. ;  see  po»t,  Chun.  IX.,  Interroaalories. 

8  Post,  Chap.  XI.,  Taking  Bills  pro  con- 
Jessu. 

7  For  form  of  order,  see  Scton,1244,  No. 
6 ;  and  for  tiirins  of  motion  paper  and  sum- 
nioiis,  .see  Vol.  HI. 

"  rrestoii  V.  l>ickin.son,  9  Jur.  910;  7 
I5eav.  5^2,  n. 

«  Fie>ke  v.  Buller,  7  Reiiv.  581. 
1"  iJli-nkin.sopp  ?'.  IJIenkinsopp,  8  Bcav. 
612;  2  riiil.  1;  1  C.  I'.  Coop.  t.  Cott.  20; 
I'rcHton  r.  Diekin.son,  ubi  gup.;  ISidduIph 
r.  Lord  Camoy.s,  7  I'.euv.  r,h(>;  10. lur.  485. 
For  form  of  atlidavit,  see  Vol.  III. 


Operation  of 
Order  is 
restricted  to 
suits  within 
the  Acts. 


Interrogato- 
ries .should  be 
served  at 
same  time. 


Application : 
how  made, 
and  necessary 
evidence. 


452 


COMPELLING   APrEARANCE.  —  PROCEEDINGS   IN   DEFAULT. 


Cii.  VIII.§1. 


Priimi  fiicie 
case  only 
lU'ed  ln'  iiiiuU' 
out. 


Service 
iiliixmd  on 
iiitiuit  iiiui 
]ierson  of  un- 
sound niinil ; 

husband  and 
wife. 


Order  giving 
leave  must  be 
served. 


Service:  how 
effected. 


Order  fixes 
time  to  ap- 
pear, and  to 
plead,  an- 
swer, or 
demur,  if 
answer 
required ; 

but  not  for 
demurring 
alone. 

Principle  on 
which  times 


It  is  not  necossary  to  show,  by  Mtrulavit,  that  the  cirouinstances 
are  such  as  to  warrant  the  onU'r.  'Vhc  (\)urt  may  K)ok  at  the 
pleadings  tor  tli:it  ])urj)ose  ;  ^  and,  il'  necessary,  may  go  into  the 
merits  of  the  ease  :  it  being  always  in  the  discretion  of  the  Court 
whether  to  grant  or  refuse  the  ajtplication  ;'-^  but  it  acts  on  a  jyrimu 
facie  ease  being  made  out.*^ 

Leave  may  be  granted  toserve  infants,'*  antl  i)ersons  of  unsound 
mind,*  out  of  tlie  jui'isdiction  ;  and  upon  such  service,  guardians 
ad  I i ton  -vvill  be  a]»pointed  ;  and  a  husband  out  of  the  jurisdiction 
may  be  served  for  himself  and  his  wife.*^  Where  the  fa(!t  of  the 
marriage  is  in  dispute,  leave  will  be  granted  to  serve  them  sej)a- 
rately.'  Where  a  father  and  his  infant  children  were  living  to- 
gether out  of  the  jurisdiction,  it  was  held,  that  a  separate  copy 
must  be  served  on  each.^ 

The  order  giving  leave  to  make  the  service  out  of  the  jurisdiction 
must  be  served  with  the  copy  of  the  bill ; "  and  this  requirement 
is  expressed  in  the  order  itself  ^°  If  no  directions  to  the  contrary 
are  given  by  the  order,  the  service  should  be  effected  by  serving 
the  copy  of  the  bill  and  a  co])y  of  the  order  on  the  defendant  per- 
sonally, or  by  leaving  the  same  with  his  servant,  or  some  member 
of  his  family,  at  his  dwelling-house  or  usual  place  of  abode,"  within 
the  limits  defined  by  the  order.  The  order  fixes  the  time  after 
service  of  the  bill  within  which,  the  defendant  is  to  appear,  and 
also,  if  an  answer  is  required,  the  time  after  service  of  the  inter- 
rogatories within  which  the  defendant  is  to  plead,  answer,  or  de- 
mur, not  demurring  alone,  or  obtain  from  the  Court  further  time 
to  make  his  defence  to  the  bill ;  ^'■^  but  it  is  not  necessary  to  fix  any 
time  for  his  demurring  alone  :  such  time  being  the  same  as  in  cases 
Avhere  the  defendant  is  served  within  the  jurisdiction.^'* 

These  times  are  fixed  by  the  registrar;  and,  as  a  general  rule, 


1  Blenkinsopp  v.  Blenkinsopp,  ubi  sup. ; 
Maclean  r.  Dawson,  4  De  G.  &,  J.  150;  5 
Jur.  N.  S.  663;  Official  Manager  of  Na- 
tional Association  v  Carstairs,  9  Jur.  N.  S. 
955;  11  W.  K.  b66,  M.  K. ;  Steele  v  Stuart, 
1  H.  &  M.  793;  10  .lur.  N.  S.  15;  Folev  v. 
Maillardet,  1  De  G.,  J.  &  S.  389;  10  ,lur. 
N.  S.  161;  Hawiirden  v.  Duiilop,  2  Dr.  & 
S.  155;  Nurris  v.  Cotterill,  5  N.  K.  215,  V. 
C.  W. 

2  Lewis  V.  Baldwin,  11  Beav.  153,  158; 
Whitmore  v.  Uyaii,  4  Hare.  612,  617;  10 
Jur.  368;  Innes  v.  Mitchell,  4  Drew.  141; 
3  Jur.  N.  S.  991;  1  De  (i.  &  J.  423;  Cook 
».  Wood,  7  W.  K.  424,  V.  U.  K.;  Maclean 
t'  Dawson,  27  Heav.  25;  4  UeG.  &  J.  150; 
5  Jur.  N.  S.  663. 

8  Maclean  v.  Dawson,  uiisu/).  ;  Meiklan 
V  Camijbel),  24  Beav.  100.  The  plaintiff 
takes  the  order  at  his  own  risk.  Brooks 
V.  .Morison,  33  Beav.  652. 

*  Anderson  v.  Slather,  10  Jur.  363,  L. 
C;  Turner  v.  Sowxien,  12  \V.  K.  522;  13 


W.  R  66;  10  Jur.  N  S.  1122,  V.  C.  K.; 
S.  C.  nom.  Turner  v.  Snowden,  2  Dr.  & 
Sm   265. 

6  Biddulph  V.  Lord  Camoys,  7  Beav.  580 ; 
10  Jur.  485. 

6  Jones  V.  Geddes,  9  Jur.  1002,  V.  C. 
E.;  Steele  v.  Plomer,  2  Phil.  782,  n.;  1 
M'N.  &  G.  83. 

7  Longwortli  v.  Bellamy,  M.  R.,  cited 
Seton,  1245. 

"  Jones  V.  Geddes,  uhi  sup. 
»  Ord.  X.  7  (3). 

10  For  form,  see  Seton,  1244,  No    6. 

11  Ord.  X.  1;  Braithwaite's  Pr.  33. 

12  Ibid  ;  Ord.  X.  7  (2).  The  interroga- 
tories may  be  serv>'d  with  the  bill.  Leaman 
V.  Brown,  7  VV.  K.  322,  V.  <;.  K. 

13  Brown  v.  Stanton,  7  Beav.  582 ;  Pres- 
ton V.  Dickinson,  ib,  n. ;  Blenkinsopp  v. 
Blenkinsopp,  8  Beav.  612;  Griining  v. 
PrioU-au,  10  Jur.  iN.  S.  60;  12  W.  R.  141, 
M.  R  ;  33  Beav.  221. 


SERVICE    OF    THE    COPY    OF    THE    BILL.  453 

twice  the  time  it  ordinarily  takes  to  reach  the  place  where  the  Ch.  Viii.  §  i. 

defendant  is  residing  is   allowed   for  appearing,   and  twice   that    ^ y "" 

time  for  answering.^     The  times  so  fixed  should  be  inserted  in  to  appear  and 

the  indorsement  on  the  bill,  instead  of  the  time  inserted  there  when  fixed/ 
the  bill  is  to  be  served  within  the  jurisdiction.^ 

Where  a  defendant  has  been  served  out  of  the  jurisdiction  under  Defendant 

this  order,  he  cannot  be  attached  for  want  of  api)earance,  upon  served  abroad 

..,.,..,..,  '■^  ^  cannot  be 

his  commg  withm  the  jurisdiction. **  attached  for 

A  defendant,  on  being  served  with  the  bill,  may  enter  an  ap-  ancg^^^^*'^" 

pearance  at  the  Record  and  Writ  Clerks'  Office,*  whereupon  the  Defendant 

suit  will  be  prosecuted  against  him  in  the  ordinary  way :  or  he  "^^y  i"*'^'^  ^ 

may  move,  on  notice  to  the  plain tifi",  to  set  aside  such  service  for  service,  on 

irregularity.*     Before,  however,  he   can  so   move,  he  must  enter  ^°*^"9S 

what  is  called  a  conditional  appearance,  with  the  Registrar.®  appearance. 

Where  the  plaintiff  has  introduced  into  the  bill  statements,  as  Evidence 

to  the  subject-matter  of  the  suit,  that  bring  it  within  the  Acts  required  in 

authorizing  service  out  of  the  jurisdiction,  the  defendant  may,  on  motion. 
the  motion  to  discharge  the  order,  read  affidavits  disproving  such 
statements.  "^ 

All  orders,  writs,  and  other  proceedings   upon  Avhich  process  General  rules 

of  contempt  may  afterwards  be  issued,  require,  in  general,  what  ^^  ^°  sen-ice 

is  called  personal  service.*     The  same  strictness  is  not,  however,  ings: 
necessary  for  the  service    of  notice    of  ordinary  proceedings  in 
the  cause ;  and  it  will  be  convenient  here  to  state  the  manner  in 
which  ser\'ice  of  such  proceedings  is  effected. 

Every  solicitor  of  a  party  suing  or  defending  by  a  solicitor,  must  wiiere  par- 
cause  to  be  written  or  printed  ution  every  writ  or  summons  which  ^^es  sue  or 

'  .    '  •'  defend  by  a 

he  sues  out,  and  upon  every  bill,^  demurrer,  plea,  answer,  or  other  solicitor: 
jileading  or  proceeding,  and  all  exceptions  which  he  may  leave 

1  Seton,  1245;  Chatfield  v.  Kerchtoldt,  154;  Maclean  r.  Dawson,  w4»  mp.  ;  Foley 
9  Mare  Ap.  28.  v.    Maillaniet,  uhi  sup. ;    but  see  Hetts  v. 

2  Hayiies  v.  Hidffe,  9  Hare  Ap  27;  1  Barton,  3  .lur.  N.  S.  154,  V.  C  W.  The 
W.  It.  y'j;  Chatfield  v.  Herchtoldt,  «/<«««/?. ;  apriearatice  is  entered  under  an  order, 
Sliarpe  r.  Hlondeau.  1  VV.  K.  100,  V.C.K.,  which  is  obtained  on  an  ex  parti'  motion, 
cited  9  Iliire  Ap.  27.  For  form  of  in-  or  on  petition  of  course  at  tlie  Ho! 's.  By 
d'pr.xement,  see  Vol.  Ill  the  order  the  defendnnt  must,  by  iiis  couii- 

'  Ilackwooil  r.  Lockerl)y,  7    I)e  G.,  M.  sel,  submit  to  any  process  which  the  Court 

&  (i   2.'r  ;  and  see  Penfolil  v.  Kelly,  12  VV.  mwy  direct  to  issue  against  him   (jii   the 

IJ.  2H(i,  \^  (J.  K.  appHiirance.     For  the  mode  of  entering  a 

♦  Svi;  />">l,i'A\n\i.  XII  I.,  Appearance.  conditionnj  appearance,  see  Index,  yl/ynnr- 

*  Miicleiii  e.  Dawson,  27  Heiiv.  25;  4  Dc  nwce  ,•  for  form  of  order  ami  apiiearaiu-e.  see 
G.  &  .1.  150;  5  .lur.  N.  S.  (iiV-i;  Officiiil  Seton,  1240,  N<>.  G;  and  lor  form  of  motion 
MMnager  of  National   Association  r.  Car-  paper,  see  Vol.  III. 

Hiair«,  9  .lur.  N.  S.  955;  11  \V.  U.  866,  M.  ^  Folev  r.  .Maillardet.  1  De  G.,  J.  &  S. 
R  ;  Foley  r.  ,Mnillard.-t,  10. lur.  N.  .S.  34;  38»;  lo  Jur.  ^f.  S.  161;  and  see  OfliciMl 
ih.  I'll;  1  |)i'  (i.,  .1.  iS:  .S.  .3^9;  Steele  v.  Manacrer  of  National  Associatirm  v.  Car- 
Smart.  I  II.  &  .M.  79:j;  10  ,Iur.  N.  S.  15;  st-iirs,  !)  .Jur.  N.  S.  965;  11  \V.  It.  80(5, 
nee  Hrailhwaite's  I'r.  321,  and  forform.sof  M.  It. 

notice  of  motion,  and  afKduvit  in  support,  *  In  such  cases,  personal  service  is,  how- 
Fee  Vol.  III.  ever,  sometimes  dispensed  with.  Hidcr 
»  M.irkreth  r.  Nicholson,  19  Ves.  307;  r  KLblcr,  12  Ves.  2(/2 ;  De  Miinncvilio  v. 
Kavids.in  r.  .MMrcliioness  of  llasrings,  2  De  Miiniieville.  ih.  203. 
Keen,  509;  .lolmion  »•.  I'iarne«,  1  DetJ.  &  «  This  includes  an  information.  I'rel. 
8.  129;  I^wis  V.  liuldwin,  11   Ueav.   153,  Ord.  X.  (4). 


454 


COMrELLINa   ArPEARANCE. — TROOEEDINGS   IN   DEFAULT. 


Cn.  VIIT.  §1 


Solicitor  not 
to  be  changed 
without  au 
order. 


Notices  to  be 
served  at  so- 
licitor's office, 
or  address  lor 
service. 


Where  par- 
ties sue  or 
defend  in 
person  : 


with  the  CU'rks  of  Koconl  and  Writs  to  he  filer!,  and  upon  all 
instnu'lions  which  he  may  .c:ive  to  theiu  for  any  a|)pearanec  or 
other  puri>ose,  his  name  or  firm,  and  ])lace  of  business,  and  also  (if 
his  place  of  business  shall  be  more  than  three  miles  from  the 
Record  and  Writ  Clerks'  office)  another  ])roper  place  (to  be  called 
his  address  for  service),  which  shall  not  be  more  than  three  miles 
from  that  olhce,  where  writs,  notices,  orders,  summonses,  warrants, 
and  other  documents,  proceedings,  and  written  communications 
may  be  left  for  him.  And  where  any  such  solicitor  shall  only  be 
the  agent  of  any  other  solicitor,  he  must  add  to  his  own  name  or 
firm,  anil  jdace  of  business,  the  name  or  firm,  and  place  of  business, 
of  the  principal  solicitor.^ 

A  party  suing  or  defending  by  a  solicitor  is  not  at  liberty  to 
change  his  solicitor,  in  any  cause  or  matter,  without  an  order  of 
the  Court  for  that  purpose  :  which  may  be  obtained  by  motion 
or  petition  as  of  course  ;  ^  and  until  such  order  is  obtained  and 
served,  and  notice  thereof  given  to  the  Clerk  of  Records  and 
Writs,  the  former  solicitor  is  considered  the  solicitor  of  the  party .^ 

Where  a  party  sues  or  defends  by  a  solicitor,  and  no  address  for 
service  of  such  solicitor  has  been  written  or  printed,  ]>ursuant  to 
the  directions  of  the  General  Order,^  all  writs,  notices,  orders,  sum- 
monses, warrants,  and  other  documents,  proceedings,  and  written 
communications,  not  requiring  personal  service  upon  the  party  to 
be  aifected  thereby,  are,  unless  the  Court  shall  otherwise  direct,  to 
be  deemed  sufficiently  served  upon  the  party,  if  served  upon  his 
solicitor,  at  his  place  of  business ;  but  if  an  address  for  service  of 
such  solicitor  shall  have  been  written  or  printed  as  aforesaid,  then 
all  such  writs,  notices,  orders,  summonses,  warrants,  and  other 
documents,  proceedings,  and  written  communications,  are  to  be 
deemed  sufficiently  served  upon  such  party,  if  left  for  his  solicitor, 
at  such  address  for  service.^ 

Every  party  suing  or  defending  in  person,  must  cause  to  be. 
written  or  printed  upon  every  writ  which  he  sues  out,  and  upon 


1  Ord.  Ill  2;  and  see  ante,  p.  397. 

2  The  application  is  almost  invariably 
made  by  petition;  see  post,  Cliap  XLIV., 
Solicilors.  The  application  should  not  be 
made  as  of  course,  when  the  plaintiff  in 
a  creditor's  suit,  whose  debt  is  small,  sells 
his  debt  after  decree.  Topping?;.  Searson, 
2  H.  &  M.  20.-..  For  forms  of  motion  pa- 
per and  petition,  see  Vol.  III. 

8  Ord.  III.  3;  Davidson  v.  Leslie,  9 
Beav.  104;  Wright  v.  King,  ib.  161.  This 
order  was  held  not  to  appl}-  where  the  suit 
was  at  an  end,  and  a  petition  was  present- 
ed by  a  new  solicitor  for  payment  out  of  a 
fund  carried  to  a  separate  account.  Wad- 
dilove  V.  Taylor,  12  Jur.  508,  V.  C.  W. 
Where  there  has  been  any  special  contract 
as  to  employment  of  solicitor,  the  order  to 


change  is  not  of  course.  Jenkins  v.  Bry- 
ant, 3  Drew.  70;  Richards  f.  Scarborough 
Market  Compaiiv,  17  Beav.  83.  And  see, 
as  to  this  order,  Ward  v.  Swift,  6  Hare,  309, 
311.  Service  of  notice  of  motion  at  solici- 
tor's address  for  service  held  sufficient, 
although  the  office  was  untenanted;  the 
solicitor  having  absconded,  and  the  party 
being  out  of  the  jurisdiction.  Ueuben  v. 
Thompson,  16  Jur.  IOCS,  V.  C  T. 

4  Ord   III.  2. 

s  Ord.  III.  4.  Service,  in  a  supplemen- 
tal suit,  upon  the  solicitor  in  the  original 
suit,  has  been  held  good  service.  Scott  v. 
Wheeler,  13  Beav.  239;  see  also  Hart  v. 
Tulk,  6  Hare,  618;  Norton  v  Hempworth, 
1  M'N.  &  G.  54;  13  Jur.  244;  Bligh  v. 
Tredgett,  5  De  G.  &  S.  74;  15  Jur.  1101. 


SERVICE    OF    THE    COPT    OF    THE    BILL.  455 

every  bill,^  clemmTer,  plea,  answer  or  other  pleading  or  proceed-  Cii.  VIII.  §  i. 

ino-,  and  all  exceptions,  which  he  may  leave  with  the  Clerks  of  ""^ ^^ — -^ 

Records  and  Writs  to  he  filed,  and  upon  all  instructions  which  he 
may  give  to  them  for  any  appearance  or  other  inirjiose,  his  name 
and  place  of  residence,  and  also  (if  his  place  of  residence  shall  be 
more  than  three  miles  from  the  Record  and  Writ  Clerks'  Ofiice), 
another  proper  place  (to  be  called  his  address  for  service),  which 
shall  not  be  more  than  three  miles  from  that  office,  where  writs, 
notices,  ordei-s,  summonses,  warrants,  and  other  documents,  pro- 
ceedings, and  written  communications  may  be  left  for  him.^ 

Where  a  party  sues  or  defends  in  person,  and  no  address  for  How  served 
service  of  such  party  has  been  written  or  printed,  pursuant  to  the  ?^"^  proceed- 
direction  of  the  General  Order,^  or  where  a  party  has  ceased  to 
have  a  solicitor,  all  writs,  notices,  orders,  summonses,  warrants,  and 
other  docmnents,  proceedings,  and  written  communications,  not 
requiring  personal  service  upon  the  j^arty  to  be  affected  thereby, 
are,  unless  the  Court  shall  otherwise  direct,  to  be  deemed  to  be 
sufficiently  served  upon  such  party,  if  served  upon  him  personally 
or  at  his  place  of  residence;  but  if  an  address  for  service  of  such 
party  shall  have  been  written  or  printed  as  aforesaid,  then  all  such 
writs,  notices,  orders,  summonses,  warrants,  and  other  documents, 
proceedings,  and  Avritten  communications,  shall  be  deemed  suffi- 
ciently served  upon  such  party,  if  left  for  him  at  such  address  for 
service.^ 

Where  the  solicitor  of  a  party  dies,  the  other  side  may  sue  out   Subpoena 
a  sul/jxena  against  him  to  name  a  ncAV  solicitor ;  ^  and  it  seems  g^ifji^r. 
that  substituted  service  of  this  aubpoena  will  be  ordered,  in  a  proper 
case.® 

.  Service  of  all  writs,  notices,  summonses,  orders,  warrants,  docu-  Before  what 
ments,  and  otlier  j)roceedings,  not  requiring  ])ersonal  service  "  upon   Jl"u"^7br^*^^ 
the  party  to  be  affiicted  thereby,  is  to  be  made  before  seven  o'clock  made. 
in  the  evening:  except  on  Saturday,  when  it  is  to  be  made  before 
two  o'clock  in  the  afternoon;  and  if  made  after  seven  o'clock  in 
the   evening  on  any  day  except   Saturday,  the   service  is  to  be 
deeiued  as  made  on  the  following  day;  and  if  made  after  two 

1  Thi»  includes  an   information.     Prel.  S  Rntcliff  r.  Koper,  1  P.  Wms.420;  Gib- 

Ord.  J0(4).  son    f.   Ingo,  2    I'liil.    402;    12  .hir.  105; 

>■  Old.  III.  5;  see  Price  r.  Webb,  2  Hare,  Ward  ■o.  Swift,  6  Hare,  309,  311 ;  Wvatt's 

511,  r,13;  .lolm-on  v.  Uarnes,  1   De  G.  &  Pr.  411;  Ord.   III.  (1);    liriutliwaite's  I'r. 

S.  120;  11  Jur.  2fn.     Wlicre  the  solicitor  264,  2G5;  and  see  Hiitlin  r.  AnioKI,  1  II.  & 

for  any  j>arty,  or  any  party  suing  or  de-  M.  716.     Kor  form  of  tiihjxi'ua,  sec  Urd. 

feiulirif;  in  jierson,  chaiif^es  his  residence  or  Sched.  E.,  No.  5;  and  Vol.  HI. 
ndiJrem  for  service,  notice  thereof  f-hoiild  ^  Gibson  ?'.  In^;o,  w/^ijju/^. ;  Deanv.  Leth- 

I»e   given   to   the    Cli-rk   of   Records   and  bridfje,  26  Heav.  3!l7. 

Writs,  iind  also  to  »-a(li  ••olicitor  concerned  ''  i)ocunients  rc(|uirinf;  personal  service 

in  the  cau<ic.    IJniitliwaiic's  I'r.  10.     For  may  be  served  at  any  hour  of  tin;  day  (on 

form  of  notice,  see  Vol   HI.  week  days),  and  ut  any  j)lace  within  the 

*  Ord.  HI.  6.  jurisdiction  of  the    Court.     Braitliwaite*» 

*  Ord.  HI.  6.  Pr.  12. 


•ITK) 


CO:\IPELLTNG   APPEARANCE. 


PROCEEDINGS    IN   DEFAULT. 


(.11.  VllI.SJ 


Defondnnt 
not  appcariiif; 
to  hill,  may 
be  servoii 
personally, 
or  at  his 
dwelling- 
house  or 
oflice. 


oVloc'k  in  tho  atlornooii  on  Saturday,  the  service  is  to  be  deemed 
as  made  on  the  tbllowinu^  IMonday.^ 

Where  a  person  "vvlio  is  not  a  ]iar<y  a])pears  in  any  proceeding, 
either  before  the  Court  or  in  Chambers,  service  upon  the  solicitor 
in  London,  by  whom  such  party  appears,  whether  such  solicitor 
act  as  jirincipal  or  agent,  is  to  be  deemed  good  service,  exce])t,  in 
matters  of  contempt  requii-ing  }>evsonal  service.''^ 

The  plaintiff  is,  without  special  leave  of  the  Court,  at  liberty 
to  serve  any  notice  of  motion,  or  other  notice,  or  any  petition  or 
summons,  personally,  or  at  the  dwelling-house  or  office  of  any  de- 
fendant, who,  having  been  duly  served  with  a  copy  of  the  bill,  has 
not  caused  an  apjiearance  to  be  entered  within  the  time  Umited 
for  that  ])urpose;^  but  such  service  cannot  be  made  out  of  the 
jurisdiction,  without  special  Icave.^ 


Sectioj^  II.  —  Proceedings  where  no  Service  of  a   Copy  of  the 
Bill  can  he  effected. 


Under  11 
Geo.  IV.  &  1 
Will.  IV.  c. 
3G: 


against 
absconding 
defendant ; 


Proceedings 
to  take  bill 
jrro  cotifesso. 
Order  to 
appear ; 


In  the  event  of  the  plaintiff  not  being  able,  by  any  of  the  means 
previously  mentioned,  to  efl'ect  a  due  service  of  the  copy  of  the 
bill  upon  the  defendant,  the  plaintiff  is  entitled  to  have  the  bill 
taken  pro  confesso,  without  either  appearance  by,  or  service  of  the 
co])y  of  the  bill  upon,  the  defendant.  In  order  that  the  plaintiff"  may 
])ursue  this  course,  he  must  be  able  to  satisfy  the  Court,  by  affi- 
davit, that  the  defendant  is  beyond  the  seas,  or  that  upon  inquiry 
at  his  usual  place  of  abode  he  could  not  be  found,  so  as  to  be 
served  A\'ith  process ;  and  that  there  is  just  ground  to  believe  that 
he  is  gone  out  of  the  realm,  or  otherwise  absconded,  to  avoid  being 
sensed  with  the  process  of  the  Court.^  And  if  the  affidavit  shows 
the  defendant  to  be  beyond  the  seas,  the  plaintiff  must  also  prove, 
by  affidavit,  that  the  defendant  has  been  in  England  within  two 
years  next  before  the  bill  was  filed.'' 

Upon  ex  parte  motion  supported  by  such  affidavit,'^  the  Court 
may  make  an  order,  directing  and  appointing  such  defendant  to 
appear  at  a  certain  day  therein  to  be  named ;  and  a  copy  of  such 


1  Ord.  XXXVII.  2.  By  Order  XLII.  2, 
any  one  who  uses  violence  or  abusive  lan- 
guage to  a  person  serving  the  process  or 
orders  of  the  Court,  or  uses  scandalous 
or  contemptuous  words  against  the  Court  or 
the  process  thereof,  is  liable  to  be  commit- 
ted, upon  motion,  on  notice  to  the  person 
BO  offending. 

2  Ord.  III.  7;  .Jennings  v.  Devey,  4.1ur. 
858,  V.  C.  E.  With  resjiect  to  the  service 
of  a  summons,  see  poit,  Chap.  XXIX.,  Pro- 
ceedings  al  Chavibtra. 


2  Ord.  III.  8. 

*  Green  v.  Pledger,  3  Hare,  165,  168. 
As  to  serving  notices  out  of  the  jurisdic- 
tion, see  Davidson  v.  Mnrchioness  of  Has- 
tings, 2  Keen,  509,  516;  Hawarden  v. 
Dunlop,  2  \)r.  &  Sm.  155. 

5  11  Geo.  IV.  &  1  Will.  rV.  c.  36,  §  3. 

6/6.  §  9;  and  see  15  &  16  Vic.  c.  86, 
§4. 

7  tor  forms  of  motion  paper  and  ailida- 
vit,  see  Vol.  III. 


WHERE    NO    SERVICE    OF    COPY    OF    BILL    CAN   BE    EFFECTED. 


457 


order  must,  within  fourteen  days  after  it  was  made,  be  inserted  in  Ch.  VIII.  §  2. 
the  "  London  Gazette,"  ^    and  affixed  to  the  door  of  the  parish   ""       y       •' 
church  of  the  parish  where  such  defendant  made  his  usual  abode 
within  thirty  days  next  before  such  his  absenting ;  and  a  copy  of 
such  order  must  also,  within  the  time  aforesaid,  be  posted  up  in 
some  public  place  at  the  Royal  Exchange,  in  London  ;  and  if  the  in  default  of 
defendant  do  not  appear  within  the  time  limited  by  such  order,  or  ''PP^^"'^^  • 
within  such  further  time  as  the  Court  shall  appoint,  then,  on  proof 
made  of  such  publication  of  such  order  as  aforesaid,  the  Court  be- 
ing satisfied  of  the  truth  thereof,  may  order  the  plaintiff's  bill  to 
be  taken  pro  confessoP- 


1  7  Will.  IV.  &  1  Vic.  c.  45,  §  2;  Braith- 
Wflite's  Pr.  292,  293. 

2  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  3. 
For  forms  of  orders  under  this  Act,  see 
Kinfi^sford  w.  Poilp,  cited  Seton,  1249. 

In  Ma?.«achusetts, "  whenever  it  shall  ap- 
pear tliat  a  defendant  resides  out  of  the 
Commonwealth,  the  clerk,  on  application 
of  the  plaintiff,  at  any  time  after  the  filing 
of  the  bill,  shall  enter  an  order  requiring 
such  defend;int  to  appear  and  answer  the 
plnintifT's  bill,  if  in  any  part  of  the  I'nited 
States  ea=t  of  the  Mississippi  River,  or  the 
States  of  Louisiana,  Missouri,  Iowa,  or 
Minnesota,  within  one  month;  if  within 
any  other  of  the  United  Stutes,  or  New 
Brunswick,  Nova  Scotia,  or  Canada,  with- 
in two  months;  if  elsewhere  in  the  United 
State*,  or  in  Great  Britain.  Ireland,  or 
France,  within  three  months;  and  if  in 
other  foreign  parts,  within  six  months, 
from  the  rule  day  next  succeeding  the  date 
of  such  order.  The  order  shall  state  the 
title  of  the  suit,  and  shall  set  forth  brieflv 
the  substance  of  the  plaintif}"'s  bill.  A 
copy  of  the  order  shall  be  served  on  such 
defendant  personally  or  published  three 
times,  in  different  weeks,  within  thirty 
d«ys  Hfter  the  date  of  the  order,  in  some 
newspaper  published  in  the  county  where 
the  suit  i«  pending;  and  proof  of  such 
Bervice  shall  be  made  by  affidavit,  or  in 
such  other  manner  as  the  court  shall  order." 
E  de  r>.  Chancery  I'ractice. 

In  Vermont,  wlu^n  the  defendant  is  out 
of  the  Slate,  so  that  a  suhprena  cannot  be 
nerv'cd  uj)ou  liim,  the  plaintiff  mav  file  his 
bill  in  the  office  of  the  (Jlerk  of  the  Court, 
Biid  (iblain  an  order  "f  publication.  Genl. 
St«.  of  Vt.  c.  29,  §  21;  Howe  r.  Willard, 
40  Vt.  654,  659. 

There  are,  undoubtedly,  provi«ir)ns 
made  in  other  States  for  giving  notice  to 
non-resident  defendants,  and  takine  bills 
OB  confessed  ngain'-t  them  ui»oii  their  n'm- 
appearance.  New  York,  sim'  1  Barb.  (,'h. 
Pr.  92-9ti;  .Fermain  v.  I.aiiudon,  8  Paige, 
41;  pA'nrts  t)  Meeker,  i/»  506;  (jornint;  ''• 
Haxter,  0  Paige,  178;  (Connecticut  Central 
Mnnuf  Co.  V.  Hartsliorne,  3  Conn.  198. 

Non-resident  infants  defendants  must 
have  notice  given  them  of  Uie  pendency 


of  a  suit  against  them  by  publication,  as 
in  the  caee  of  adults.  Walker  v.  Hallet,  1 
Ala.  (N.  S.)  379;  Dunning  v.  Stanton,  9 
Porter.  513;  Coster  t'.  Bank  of  Georgia,  24 
Ala.  37;  Sturges  v.  Longworth,  1  Ohio 
(State),  544. 

In  New  York,  where  there  is  an  infant 
absentee,  the  course  under  the  statute 
must  be  pursued;  and  on  the  expiration 
of  the  time  fixed  for  his  appearance,  if  no 
one  applies  in  his  behalf,  the  plaintiff  may 
move,  as  in  ordinary  ca«es,  for  a  guardian 
ad  litem.  Ontario  Bank  v.  Strong,  2  Paige, 
301.  Proceedings  may  also  be  had  under 
the  statute  by  publication,  where  the  in- 
fant is  concealed.  Mortimer  v.  Copsev,  1 
HofT.  Ch.  Pr.  194.  And  the  Court  "has 
directed  the  same  course  to  be  pursued 
where  the  defendant  was  a  resident  of 
another  State,  and  a  lunatic.  Otis  v. 
Wells,  1  Hoff.  Ch.  Pr.  194. 

The  statutes  authorizing  proceedings 
against  absent  defendants  and  unknown 
heirs,  upon  constructive  notice  by  publi- 
cation, must  be  strictlv  pursued.  Brown 
V.  Wood,  6  J.  J.  Marsh.  11,  14;  Hunt  v. 
Wickliffe,  2  Peters,  201;  Lingan  ?;.  Hen- 
derson, 1  Bland,  236;  Miller  v.  Hall.  3 
Monroe,  242;  Tevis  v.  Richardson.  7  Mon- 
roe, 654 ;  see  Karr  v.  Karr,  4  C.  E.  Green 
(N.  J.),  427;  Oram  v.  Dennison,2  Beasley 
(N.  J.),  438. 

Where  the  statute  directs  an  order  of 
j)ublication  to  be  certified  by  the  printer 
in  whose  paper  the  order  has  been  pub- 
lished, a  certificate  must  be  made  by  the 
printer  or  pro[)rietor.  and  not  by  a  mere 
editor.  Brown  v  Wood,  6  .1.  J.  Marsh. 
11,  19;  Butler  v.  Cooper,  6  J.  J  Marsh. 
27.  30;  Brodie  v.  Skelton.  6  Eng.  120; 
Sprapue  V.  Sprague.  7  .1.  J.  Marsh.  331; 
A  certificate  of  publication  must  show 
when,  and  in  what  paper  the  order  was 
pul)lished.  Hopkins  v.  Claybrook,  6  .1.  .1. 
Slrtrsh.  234;  see  Swift  v  Stebl)iiis,  4  Stew. 
&  Port.  84.  Where  an  order  of  publica- 
tion has  not  been  returned,  an  entry  on 
the  record  that  it  was  proveil  to  have  been 
dulv  executed,  is  in-ulVicicnt  evi(l(Mice  of 
publication  to  'authorize  the  rendition  of 
a  decree.  Green  v.  .M'Kinney,  6  .(.  J. 
Marsh.  193,  197;  but  seo  contra,  Swift  ». 


458  COMPELLING   APPEARANCE. — PROCEEDINGS   IN   DEFAULT. 

Ch.  vni.  §  '2.        The  Gtli  rule  of  the  10th  Order  applies  to  the  same  cu-cumstances 
as  (he  i)rovisioiis  of  the  Act  last  stated;  the  affidavits  which  the 


Stehbins,  4  Stew.  &  Tort.  447.  It  is  not 
sufficient  that  .in  order  of  publication  is 
hnd  in  a  Ciiancery  cause;  ))V()of  of  tiio 
nuhlicatiou  must  also  be  made.  Moore  v. 
Wrifxht,  4  Stew.  ,S:  Port.  84.  The  \n-o- 
ceedinR  by  publication  on  the  firound  that 
the  defendant  does  not  reside  in  the  State, 
does  not  apjily  to  those, such  as  mariners, 
who  are  temporarily  absent  in  their  voca- 
tion. M'Kim  r.  "Oilom,  3  liland,  407; 
Wash  r.  Heard,  27  Miss.  (5  Cush.)  400. 
Publication  of  notice,  as  in  the  case  of  a 
non-resictent  defendant,  is  of  no  etTect 
whatever,  if  the  defendant  in  fact  be  not 
a  non-resident.  Snowden  v.  Snowden,  1 
Bland,  550;  see  Jermain  v.  Langdon,  8 
Paige,  41;  Evarts  v.  Beeker,  -8  Paige, 
506. 

In  Alabama,  notice  to  absent  defend- 
ants must  he  published  on  the  court-house 
door  as  well  as  in  the  newspaper.  Batre 
V.  Auze,  5  Ala.  173.  So  in  Virginia,  My- 
rick  V.  Adams,  4  Munf.  366.  So  in  Mis- 
sissippi. Zecharie  v-  Bowers,  3  Smedes  & 
M.  641. 

In  Kentucky,  by  Act  of  Feb.  2,  1837,  a 
wariiinc;  order  and  traverse  were  substi- 
tuted for  publication  of  notice  against  non- 
resident defendants.  Stump  v.  Beatty,  8 
Dana,  14.  A  warning  order  is  construc- 
tive notice  to  a  non-resident  of  the  pen- 
dencv  of  the  suit.  Chiles  v.  Boon,  3  B. 
Hon."  82. 

In  New  Jersey,  where  any  of  the  de- 
fendants reside  in  the  State,  and  are  served 
with  process,  it  is  not  necessary,  unless 
under  special  circumstances,  that  the  order 
for  the  appearance  of  absent  defendants 
should  be  published  in  anj'  newspaper  out 
of  the  State.  Foreign  publication  is  re- 
quired only  where  all  of  the  defendants 
reside  out  of  the  State.  Wetmore  v. 
Dver,  1  Green  Ch.  386;  Oram  v.  Denni- 
son,  2  Beasiey  (N.  J.),  438. 

A  decree  against  non-resident  defend- 
ants upon  whom  process  has  not  been 
served,  or  proof  of  publication  made,  is 
erroneous.  Gale  v.  Clark,  4  Bibb,  415. 
But  a  decree  regularly  made  against  ab- 
sent defendants,  will  not  be  set  aside  of 
course,  on  their  coming  in  and  answering, 
nor  unless  the  justice  of  the  case  requires 
it.  Dunlap  v.  M'Elvov,  3  Litt.  269;  see 
Pike  V.  McRratney.  15  111.  314. 

In  New  York,  where  a  defendant  is  pro- 
ceeded against  as  an  absentee,  he  is  en- 
titled of  course  without  an  affidavit  of 
merits,  at  any  time  before  a  sale  underthe 
decree,  to  come  in  and  make  his  defence, 
if  he  has  anv,  upon  payment  of  such  cost 
as  the  Court  may  deem  reasonable.  Jer- 
main V.  Lancd'in,  8  Paige,  41;  Evarts  «. 
Beeker,  8  Paige,  50G. 

In  such  case  it  is  not  necessary  to  vacate 
the  decree  in  the  first  instance;  the  decree 
may  be  permitted  to  stand  until  the  valid- 
ity of  the  defendant's  defence  is  ascer- 


tained, and  proceedings  for  this  purpose 
may  be  bad  in  the  same  manner  as  if  the 
decreo  had  been  opened  or  vacated.  Jer- 
main V.  Kansdon,  nbi  sxprn. 

Where  a  defendant,  who  has  a  fixed  and 
notorious  domicile  within  the  State,  is  pro- 
ceeded against  as  an  absentee,  it  is  irreg- 
ular, and  if  he  applies  the  first  opportunity 
after  he  has  notice  of  the  proceedings 
against  liim  and  before  a  sale  under  the 
decree,  he  will  be  let  in  to  defend  of 
course,  and  without  costs.  Jermain  v. 
J.angdon,  8  Paige,  41;  Evarts  v.  Beeker, 
ib.  506. 

In  order  to  obtain  a  decree  against  a 
non-resident  defendant,  who  does  not  ap- 
pear, and  who  has  not  been  personally 
served  with  process,  the  report  of  a  Mas- 
ter as  to  the  truth  of  the  allegations  con- 
tained in  the  bill  is  necessary.  Corning  v. 
Baxter,  6  Paige,  178.  And  the  reference 
to  a  Master  as  to  tlie  rights  of  an  absentee, 
must  be  had,  although  there  are  other  de- 
fendants who  j  )in  and  contest  the  claim 
of  the  plaintiff.     Ibid. 

In  Erickson  v.  Nesmith,  46  N.  H.  371, 
377,  Sargent  J.  said:  "We  find  in  all 
the  elementary  books,  rules  for  making 
extraordinary  or  substituted  service  on 
parties  out  of  the  jurisdiction,  but  upon 
examination,  we  tind  that  the  statutes 
authorizing  such  service  have  reference  to 
those  called  absentees,  who  have  a  legal 
residence  in  the  State  or  country  where 
the  cause  is  pending,  but  who  have  left  to 
avoid  personal  service  or  for  some  other 
cause,  but  who  are  still  considered  as  in- 
habitants of  sucli  State  or  country,  and 
where  service  on  the  attorney  or  agent  of 
the  party  is  held  to  be  good  service  on 
the  principal,  under  the  peculiar  circum- 
stances of  the  case.  See  Jermain  v.  Lang- 
don,  8  Paige,  41  ;  Evarts  v.  Beeker,  8 
Paige,  606.  But  where  no  attachment  of 
property  has  been  made  within  the  juris- 
diction," and  where  the  Court  can  make  no 
actual  service  of  process,  and  where  the 
party  resiiling  in  another  State  refuses  to 
submit  to  the  jurisdiction  of  the  Court, 
we  know  of  no  way  to  acquire  such  juris- 
diction over  the  person.  A  statute  could 
not  give  it  any  more  than  a  rule  of  Court. 
The  legislature  have  no  more  jurisdiction 
to  make  laws  for  the  inhabitants  of  other 
States,  while  remaining  there,  than  the 
Court  has  to  execute  them  upon  such  in- 
habitants. Rissell  V.  Briggs,  i)  Mass.  468; 
Kangley  v.  Webster,  11  N.  H.  299  and 
cases  cited.  This  subject  has  recently 
been  prettv  fully  considered  by  the  Su- 
preme Court  of  the  United  States  in  Bald- 
win V.  Hale,  1  Wallace  U.  S.  232,  and 
Baldwin  v.  Bank  of  Newbury,  1  Wallace 
U.  S.  234,  and  bv  this  Court  in  Rank  v. 
Butler,  45  N.  H.  236,  239."  See  Stephen- 
son V.  Davis,  56  Maine,  75,  76 ;  Spurr  v. 
Scoville,  3  Cush.  678;  ante,  149  note. 


WHERE   NO   SERVICE   OF   COPY   OF   BILL   CAN   BE    EFFECTED. 


459 


order  requires  are  very  nearly  the  same  as  those  necessary  under 
the  Act;  but  the  order  only  enables  the  plaintiff  to  obtain  an  ap- 
pearance to  be  entered  for  the  defendant,  and  does  not,  like  the 
Act,  authorize  the  bill  to  be  taken  ^:>ro  confesso  at  once.  The 
Order,  however,  dispenses  with  the  necessity  of  having  the  notice 
posted  up  at  the  Royal  Exchange,  or  affixed  to  the  door  of  the 
parish  church.  It  is  as  follows :  "  Where  the  Court  is  satisfied,  by 
sufficient  evidence,  that  any  defendant  has  been  within  the  juris- 
diction of  the  Court,  at  some  time,  not  more  than  two  years  ^  be- 
fore the  bill  was  filed,  and  that  such  defendant  is  beyond  the  seas, 
or  that  upon  inquiry  at  his  usual  place  of  abode  (if  he  had  any), 
or  at  any  other  place  or  places  where,  at  the  time  when  the  bill 
was  filed,  he  might  probably  have  been  met  with,  he  could  not  be 
found,  so  as  to  be  served  with  a  copy  of  the  bill  under  the  statute 
15  tfc  16  Vic.  c.  86,  §  3,  and  that,  in  either  case,  there  is  just  ground 
to  believe  that  such  defendant  has  gone  out  of  the  realm,^  or  other- 
wise absconded  to  avoid  being  served  A\-ith  such  copy  of  the  bill 
or  with  other  process,*  the  Court  may  order  that  such  defendant 
do  appear  at  a  certain  day,  to  be  named  in  the  order;  and  a  copy 
of  such  order,  together  with  a  notice  to  the  effect  set  forth  at  the 
end  of  this  rule,  may,  within  finu-teen  days  after  such  order  made, 
be  inserted  in  the  'London  Gazette,'  and  be  otherwise  published 
as  the  Court  shall  direct ;  and  where  the  defendant  does  not  ap- 
pear within  the  time  limited  by  such  order,  or  within  such  further 
time  as  the  Court  may  appoint,  there,  on  proof  made  of  such  pub- 
lication of  the  said  order,  the  Court  may  order  an  appearance  to 
be  entered  for  the  defendant,  on  the  application  of  the  plaintiff." 

The  notice  referred  to  in  the  rule  is  in  the  following  terms: 
Notice.  "A.  B.,  take  notice,  that  if  you  do  not  appear  pursuant 
to  the  above  order,  the  plaintiff  may  enter  an  apj)earance  for  you, 
and  the  Court  may  afterwards  grant  to  the  plaintiff  such  relief  as 
lie  may  appear  to  be  entitled  to  on  his  own  showing."  ^ 

Application  under  the  General  Order  is  made  by  an  ex  jx^'n'te 
motion,^  supported  by  an  affidavit  or  affidavits,  which  should  follow 
th(!  language  of  the  General  Order  as  I'ar  as  ixjssible."  One  calen- 
dar month  from  the  date  of  the  order  is  generally  limited  as  the 
time  for  ap[)earance ;  the  limitation  of  time  within  which  the  ad- 
vertisements of  the  onU.'r  in  any  news]»apers,  other  than  the  "L(m- 
<lon  Gaz.ette,"  are  to  be  inserted,  is  optional;  and   tlicy  all  may  be 


Ch.  YIII.  §  2. 


Order  to  take 
bill  pro  con- 
fesso, under 
Ord.  X.  6: 


terms  of  the 
rule; 


Notice  there- 
luider. 


How  applica- 
tion made, 
and  nccossar)' 
evidence. 


'  Thurlow  V.  Treeby,  27  Beav.  624. 

'  It  ift  not  neccssarv  to  show  that  he 
ha»  abjtcoiidi-d  to  iivoid  service  in  the|)ar- 
tirular  Huif.  Harton  v.  Whitcomlie,  16 
Brnv.  20-,:  17  .Iiir.  «!;  Allen  v.  Loder,  16 
Jiir.  42'),  V.  C.  Ld.  C. 

»  Cope  ».  Kussell,  2  Phil.  404;  12  Jur. 


105;  and  see  Crosse  v.  Crosse,  C  Jur.  N. 
S.  366 ;  8  W.  K.  338,  V.  C.  K. 

*  Ord.  X.  6.  l''or  form  of  order  see  So- 
ton,  1248,  No.  3. 

''  I'or  form  of  motion  paper,  see  Vol. 
III. 

•<  For  form  of  aflidavit,  see  Vol.  III. 


400  COMPELLING    AITEARANCE. niOCEEDINGS    IN    DEFAULT. 

Ch. yill. §3.  (lircotod  to  bo  iiisortcd  witliiii  fourtoon  days.^  The  subsoquciit 
onlor  is  also  mado  ujtoii  aTi  r.r  parte  motion,'-  sui)j)ortc'(l  by  tlie  ])!•()- 
(bu'tioii  of  the  Gn/.ette,  and  any  newspapers  in  Avliich  the  former 
order  has  been  inserted,  and  of  the  Record  and  Writ  Clerk's  cer- 
tificate that  no  a])})earance  lias  been  entered. 


Section  III.  —  Proceedings  by  the  Plaintiff,  where  Service  of  the 
Copy  of  the  Bill  has  been  effected. 

Appparanoo  If  the  defendant  (not  being  an  infant,  or  a  person  of  unsound 

bv  tktUult :"  '    J'li'id)   neglects  to  appear,  within  the  time  mentioned  in  the  in- 
dorsement thereon,  to  a  bill  which  has  been  duly  served  on  him 
where  service   -svithin  thc  jurisdiction  of  the  Court,  an  appearance  may  be  entered 
jurisdiction;     for  him  on  the  application  of  the  plaintiff;*  or  the  plaintiff  may 
(though  this  is  now  an  unusual  course)*  compel  him,  by  attachment 
or  other  process,  to  a]»pear. 
where  with-         Where  the  bill  has  been  served  out  of  the  jurisdiction,  and  the 
jurisdiction,     defendant  has  not  entered  an  appearance  within  the  time  allowed 
by  the  special  order  under  which  the  service  was  effected,  an  ex 
2K(rte  application,  by  motion  for  leave  to  enter  an  appearance  for 
him,  must  be  made  by  the  plaintiff.^     The  apj)lication  must  be  sup- 
ported by  an  affidavit  of  due  service  of  the  copy  of  the  bill  and 
copy  of  the  order,  and  by  the  Record  and  Writ  Clerk's  certificate 
of  no  appearance  having  been  entered  by  the  defendant ;  ®  and  the 
Court  may  proceed  on  such  service  as  if  duly  made  within  the 
jurisdiction,'' 
Within  what        If  the  bill  has  been  served  within  the  jurisdiction,  it  is  provided 
seni'crwiThin  ^7  ^^^  General  Order,^  that  where  any  defendant,  not  appearing 
thejurisdic-     to  be  an  infent  or  a  person  of  weak  or  unsound  mind  unable  of 
himself  to  defend  the  suit,^  is,  when  Avithin  the  jurisdiction  of  the* 
Court,  duly  served  with  a  copy  of  the  bill  under  the  statute  15  & 
16  Vic.  c.  86,  §  3,  and  refuses  or  neglects  to  appear  thereto  within 
eight  days  after  such  service,  the  plaintiff  may,  after  the  expiration 
of  such  eight  days,^*^  and  within  three  weeks"  from  the  time  of  such 

1  Seton,  1248,  1249.    If  the  advertise-       Seton,  1248,  No.  2;  and  for  form  of  aflida- 
ments  cannot  be  inserted  within  fourteen       vit,  see  Vol.  III. 

davs,   the    Court  will   extend   the   time.  '  4  &  5  Will.  IV.  c.  82,  §  1. 

Dicker  v.  Clarke,  11  \V.  U.  870,  V.  C.  K.  «  Ord.  X.  4. 

As  tothe  proprietj'oflimitinjr,  by  theorder,  ^  An  appearance  by  the  plaintiff  for  a 

a  time  to  answer,  see  Braithwaite's  I'r.  person  thusincapacitated  isirregularand  of 

3.3(j,  n.  no  validity.    Ord  X.  5;  Lee-^e  v.  Knijiht,  8 

2  Hawkins  v.  Gathercole,  3d  Nov.,  18.51,  ,Jur.  N.  S.  1000;  10  VV.  R.  711,  V.  C.  K. 
cited  1  Smith's  Pr.  380.     For  form  of  uio-  i"  Tlie  day  of  service  is  excluded  in  the 
tion  paper,  see  Vol.  III.  computation  of  the  eight  days  and  three 

3  OrJ.  X.  3,  4.  weeks.    15  &  16  Vic.  c.  86,  Scbed.;  Ord, 
<  Hackwood  V.  Lockerby,  7  De  G.,  M.       XXXVII.  9.  ' 

&  G.  238;  and  na^  post,  p.  462.  '  ^i  Where  the  plaintiff  accidentally  oniit- 

6  For  form  of  motion  paper,  see  Vol.  III.  ted  to  enter  the  appearance,  the  (Jourt  ex- 

6  4  &  5  Will.  IV.  c.  82,  §  1 ;  Ord.  X.  7  (4).  tended  the  time.    Clarkson  v.  Eldridge,  8 

For  form  of  order  to  enter  appearance,  see  W.  K.  466,  V.  C.  K. 


WHERE    THE    COPY    OF    THE    BILL    HAS    BEEN    SERVED. 


461 


service,  apply  to  the  Record  and  Writ  Clerk  to  enter  an  appearance 
for  such  defendant ;  and  no  appearance  having  been  entered,  the 
Record  and  Writ  Clerk  is  to  enter  such  appearance  accordingly, 
upon  being  satisfied,  by  affida\'it,  that  the  copy  of  the  bill  was  duly 
served.  And  after  the  expiration  of  such  three  weeks,  or  after  the 
time  allowed  to  such  defendant  for  appearing  has  expired,  in  any 
case  in  which  the  Record  and  Writ  Clerk  is  not  thereby  required 
to  enter  such  appearance,  the  plaintiff  may  apply  to  the  Court  for 
leave  to  enter  such  appearance  for  such  defendant ;  and  the  Court, 
being  satisfied  that  the  copy  of  the  bill  was  duly  served,  and  that 
no  appearance  has  been  entere<I  for  such  defendant,  may,  if  it  so 
thinks  fit,  order  the  same  accordingly. 

Service  of  an  amended  bill,  on  the  solicitor  of  a  defendant 
who  has  appeared  to  the  original  bill,^  is  due  service  within  the 
meaning  of  the  General  Order  above  referred  to,  whether  the 
defendant,  at  the  time  of  such  service  is,  or  is  not,  within  the  ju- 
risdiction ;  ^  and  the  order  applies  where  an  order  to  revive  has 
been  served-  on  a  new  defendant ;  ^  it  also  applies  where  substi- 
tuted service  has  been  effected,  under  an  order  obtained  for  that 
purpose.* 

An  application  for  leave  to  enter  an  appearance,  where  the  three 
weeks  have  expired,  or  the  bill  has  not  in  tlie  opinion  of  the  Record 
and  Writ  Clerk  been  duly  served,  may  be  made  by  ex  parte  motion 
to  the  Court,  or  by  ex  parte  summons  at  Chambers,  supiiorted,  in 
either  case,  by  an  affidavit  of  service,*  and  by  the  Record  and  Wlit 
Clerk's  certificate  that  no  appearance  has  been  entered  by  the  de- 
fendant ;  this  certificate  should  bear  even  date  with  the  application, 
but  should  be  besi)oken  the  day  before.*  The  order  is  drawn  up 
by  the  Registrar.''  If  any  delay  in  making  the  application  is  not 
satisfactorily  explained,  the  Court  or  Judge  may  require  notice  of 
'the  motion  to  be  given  to  the  defendant,  or  the  bill  to  be  re-served ;  ^ 
and  in  such  a  case,  an  order  has  been  made  giving  leave  to  enter 
an  ajipearance  at  the  exjjiration  of  ten  days  unless  the  defendant 


CH.Vin.§3. 


Special  leave 
to  enter 
appearance : 
when  neces- 
sary. 


After  serv'ice 
of  amended 
bill  on 
defendant's 
solicitor; 

after  service 
of  order  to 
revive ; 

or  substituted 
service. 


Special  leave 
to  enter 
appearance ; 
how  ob- 
tained. 


i  Under  Ord.  IX.  21 ;  see  anit,  p.  447. 
«  Zulueta  t;.  Vinent,  3  M'N.  &  (i.  246; 

16  Jur.  277,  overruiiti{;  Marquis  of  Hert- 
ford ».  Suisse,  1.3  Sim.  ^m\  !J  Jur.  1001; 
Sewell  w.  Goddcn,  1  Ue  G.  &  S.  120;  11 
Jur.  200  ;  and  see  Steele  v.  (jorduii,  A  W. 
B.  l.OH,  V.  O.  K.  As  to  a[)[iearfin<,'e  to  an 
amended  bill,  see  IiiiJex,  Aj)/ii'<tranct;  and 
Chap.  .Kill.,  A/ij/turaitct ;  and  also  Brailh- 
Waite'.s  .Manual,  1.0'J. 

«  Kor-ler  v.  Men/.ie%  10  IJeav.  5C8;  17 
Jur.  0.j7  ;  Cro«R  v    1  homas,  10  IJeav.  6'J2 ; 

17  Jur.  330.  It  in  not,  however,  usual,  in 
practice,  for  the  plaintilf  to  enter  an  ap- 
pearance, by  default,  in  such  a  ca'^e. 

*  Wilcoxonc.  VVilkins,l)Jur.N.S.742; 


11  W.  K.  868,  M.  R.;  but  see  Dicker  r. 
Clarke,  11  W.  R.  765,  V.  C.  K. 

6  For  forms  of  motion  paper,  summons, 
and  affidavit,  see  Vol.  III. 

6  Biaitliwaile's  Pr.  334.  A  fee  of  4s., 
by  a  Cliaiu;(;ry  fee  fund  stamj),  is  payable; 
Kegul.  to  Ord".  Sclied   4. 

'  For  form,  see  Seton,  1247,  No.  1. 

8  Radford  v.  Roberts,  2  Hare,  UO ;  6  Jur. 
1080;  Mor^Jinr.  Morgan,  1  Col.  228;  Ed- 
ninnds  v.  Nichol,  0  Heuv.  334;  Ikadstnck 
V.  Whiitley,  7  IJeav.  340;  lotty  r.  Ingleby, 
lb.  ij'Jl;  Walker  r.  IIur.-.t,  13  >\n\.  4iiO  ;  y 
Jur.  1002;  lleveiiisli  v.  l)(;venish,  7  .liir. 
841,  L.  C. ;  Itoiiitoii  v.  I'lirkinsoii,  ib.  307, 
V.  C  K.  15.;  and  see  Burton  v.  Tebbutt,  1 
VV.  N.  208,  V.  C.  S. 


462 


COMPELLIXG    APrEAKANCE. 


rKOCEEDINGS    IN    DEFAULT. 


Cn.  VIII.  5  3. 


Crown 

detViulaut. 


Appearance: 
bow  entered. 


Attachment 
for  want  of 
appearance, 

cannot  be  is- 
sued without 
special  order. 

Mode  of 
prosecuting  a 
contempt : 


Process  to  be 
duly  exe- 
cuted; 
Unexecuted 
process  may 
be  aban- 
doned. 


nppearod  in  the  mean  time,  on  the  plaintift'  undertaking  to  serve 
the  (letendMjit  with  the  onk'r  within  si.v  days,^ 

Where  a  hill  was  likHl  against  an  oftieer  of  the  Crown,  wlio  re- 
fused to  enter  an  appearanee,  on  the  ground  tliat  the  Court  hud 
no  jurisdietion  to  entertain  tlie  suit,  leave  was  given  to  enter  an 
appearance  for  him.^ 

An  appearance  by  the  plaintiff  for  the  defendant  is  entered  by 
filling  uj)  a  7?;wc»}><;,*  and  leaving  the  same  with  the  Record  and 
Writ  Clerk,  together  with  an  office  coj)y  of  the  affidavit  of  service,* 
or,  if  sj)eeial  leave  has  been  obtained,  the  order  authorizing  the  ap- 
pearance to  be  entered.  Any  number  of  defendants  may  be  in- 
cluded in  one  pra'cipe.^  The  plaintiff  need  not  give  notice  of  having 
entered  the  aj^pearance." 

If,  however,  the  ])laintiff  does  not  choose  himself  to  enter  an  ap- 
pearance for  the  defendant,  it  was  formerly  comj)etent  for  him  to 
proceed,  as  of  course,  to  compel  the  defendant,  by  attachment,  to 
appear ; ''  but  this  cannot  now  be  done  without  a  special  order  of 
the  Court,^  and  the  practice  is  virtually  abolished.® 

As,  hoAvever,  the  practice  of  comjielling  appearance  by  attach- 
ment is  not  absolutely  abolished,  it  will  be  convenient  here  to  state 
the  mode  of  prosecuting  a  contempt.  A  suitor  prosecuting  a  con- 
tempt, must  use  his  best  endeavor  to  procure  each  process  to  be 
duly  served  and  executed  upon  the  party  prosecuted  :  otherwise 
he  will  lose  the  benefit  of  the  process  returned,  and  have  to  ])ay 
the  costs ;  ^°  he  must  not  make  out  process  into  a  county  in  which 
he  knows  that  the  party  prosecuted  is  not ; "  but  he  may  abandon 
any  unexecuted  process  he  has  issued,  and  issue  fi-esh  process,  if 
otherwise  in  a  position  so  to  do.^^ 


1  Husham  v.  Dixon,  1  Y.  &  C.  C.  C  203 ; 
and  see  cases,  ib.  n. 

2  Felitin  v.  Lord  Herbert,  1  Dr.  &  S.  608; 
8  Jur.  9  N.  S.  90. 

3  For  form,  see  Vol.  III. 

*  For  form,  see  Vol.  III.  As  to  tlie  costs 
of  such  appearance,  see  Ord.  XL.  15  ;  and 
as  to  a  subsequent  appearance  by  tlie  de- 
fendant, see  Ord.  X.  'J,  post,  p.  479. 

6  liraithwaite's  Fr.  32.5.  The  following 
fees  are  payable,  in  Chancer^'  fee  fund 
stamps,  on  entering  appearances:  if  not 
more  than  three  defendants,  7s  ;  if  more 
than  three,  and  not  exceeding  six,  defend- 
ants, 14s. ;  and  the  same  ])roportion  for 
every  like  nuuibor  of  defendants.  Wegul. 
to  Ord.  Sched.  4.  In  this  computation, 
husband  and  wife  are  regarded  as  one  per- 
son,    braithwaite's  Pr.  325. 

6  Braithwaite's  Fr.  337.  If  the  appear- 
ance is,  by  mi>take,  entered  by  tiie  plain- 
tiff's solicitor,  as  if  concerned  for  the 
defendant,  it  may  be  witiidniwn  and  en- 
tered as  by  the  plaintirt";  see  i6i</.;  and  post, 
Chap.  Xfil.,  Apptarance. 


7  Mussina  v.  Bartlett,  8  Porter,  277. 
The  general  mode  of  compelling  obedience 
to  tlie  orders  of  the  Court,  is  by  attach-  ' 
ment.  Matter  of  O'lleillys,  2  Hogan,  20. 
It  always  rests  in  the  sound  discretion  of 
the  Court,  whether  the  rule  for  an  attach- 
ment shall  be  absolute,  or  nisi,  though  the 
latter  is  the  usual  and  safer  course.  Mat- 
ter of  Vanderbilt,  4  .John.  Ch.  58. 

^  Old.  X.  10.  The  applic'ation  will  be 
refu'^ed,  unless  the  ()lamtiti'  can  show  a 
sufficient  reason  for  adopting  this  course  of 
proceeding.  Hackwood  v.  Lockerby,  7  De 
G.,  M  &  G.  238. 

9  I'er  V.  C.  Kindersley,  Felkin  v.  Lord 
Herbert,  1  Dr.  &  S.  608;  8  .lur.  N.  S.  90. 

10  Old.  XXX.  1. 

11  lioschetti  V.  Power,  8  Beav.  180,  184; 
Zuluetav.  Viiient,  15  Beav.  273;  16  .lur. 
631;  see,  however,  Hodgson  v.  Hodgson, 
23  Beav.  604. 

12  Andrews  i;.  Walton,  1  Phil.  619  ; 
Braithwaite's  Pr.  147. 


WHERE    THE    COPY    OF    THE    BILL    HAS    BEEN    SERVED.  463 

It  seems  that  in  ordinary  cases  a  plaintiff  may,  at  the  same  time,  Ch.  VIII  §  3. 

sue  out  two  or  more  attachments  against  the  same  defendant  into   ' y ^ 

different  counties  ;  but  only  one  of  them  must  be  executed  ;  other-  By  attach- 
wise  the  party  would  be  liable  to  an  action.     Thus,  where  a  de-  ™^^  ' 
fendant  being  in  contempt,  the  plamtifl  sued  an  attachment  nito  attachment 
Kent,  and  another  into  London,  and  arrested  the  defendant  upon  g^g^^jj^^^ 
each  :  upon  this  being  shown  to  the  Court,  costs  were  ordered  to  though  more 
be  taxed  by  the  Master,  for  the  irregularity  and  vexation;  but,  in  ^^^^^J 
regard  that  the  plaintiff  was  poor,  the  Court,  upon  his  motion, 
ordered  the  costs  to  be  paid  the  defendant,  out  of  a  sum  of  600^. 
decreed  to  the  plaintiff,  and  resting  in  Court ;  and  the  defendant 
was  set  at  hberty,  without  entering  his  appearance  with  the  Reg- 
istrar: for  the  Court  said,  none  should  take  advantage  of  his  own 
wrong.^ 

An  attachment  should  be  directed  to  the  Sheriff  or  other  officer  to  whom 
of  the  county  or  jurisdiction  wherein  the  party,  against  whom  the  directed, 
writ  is  issued,  is  likely  to  be  found.^  If  the  defendant  resides  in 
the  county  palatine  of  Lancaster  or  of  Durham,  the  attachment 
must  be  directed  to  the  Chancellor  of  the  county  palatine,  or  his 
deputy,  commanding  him  to  issue  his  mandamus  to  the  sheriff  of 
the  county  to  attach  the  party ;  ^  and,  to  enforce  obedience,  it  is 
necessary  to  obtain  an  order  upon  the  Chancellor  to  return  the 
writ,  and  afterwards  an  order  upoji  the  sheriff  to  return  the  man- 
damus.* Where  the  defendant  is  in  a  city  or  town  that  is  a  county 
in  itseltj  the  writ  must  be  directed  to  the  sheriff  of  the  county  of 
the  city  or  town  ;  ^  and  if  the  party  is  already  in  prison,  the  writ 
must,  nevertheless,  be  directed  to  the  sheriff:  who  will  lodge  it 
with  the  keeper  or  jailer,  as  a  detainer  against  such  party." 

According  to  the  old  practice  of  the  Court,  an  attachment,  as  -wriien  return- 
well  as  all  other  process  of  contempt,  must  have  been  made  re-  able, 
turnable  in  .Term  time;''  and  it  was  also  requisite,  Avhere  it  was 
intended  to  j^roceed  to  a  sequestration,  or  to  take  a  bill  ^:)ro  C07i- 
/esso,  that  there  should  be  lifteen  days  between  the  teste  (or  date) 
and  the  return  of  the  writ :  unless  the  defendant  lived  within  ten 
miles  of  London,  in  which  case,  an  order  might  be  obtained,  by  mo- 
tion or  petition  of  course,  to  make  the  several  processes  returnable 
immediately."     ^^'ith  the  view,  however,  to  save  the  expense  of 

1  Wyatt'H  Pr.  48.  *  See  jwH,  p.  470. 

2  Uraitliwaity's  I'r.  ViB.  In  London, where  ^  Since  llie  18  &  19  Vic.  c.  48,  such  pro- 
there  are  two  utieritrH,  if  one  of  them  is  an  cess  us  would  otherwise  have  been  direct- 
interested  part}',  the  writ  should  be  direct-  ed  to  tiie  l>ord  Warden  ol'tiie  Cinque  Ports, 
ed  to  the  otlier;  iind  where  hotli,  or  tiie  is  directed  to  llie  ShcriH" of  Kent. 

Hole  shend"  in  other  cases,  are  interested,  it  ^  Trotter  v.  Trotter,  .lac.  M'-i;  and  see 

should  be  directed  to  tlie  coroner.   Ih.  101.  jKist,  p.  4t!G.     I'or  forms  of  directions   of 

For  forms  of  directions  of  writs,  see  Vol.  writs,  see  Vol.  III. 
III.  '  Hinde,  100. 

•  Braithwoite's  Pr.  159;  and  see  form  ia  *  Jbid. 

Vol.  III. 


464 


COMPELLING   APPEARANCE. 


PROCEEDINGS   IN   DEFAULT. 


Cii.  viii.?;^ 


Statu  ton- 
pix>visioiis. 


If  returnable 
in  Term  time, 
but  not  im- 
mediately, it 
must  be  on  a 
return  dav. 


By  whom 
prepared. 


Form. 
Indorsement. 


How  issued. 


tlio  order  for  a  \\i-it  returnable  immediately,  in  a  town  cause,  and 
also  to  get  rid  ol'  the  delay  in  the  process  occasioned  by  that  pro- 
eeedino;,  it  is  i>rovided  by  the  11  Geo.  IV.  &  1  Will.  IV.  c.  80, 
§  IT),  rule  8,  ''that  the  party  j)r()seeutiiig  any  contempt  shall  be  at 
liberty,  without  order,  to  sue  forth  the  several  writs  in  process  of 
contcm})t,  returnabU'  immediately,  in  case  the  party  in  contempt 
resides  or  is  in  Jxtudon,  or  within  twenty  miles  thereof;  and  that, 
in  other  cases,  the  party  prosecuting  a  contempt  shall  be  at  liberty, 
without  order,  to  sue  forth  such  several  writs,  returnable  in  vaca- 
tion, provided  that  there  be  fiiteen  days  between  the  teste  and  the 
return  of  each  of  such  writs."  ^  The  effect  of  this  provision  is,  to 
extend  the  power  of  issuing  attachments,  and  other  process,  re- 
turnable in  vacation,  to  all  cases :  with  the  restriction,  that  where 
the  party  resides  above  twenty  miles  from  London,  there  shall  be 
fifteen  days  between  the  teste  and  the  return ;  and  to  permit  such 
process  to  be  issued  without  a  previous  order  to  that  effect. 

It  is  to  be  observed,  that  W'here  an  attachment  is  issued  not  re- 
turnable immediately,  but  of  wdiich  the  return  must  take  place  in 
Term  time,  it  must  still,  as  before,  be  made  returnable  on  a  general 
return  day ;  thus,  when  the  last  of  the  fifteen  days  required  by  the 
above  rule  of  the  11  Geo.  IV.  &  1  Will.  IV.  c.  8G,  falls  in  Term 
time,  the  attachment  must  be  made  returnable  on  one  of  the  gen- 
eral return  days  of  the  Term  occurring  after  the  expiration  of  the 
fifteen  days.'^  It  was  formerly  considered,  that  an  attachment 
could  not  have  a  longer  return  than  the  lust  return  of  the  Term 
folloAving  that  in  which  it  was  tested/  if  made  returnable  "imme- 
diately," it  was  only  in  force  until  such  last  return  of  the  following 
Tenn ;  and  if  executed  afterwards,  its  execution  was  liable  to  be 
discharged  for  irregularity ;  but  it  appears  that  there  is  now  no 
such  rule  in  practice.^ 

A  writ  of  attachment  is  made  out  by  the  solicitor  or  party 
prosecuting  the  contempt,*  who  must  indoi'se  the  name  and  place 
of  business  or  residence,  and  address  for  service  (if  any)  thereon, 
as  in  the  case  of  other  proceedings.^ 

The  fomi  of  the  Avrit  is  in  all  cases  the  same ;  but  it  must  bear 
an  indorsement,  stating  the  particular  nature  of  the  contempt  in 
respect  of  w^hich  it  is  issued.''  The  names  of  three,  but  not  more, 
persons  can  be  inserted  in  one  writ.  The  writ  must  be  tested  on 
the  day  on  which  it  is  issued ;  it  is  sealed  at  the  Record  and  Writ 


1  I5raitliwaite's  Manual,  199  ;  Wroe  v. 
Clayton,  10  S>im.  183;  12  Jur.  321;  Seton, 
1231. 

2  Seton,  1231;  Braithwaite's  Pr.  153. 
For  list  of  general  return  days,  see  Vol.  III. 

8  Wroe  V.  Clayton,  16  Sim.  183;  12  Jur. 
331. 

*  Ord.  III.  1.  This  writ  must  be  either 
written  or  printed   on   parchment  ;    and 


should  have  a  Icft-liand  margin  of  suffi- 
cient width  to  admit  of  the  stamp,  and  the 
ofiicial  seal;  the  writ  must  be  stamped 
witli  a  Chancery  tee  fund  stamp  of  6s. 
Kegul  to  Ord.  Sclied.  4;  Braithwaite's  I'r. 
133. 

fi  Ord.  III.  2,  5;  ante,  pp.  453-455. 

6  Braithwaite's  Pr.  159.  For  forms  of 
indorsements,  see  Vol.  111. 


WHERE    THE    COPY    OF    THE    BILL    HAS    BEEN    SERVED. 


4G5 


Clerks'  Office ;  and  the  seal  vriW  be  affixed,  on  the  Clerk  of  Records 
and  Writs  being  satisfied  that  the  vrrit  is  correct  in  fonn,  and  that 
the  person  presenting  the  same  is,  according  to  the  course  and 
practice  of  the  Court,  entitled  to  sue  out  the  same.^  The  attach- 
ment is  considered  as  sealed  the  first  moment  of  the  day  on  w^hich 
it  issues.'^ 

Before  the  writ  will  be  sealed,  a  prcecipe,  stating  the  nature  of 
the  contempt  in  respect  of  which  it  is  issued,  must  be  entered  with 
the  Registrar,  and  left  at  the  Record  and  Writ  Clerks'  Office.  In 
order  to  enter  the  praecipe^  two  copies  of  it  are  prepared ;  and 
upon  one  being  left  with  the  Clerk  at  the  entering  seat,  in  the 
Registrars'  Office,  the  other  will  be  marked  by  him  as  entered ;  and 
the  latter  copy  must  be  filed  with  the  Record  and  Writ  Clerk  at 
the  time  the  Avrit  is  sealed.^ 

The  manner  in  Avhich  both  original  and  amended  bills  are  filed 
has  before  been  stated  ;*  and  under  no  circumstances  can  an  attach- 
ment be  issued  for  want  of  appearance  or  answer,  unless  the  bill 
be  regularly  filed.^ 

A  writ  of  attachment,  for  want  of  appearance,  is  indorsed,  "  By 
the  Court :  For  not  appearing  at  the  suit  of  A.  B.,  complainant," 
or  as  the  case  may  be ;  ^  and  it  will  be  sealed  at  the  Record  and 
Writ  Clerks'  Office,  upon  production  of  the  order  authorizing  the 
issue  of  the  writ ;  ^  if  it  appears  to  the  Clerk  of  Records  and  Writs 
that  no  appearance  has  been  entered  for  the  defendant.^  Before 
the  writ  is  sealed,  a  prcecipe  must  be  entered  with  the  Registrar, 
and  left  in  the  manner  before  exjjlained." 

It  is  particularly  requisite  that  the  rule,  that  a  suitor  prosecut- 
ing a  contempt,  should  use  his  best  endeavor  to  procure  process  to 
be  duly  served,^''  should  l)e  attended  to  in  cases  where  it  is  intended 
to  proceed  to  take  a  bill  ptro  confesso^  against  a  defendant  in  con- 
tempt for  want  of  an  answer :  for,  by  the  General  Orders,  it  is 
necessary  that  the  plaintiff  should  have  exerted  due  diligence  to 
procure  the  execution  of  the  Avrit  of  attachment,  'in  order  that  he 
may  proceed,  under  these  Orders,  against  the  defendant  as  having 
absconded."  And  if  the  plaintiff  does  not  proceed  under  the 
last-mentioned  Orders,  then,  for  the  purpose  of  obtaining  a  writ  of 
sequestration,  immediately  upon  the  return  by  the  sherifi'  of  mm 


Ch.VIII.§3. 


Entiy  of 
pracipe. 


Attachment 
cannot  be 
issued,  if  bill 
lilcd  irregu- 
larly. 

Attachment 
lor  non- 
appearance: 
how  indorsed. 


Necessary 
evidence. 

How  issued. 
PrvBcipe. 

Due  diligence 
must  be  used 
to  execute 
writ. 


1  Ord.  I.  37. 

2  Stephens  t'.  Neale,  1  Mad.  550. 

3  Sinitli  V.  Thoinp-on,  4  Mad.  179;  Ord. 
I.  It^;  iirjitliwaite's  i'r.  161.  For  forms 
of pra;ri/ir,  see  \'ol    III. 

*  Ante,  pp.  39H,  Z'J'J,  422. 

*  Leman  v.  Newnliam,  1  Vcs.  §§  51,63; 
Belt  .Sup.  42;  Adam^on  v.  Hlackfitock,  1 
S.  &  S.  118. 

®  For  forms  of    indorsement.s,  see  Vol. 


HI 


1  Ord.  X.  10;  ante,  p.  462. 

VOL.  I. 


8  Braithwaite's  I'r.  101. 

"  Smith  V.  Ihomp.son,  4  Mad.  179,  ante, 
p.  40.').     For  form  oi  prcscine,  see  Vol.  HI. 

">  Ord.  X,\.\.  1. 

11  Ord.  X.XII  2.  Where  the  defendant 
is  out  of  the  jurisdiction  the  att:icliir)cnt 
need  not  be  issued;  .^ee  Hutli;r  i'.  .Mnltliew-", 
19  Ileav.  549;  Hodgson  v.  llodj^son,  2.'5 
Heav.  004.  In  other  cases  an  alHdavit  of 
due  diligence  to  execute  the  attacliment 
must  be  made. 


30 


466 


COMPELLING   APPEARANCE.  —  PPiOCEEDINGS    IN    DEFAULT. 


Cm.  Vlll.  §. 


Dclivcn-  to 
the  sheriti'; 


or  nnder- 
slicrift",  or 
deputy. 

Duty  of 
shenff,  &c. 


Execution, 
wlu-ri'  (let'end- 
ant  is  alread}' 
in  custody. 


Execution, 
where  defend- 
ant not  in 
custody. 

Warrant  to 

shcrifl''s 

officers. 

Form  of 

warrant. 


Warrant 
must  be  had 
before  the 
arrest. 


Execution  of 
Um  warrant  : 


(Kt  i/irentuii  to  tlio  nttni-liiiu'iit,  :iii  aflidavit  must  bo  made,  that 
"iluo  diliu,onco  was  used  to  ascertain  where  8ucl)  defendant  was  at 
the  time  of  issuin!:!f  the  writ,  and  in  endeavoring  to  apprehend 
liiin  under  the  same,  and  that  the  ])erson  suing  forth  such  writ 
verily  believed,  at  the  time  of  suing  forth  the  same,  that  such 
defi'udaiit  was  in  the  county  into  which  sucli  writ  was  issued."  ^ 

The  tirst  thing  to  be  done,  after  an  attachment  has  been  issued, 
is  to  deliver  it  to  the  sheritf  or  other  officer  to  whom  it  is  directed ; 
and  it  is  to  be  observed,  that  althougli  it  is  directed  to  the  sheriff, 
it  may  be  doHvered  to  the  under-sheriff,  by  whom  all  the  duties  of 
the  sheriff  which  do  not  require  las  personal  presence  are  usually 
executed,  or  to  the  deputy-sheriff.^  The  sheriff  or  other  officer  to 
whom  any  writ  is  directed  or  delivered  ought,  with  all  speed  and 
secrecy,  to  execute  such  writ ;  ^  and  neither  he  nor  his  officers 
can  dispute  the  authority  of  the  Court  out  of  which  it  issues ;  but 
he  or  his  officers  are,  at  their  peril,  to  execute  the  same,  according 
to  the  command  of  such  writ.* 

If  the  defendant  is  already  in  custody,  either  upon  a  criminal 
sentence  or  civil  process,  no  further  arrest  is  necessary ;  but  the 
sheriff  must  give  notice  of  the  attachment  to  the  keeper  or  jailer 
in  whose  custody  the  defendant  is.^ 

Although  all  writs  and  processes  are  ordinarily  directed  to  the 
sheriffs,  yet  they  never  execute  the  same  themselves,  but  the 
under-sheriffs  usually  make  out  their  warrants  to  their  bailiffs  or 
officers  for  the  execution  of  such  writs ; "  and  it  is  the  duty  of 
such  bailiffs  or  other  officers  to  execute  such  warrants  according 
to  their  directions.  These  warrants  must  be  made  according  to 
the  nature  of  the  writ,  and  contain  the  substance  thereof,  and  be 
made  out  in  the  high  sheriff's  name,  and  under  the  seal  of 
office.'' 

The  W' arrant  must  be  had  before  the  arrest ;  or  the  arrest  will 
be  illegal,  and  the  party  aggrieved  may  have  his  action  for  false 
imprisonment,  and  the  Court  will  direct  the  bail-bond  to  be 
cancelled.*  The  warrant  must  be  :  "  So  that  I  may  have  his 
body  before  the  Queen,  in  her  Court  of  Chancery." 

The  bailiff  or  officer  to  whom  the  warrant  is  directed  and  deliv- 
ered ought,  with  all  speed    and    secrecy,  to    execute    the  same 


1  Ord.  XII.  6. 

2  Impey,  Off.  Sheriff,  36.  By  3  &  4 
Will.  IV.  c.  42,  §  20,  the  sheriff"  of  each 
county  is  required  to  name  a  deputy  in 
London  for  the  receipt  of  writs,  granting 
•warrants,  makitjg  returns,  and  accepting 
rules  and  orders  touching  the  execution  of 
process.  A  delivery  of  a  writ  to  this  deputy 
is  a  deliver}'  to  the  sheriff.  Chitty's  Arch. 
16.  A  writ,  if  directed  to  the  Sheriffs  of 
London,  is  left  at  the  Secondary's  Ofhce, 
Jiasinghall  Street;  and  if  to  the  SheriSof 


Middlesex,  it  is  left  at  his  office  in  Red 
Lion  Square. 

8  Impey,  Off.  Sheriff,  45. 

4  Jb.  33. 

6  See  ante,  p.  463. 

8  Impey,  Off.  Sheriff,  59;  Chitty's  Arch. 
609.  tor  form  of  warrant,  see  Chitty's 
Forms,  350. 

'  Impey,  Off.  Sheriff,  59.  As  to  special 
bailiffs,  see  Chitty's  Arch.  16,  609. 

8  4  Bac.  Abr.  600;  Hall  v.  Roche,  8  T. 
R.  187 ;  Chitty's  Arch.  610. 


"W^HERE    THE    COPY    OF    THE    BILL    HAS    BEEN    SERVED.  4<)7 

according  as  it  commands  liim ;  and  he  is  bound  to  pursue  the  Cn.vill.  §3. 

effect  of  his  warrant.^     The  baiUff  of  a  hundred  may  execute  a    ' < ' 

writ  out  of  the  hundred  where  he  is  bailiff:  for  he  is  bailiff  all  the   may  be  by 
county  over ;  ^  it  must,  however,  be  within   the   county  :  for  the  jl^f  h^ndre^'^ 
sheriff's  bailiwick  extends  no  further.^     It  seems,  that  an  arrest   but  not  out  of 
may  be  by  the  authority  of  the  bailiff,  though  his  be  not  the  hand  ^^^  county. 
that  arrests,  nor  in  sight,  nor  within  any  precise  distance  of  the 
defendant :  it  is  sufficient  that  he  is  arrested.* 

An  arrest  on  a  Sunday  is  absolutely  void.^  If,  however,  a  Arrest  on  a 
defendant  arrested  on  a  Saturday  escapes,  he  may  be  retaken  on  a  Sunday  void. 
Sunday :  for  that  is  not  in  execution  of  the  process,  but  a  continu- 
ance of  the  former  imprisonment ;  ®  and  it  is  said,  that  a  person 
may  be  arrested  on  a  Sunday  on  the  Lord  Chancellor's  warrant,  or 
an  order  of  commitment  for  contempt :  for  he  is  considered  as  in 
custody  from  the  time  of  making  the  order,  and  the  warrant  is 
directed  to  the  jailer  as  in  the  nature  of  an  escape  warrant,'  under 
which  it  has  been  held,  that  a  defendant  may  be  retaken  on  the 
Lord's-day.* 

The  bailiff  or  other  person  to  whom  the  execution  of  the  process   Return  of 
has  been  intrusted  must,  as  soon  as  he  has  executed  the  warrant,  ^ '^.rr?."'^  ^^ 
return  it,  together  with  his  answer  to  the  same,  to  the  sheriff:  so 
that  he  may  be  ready  to  certify  to  the  Court  how,  and  in  what 
manner,  the  warrant  has  been  executed,  when  called  upon.^ 

Xo  arrest  can  take  place  under  an  attachment  after  the  day  of  No  arrest 
the  return  of  the  writ ;  ^"  and  if  the  return  is  allowed  to  ex])ire  ^'^^^^  ^"^^ 

.        .  '  return  day. 

before  any  thing  is  done  upon  the  writ,  the  plaintiff  must  sue  out 
another  attachment,  but  will,  in  such  case,  be  allowed  the  costs  of 
only  one  writ."  This,  however,  must  be  understood  as  applying 
only  to  cases  where  the  first  writ  has  not  been  delivered  to  the 
sheriff:  for  after  delivery  to  the  sheriff,  the  duty  of  executing 
it  lies  upon  him,  and  he  must  make  his  return  to  the  Court 
accordingly. 

A  sheriff  or  other  officer  employed  to  make  an  arrest  under  an   poors  cannot 

be  broken 

1  Impev,  Off.  SlierifT,  40.  Bac.  Ab.  tit.  Escape,  E.  3:  Cliitty's  Arch.    open. 

2  II,.  4t;.  6y2. 

3  ILimmond  v.  Taylor,  3  B.  &  Aid.  408;  »  Impey,  Off.  Sheriff,  61. 
Chitty'H  Arch.  612.  9  Ih.  46. 

*  match  V.  Archer,  Cowp.  65;  Cliitty's  w  lb.  59. 

Arch.  610.  11  Hiirr.   by  Newl.    118.     If  the   sheriff 

*  29  Car.  II.  c.  7,  §  6;  Cliitty's  Arch.  does  not  receive  the  attachment  in  time  to 
611.  arrest  tli-^  defendant  and  brinj;  him  into 

«  Impev,  Off.  .Sheriff,  61;  Chitty's  Arch.  the  (^ourt  on  the  return  day,  ut  the  place 

611,  II   ('/);  ill.  C'.sX.  where   the   attaclinient   is  returnable,    he 

'  Kx  jmrlt  Whitchurch,  1  Atk.  65;  see  should  not  arn-sl  him  tlureun,  but  should 
1  Anne,  st  2,  c.  0,  §  1;  and  6  Aime,  c.  9,  return  the  process  lanU.  JStad'ord  w 
§  3,  which  enables  the  .Juilj^e  of  any  (Jourt  Brown,  4  I'aif^e,  360.  Where  the  ^herilr 
out  of  which  process  has  issued,  hy  virtue  ncf^lected  to  serve  iin  iittachineiii,  nniil  it 
of  which  a  party  has  been  committed  to  was  too  bite  for  the  defendant  to  ap|)car  iit 
prison  and  escapes  therefrom,  to  issue  a  the  time  and  i>hice  where  it  was  n;! urn- 
warrant  for  his  reapprchcnslon ;  and  see  able,  the  Oiurt  set  aside  the  arrest  of  the 

defendant  thereon.     Ibid. 


468  COMPELLING    ArPEARANCE.  —  PROCEEDINGS    IN    DEFAULT. 

Til.  VIII.  §.!.    attaclniu'iit   oannot  jiistity  breaking  doors    in  executing  the  pro- 

"^ > "    cess  ;  *  aii<l  altlumgli  the  arrest  is  by  a   bailiiV  or  other  ollicer,  it  is 

considered  as  the  act  ot"  the  slierittj  avIio  makes  his  return  accord- 
ingly. 
(\Mirso  where  If  the  defendant  is  taken  on  an  attachment  for  want  of  appcar- 
iiv"k'ir^  '^  ance  or  answer,  he  must  either  go  to  prison  for  safe  custody,  or  put 
in  bail  to  the  sheritt" :  for  the  intent  of  the  arrest  being  only  to 
compel  an  ajipearance  in  Court  at  the  return  of  the  writ,  or  an 
answer  to  the  interrogatories,  that  purpose  is  equally  answered, 
whether  the  sherifl*  detains  his  person,  or  takes  sufficient  security 
for  his  appearance  or  answer.-  The  sheriff"  may,  however,  if  he 
pleases,  let  the  defendant  go  at  large  without  any  sureties;  but 
that  is  at  his  own  peril :  for,  after  once  taking-  him,  the  sheriff"  is 
bound  to  keep  him  safely,  so  as  to  be  forthcoming  in  Court.^ 
Of  putting  in  The  method  of  })utting  in  bail  to  the  sheriff"  is  by  entering  into 
sheriff  "^*^  a  bond  or  obligation,  with  one  or  more  sureties,  to  insure  tlie 
defendant's  appearance  at  the  return  of  the  writ :  which  obligation 
is  called  a  bail-bond.*  The  statute  23  Hen.  VI.  c.  9,  having 
prescribed  in  what  cases  the  sheriff'  may  take  a  bail-bond  in  actions 
emanating  from  Coixrts  of  Law,  and  prohibited  the  taking  a  bond 
in  all  other  cases,  a  doubt  appears  to  have  been  raised  whether  the 
sheriff"  has  or  has  not  a  right  to  take  a  bail-bond  upon  attachments 
issuing  out  of  the  Court  of  Chancery.  But  this  question  has  been 
set  at  rest  by  the  decision  of  the  Court  of  Common  Pleas,  in 
Morris  v.  Hayxcard^  by  which  it  was  determined,  that  a  slierifF 
may  take  a  bail-bond  on  an  attachment  out  of  Chancery,  but  that 
he  is  not  compellable  to  do  so ;  and  that  whether  a  bail-bond  shall 
be  taken  or  not  is  in  the  discretion  of  the  sheriff",  as  regulated  by 
the  practice  of  that  Court.  The  consequence  is,  that  an  action  at 
Law  will  not  lie  against  the  sheriff",  under  the  above-mentioned 
statute,  for  refusing  to  take  bail  from  a  defendant,  arrested  under 
an  attachment  issuing  out  of  the  Court  of  Chancery.® 
Form  of  The  practice  of  the  Court,  however,  seems  to  be,  that  where  a 

bail-bond.  party  is  taken  upon  an  attachment  for  a  contempt,  he  may,  when 
the  contempt  is  of  a  bailable  nature,  on  payment  of  the  costs, 
which  are  IBs.  8(7.,  be  admitted  to  bail,  by  entering  into  a  bail- 

1  See  Chitty'8  Arch.  613.  answer  the  exigency  of  the  ■writ,  until  the 

2  3  Bla.  Com.  290.  return  day  tliereof,  unless  he  shall,  with 
8  Ibid.  one  sufficient  surety,  at  least,  give  bond, 
^  Ibid.      Where  an  attachment  is  in  the  in  tlie  penal  sum  of  five  hundred  dollars 

nature  of  mesne   process,  tlie  sheriff  may  to  the  plaintiff,  conditioned  for  his  appear- 

take  bail  for  the  party's  appeiirance;  and  ance  on  the  return-d.iy  of  the  attachment, 

on   a  return  cepi,  the  sheriff  may  be  or-  according  to  the  command  of  such  writ, 

dered  to  bring  in  the  bodj' ;  or  lie  may  sue  and  that  he  will  not  depart  thence  without 

on  the  bail-boml.    Binney's  case,  2  Band,  lenve  <if  the  Court.     (Jhancerj' Rule,  25. 

99;  Deakins's  case,  ih.  898.  6  g  Taunt.  569;  and  see  ].,ewis  v.  Mor- 

In  New  Jersey,  wlien  an  attachment  for  land,   2  B.  &   Aid.    66  ;    Chitty's   Arch, 

a  contempt  shall  be  served,  the  defemiant  1709. 

shall  be  retained  in  custody  thereon,  to  ^  Studd  v.  Acton,  1  H.  Bla.  468. 


WHERE    THE    COPY    OF    THE    BILL    HAS    BEEN    SERVED.  469 

bond   to   the   plaintiff,   to   the   amount   of  -iOZ.  himself,  with  two   Ch.  Vlll.§;i. 

sureties  in  20/.  each,  to  appear  or  answer,  as  the  case  may  he,  at   '        y 

the  return  of  the  writ.^ 

It  is  to  be  observed,  however,  that  a  contemjit  in  not  paying  Attachment: 
costs,  or  in  not  obej-ing  a  decree  or  order,  is  not  of  a  bailable  ^aikble!^ 
nature  ;  and  that  the  sheriff  cannot  take  bail  to  an  attachment 
issued  on  that  account.^ 

"Where  a  sheriff,  having  taken  a  defendant  into  custody  upon  an  Ass^icrnment 
attachment,  takes  bail  for  his  appearance,  he  may  assign  the  bail-  "^  bail-bond. 
bond  to  the  plaintiff:  ^  who,  if  the  defendant  neglects  to  appear, 
or  to  put  in  an  answer,  may  put  the  bail-bond  in  suit  against  him. 
If  the  attachment  be  for  not  answering,  the  plaintiff  may  also  Action  on 
have  a  messenger  into  the  county  where  the  defendant  lives,  to  pj."|riu°i"^^  ^y* 
arrest  the  defendant,  and  bring  up  his  person  to  the  Court;  which  sending  a 
is  the  more  effectual  way  of  proceeding.^     This,  however,  will  °^'^**^"S®'"- 
not  preclude  him  from  bringing  an  action,  at  the  same  time,  upon 
the  bail-bond,  against  the  defendant  and  his  sureties:  otherwise, 
the  giving  a  bail-bond  would    be    quite    useless;^   and    it  is  to 
be  observed,  that  if  an  action  is  brought  on  the  bail-bond,  the 
defendant  cannot  obtain  an   order  to   restrain  the   plaintiff  from 
proceeding  in  it,  without  first  clearing  his  contempt.® 

All  processes  against  any  person,  directed  to  the  sheriff,  ought  Return  made 
to  be  duly  and  truly  executed,  and  returned  into  the  Courts  out  of  J",  ^'j-jj"^/^.^  "'^ 
which  they  issued ;  ^  and  all  returns,  although  made  by  the  under- 
sheriff,  yet  must  be  made  in  the  name  of  the  high-sheriff,  and  las 
name  must  be  put  thereto,  or  the  return  is  void.®     The  sheriff  must 
also  return  tridy,  and  not  contrary  to  the  record ;  if  he  does,  he  must  be  tme. 
falsifies  all  his  proceedings.^     If  the  sheriff  takes  the  party  to  jail.  Defendant  to 
he  should  lose  no  time   in  so  doing:  as  otherwise,  the   time  mav   '"' ""P";'^- 
expire  within  which  the  plaintiff  is  bound  to  bring  up  the  defend-   delay. 
ant  to  answer  his  contempt.^" 

The  return  ought  to  be  made  before  or  upon  the  day  of  return   Return: when 
named  in  the  writ,  if  a  day  certain  is  named;  but  if  the  writ  be   to  be  made. 
returnable  on  a  return  day  not  certain,  the  sherift'  need  not  return 
it  till  the  qtiarto post}^    An  attachment  returnable  "immediately" 
should  be  returned  as  soon  as  it  is  executed ;  but  it  is  in  force  till 
the  last  return  <ff  the  Term  following  the  teste}'^    If  executed  after 

1  Hinde,  106.  i"'  Heddall  v.  Page.  2  Sim.  224. 

2  Anon..    Pr.c.   Ciia.  3.31;   f'owdray  v.  c  i  Turn.  &  Yen.  115. 
Cross.  24  Beuv.  445.     The  lialiiiify  of  the  7  Impey,  OIT  SherifT,  333. 
ghprifT  for  an  e-capc,  is  the  loss 'actually  8  ]l,,  334;  Chitty's  Arch.  619. 
(iu«trtined;    and    the   Court   of    Chancery  ^   //>/,/. 

will    ascertain    the    amount.      .Moore    v.  w  1 1  C.i'o.  I V.  &  1  Will.  IV.  c.  36,  §   15, 

Moore,  25    I'.eav.    H;    4  .lur.   N.    S.    250;  r.  4 ;  Ord.  XII.  3. 

gee  alrioSuKdeti  v.  Hull,  28  Beav.  263.  l'   Makcpeicr  r.  Dillon,  Fort.  303  ;  Impoy, 

8  Anon..  2  Atk.  507.  Off.  Shcrill',  333;   Braitliwiiite's  i'r.  2^'J. 

♦  //>!'/.  ;  Co wdriiy  r.  Cross,  24  Reav.  445.  '2  Seton,    1231;    Hraithwaite's   Manual, 

This  cannot  he  done  where  the  attachment  19'J. 
ia  to  compel  appearance.    Ord.  X.  10. 


-170 


COifPELLING   APrEARANCE. — PROCEEDINGS    IN    DEFAULT. 


(II.  Vlll.^!. 


If  ivtiirii  not 
made,  sherift" 
may  I'e 
amori-ed. 


Ordiiiarv 
inodo  of 
compoUing 
return. 


Where  writ 
issued  into 
county 
palatine  of 
Lancaster; 


that  time,  it  is  liable  to  bo  discharired  for  irrec^ularity.  The  party 
])rosocutiiiL?  tlie  oontoinpt,  Iiowovcm",  is  at  liberty  to  call  u])on  the 
sheritt^  by  an  order,  tor  his  return  to  an  attachment  returnable  im- 
mediately, <m  the  iifth  day  atler  it  is  put  into  the  sheriirs  hands.^ 

If  the  sheriff  or  otlier  officer  does  not  make  liis  return  of  the 
writ  directed  to  him,  the  Court  may  amerce  him.^  The  amerce- 
ments are  commonly  £5,  and  are  to  be  levied  by  being  estreated 
into  the  Exchequer,  or  by  process,  out  of  the  Petty  Bag,  to  the 
succeeding  sheritij  to  levy  and  pay  them  into  the  Ilanaper ;  but  it 
is  usual  to  give  the  sheriff  a  day  for  that  purpose ;  and  if  he  do 
not  by  that  time  return  the  writ,  the  Court  will  set  the  amerce- 
ment,^ 

The  general  course  of  proceeding,  however,  to  obtain  or  compel 
the  sheriff  to  return  an  attachment  is  as  follows :  The  party  pros- 
ecuting the  contempt  ap2^1ies,  in  the  first  instance,  to  the  under- 
sheriff,  or  deputy-sheriff,^  to  make  a  return  to  the  writ,  and  either 
to  file  it  at  the  Record  and  "Writ  Clerks'  Office,  or  to  hand  it  to 
the  applicant."  If  the  return  is  not  made,  the  party  obtains  an 
order  of  course,  on  motion,  or  petition  at  the  Rolls,  directing  the 
sheriff  forthwith  to  make  the  return.®  This  order  is  served  on 
either  the  sheriff,  under-sheriff,  or  deputy-sheriff;''  and  if  it  be  not 
obeyed,  the  party  obtains,  on  ex  parte  motion,  an  order  nisi,  that 
the  sheriff  do,  in  six  days  after  personal  notice  of  the  order,  return 
the  writ,  or,  in  default,  stand  committed.®  This  order  is  served 
personally  on  the  sherift';  and  should  the  return  still  be  withheld, 
an  order  absolute  may  be  obtained,  on  ex  2^(^Tte  motion,  supported 
by  affidavit  of  service  of  the  order  nisi,  and  of  no  return.®  Where, 
however,  the  first  order  limits  a  time  for  the  sheriff  to  return  the 
wi-it  upon  personal  service  of  the  order,  it  seems  that  he  may  be 
attached :  in  which  case  two  subsequent  orders  are  unnecessary.^ 

Where  an  attachment  has  been  issued  to  the  Chancellor  of  the 
county  palatine  of  Lancaster  or  Durham,  and  he  omits  to  return 
the  writ,  a  peremptory  order,  which  is  obtainable  on  motion  or 
petition  of  course,  must  be  made  u])on  him^  to  return  it  within  a 
certain  number  of  days  after  service  of  the  order:  upon  which,  if 


1  Braithwaite's  Pr.  289. 

2  Gilb.  Form.  R-m.  70. 

3  Hiirr.  by  Newl.  118. 
*   Ante,  p.'  460. 

5  BniithwMitc's  Pr.  289. 

5  Seton.  12.31.  In  New  York,  the  officer 
executinp  the  attiichment  must  return  the 
same  by  the  return  day  specified  therein, 
without  any  previous  firder  fnr  the  purpose. 
In  ca^e  of  det'iiult,  an  attacliment  may 
forthwith  is<-up  afrain.st  tlie  officer;  which 
will  not  be  bailable.  People  v.  Elmer,  .3 
Paige,  8-5.  But  he  mav  return  the  same 
at  Hny  time  during  the  actual  sitting  of  the 
Court  on  the  return  day  thereof,  unless  he 


is  specially  directed  by  the  Court  to  return 
it  immediately.  It  is  therefore  irregular  to 
take  out  an  attachment  against  liim  ex 
parte  during  the  sittings  of  the  Court  on 
that  day.  People  v.  Wheeler,  7  Paige,  4.33. 
For  forms  of  orders,  see  Sefon,  12.30,  Nos.  1, 
2,  3;  and  for  forms  of  motion  paper,  peti- 
tion, and  affidavit,  see  Vol.  III. 

7  Ante,  p.  466,  n.  2. 

8  Seton,  1231;  Ord.  XXIII.  10. 

9  But  where  the  order  wiis  erroneously 
made  on  the  sheriff,  it  was  held,  that  the 
sheriff  must  obey  or  move  to  discharge  it; 
Sugden  v.  Hull,  28  Beav.  263. 


WHERE    THE    COPT    OF    THE    BILL    HAS    BEEN    SERVED.  471 

he  returns  "  that  he  hath  sent  his  mandate  to  the  sheriff,  who  hnth  Ch.  Yin.  §3. 

not  returned  the  same,"  another  peremptory  order  may  be  obtained,    ^^ y '  ■ 

in  like  manner,  to  the  sheriff,  commanding  him,  within  a  certain  and  sheriff 
number  of  days  after  service  of  the  order  upon  his  under-sheriff,  to  the  niandateT 
return  the  mandate.^ 

Upon  an  attaclmient,  there  are  three  ordinary  returns  :  (1.)  If  Form  of 
the  defendant  cannot  be  arrested,  the  sheriff  returns  :  "  The  with-  '■'^'^"™- 
in-named  A.  B.  is  not  found  in  my  baili'svick ; "  ^  this  is  tenned  a 
non  est  inventus^  and  upon  this  return,  fui-ther  process  of  contempt 
is  grounded.  (2.)  If  the  defendant  is  arrested,  but  the  sheriff 
either  accepts  bail  for  his  appearance  or  keeps  him  in  his  own  cus- 
tody, he  returns :  "  I  have  attached  the  within-named  A.  B.,  as 
within  I  am  commanded,  whose  body  I  have  ready ; "  this  is  called 
a  cepi  corpus?  (3.)  If  the  sheriff  arrests  the  defendant,  and  lodges 
him  in  jail,  or,  finding  him  there,  lodges  a  detainer  against  him, 
he  returns :  "  I  have  attached  the  within-named  A.  B.,  Avhose  body 

remains  in  Her  Majesty's  jail  for  my  county  of ,  under  my 

custody"  (or  as  the  case  may  be).*  Either  of  the  two  last  men- 
tioned returns,  when  made,  puts  an  end  to  all  the  ordinary  pro- 
cess :  ^  unless  the  defendant  afterwards  escapes  or  absconds,  for  in 
that  case,  the  sergeant-at-arms  may  be  sent,  for  the  purpose  of 
grounding  a  sequestration.® 

If  the  writ  is  directed  to  the  Chancellor  of  Lancaster,  command-  Return  by 
ing  him  to  issue  his  mandate  to  his  sheriff  to  attach  the  party,  the   <"hancelIor  of 
return  is,  that  he  has  issued  his  mandate  according  to  the  terms  of 
the  writ,  and  that  the  sheriff  has  made  the  return  to  him  of  wow  est 
inventus,  or  as  the  case  may  be. 

The  costs  of  an  attachment  issued,  but  not  executed,  are  lis.  2d.;  Costs  of  an 
if  executed,  13s.  Scl;  and  if  issued  against  more  than  one  party, 
'2s.  Cxi.  is  payable  for  each  additional  party.'' 

When  the  sheriff  returns  non  est  inventus,  the  plaintiff  may,  after  "Where  non 
the  return  day  named  in  the  attachment  already  issued,  issue  other  returned, 
attachments,  for  the  f»urpose  of  obtaining  the  arrest  of  the  defend- 
ant; but  as  he  cannot  obtain  an  order  for  a  messenger,  or  for  the 
sergeant-at-arms,'  and  consequently  cannot  have  a  writ  of  seques- 
tration, to  compel  appearance,  there  does  not  seem  to  be  any  case 
in  whicli  it  will  be  for  the  j>Iaintiff's  interest  to  continue  a  compul- 
sory process,  after  a  return  of  no?i  est  inventus. 

Wlien  tlie  sheriff  attached  the  party,  and  took  bail  for  him,  the   where,  cepi 
old  practice  was  for  the  plaintiff  to  move  for  a  messenger  to  bring  reTu"ned 

>  ClouKh  V.  Cross  2  Dick.  555,  668.  «  See  Hook  v.  Uo.ts,  1   Hen.  &  M.  319, 

'  A  return,  that  11  defendant  iH  ni>t  to  be  320. 

foutid,  \*  had.      5  Dowl.  451.  ^  Brown  v.  I.ee,  11   IJeav.  379;  Brailh- 

«  IJraitliwMite's  Pr.  272.  waite'o  I'r.  154. 

*  lit.  2HI.  8  Ord.  X.  10. 

»  Fred<-.rick    r.    David,    1     Vcrn.    344 ; 
Hinde,  100. 


472 


COMrELLINO   APPEARANCE. — PROCEEDINGS   IN   DEFAULT. 


I'li.VIll.  §4. 


Whprc 

dctVmlant  is 
nru'stcd  and 
imprisoned. 


Attachment 
for  want  of 
appearance  is 
now  seldom 
issued. 


When  de- 
fendant enti- 
tled to  his 
discharge, 
where  arrest- 
ed for  non- 
appearance. 


uj)  the  ilofondant  ;  but  now,  a  inessciic^or  cannot  be  obtained  to 
fom))c'l  appoaranoe  •/  ami  it  would  consequently  seem  that,  upon 
such  a  return,  the  plaintill'  has  no  other  course  open  to  him,  except 
to  enter  an  appearance  for  the  defendant.^ 

When  the  sherift"  actually  arrests  the  defendant,  and  sends  him 
to  prison  for  want  of  a])pearance,  the  j)laintiff  cannot  brini?  him  to 
the  bar  of  the  Court;  and  the  only  course  that  aj)i)ears  to  be  open 
to  him  is,  to  enter  an  appearance  for  the  defendant  under  the 
General  Order:*  the  provisions  of  the  Act  of  11  Geo.  IV.  &  1 
"Will.  IV.,*  enabling  the  plaintiff  to  enter  an  appearance  for  the 
defendant,  in  such  a  case,  being  obsolete  in  practice,  though  not 
expressly  repealed.^ 

The  result,  therefore,  in  every  case  where  the  plaintiff  prosecutes 
the  contempt  for  not  appearing  against  the  defendant,  seems  to  be : 
that,  if  the  defendant  does  not  appear,  the  plaintiff  has  no  other 
course  than  to  enter  an  apj)earance  for  him ;  and  as  the  defendant 
cannot  be  brought  to  the  bar  of  the  Court,  he  will,  if  arrested,  be 
entitled  to  claim  and  obtain  his  discharge  at  the  expiration  of 
thirty  days  from  the  time  of  his  being  actually  in  custody  or  de- 
tained ;  or,  if  the  last  of  thirty  days  shall  happen  out  of  Term, 
then,  at  the  expiration  of  the  first  four  days  of  the  ensuing  Term ; 
and  the  plaintiff  must  bear  the  costs  of  the  process  of  contempt. 
The  consequence  is,  that,  in  practice,  an  attachment  for  want  of 
appearance  is  very  seldom  issued :  the  plaintiff,  almost  invariably, 
on  the  time  for  the  defendant  appearing  having  elapsed,  at  once 
taking  the  course  of  entering  an  appearance  for  him,  under  the 
General  Order.'' 


Privileged 
persons : 


Attorney- 
General. 


Section  IV.  —  Against  particular  Defendants. 

Having  now  considered  the  mode  of  compelling  the  appearance 
of  a  defendant  upon  whom  service  has  been  effected,  and  who  is 
not  entitled  to  any  particular  privilege,  or  under  any  peculiar  dis- 
ability, the  next  point  is,  in  what  manner  the  appearance  of  per- 
sons so  privileged  or  disabled  can  be  obtained. 

In  the  first  place,  if  the  Attorney-General,  upon  being  served 
with  a  copy  of  the  bill,  does  not  appear,  no  personal  process  issues 
against  him  to  compel  him  so  to  do ;  but  if  he  will  not  appear,  it 
seems  that  it  would  be  considered  as  a  nihil  dicit.^ 


1  Ord.  X.  10. 

2  Ord.  X.  4;  Braithwaite's  Pr.  161. 

8  Ord.  X.  4  ;  and  see  Ord.  X.  10 ;  Braith- 
waite's Pr.  280,  2c4;  and  ante,  p.  400. 

*  Cap.  36,  §  11;  and  §  15,  r.  13. 

«  Braithwaite's  Pr.  279;  and  se*^  For- 
tescue  V.  HaUett,  3  Jur.  N.  S.  806,  V.  C.  K. 


6  11  Geo.  IV.  &  1  Will.  IV.  0.  36,  §  15, 
r.  5;   Braithwaite's  Pr.  279,  280. 

7  Ord.  X.  4. 

8  Barclays.  Russell,  2  Dick.  729.  As  to 
the  course,  where  he  neglects  to  answer, 
see  post,  Chap.  X.  §  2. 


AGAINST   PARTICULAR   DEFENDANTS. 


473 


If  the  defendant  claim  the  privilege  of  Peerage,  and  do  not  enter 
an  appearance  upon  being  served,  in  the  manner  before  explained, 
with  a  letter  missive  and  copies  of  the  petition  and  bill,^  he  must 
be  served  with  an  indorsed  copy  of  the  bill ;  and  if  he  do  not  then 
appear,  an  appearance  may  be  entered  for  him,  as  in  the  case  of  an 
ordinary  defendant,  on  an  affidavit  of  both  such  ser\ices ;  ^  and 
the  same  may  be  done  for  a  member  of  Parliament  who  has  been 
served  with  a  copy  of  the  bill,  and  has  neglected  to  appear  him- 
self3 

The  mode  of  proceeding  in  these  cases  was  formerly  by  seques- 
tration ;  *  and  it  seems  that  this  course  is  still  open  to  the  plaintiff, 
if  he  thinks  fit  to  adopt  it. 

In  order  to  obtain  a  sequestration  against  a  peer  of  the  realm, 
or  bishop,  an  affidavit  must  be  made  of  the  service  of  the  letter 
missive,  and  of  the  copy  of  the  petition  upon  which  it  has  issued, 
and  also  of  the  service  of  a  plain  and  of  an  indorsed  copy  of  the 
bill.^  Where  the  process  is  required  against  a  member  of  the 
Commons'  House  of  Parliament,  the  affidavit  need  only  verify 
the  service  of  the  copy  of  the  bill.®  An  ex  parte  motion  ''  must  then 
be  made  for  a  sequestration  against  the  defendant's  real  and  per- 
sonal estate  :  which  the  Court  orders  nisi,  that  is,  unless  the  de- 
fendant shall,  within  eight  days  after  personal  service  of  the  order, 
show  unto  the  Coui-t  good  cause  to  the  contrary.*  The  defendant 
must  be  served  personally  with  this  order,  and  if  he  persist  in  re- 
fusing to  appear,  then  an  affidavit  of  service  must  be  made,  and 
counsel  instructed  to  move  to  make  the  order  absolute.®  It  is  to 
be  observed,  that  where  an  order  nisi  for  a  sequestration  against  a 
peer  or  member  of  the  House  of  Commons,  for  want  of  an  answer, 
has  been  obtained,  it  is  good  cause  to  show  against  making  such 
order  ?iisi  absolute,  that  the  ansAver  has  been  put  in  ;  but  if  excep- 
tions have  been  taken  to  the  answer,  the  time  for  showing  cause 
will  be  enlarged,  until  it  shall  appear  whether  the  answer  is  in- 
sufficient or  nrjt.'" 

Personal  service  of  the  order  7iisi  may  be  dispensed  witli  in  cases 
where  the  privilege<l  defendant  keeps  williin  his  own  house,  oris 


>  Ante,  p.  446. 

*  For  f..rm  of  Hffidavit.  seo  Vol.  III. 

•  Hraiihwaite's  \'r.  20,  n.,  337;  Ord.  X. 
4;  ante,  pp.  444,  4G0,  4G1. 

*  Formerly,  if  a  pper  of  the  realm  ap- 

ficared  atid  did  not  auswer,  an  iittiichriicnt 
iiy;  but  now,  by  order  of  Parliament,  iio 
process  lies  but  a  sequestration.     Ilinde, 
131. 
'  For  form  of  affidavit,  see  Vol.  III. 
8  Jbul 
'  For  form  of  motion  paper,  see  Vol.  III. 

•  Hmde,  81. 


8  JbUl.  For  form  of  iiffiditvit  of  service, 
and  motion  paper,  see  Vol.  III. 

10  Miiticr  y.  Ka>liliel.l,3  Atk.  740.  From 
the  oli.servation  of  the  reporter,  appended 
to  this  case,  it  may  be  iuferred,  that  upon 
the  iiuthority  of  what  the  Kef^istrar  had 
said  in  Lord  ('litr<ird'scase,  2  1*.  Wins.  38.5, 
Lord  Ilardwickc  liad  allowed  the  causo 
shown,  as  being  tlio  course  of  the  Court; 
but  upon  ret'erence  to  the  Hcfjistrar's  book, 
where  the  ordi^r  is  entered  under  tlu;  tiiio 
of  I'.utler  I'.  Kashleif^li,  it  appears  that  the 
time  fur  showing;  cause  wai  enlarged  till 
the  next  seal.   licg..Lib.  1760,  A.  4'J6,  (6). 


Ch.  YIII.  §  4. 


Peers. 


Members  of 
Parliament. 


By  seques- 
tration. 


Sequestra- 
tion: how 
obtained. 


Order  for 
sequestration 
nisi : 


and  absolute. 


Personal  ser- 
vice of  order 
nisi:  when 
dispensed 
with. 


474 


COMPELLING   APPEARANCE.  —  PROCEEDINGS    IN   DEFAULT. 


Cii.  VIII.§4. 


As  against 
officers  of  the 
Court. 


Form  of  the 
Bequestration. 


How  seques- 
tration sued 
out,  and 
discharged. 


surrouiuloil  l)y  liis  servants  to  avoid  sorvico,  or  AAhorc  tlic  party 
sorvini;  the  process  is  denied  access,  and  it  is  very  dillicult  and 
almost  impossible  to  serve  the  order  personally.  But  to  dispense 
with  personal  service,  it  is  necessary  to  a])ply  to  the  Court  for 
leave  to  substitute  a  service  in  lieu  of  it :  srrouiidinu;  such  ap])lica- 
tion  upon  a  proper  affidavit  of  the  particular  circumstances  of  the 
case ;  and  the  Court  will,  on  such  application,  exercise  a  discretion, 
and  make  the  order,  if  the  facts  stated  in  the  affidavit  are  strong 
enough  to  warrant  such  a  proceeding.^  Thus,  where  a  peer  de- 
fendant avoided  the  service  of  an  order  nisi  for  a  sequestration,  the 
Court  of  Exchequer  made  an  order  that  service  thereof  u])on  his 
clerk  in  Court,  and  at  his  dwelling-house,  or,  if  no  person  should 
be  met  with  there,  by  fixing  a  copy  of  the  order  on  the  door,  should 
be  good  service,^  In  Thomas  v.  Lord  Jersey^  a  bill  was  filed 
against  Lord  Jersey ;  upon  which  a  letter  missive,  with  a  co])y  of 
the  bill,  was  served  on  the  defendant,  by  leaving  it  with  one  of  his 
female  servants  at  his  residence  in  Berkeley-square.  His  Lordship 
was  then  abroad.  On  his  neglecting  to  appear  to  the  letter  mis- 
sive, a  subpoena  Avas  served  in  the  same  way ;  and  upon  his  non- 
appearance to  that,  an  order  nisi  for  a  sequestration  was  issued  : 
when,  upon  inquiry  at  his  Lordship's  house,  it  appeared  that  he 
was  still  abroad.  Thereupon,  on  an  affidavit  being  made  of  these 
facts,  Sir  Lancelot  Shadwell  V.  C.  directed  that  service  of  the 
sequestration  nisi  at  his  Lordship's  town  house  should  be  good 
service ;  and  iipon  a  motion  to  discharge  the  V.  C.'s  orders,  Lord 
Brougham  reftised  the  motion.* 

It  seems  that  the  same  course  of  proceeding  in  suing  out  and 
issuing  the  sequestration  is  observed,  where  it  is  sought  against  an 
officer  of  the  Court,  as  in  the  case  of  peers  ;  *  with  the  exception, 
that  the  affidavit  upon  which  the  order  nisi  is  applied  for  must  be 
confined  to  the  service  of  the  bill :  there  being  no  letter  missive, 
as  in  the  case  of  a  peer. 

The  form  of  the  sequestration  issued  against  peers  and  other 
privileged  persons  is  nearly  the  same  as  that  issued  in  cases  of  con- 
tempt by  ordinary  persons,  with  the  exception  that  it  recites  the 
order  nisi^  and  the  order  for  making  it  absolute.® 

When  the  order  for  making  the  sequestration  absolute  is  drawn 
up,  passed  and  entered,  the  plaintiff's  solicitor  must  make  out  the 
writ  of  sequestration."'  The  Court  will  not  discharge  the  writ  till 
the  party  has  appeared,  and  paid  the  costs  of  the  process ;  when 


1  Hinde,  81.  For  form  of  motion  paper, 
Bee  Vol.  III. 

2  Mackenzie  v.  Marquis  of  Powis,  19 
Mav,  1739;  1  Fowl.  Kx.  Pr.  173. 

8" 2  M.  &  K.  398;  and  see  Sheffield  v. 
Duchess  of  Hnckinpham,  Heg.  Lib.  1740, 
fo.  15,  26 ;  2  De  G.  &  S.  4.56,  n. 


^  See  Attornej'-Generalr.  Earl  of  Stam- 
ford, 2  Dick.  744. 

5  Corby n  v.  Birch,  ih.  635. 

6  Fr)r  tbnn  of  writ,  see  Vol.  III. 

7  Ord    III.  1. 


AGAINST   PARTICULAR    DEFENDANTS. 


475 


he  has  done  so,  he  may  move  to  discharge  the  sequestration,  upon 
notice  to  the  adverse  party  if  it  be  executed.^ 

Upon  the  return  of  the  sequestration  against  a  defendant  having 
privilege  of  Parliament,  tlie  Court  may,  on  the  motion  or  other 
appHcation  of  the  phiintiff,  give  him  leaA^e  to  enter  an  appearance 
for  the  defendant,  under  the  stat.  11  Geo.  IV.  &  1  Will.  IV. ;  ^ 
and  such  proceedings  may  thereupon  be  had  as  if  the  defendant 
had  actually  appeared  ;  ^  but  this  course  of  proceeding  is,  in  prac- 
tice, superseded  by  the  General  Order.^ 

In  the  case  of  infants  and  persons  of  unsound  mind  not  so 
found  by  inquisition,  it  is  proA'ided  by  the  General  Order,  that 
"  where,  upon  default  made  by  a  defendant  in  not  appearing  to  or 
not  answering  a  bill,  it  appears  to  the  Court  that  such  defendant 
is  an  infant,  or  a  person  of  weak  or  unsound  mind  not  so  found  by 
inquisition,  so  that  he  is  unable  of  himself  to  defend  the  suit,  the 
Court  may,  upon  tlie  application  of  the  plaintiff,  order  that  one  of 
the  solicitors  of  the  Court  be  assigned  guardian  of  such  defendant, 
by  whom  he  may  appear  to  and  answer,  or  may  appear  to  or  an- 
swer the  bill  and  defend  the  suit.^  But  no  such  order  shall  be 
made  unless  it  appears  to  the  Court,  on  the  hearing  of  such  appli- 
cation, that  a  copy  of  the  bill  was  duly  served  in  manner  provided 
by  the  stat.  15  &  16  Vic.  c.  86,  and  that  notice  of  such  application 
was,  after  the  expiration  of  the  time  allowed  for  appearing  to  or 
for  answering  the  bill,  and  at  least  six  clear  days  ®  before  the  day 
in  such  notice  named  for  hearing  the  application,  served  upon  or 
left  at  the  dwelling-house  of  tlje  person  with  whom  or  under  whose 
care  such  defendant  was  at  the  time  of  serving  such  copy  of  the 
bill,  and  also  (in  the  case  of  such  defendant  being  an  infant  not 
residing  with  or  under  the  care  of  his  father  or  guardian)  served 
upon  or  left  at  the  dwelling-house  of  the  father  or  guardian  of 
such  infant:^  unless  the  Court,  at  the  time  of  hearing  such  appli- 
cation, shall  dispense  with  such  last-mentioned  service."^  The 
plaintiff  may,  however,  obtain  an  order,  appointing  a  guardian  of 
an  infant,  although  no  default  has  been  made  in  appearing  or  an- 
swering.' 

With  reference  to  the  service  of  the  notice  in  the  case  of  infints, 
it  has  been  held  that,  where  the  inf  ints'  father  was  dead,  service 


Ch.  \1U.  §  4. 


Appearance 
by  default,  on 
return  of 
sequestration. 


Infants,  or 
persons  of  un- 
sound mind, 
not  so  found. 


1  Ilinle,  80;  and  see />o«^  Chap.  XX  VF. 
§  7,  Eufitrcinti  pycrees  and  Oriltr». 

2  n'cJeo.  IV.  &  1  Will.  IV.  c.  36,  §  12. 
8  Ibid. 

«  (Jr.l.  X.  4. 

*>  It  has  hefn  usual  to  order  the  solicitor 
to  the  Suitors'  Fund  to  act  upon  occasiona 
of  thi*  kind  ;  see  'I'hotnas  »'.  'I'li'itnas,  7 
Ueav.  47;  Shi-[i|pard  e.  Harris,  10  Jiir  24, 
V.  C.  K.  n.;  finli;  p  1G2.  As  to  tht;  costs 
of  the  solicitor  to  tli«  Suitors'  Kutid,  wh<'re 
BO  aji|)ointcd,  see  ()r<l.  XL.  4  ;  iind  Harris 
V.  Ilamlyn,  3  De  G.  &  S.  470;  14  Jur.  06; 


Frazerv.  Thompson,  1  GifT.  337;  4  Dc  G. 
&  .1.  O.'iO;  Robinson  v.  Aston,  9  Jur.  224, 
V.  C.  K.  H.;  and  see  ante,  p.  1G2,  n.  10. 

8  Sundays  are  included  ;  sec  Ord. 
XXXVII.  li;  and  see  Hro water  v.  Tliorpe, 
11  .Tur.  0,  V.  G.  E. 

7  For  form  of  afHdavit  of  service,  soo 
Vol.  III. 

8  Ord.  VII.  3.  P"or  form  of  order,  see 
Seton,  12'>1 ;  iind  for  form  of  notice  of  mo- 
tion, sec  V^ol.  HI. 

»  lientley  v.  Kobinson,  9  Hare  Ap.  76. 


Notice  of 
application. 


What  ser\-ice 
of  notice  is 
suilicieut. 


470 


COMPELLING   ArPEAKANCE.  —  rROCEEDINGS   IN   DEFAULT. 


Cm.  Vlll.  §4. 


AV here  infant 
has  appearod. 

If  defendant 
is  of  unsound 
mind,  l\)urt 
nnist  be  .-satis- 
fied that  no 
niative  will 
undertake 
defence. 

Appearance 
by  plaintiff 
for  infant,  or 
person  of  un- 
sound mind, 
is  void. 

Married 
women. 


at  the  house  of  tlieir  mother  and  step-fatlier  was  siiflRcicnt  •/  so 
also,  service  on  the  head  of  a  college,  of  which  tlie  infant  was  an 
undergraduate,  was  held  sufficient,  where  the  j)laintilf  coidd  not 
learn  where  the  infant's  parents  lived  ;  "^  and  the  general  rule  is, 
that  notice  should  be  served  at  the  dwelling-house  of  the  person  in 
whose  care  the  infant  is.* 

Where  the  infant  has  appeared,  service  on  the  solicitor  who 
entered  the  apj»earance  is  sufficient.^ 

In  the  case  of  persons  of  unsound  mind  not  so  found  by  inquisi- 
tion, the  Court  requires  to  be  satisfied  that  no  relative  will  under- 
take his  defence,  before  appointing  the  solicitor  to  the  Suitors'  Fee 
Fund  ;  ^  and  where  the  defendant's  family  concur  in  applying  for 
the  appointment  of  some  other  person,  whose  fittiess  is  shown  by 
affidavit,  the  Court  will  appoint  him.® 

Any  appearance  entered  at  the  instance  of  the  plaintiff,  for  a 
defendant,'  who,  at  the  time  of  the  entry  thereof;  is  an  infant  or  a 
person  of  weak  or  unsound  mind,  unable  of  himself  to  defend  the 
suit,  is  irreguhir  and  of  no  validity.' 

If  a  married  woman  is  made  defendant  jointly  with  her  husband, 
and  no  appearance  for  her  is  duly  entered  by  him  or  her,^  the 
plaintiff  may,  within  three  weeks  after  service,  enter  an  appear- 
ance for  her,  as  of  course,  upon  an  affidavit  of  service  of  the  bill  on 
the  husband  ;  ^  or  where  no  order  has  been  obtained  by  her  to  de- 
fend separately,"  the  plaintiff  may  ajiply  to  the  Court,  on  notice  to 
the  husband,  for  leave  to  issue  an  attachment  against  hini ; "  and 
where  the  husband  is  plaintiff  in  the  suit,  he  may,  if  no  appearance 
has  been  duly  entered  for  her,  enter  such  appearance,  as  of  course, 
within  three  weeks  after  service  of  the  bill  on  her,  on  an  affidavit 
of  such  service  ;  ^  or  he  may  apply  to  the  Court,  by  motion,  on 
notice  to  her,  for  leave  to  issue  an  attachment  against  her.^^ 


1  Hitch  V.  Wells,  8  Beav.  576;  and  see 
Lane  v.  Hardwicke,  6  Beav.  222;  Thomp- 
son V.  .Tones,  8  Ves.  141. 

2  Christie  v.  C;imeroii,  2  Jur.  N.  S.  635, 

V.  c.  w. 

8  Taylor  v  Ansley,  9  Jur.  1055,  V.  C. 
K.  B.,  and  an  iiffidavit  not  showintr  that 
this  had  been  done  was  held  insufKcient, 
S.  C;  O'Brien  v.  Maitlaiid,  10  W.  R.  275, 
L.  C. ;  Lambert  v.  Turner,  ib.  335,  V.  C.  K. ; 
Turner  r.  Sowflon,  10  .lur.  N.  S.  1122;  13 
W.  K.  66,  V.  C.  K. ;  S.  C.  rwm.  Turner 
V.  Snowdon,  2  Dr.  &  Sm.  265  ;  see  as  to 
service  of  notice,  where  infant  out  of  the 
jurisdiction,  ante,  pp.  162,  452. 

*  Cookson  »).  Lee,  15  Sim.  302;  Bentley 
V.  Robin-on,  9  Hare  Ap.  76  ;  and  the 
same  rule  doubtless  applies  to  persons  of 
unsound  mind  not  so  found. 

6  Moore  r.  I'hitel,  7  Beav.  583;  Biddulph 
V.  Lord  Camovs.  9  Beav.  548. 

6  Charlton  v.  West,  3  De  G.  F.  &  J.  156 ; 
7  .Jur.  N.  S.  614;  Bonfleld  v.  Grant,  11  W. 
R.  275,  M.  R. 


7  Ord.  X  6;  see  Leese  v.  Knipcht,  8.1ur. 
N.  S.  1006;  10  W.R.  711,  V.C.K.  As  to 
appointing  guiirdians  ad  litem  of  infants 
and  persons  of  unsound  mind,  see  ante,  pp. 
160,  161,  176. 

8  Ord.  X.  3;  Steele  v.  Plomer,  1  M'N. 
&  G.  83;  2  Phil.  782,  n.;  13  Jur.  177; 
Travers  v.  Buckly,  1  Ves.  S.  384,  386;  1 
Dick.  138:  Braithwaite's  Pr.  321 ;  and  see 
ante,  pp.  179-182. 

s*  Ord.  X.  4  ;  Steele  v.  Plomer,  ubi  sup.  ; 
Braithwaite's  Pr.  337.  For  the  practice,  and 
as  to  applications  where  the  three  weeks 
have  expired,  see  ante,  pp.  460-462;  and 
for  forms  of  affidavit  and  proecipe,  see  Vol. 

in. 

10  Ante,  p.  181. 

11  Ord.  X.  10  ;  see  Leavitt  v.  Cruper,  1 
Paige,  421.  For  the  practice,  see  ante,  pp. 
462,  464 ;  and  for  forms  of  notice  of  motion, 
prcEcipe,  attachment,  and  indorsement,  see 
Vol.  IlL 


AGAINST   PARTICULAR    DEFENDANTS.  477 

If  a  corporation  aggregate  is  defendant,  and  due  ser^-ice  of  the  Cn.  Yiir.  §4. 

bill  has  been  effected  upon  it,  then,  upon  affidavit  of  such  service,   "■ y ^ 

an  appearance  may  be  entered  for  the  defendant  by  the  plaintiff;  ^  Coqwrations: 

or  a  writ  of  distrmffas^-  instead  of  the  vrrit  of  attachment,  may,  Distringas. 

by  leave  of  the  Court,  be  issued  ^  by  the  plaintiff,  directed  to  the 

sheriff,  or  other  officer  having  jurisdiction  in   the  district  of  the 

corporation,  commanding  him  to  distrain  the  lands  and  tenements, 

goods  and  chattels,  of  the  corporation,  so  that  it  may  not  possess 

them  till  the  Court  shall  make  other  order  to  the  contrary;  and 

that  in  the  mean  time  he  (the  sheriff)  do  answer  for  what  he  so 

distrains :  so  that  the  defendant  may  be  compelled  to  appear  in 

Chancery,  on  the  return  of  the  writ,  and  answer  the  contemj^t.* 

If  to  this  writ  the  sheriff  returns  nulla  bofia,  an  alias  distHngas,  Alias  distrin- 

which  is  a  writ  commanding  the  sheriff  again  to  distrain  the  lands   '"'*• 

and  tenements,  goods  and  chattels,  of  the  corporation,  may  be  sued 

out ;  and  if  he  returns  mdla  bona  to  this  also,  a  phiries  distringas,   Plurits  dis- 

to  the  like  purj^ort,  may  be  issued. ^  tnngas. 

Each  such  writ  must  be  prepared  by  the  solicitor;  a  pj'cccipe  in   How  prepared 
duplicate  must  be  produced  to  the  entering  clerk  in  the  Registrars'  ^^^  issued, 
office :  who  will  retain  one  copy,  and  mark  the  other  as  entered,  as 
before  explained ;  ®  and  the  Avrit  Avill  thereupon  be  sealed  by  the 
Record  and  Writ  Clerk,  upon  the  entered  prcecipe  being  filed  with 
him.''     Upon  scaling  the  alias  or  j^luries  writ,  the  previous  writ,   Filing  writs. 
with  the  sheriff's  return,  must  be  filed  or  produced  to  the  Record 
and  Writ  Clerk.^ 

The  return  days  to  be  inserted  in  these  writs,  are  the  same  as  in  Eetum  day. 
the  case  of  an  attachment.® 

If  the  sherift'  returns  "issues"  ^°  to  the  first  "  or  second   distrin-  Motion for^e- 
5ra5,  or  "  issues  "  or  mdla  bona  to  the  third,  an  order  nisi  for  a  ciuesnation. 
commission  of  sequestration  may  be  obtained  against  the  corpora- 
tion, on  an  ex  parte  motion  by  the  plaintiff;  and  upon  proof  of 
due  service  of  such  order,  and  of  continued  default,  such  order  will 
be  made  absolute,  on  a  like  motion.'" 

1  Ord.  X.  4;  IJraithwaite's  Pr.  337.  For  5  Ante,  p.  465. 

forms  of  affidavit  aiidy-racf/je,  see  \^ol.  111.  "  A  lee  of  5s.  is  payable  on  sealing;  each 

■-  McKim  V.  Oiloni,  3  IJland,  407,  420;  writ.     Kegul.  to  Ord.  Sclied.  4.    For  forms 

Angfll  &  Ames,  Corp.  §  tJ67    et   siq.      In  of  these  writs  and  pr-cecipe,  see  Vol.  III. 

JouL-s  /•.  BoHion   Mill  Corp.  4  Pick.  511,  it  •*  Braithwaite's  Pr.  Iy4. 

was  said  by  Parker  C.  ■).  that  tlie  Supreme  ^  Ante,  p.  464. 

Court   of    .Mas.>*achusett«,   as  a   Court  of  1"  If  the  corporation  has   property,  the 

E^|uity,  had  authority  to  issue  such  pro-  sherilV  usually  levies  4(),s.  under  the  tirst 

cc-<HC<  a>;ainst  corporations  as  m>iy  be  is-  writ;  4/.  under  the  second;  and  tlie  whole 

sued  by  the  Kn;;lish  Chancery  (Jourt.  as  property  of  the  corporation  under  the  third. 

c/ijj</i«^(W,sequc-tra'ion,&c.    And  see  IIol-  llinde,  140. 

land  V.  Cnift,  20  Pick.  321 ;  Grew  v.  Breed,  "  See  Lowtoii  v.  Mayor,  &c.,  of  Colchcs- 

12  .Met.  303.  ter,  3  Mer.  540,  n.;  Seton,  1227. 

'  It  is  c«»nceived  that  the  writ  would  not  i^  .Scton,   1227  ;  Braithwaite"?   Manual, 

now  be  issued  without  special  order  ;  and  CI.     For  form  of  order,  see   Seton,   1201, 

«ec  Ord   X.  10.  No.  7;  and  .see  jtost,  Chap.   XXVI.  §  7, 

*  Ilinde,  140,  142.  Knforciny  l)ecrees  ami  Orilera.    For  forms 

•  Seton,   1227,  1261;  Braithwaite's  Pr.  of  motion  paper,  see  Vol.  III. 
194. 


478 


COMPELLING    APrEARANCE. — PROCEEDINGS    IN   DEFAULT. 


Cu.  vni.§4.  Tlie  conmiissiou  is  usually  (lin't-ted  to  four  or  more  persons,^ 
named  by  the  plaintift':  directing  them,  or  any  three  or  two  of 
them,  to  sequester  the  rents  and  profits  of  the  real  estate,  and  the 
goods  and  chattels  and  personal  estate  of  the  corporation,  until 
they  shall  appear  to  the  ])laintilf's  hill,  or  the  Court  make  further 
order  to  the  contrary.  The  commission  is  prepared  by  the  plain- 
tiff's solicitor ;  and  will  be  issued  by  the  Record  and  Writ  Clerk, 
uj)on  filing  with  him  a  prcGcipe,  and  producing  the  order  directing 
the  connnission  to  issue.^ 

The  return  to  a  writ  of  sequestration  is  indorsed  thereon ;  ^  and 
upon  such  return  being  made,  the  party  prosecuting  the  contempt, 
if  he  wishes  to  have  another  sequestration,  or  any  further  or  other 
remedy,  must  apply,  specially,  to  the  Court.*  It  is  not  the  practice 
to  file  the  return.^ 

A  sequestration  cannot  be  discharged  till  the  corporation  have 
performed  what  they  are  enjoined  to  do,  and  paid  the  costs  of  the 
several  writs  of  distringas,  and  of  the  sequestration,  including  the 
commissioners'  fees;  but  upon  their  doing  this,  they  may,  upon 
motion,  get  the  sequestration  discharged.® 


Sotjuostrji- 
tioii : 

how  prepared 
and  issued; 


how  re- 
turned; 


how  dis- 
charged. 


Plaintiff  usu- 
ally appears 
by  default, 
instead  of 
issuing  con- 
tempt process. 


Interrogato- 
ries may  be 
delivered  to 
defendant, 
though  he 
has  not 
appeared. 

Contents  of 
affidavit  of 
service. 

Costs  of 
entering  ap- 
fyearance  for 
defendant. 


By  one  or  other  of  these  forms  of  process,  appearance  may,  in 
almost  all  cases,  be  compelled,  after  service  of  the  copy  of  the  bill 
has  been  effected ;  but  as  the  plaintiff  can  himself  enter  an  appear- 
ance for  the  defendant,  that,  as  has  been  already  observed,'  is  the 
course  which  is  usually  adopted  in  practice ;  and  it  is  rarely  found 
desirable  to  carry  out  process  of  compelling  appearance. 

Moreover,  the  plaintiff  may  proceed  in  the  suit,  by  delivering  a 
copy  of  his  interrogatories  to  a  defendant  who  has  made  default  in 
appearing.^ 

The  affidavits  filed  for  the  purpose  of  proving  the  service  of 
a  copy  of  a  bill  u])on  any  defendant  must  state  when,  where, 
and  how  the  same  was  served,  and  by  whom  such  service  was 
effected.^ 

The  plaintiff  having  duly  caused  an  appearance  to  be  entered 
for  any  defendant,  is  entitled,  as  against  the  same  defendant,  to 
the  costs  of  and  incident  to  entering  such  appearance,  whatever 
may  be  the  event  of  the  suit ;  and  such  costs  are  to  be  added  to 
any  costs  which  the  plaintiff  may  be  entitled  to  receive  from  such 
defendant,  or  be  set  off  against  any  costs  which  he  may  be  ordered 

1  It  is  not  essential  that  the  commis- 
sioners should  be  professional  persons. 

2  Braithwaite's  I'r.  240.  Tlie  writ  must 
be  engrossed  on  parchment,  and  beara20«. 
stamp.  Kegul.  to  Ord.  fcched.  4.  For  forms 
of  piacipe,  commission,  and  indorsement, 
see  Vol.  III. 

8  For  form  of  a  return  nulla  bona,  see 
Vol.  III. 


4  Braithwaite's  Pr.  291. 
6  Goldsmith  r.  Goldsmith,  5  Hare,  123, 
129;  10  Jur.  561. 

6  Harr.  hy  Newl.  150;  Ilinde,  143. 

7  Ante,  pp.  460,  472. 

8  Ord.  XI.  5;  see  post,  p.  438. 

s  Ord.  X.  8;  Davis  v.  Hole,  1  Y.  &  C 
C.  C.  440;  6  J  dr.  335. 


AGAINST   PARTICULAR    DEFENDANTS. 


479 


to  pay  to  such  defendant ;  but  payment  thereof  is  not  to  be  other-  Ch.  Viii.  §  4. 
wise  enforced,  without  the  leave  of  the  Court.^ 

The  defendant,  on  the  other  hand,  notwithstanding  an  appear- 
ance may  have  been  entered  for  him  by  the  plaintift',  may  after- 
wards enter  an  appearance  for  himself  in  the  ordinary  way ;  -  but 
such  appearance,  by  such  defendant,  is  not  to  aifect  any  proceeding 
duly  taken  or  any  right  acquired  by  the  plaintiff,  under  or  after 
the  appearance  entered  by  him,  or  prejudice  the  plaintiff's  right  to 
be  allowed  the  costs  of  the  first  appearance.^  A  defendant  cannot, 
however,  take  any  proceeding  in  a  cause  until  he  has  himself  en- 
tered an  appearance,  notwithstanding  the  plaintiff  has  entered  one 
for  him. 


Defendant 
may  after- 
wards appear 
for  himself; 


and  must  do 
so,  before  he 
can  take  any 
proceeding. 


1  Ord.  XL.  15. 


2  See  post,  Chap.  XIIL,  Appearance. 


8  Ord.  X.  9. 


CHAPTER  IX. 


INTERROGATORIES    FOR    THE    EXAMINATION    OF   THE    DEFEND- 
ANTS   IN    ANSWER   TO    THE    BILL. 


Former 
practice. 


Intprrofcato- 
ries  no  longer 
fomi  part  of 
the  bill ; 

but  maj  be 
filed  sepa- 
rately. 

Time  allowed 
to  lile, 

and  deliver. 


Should  be 
filed,  not- 
withstanding 
pendency  of 
a  demurrer. 

Leave  to  file, 
after  time 
expired. 


Formerly,  as  we  have  already  seen,  a  bill  in  Chancery  contained 
an  interrogating  part,  preceding  tlie  prayer,  which  consisted  of  a 
repetition  of  the  stating  and  charging  i)arts  of  the  bill,  in  the  form 
of  questions  to  be  answered  by  the  defendants.  This,  as  has  been 
before  observed,  is  by  the  late  Act  of  Parliament  directed  to  be 
omitted  from  the  bill ;  ^  but,  if  the  plaintiff  desires  to  obtain  dis- 
covery or  admission  from  any  defendant,  he  may  file  interrogatories 
for  the  examination  of  such  defendant,  within  eight  days  from  the 
time  limited  for  the  defendant's  appearance.'^  If  the  defendant 
appears  within  the  time  limited,  the  plaintiff  must  deliver  an  office 
copy  of  the  interrogatories  to  the  defendant  or  his  solicitor  within 
eight  days  after  such  time ;  ^  but  if  the  defendant  does  not  appear 
AAathin  the  time  allowed,  the  plaintiff  may  deliver  the  interroga- 
tories at  any  time  after  the  time  allowed  has  expired,  but  before 
the  appearance  of  the  defendant,  or  within  eight  days  after  his 
appearance.* 

The  interrogatories  must  be  filed  within  the  time  limited  by  the 
General  Orders,  notwithstanding  that  a  demurrer  may  be  pending.^ 

If  the  plaintiff  allows  the  time  for  fiUng  interrogatories  to 
expire  before  he  has  filed  them,  he  cannot  file  them  without  special 
leave,  to  be  applied  for  in   Court  on  motion,  with  notice,  or  in 


1  1.5  &  16  Vic.  c.  86,  §  10  ;  ante,  p.  356. 

2  15  &  16  Vic.  c.  86,  §  12  ;  Ord.  XI.  2. 
This  order  applies  to  amended,  as  well  as 
original  bills.  A  defendant  need  not  ap- 
pear to  an  amended  bill  unless  he  is  re- 
quired to  answer  it;  and  the  intention  of 
the  plaintiff  to  call  for  an  answer  is  indi- 
cated by  service  of  a  duly  sealed  and 
indorsed  copy  of  the  umended  bill  ;  see 
Braithwaite's  I'r.  328;  Braithwiiite's  Man- 
ual, 150.  The  interrogatories  maj-  be  filed 
wiih  the  bill:  Hraithwuite's  Pr.  38;  and  a 
sealed  copy  may  be  served  at  the  same  time 
as  a  copy  of  the  bill:  Leaman  /;.  Brown,  7 
■\V.  K.  322,  V.  C.  K.;  but  in  such  case,  the 
full  time  for  appearing  and  for  answering, 
namely,  thirty-six  days,  must  be  allowed 


to  expire  before  the  attachment  for  not  an- 
swering can  be  sealed:  Braithwaite's  Man- 
ual, 184 ;  and  see  Clieeseborough  v.  Wright, 
28  Beav.  173;  see  Genl.  iits.  Mass.  c.  113, 
§  4;  St.  1862,  c.  40. 

<*  Ord.  XL  4.  If  a  copy  is  left  at  the 
office  of  the  solicitor  by  whom  the  defend- 
ant has  entered  an  a|)i)earance,  it  is  suffi- 
cient. Bowen  v.  Price,  2  Dc  G.,  M.  &  G. 
8'jy,  reversing,  ib.  1  Drew.  307.  The  ser- 
vice is  effected  in  the  s;inie  manner  as  that 
of  other  documents  which  do  not  require 
personal  service;  see  ante,  p.  455. 

*  Ord.  XI.  5. 

6  Harding  v.  Tingey,  10  Jur.  N.  S.  873, 
V.  C.  K. 


INTERROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS. 


481 


Chambers  on  summons.^  In  practice,  the  application  is  usually 
made  on  summons  in  Chambers  ;2  and,  as  a  general  rule,  the 
plaintiff  will  have  to  pay  the  costs.^  If  the  application  is  made 
before  the  time  has  expired,  it  should  be  that  the  time  may  be 
extended.* 

In  like  manner,  interrogatories  cannot,  without  a  special  order, 
be  deUvered  after  the  time  limited  for  so  -doing  has  expired ;  but 
leave  to  deliver  them  after  the  time  has  elapsed,  or  for  further 
time  so  to  do  where  it  has  not,  may  in  a  proper  case  be  obtained 
on  summons  at  Chambers.'' 

The  notice  of  motion  or  summons  must  be  served  on  the  defend- 
ants whom  it  is  intended  to  interrogate,  and  who  have  appeared. 
The  order,  if  made  on  motion,  is  drawn  up  by  the  Registrar;  if 
made  on  summons,  it  is  drawn  up  in  Chambers ;  and  where  it 
extends  the  time  to  file,  or  gives  leave  to  file  interrogatories,  it 
must  be  produced  to  the  Record  and  Writ  Clerk,  at  the  time  the 
interrogatories  are  presented  for  filing.* 

Where,  the  defendant  is  out  of  the  jurisdiction,  the  Court,  upon 
application,  supi)orted  by  such  evidence  as  shall  satisfy  the  Court 
in  what  place  or  country  such  defendant  is,  or  may  probably  be 
found,  may  order  that  a  copy  of  the  interrogatories  may  be  served 
on  such  defendant  in  such  place  or  country,  or  within  such  limits, 
as  the  Court  shall  think  fit  to  direct :  and  such  order  must  limit  a 
time  within  which  tlie  defendant  is  to  plead,  answer,  or  demur,  or 
obtain  from  the  Court  further  time  to  make  his  defence  to  the 
bill.®  The  application  is  made  by  ex  parte  motion  or  summons, 
supported  by  affidavit.^  The  copies  of  the  bill  and  interroga- 
tories may  be  served  together;^  and  therefore,  one  application 
embracing  both  objects  is  ordinarily  made.^ 

If  the  interrogatories  cannot  be  served  on  a  defendant,  within 
the  jurisdiction,  in  the  ordinary  way,  an  ex  parte  apjilication 
for  leave  to  substitute  service  may  be  made  by  motion,  sup- 
ported by  affidavit,  as  in  tlie  case  of  an  application  to  substitute 
service  of  a  copy  of  tlie  bill.^*^ 

Where  the  plaintiff  in  an  original  suit  had  neglected  to  file  his 
interrogatories  within  tlie  time  limited,  the  plaintiff  in  a  cross-suit, 


Ch.  IX. 


Leave,  or 
further  time, 
to  deliver. 


Service  of 
notice  of 
application. 

Order. 


Defendant 
out  of  juris- 
diction : 


leave  to  serve 
interrogato- 


how  obtained. 


Substituted 
service. 


Suits  and 
cross  suit. 


•  Ord.  XI.  3;  rcc  for  applications  of  thin 
fort,  i'jnpson  r.  liowiey,  'I  S.  &  (i.  Ap.  3; 
l)enin  r.  Kotluissen,  4  Jur.  N.  S.  '.2'Jb,  V. 
C.  W.;  Dakiiisf.  (iarralt,  xb.  579,  V.  C. 
K.  Ah  to  filing  separate  sets,  sec  putl, 
p.  4»<.''>. 

2  iir.iiiliwaite'H  I'r.  36. 

«  liakiiiH  r.  C.arrat,  4  Jur.  N.  S.  579,  V. 
C.  K.  I'or  lornis  of  notice  of  motion  and 
Burninons,  sco  Vol.  III. 

*  Ord.  X.\.\VI1.  17  ;  see  Garwood  v. 
CurteJH.  10  Inr.  N.  S.  IdO  ;  12  \V.  K.  509, 
V.  C.  \V. ;  Bignold  V.  Cobbold,  11  Jur.  N. 

vol..  1. 


S.  152,  V.  C.  S.  For  form  of  order,  see 
Selon,  1243,  No.  3;  and  for  form  of  suin- 
mniis,  sec  Vol.  III. 

5  Ilraiiliwaitc's  Vr.  36. 

0  Old.  X.  7  (1)  (2);  ante,  p.  452. 

T  K(ir  firms  of  niolion  paper,  summons, 
and  iididavit.  see  Vol.  III. 

»  I.cainan  v.  Brown,  7  VV.  R.  322,  V.  C 
K. 

0  See  anlt,  p.  451. 

1"  Antt,  p.  449.  For  form  of  motion  pa- 
per, sec  Vol.  III. 


81 


482 


INTERROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS. 


On.  IX. 


May  be  filed 
to  written 
biU. 


How  written ; 
and  intituled. 


Copies  for 
service : 


Should  only 
include  those 
the  particular 
defendant  has 
to  answer. 

Service  of  one 
copy  on  each 
solicitor 
sufficient. 


Indorsement. 


by  being  tlic  lirst  to  tlU'  iiiteri-ogatories,  was  held  entitled  to  have 
his  bill  answered  first.' 

The  interrogatories  are  settled  and  signed  by  counsel ; "  and 
are  recjiiired  to  be  divided  into  paragraphs,  and  numbered  in  the 
form  given  in  the  (ioneral  Orders,  and  the  interrogatories  which 
each  detenilant  is  required  to  answer  must  be  specified  in  a  note 
at  the  end.^ 

"Where  a  written  bill  is  allowed  to  be  filed,  on  an  undertaking 
that  a  printed  bill  shall  be  afterwards  filed,*  interrogatories  may 
be  filed  before  the  filing  of  the  printed  bill.'' 

Interrogatories  are  filed  at  the  Record  and  Writ  Clerks'  Ofiice;® 
and  they  must  be  written  on  paper  of  the  same  description  and 
size  as  that  on  which  bills  are  pi'inted ; ''  and  be  intituled  in  the 
cause,  so  as  to  be  in  strict  agreement  with  the  names  of  the 
parties  as  they  appear  in  the  bill,  at  the  time  the  interrogatories 
are  filed.^ 

The  copies  for  service  are  prepared  by  the  plaintiff"'s  solici- 
tor, but  must  be  examined  with  the  original,  and  the  number 
of  folios  counted,  by  the  Clerks  of  Records  and  Writs :  who, 
if  the  copies  are  duly  stamped  and  properly  written,  will  mark 
them  as  office  copies.®  The  copy  for  service  on  any  defend- 
ant should  only  contain  the  interrogatories  which  such  de- 
fendant is  required  to  answer.^**  If  the  copies  are  intended 
to  be  served  before  appearance,  a  copy  must  be  served  on  each 
defendant,  in  like  manner  as  the  copy  of  the  bill  is  required  to 
be  served ; "  but  if  served  after  appearance,  it  is  sufficient  to 
serve  one  copy  on  each  solicitor  by  whom  an  appearance  has 
been  entered,  notwithstanding  he  may  have  appeared  for  more 
than  one  defendant.'^ 

The  interrogatories  to  be  filed,  and  each  copy  for  service,  must 
be  indorsed  with  the  name  and  place  of  business  of  the  plaintift''3 
solicitor,  and  of  his  agent,  if  any ;  or  with  the  name  and  place  of 


1  Garwood  v.  Curteis,  10  Jur.  N.  S.  199; 
12  W.  K.  509,  V.  C.  W. 

2  Interrogatories  are  not  specified  in 
Ord.  VIII.  1,  among  the  documents  re- 
quiring counsel's  signature;  but  the  form 
of  interrogatories  in  Ord.  Sched.  B.  as- 
sumes th;it  the  name  ot  counsel  will  be 
attacheil. 

3  Ord.  XI.  1,  and  Sched.  B.  For  forms 
of  interrogatories  and  foot-note,  see  Vol. 
III. 

*  See  15  &  16  Vic.  c.  86,  §  6  ;  ante,  p. 
396. 

*  Lambert  v.  Lomas,  9  Iliire  Ap.  29; 
18  .Jur.  1008. 

6  Ord.  I.  35.  No  fee  is  payable  fur 
filing.    Braithwaite's  Pr.  35. 

7  Ord.  6  .March,  1660,  r.  i6  ;  as  to  such 
pa[)er,  see  ante,  p.  396.  Dates  and  suras 
may  be  expressed  by  figures. 


8  Braithwaite's  Pr.  36. 

9  Ord.  XI.  4.  The  copies  for  service 
are  usually  written  on  brief  paper.  A  fee 
of  6s.  higlier  scale,  or  Is.  lower  scale,  is 
paj-able,  in  Chancery  Fee  Fund  stamps,  on 
maikitig  each  oflice  copy.  Regul.  to  Ord. 
Sched.  4.  The  stamp  is  impressed  on,  or 
affixed  to,  such  copy.  A  prcecijje  is  re- 
quired to  be  left;  for  form,  see  Vol.  III. 

10  Ord.  XI.  4. 

11  See  Old.  X.  1;  ante,  p.  442. 

12  Braithwaite's  Pr.  37  ;  but  if  he  appears 
as  properly  concerned  tor  one  defendmit, 
and  as  iigent  for  another,  two  copies  should 
be  served;  seeiYi.  308, n.  Any  co{)y  sealed 
for  delivery,  may  be  resealed,  at  any 
time  before  delivery,  and  without  further 
fee. 


INTERROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS.  483 

residence  of  the  plaintiff,  where  he  acts  in  person ;  and,  in  either       Ch.  ix. 

case,  with  the  address  for  service,  if  any.^  " v ' 

Under  the  former  practice  it  was  held,  that  as  the  object  of  the  inten-ogato- 
interrogatories  was  to  compel  an  answer  to  such  focts  only  as  were  founded  on* 
material  to  the  plaintiff's  case,  it  was  necessary  that  every  inter-  bill. 
rogatory  should  be  founded  upon  statements  made  in  the  former 
part  of  the  bill ;  therefore,  if  there  was  nothing  in  the  prior  part 
of  the  bill  to  warrant  an  interrogatory,  the  defendant  was  not 
compellable  to  answer   it.^     This  practice  was  considered  neces- 
sary for  the  preservation  of  form  and  order  in  the  pleadings,  and 
particularly  to  keep  the  answer  to  the  matters  put  in  issue  by  the 
bill ; '  and  it  is  conceived  that  this  practice  still  continues.     But 
a  variety  of  questions  may  be  founded  on   a  single  allegation,  if  Many  qnes- 
they  are  relevant  to  it ;  thus,  if  a  bill  is  filed  against  an  executor  tions  may  b« 

*'  '  '  .       "  asked  on  a 

for  an  account  of  the  j^ersonal  estate  of  his  testator :  upon  the  single 
single  allegation  that  he  has  proved  the  will,  may  be  founded  ^'^o^tjon. 
every  inquiry  Avhich  may  be  necessary  to  ascertain  the  amount  of 
the  estate,  its  value,  the  disposition  made  of  it,  the  situation  of 
any  part  remaining  undisposed  of,  the  debts  of  the  testator,  and 
any  other  circumstance  leading  to  the  account  required.*  This 
rule  is  stated  and  acknowledged  by  Lord  Eldon,  in  Faulder  v. 
Stxiart^  where  a  defendant  declined,  by  his  answer,  to  set  forth 
the  particulars  of  a  certain  consideration,  which  it  was  alleged  in 
the  bill  the  defendant  pretended  was  j)aid  by  him  for  the  purchase 
of  a  share  in  a  newspaper,  Avhich  was  the  subject  of  the  liti- 
gation. His  Lordship,  upon  the  question  of  the  sufficiency  of 
the  answer  being  argued  before  him,  said,  "It  all  depends  upon 
this ;  whether  there  is  such  a  charge  in  the  bill,  as  to  the  payment 
of  the  consideration,  as  entitles  the  plaintiff  to  an  answer,  not 
only  whether  it  was  paid,  but  as  to  all  the  circumstances,  when, 
where,  &c.  I  have  always  understood  that  a  general  charge  en- 
abled you  to  put  all  questions  ui)on  it  that  are  material  to  make 
out  whether  it  was  paid ;  and  it  is  not  necessary  to  load  the  bill, 
by  adding  to  the  general  charge,  that  it  was  not  paid,  that  so  it 
would  appear,  if  the  defendant  would  set  forth  when,  where,  &c. 
The  old  rule  was,  that  making  that  substantive  charge,  you  may, 
in  the  latter  part  of  the  bill,  ask  all  questions  that  go  to  prove  or 
disprove  the  truth  of  the  fact  so  stated."  ^ 

It  is  to  be  obsei*ved,  however,  tliat    the    interrogatories  must,   Must  bo  con- 
in   all  cases,  be  confined  to   the   substantive   case  made  bv  the   ''"^l'  \*'  *^???, 
'  .    .  •'  made  by  bill; 

bill,   and   that   the  plaintiff  cannot   extend   his  interrogatories  in 

1  Ord.    Ill,  2,  r.;  nnU,  pp.  3;i7,  4r,:j,  454.  ♦   Und. 

For  (firm  ol  imlorsemi-tit,  fee  V.-l.  III.  '  11  Vps.  296,  801;  see  also  Mucklealon 

'^  Attoriicv-fjcnernl  V.  Whurwood,  1  Vcs.  v.  lirowii,  6  Ves.  52,  62. 

S.  6a4,  5.3M."  6  11  Vc8.  aoi. 

<  Ld.  Ked.  45. 


484 


INTERROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS. 


On.  IX. 


but  if  an- 
swered, the 
matter  is  put 
in  issue. 


Interrogato- 
rie.s  were 
uMually  an 
echo  of 
statinf?  part, 
under  former 
practice ; 

but  are  now 
frequently 
more  minute. 


Defendant 
may  be  inter- 
rogated as  to 


snoli  ;i  111:111  nor  ;is  to  eoin})el  a  di.scovcry  of  a  distinct  matter, 
uo[  inclutU'd  ill  tli.it  case;  and  therefore,  where  a  bill  prayed  a 
discovory  in  aid  of  an  action  at  Law  under  the  Stock  Jobbing 
Act,*  as  to  an  advance,  by  the  plaintilf  to  the  defendant,  of  a 
siini  of  money  without  legal  consideration,  which  it  was  alleged 
in  the  bill  was  advanced  as  the  premium  for  liberty  "to  ])ut 
upon,  deliver,  or  refuse  stock,"  and  in  consideration  of  certain 
contracts  relating  to  stock,  which  were  void  tnider  that  Act,  and 
the  defendant  denied,  by  his  answer,  that  the  jjlaintilfdid  advance 
or  pay  to  the  defendant  the  sum  mentioned,  or  any  other  sum,  as 
the  premium,  &c.  (as  charged  in  the  bill),  to  which  answer  an 
exception  was  taken,  because  the  defenchmt  had  not  negatived  the 
receipt  of  the  money  in  every  way  which  had  been  suggested  in 
the  interrogatory :  Lord  Eldon  overruled  the  exception,  because 
the  interrogatory  pointed  at  a  case  within  the  fiith  and  eighth 
sections  of  the  Act,  in  respect  of  which  no  bill  of  discovery  was 
given  by  the  Act,  whereas  the  allegations  in  the  bill  related 
to  cases  within  the  first  section  of  the  Act,  in  respect  of  which 
a  right  to  file  a  bill  of  discovery  was  given  by  the  second 
section."^ 

It  may  be  noticed  here  that,  in  The  Attorney- General  v.  WTior- 
wood,^  where  interrogatories  in  a  bill  were  directed  to  particular 
facts  which  were  not  charged  in  the  preceding  part,  and  the  de- 
fendant, though  not  bound  to  answer  them,  did  so,  and  the  answer 
was  replied  to :  Lord  Hardwicke  held,  that  the  informality  in  the 
manner  of  charging  was  supplied  by  the  answer,  and  that  the  facts 
were  properly  put  in  issue ;  "  for  a  matter  may  be  put  in  issue  by 
the  answer  as  well  as  by  the  bill,  and,  if  replied  to,  either  party 
may  examine  to  it."  * 

Although,  upon  the  authority  of  the  cases  above  cited,  it  appears 
that  a  ])laintiff  might  formerly  ask  all  questions  necessary  to  make 
out  a  general  allegation  in  the  bill,  yet,  in  point  of  fact,  it  was  the 
common  practice  to  make  the  interrogating  part  an  exact  echo  of 
the  stating  and  charging  part  of  the  bill.  Now,  however,  this 
practice  is  not  so  strictly  adhered  to ;  for  modern  bills,  being  so 
nuicli  more  concise  than  bills  formerly  were,  it  is  often  necessaiy 
or  desirable,  in  the  interrogatories,  to  inquire  after  particulars  in- 
cluded in  a  general  allegation  in  tlie  bill.  And  it  would  seem 
that,  to  some  extent  at  least,  the  old  rule  requiring  an  allegation 
in  the  bill,  as  a  foundation  of  the  interrogatories,  has  been  relaxed: 
for  it  has  been  held,  that  a  defendant  mny  be  interrogated  as  to 
books  and  papers,  in  his  possession,  relating  to  the  matters  in 


1  7  Geo.  II.  c.  8,  repealed  by  23  &  '24 
Vice.  28. 

2  Bullock  V.   Richardson,  11  Ves.   373, 
375. 


«  1  "Ves.  S.  534. 
*  lb.  538. 


INTERROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS. 


485 


question  in  the  suit,  although  there  is  no  allegation  in  the  bill  that 
he  has  any.^  This,  it  is  conceived,  would  scarcely  have  been 
allowed  under  the  foi-mer  practice.  It  has  also  been  determined 
that,  under  the  new  practice,  it  is  not  necessary  to  introduce  in 
the  bill  allegations  suggesting  imaginary  facts,  in  order  to  found 
an  interrogatory;  thus,  when  a  bill  alleged  the  existence  of  a 
mortgage,  known  to  the  plaintiif,  but  did  not  allege  that  there 
wei'e  others,  an  interrogatory  whether  there  were  others  was  al- 
lowed.'^ 

Interrogatories  to  an  amended  bill  should,  in  the  case  of  original 
defendants  from  whom  an  answer  is  required,  be  confined  to  the 
parts  added  by  the  amendment,  if  the  amendment  is  made  after 
answer,  or  after  the  expiration  of  the  time  within  which  the  plain- 
tiff might  have  filed  interrogatories  to  the  original  bill.^  Where, 
however,  in  such  a  case,  it  is  desired  to  interrogate  the  original 
defendants  beyond  the  amendments,  a  special  application  for  leave 
60  to  do  must  be  made  by  motion  or  summons.*  In  the  case  of 
new  defendants,  added  by  the  amendments,  the  interrogatories 
may  extend  to  the  whole  bill :  the  bill  being,  as  to  them,  an  origi- 
nal bill ;  but  a  new  set  of  interrogatories  must  be  filed,  as  the  old 
interrogatories,  if  any,  cannot  be  amended  as  to  the  new  defend- 
ants.* Where  the  plaintiff,  having  amended  his  bill  after  answer, 
filed  interrogatories  to  the  whole  bill,  they  were,  on  the  api)licati()n 
of  the  original  defendants,  ordered  to  be  taken  off"  the  file ;  but 
leave  was  given  to  file  new  interrogatories  confined  to  the  amend- 
ments;°  and  where,  after  a  defendant  had  put  in  a  voluntary 
answer,  the  plaintiff  amended  his  bill,  it  was  held  that  he  could 
only  require  an  answer  from  such  defendant  to  the  amendments.'^ 
A  second  set  of  interrogatories  to  the  same  bill  may,  if  the  time 
for  filing  interrogatories  has  not  expired,  be  filed,  without  order,  as 
against  defendants  who  were  not  previously  interrogated :  for  in- 
stance, if  the  plaintiff  files  interrogatories  for  the  examination  of 
two  or  more  of  several  dcfeiidants,  and  afterwards  desires  to  inter- 


Ch.  IX. 
^— — Y ■ 

documents, 
without  alle- 
gation that 
he  has  any. 
Suggestion  of 
imaginary 
facts  no 
longer  neces- 
sary to  found 
interrogato- 
ries. 

Interroga- 
tories to 
amended  bill 
should,  as 
to  original 
defendants, 
be  confined  to 
amendments. 

Leave  to 
interrogate 
beyond 
amendments. 
New  defend- 
ants may  be 
interrogated 
to  the  whole 
bill. 

Interrogato- 
ries, if  too 
extensive, 
may  be 
ordered  off 
the  tile. 


Separate  seta 
may  be  filed, 
as  to  separate 
defendant*. 


1  I'erry  r.  Turpin,  Fvay  Ap.  4!(;  18  Jur. 
694;  rarkiiiKon  r.  Chambers,  1  K.&.J.  7'2 ; 
Man!i.'ll  V.  Feeiiey.  'I  J.&  H.  313,  ;318;  but 
the  Court  discourages  exceptions  to  the 
answer,  on  the  ground  that  the  interroga- 
tory a.i  t'l  books  and  papers  is  not  sufli- 
cieiitly  an-wered;  sucii  discovery  being 
now  oljtainalilc  in  Ciiambcr.M,  inider  1.")  it 
1(5  Vic.  c.  86  §  Ih;  see  Law  i'.  London 
Indisputable  Conip'nv,  10  lliire  Ap.  20; 
Bainard  v.  Hunter,  1  Jur.  N.  S.  10G.5,  V. 
C.S. 

2  Marsh  v.  Keith,  1  Dr.  &  Sm.  34'2;  6 
Jur.  N.  S.  1182;  and  .see  IIu'lsoii  i'.  (iren- 
fell,  3  Ciff.  38K;  8  .lur.  N.  S.  878;  I'in'ard 
».  B  ebv.  L.  H.  1  En.  023;  12  Jur.  iN.  S. 
117,  V.C.  K. 

«  Wich  c.  Parker,  22  Beav.  CO;  2  Jur. 


N.  S.  582;  Denis  v.  Rochussen,  4  Jur.  N. 
S.  298,  V.  C.  W. ;  Drake  v.  Symes,  2  Ue 
(j.,  K.  &  .1.  81 ;  .Southampton  Steamboat 
Coinpaiiv  V.  Kawlins,  10  Jur.  N.  S  118, 
M.  U. ;  i2  W.  K.  28.5. 

■*  See  Denis  r.  Rochussen,  and  South- 
ampton Steamboat  Company'  v.  Rawlins, 
ubi  sup. ;  see  also  Attoniey-Gonenil  v. 
Rces,  12  Reav.  50,  64. 

6  I  raitiiwaifo's  I'r.  310. 

0  Drake  v.  Symes,  2  De  G.,  J.  &  F.  81. 
For  form  of  notice  of  motion  in  such  case, 
sec  Vol.  III. 

'  Denis  v.  Rochussen,  4  Jur.  N.  S.  298, 
V.  C.  W.;  Wich  V.  I'arker,  22  15eav.r.!»;  2 
.lur.  N.  S.  582;  and  seey>".s<.  Chap.  XVIL 
§  4,  Kxccpliwis  to  Amwer, 


486 


INTERROGATORIES   FOR    EXAMINATION   OF   DEFENDANTS. 


Oh.  IX. 


Anirndnicnt 
of  Ibnner  set. 


Order  to 
aiiiond :  how 
obtained. 


Answer:  how 
waived. 


Special  order 
to  amend. 


Amend- 
me(its:  how 
made. 


Service  of 
amended  in- 
tcrroffatorie.«, 
how  effected. 


roc^nto  tlio  titluM-  (loroiidiiiits  to  tlie  same  bill,  he  may  file  a  second 
set  of  interrogatories  for  the  examination  of  such  otlicr  defendants.* 
If  the  time  has  expired,  an  order. giving  leave  to  tile  the  second 
set  of  interrogatories  is  necessary. 

If  the  interrogatories  Hrst  tiled  have  not  been  answered  by  any 
defendant,  the  plaintiff  may,  under  an  order,  amend  such  inter- 
rogatories, so  as  to  require  an  answer  from  such  other  defendants ; 
but  the  order  to  amend  must  express  the  object;  and  the  defend- 
ant as  against  whom  the  interrogatories  were  first  filed,  must  be 
served  with  a  copy  of  the  interrogatories  as  amended.^  And, 
generally,  interrogatories  may  be  amended  under  an  order  as  of 
course,  to  be  obtained  on  motion,  or  on  petition  at  the  Rolls,  at  any 
time  before  an  answer  is  put  in.' 

If  the  plaintiff  desires  to  waive  an  answer  from  the  defendant, 
for  whose  examination  interrogatories  have  been  filed,  but  who 
has  not  answered  them,  he  may,  at  any  time  before  filing  replica- 
tion, or  setting  down  the  cause  for  hearing,  obtain  as  of  course, 
on  motion,  or  on  petition  at  the  Rolls,  an  order  to  amend  the 
interrogatories,  by  striking  out  so  much  of  the  heading,  and  of 
the  note  at  the  foot  thereof,  as  requires  an  answer  from  such  de- 
fendant ;  *  but  if  he  has  been  served  with  a  copy  of  the  interroga- 
tories, his  consent  should  be  obtained ;  service  of  the  interrogato- 
ries, as  so  amended,  upon  co-defendants  who  have  answered  is 
unnecessary. 

Where  an  order  for  leave  to  amend  the  interrogatories  cannot, 
under  the  ordinary  practice,  be  obtained  as  of  course,  the  applica- 
tion for  it  must  be  made  on  summons  at  Chambers ;  if,  however, 
the  defendants  will  consent,  it  may  be  obtained  on  petition  of 
course  at  the  Rolls.^ 

Amendments  of  interrogatories  are  settled  and  signed  by  coun- 
sel ;  and  the  amendment  is  made  in  the  same  manner  as  in  the 
ca.se  of  bills,®  Thus,  if  the  amendments  exceed  two  folios  of  ninety 
words  in  any  one  place,  a  new  engrossment  of  the  interrogatories 
must  be  made  and  filed :  in  other  cases,  the  amendments  will  be 
made  by  the  Record  and  Writ  Clerk,  on  the  draft,  signed  by  coun- 
sel, and  the  order  to  amend,  being  left  with  him.'' 

An  office  copy  of  the  interrogatories,  as  amended,  must  be 
served  on  each  defendant  who  is  required  to  answer  them,  or  on 
his  solicitor,  if  he  has  appeared  by  one.     The  service  is  effected  in 


1  F.raithwaite's  Pr.  35. 

2  Jbi'/. ;  Hraithwaite's  Manual,  183. 

3  Kraithwiiite's  Pr.  309.  P'or  form  of 
order  on  motion,  see  Seton,  1252,  No  2; 
and  for  forms  "f  motion  paper  and  peti- 
tion, >-ep.  Vol.  III. 

<  Braithwaire's  Pr.  310,  311.  Where 
the  interrogatories  do  not  extend  to  other 


defendants,  the  application  should  be  to 
take  them  off  the  file.  P'or  forms  of  motion 
paper  and  petition,  .see  Vol.  III. 

5  See  Braithwaite's  Pr.  310. 

6  Ante,  p.  422. 

'  Braithwaite's  Pr.  311.    No  fee  is  pay- 
able on  amending  interrogatories.    Ibtd. 


INTEEROGATORIES    FOR    EXAMINATION    OF    DEFENDANTS.  487 

the  same  manner  as  service  of  the  copy  of  the  original  interrog-       Ch.  ix. 
atones.      A  copy  of  the   former  interrogatories,   which,  though   "■-     y — ~—' 
stamped  for  service,  has  not  actually  been  served  when  they  are  Amending 
amended,  may  be  amended,  re-examined,  and  restamped  at  the  copiesT^ 
Record  and  Writ  Clerks'  Office  for  service,  without  further  fee,  on 
2i'prmcxpe  for  that  purpose  being  left  there.-' 

Where  the  interrogatories  are  amended,  each  defendant  pre-  Time  to  an- 
viously  served  has  his  full  time  for  answering  again,  fi'om  the  date  swer,  after 
of  the  service  of  the  copy  of  the  amended  interrogatories.^ 

The  costs  of  preparing  inteiTogatories,  which  have  not  been   Where  costs 
filed  in  consequence  of  admissions  being  subsequently  entered  into  "f  '"'^'^''™S*- 
between  the  parties,  will  be  allowed  on  taxations  as  between  party  lowed, though 
and  party."  ""^^  *^''^- 

1  Ibid.     For  form  of  prcecipe,  see  Vol  ^  Davies  v.  Marshall,  1  Dr.  &  S.  564;  7 
III.                                                                         Jur.  N.  S.  669. 

2  Braithwaite's  Pr.  311.     As  to  the  time 
allowed  to  answer,  see  post,  p.  488. 


CHAPTER    X. 

PROCESS     TO     COMPEL,     A]SD     PROCEEDINGS     IN     DEFAULT     OF 

ANSWER. 

Section  I,  —  Against  Defendants  not  privileged,  nor  subject  to 

disability. 


Interrogato- 
ries for 
defendant's 
examination: 

Time  for 
answering; 


farther  time. 


Penalties  for 
not  answer- 
ing in  due 
time. 


Where  the  plaintiff  requires  tlie  defendant  to  put  in  an  answer 
to  the  bill,  whether  original  or  amended,  he  must,  as  we  have  seen, 
file  interrogatories  for  his  examination ;  and  the  defendant  must 
put  in  his  plea,  answer,  or  demurrer,  not  demurring  alone,  within 
twenty-eight  days  from  the  delivery  to  him  or  his  solicitor  of  a 
copy  of  the  interrogatories  which  he  is  required  to  answer ;  ^  but 
where,  using  due  diligence,  he  is  unable  to  put  in  his  answer  within 
the  time  allowed,  the  Judge,  on  sufficient  cause  being  shown,  may 
enlarge  the  time,  as  often  as  he  deems  right,  on  such  (if  any) 
terms  as  to  the  Judge  seem  just.^ 

If  the  defendant  does  not  answer  within  the  time  allowed,  and 
procures  no  enlargement  of  the  time,  he  is  subject  to  the  following 
liabilities :  — 

1.  An  attachment  may  be  issued  against  him.* 

2.  He  may  be  committed  to  prison,  and  brought  to  the  bar  of 
the  Court, 

3.  The  plaintiff  may  file  a  traversing  note,  or  proceed  to  have 
the  bill  taken  pro  confesso  against  him.* 


1  Ord.  XXXVII.  4. 

2  Ord.  XXXVII.  8.  The  application 
for  further  time  to  answer  is  niMiIe  on  sum- 
mons in  Chamhers;  sea  post,  Chap.  XVII. 
§  3,  Answers. 

8  See  Miitter  of  Vanderhilt,  4  John  Ch. 
58.  If  the  plaintiff  makes  oath  that  :i  dis- 
covery is  necessary,  he  is  entitled  fo  an 
order  that  the  defendant  answer  the  bill 
or  be  attached;  and  tiie  Court  will  not,  in 
that  stiige  of  tlie  cause,  infiu-re  whether  a 
di-covery  isn'-cessary.  Staftbrd  d.  Hiowii, 
4  Paige,  360.  A  subpcemi  returnable  on 
Sunday  is  irregular,  and  will  not  warrant 
the  issuing  of  an  attachment  for  dis- 
obedience thereof,  as  no  Court  can  be  held 


on  that  day  for  any  purpose.     Gould  v. 
Spencer,  5  Paige,  541. 

*  This  is  the  express  provision  of  Art. 
13  of  the  IGth  Order  of  Mav,  1845;  Sand. 
Ord.  983;  7  IJeav.  xxiii.  ;  1  Phil.  Ixviii.  ; 
but  is  omitted  in  Ord.  XXXVIII.  4,  cor- 
responding to  that  Art.,  though  retained  in 
Ord.  XXXVII.  6,  corresponding  to  Art.  15 
of  the  IGth  Order.  Tills  appears  fo  be  an 
accidental  omission;  but  it  is  clear  that 
the  consequences,  though  not  expressefl  in 
the  General  Order,  of  a  defendant  making 
default  in  answering,  remain  tlie  same  as 
before;  see  Ord.  XII.,  XIII.,  and  XXII. 
For  table  of  process  for  want  of  answer, 
see  Seton,  1267. 


AGAINST   UNPRIVILEGED    DEFENDANTS. 


489 


It  may  be  remarked,  that  if  the  plaintiff  has  to  give  security  for 
costs,  the  day  on  which  the  order  to  give  secmity  is  served,  and 
the  time  thenceforward  until  and  including  the  day  on  which  such 
security  is  given,  are  not  to  be  reckoned  in  the  computation  of  the 
time  ^  allowed  the  defendant  for  answering. 

Where  the  defendant  thus  becomes  liable  to  be  attached,  the 
plaintiff's  solicitor  may  prepare  a  writ  of  attachment ;  ^  the  in- 
dorsement of  Avhich  states  it  to  be  for  not  answering.^  To  procure 
the  sealing  of  this  writ,  an  affidavit  of  the  service  or  delivery  of 
the  interrogatories  must  be  produced  to  the  Record  and  Writ 
Clerk;*  and  a 2)rcecipe  must  be  entered  and  left  in  the  usual  man- 
ner.^ The  writ  must  be  directed  to  the  sheriff  or  other  proper 
officer,  and  lodged  with  the  under-sheriff,  deputy-sheriff,  or  other 
proper  person,  as  before  ex})lained.^  If  the  defendant  is  in  prison, 
the  writ  must  be  lodged  with  the  keeper  as  a  detainer.'^ 

When  there  is  just  reason  to  believe  that  any  defendant  means 
to  abscond  before  answei'ing  the  bill,  the  Court  may,  on  the  ex 
parte  application  of  the  plaintiff,  at  any  time  after  an  appearance 
has  been  entered  for  him  by  the  plaintiff,  order  an  attachment  for 
want  of  answer  to  issue  against  him ;  and  such  attachment  is  to 
be  made  returnable  at  such  time  as  the  Court  directs.®  Such  ap- 
plication should  be  made  by  motion,  sujiported  by  affidavit  of  the 
grounds  for  believing  that  the  defendant  means  to  abscond  before 
answering,  and  by  the  Record  and  Writ  Clerks'  certificate  of  an 
appearance  having  been  entered  by  the  plaintiff.^ 

It  is  customary  for  the  plaintiff's  solicitor  to  write  to  the  defend- 
ant's solicitor,  calling  for  an  answer,  before  the  attachment  is 
issued.  The  effect  of  such  a  letter  is,  that  the  plaintiff,  on  Avhose 
behalf  it  is  given,  precludes  himself  from  issuing  the  attachment, 
until  the  defendant  has  had  a  reasonable  time,  either  to  put  in  his 
answer,  or  to  obtain  an  order  for  further  time  so  to  do.^" 

An  order  for  further  time  cannot,  in  strictness,  be  granted  after 
an  attachment ;  moreover,  the  writ  is  considered  to  issue  the  first 
moment  of  the  day  on  which  it  is  sealed  and  tested."     An  attach- 


Ch.  X.  §  1. 


Time  for 
giving 
security 
for  costs : 
when  not 
reckoned. 

Attachment: 
how  issued. 


When  attach- 
ment may 
be  issued, 
before  time 
to  answer 
has  expired. 


Effect  of 
giving  notice, 
before  issuing 
the  writ. 


After 

attachment, 
order  for 
further  timo 
irregular. 


1  (»r'i.  xxxvir.  U. 

2  Hcii'inlc,  |).  4G4. 

8  For  form'-  of  attachment  and  indorse- 
ment, fee  Vol.  Ill 

*  Uraitiiwiiite'sPr.  164.  An  attachment 
•will  be  ihsued  on  an  afTi'lavit  that  the 
d^-feiidiint's  sdlicjtnr  has  admitted  tiie  dc- 
liverv  to  liim  of  the  interrd^^ntories.  Side- 
bottom  V.  Atkins,  4  .liir.  N.  S.  !t42,  V.  (',.  S. 
If  no  ni)|i"ar  ince  lia^'  bi'cn  entered,  an 
adidiivit  of  tin;  "Tviee  of  the  bill  i-i  also 
ncce-Riirv.  Hraithwiiite's  I'r.  105;  and  if 
the  defen'lniif  linn  ol)tuinpd  an  order  cn- 
largii  g  tlie  time  to  an'-wer,  it  slionM  be 
tiidwn  liy  Itie  aflidavit,  or  by  an  oflice 
copy  of   the  order,  that  such   time   has 


elapsed,  lb.  164.  For  form  of  affidavit, 
see  Vol.  III. 

^  Ante,  p.  465.  For  form  of  pi'cecipe, 
see  Vol.  III. 

«  Ante,  p.  466. 

'  See  (nile.  p.  466. 

8  Ord.  XII.  1. 

9  For  firms  of  affidavit  and  motion  pa- 
per, -.ee  Vol.  HI. 

1"  Hiirritt  ?'.  B:irritt,  3  Swanst.  395,  396; 
Taylor  v.  I''i.slier,  6  Sim.  506.  These  cases 
were  before  tiic  Mijolitioii  of  the  Si,K  (Jlerks; 
but  solicitors  have  adopted  the  practice. 

U  Ste|.heiis«.  Neale,  1  Mad.  550;  I'etty 
V.  Lonsdale,  4  M.  &  C.  646,  648;  3  Jur. 

iibe. 


400 


COMrELLINO  ANSWER.  —  PROCEEblNGS  IN  DEFAULT. 


Cu.  X.  §  1. 


Return  to  the 
attachiueut. 


On  sheriff's 
return,  cepi 
corpus : 

Order  for 
messenger. 


Course, 

■where 

defendant  is 
apprehended 
by  mes- 
senger: 

Defendant  to 
be  brought 
to  the  bar; 

or  entitled  to 
his  discharge. 


Where  mes- 
senger finds 
defendant  in 
prison. 


Where 
messenger 
returns  non 
est  inventus. 

On  sheriff's 
return, 
"arrested 
and  in 
prison:" 


inoTit  is  tlioroforo  regular,  aTul  not  to  be  set  aside,  if  sealed  before 
an  order  for  further  time  has  been  obtained.^  When  an  attach- 
nient  has  been  issued,  but  has  not  been  executed  at  the  time  an 
api^lication  for  further  time  is  heard,  the  plaintifl'  may  consent  to 
an  order  for  further  time  beini;;  made,  on  the  condition  tliat  the 
attachment  is  not  to  be  thereby  j)rejudiced  ;  but  such  condition 
should  appear  by  the  C)rder. 

The  sheriff  may  either  return  cepi  corpus,  attached  and  in  prison, 
or  lion  est  inventus  ;  ^  and  it  will  be  convenient  to  consider,  sepa- 
rately, the  course  to  be  adopted  by  the  plaintiff,  in  respect  of  each 
one  of  such  returns. 

First :  If  the  sheriff  attach  the  defendant,  and,  taking  bail,  re- 
turn accordinoly,'  the  ])laintiff  is  entitled,  as  of  course,  to  move, 
upon  production  of  the  sheriff's  return,  for  an  order  that  the  mes- 
senger attending  the  Court  may  apprehend  the  defendant,  and 
bring  him  to  the  bar  of  the  Court.*  The  order,  when  drawn  up, 
is  delivered  by  the  registrar  to  the  messenger,  who  thereupon  pro- 
cures the  Lord  Chancellor's  warrant  to  apprehend  the  defendant, 
and  proceeds  to  execute  the  same.  If  there  is  a  vacancy  in  the 
office  of  messenger,  the  sergeant-at-arms  will  be  ordered  to  bring 
up  the  defendant.^ 

If  the  plaintiff  adopt  this  course,  and  the  defendant  is  taken  into 
custody  by  the  messenger,  the  plaintiff  must  take  care  that  the 
defendant  be  brought  to  the  bar  of  the  Court  by  the  messenger, 
within  ten  days  after  he  was  so  taken  into  custody,  and  within 
thirty  days  after  his  arrest  by  the  sheriff:  ^  otherwise,  the  defendant 
is  entitled  to  his  discharge,  without  payment  of  the  costs  of  the 
contempt :  which,  in  such  case,  are  to  be  paid  by  the  plaintiff.'' 
But  where  such  defendant  does  not  put  in  his  answer  within  eight 
days  after  such  discharge,  the  plaintiff  may  cause  a  new  attachment 
to  be  issued  against  him,  for  want  of  his  answer.* 

If  the  messenger  finds  the  defendant  in  prison,  he  lodges  the 
order  and  warrant  with  the  keeper,  as  a  detainer,  and  makes  his 
return  accordingly  ;  whereupon  the  plaintiff  may  cause  the  defend- 
ant to  be  brought  to  the  bar,  under  a  writ  of  habeas  corpus? 

Where  the  messenger  is  unable  to  find  the  defendant,  he  makes 
a  return  to  that  effect;  and  the  plaintiff  may  then  obtain  an  order 
for  the  sergeant-at-arms  to  apprehend  the  defendant. 

Secondly :  If  the  sheriff  arrest  the  defendant,  and  commit  him 


1  Kirkpatrick  v.  Meers,  2  Sim.  16;  Tay- 
lor V.  Fisher,  6  Sim.  566.  No  service  of 
an  order  for  time  is  now  necessary.  2 
Smith's  ?r.  131. 

2  For  an  explanation  of  these  several 
return',  see  ante,  pp.  470,  471;  and  as  to 
enforcing  a  return,  see  ib.  p.  470. 

3  As  to  bail,  see  ante,  p.  468. 


4  For  form  of  Order,  see  Seton,  1260,  No. 
2 ;  and  for  form  of  motion  paper,  see  Vol. 
III. 

5  Mncnab  v.  Kensal,  2  Sim.  16. 

6  Sef^  /««<,  p.  491. 

7  Ord.  XII.  2. 

8  Ibid. 

»  See  post,  p.  493. 


AGAINST   UNPRIVILEGED    DEFENDANTS. 


491 


to  prison,  or  detain  him  if  already  in  prison,  and  return  accord- 
ingly,^ the  plaintiif  is  entitled,  upon  production  of  the  return,  to 
an  order  for  a  writ  of  habeas  corpus  cum  causis  directed  to  the 
keeper  of  the  prison,  or  other  officer  in  whose  custody  the  defend- 
ant is,  commanding  him  to  bring  the  defendant  to  the  bar  of  the 
Court.^  This  order  will  be  made  on  petition  or  motion,  as  of 
course.^  The  writ  -will  be  sealed  at  the  Record  and  Writ  Clerks' 
Office,  on  production  of  the  order ;  and  must  be  made  returnable 
on  a  day  certain.  Usually  one  of  the  days  appointed  for  hearing 
motions  is  named  ;  but  if  the  plaintiff  is  limited  in  time,  another 
day  may  be  fixed.* 

The  defendant  must  be  brought  to  the  bar  of  the  Court  within 
thirty  days  after  he  is  lodged  or  detained  in  prison  under  the  at- 
tachment, or  he  will  be  entitled  to  his  discharge,  without  paying 
the  costs  of  contera])t ;  which  in  such  case  will  have  to  be  paid  by 
the  plaintiff.^  But  the  jilaintiff  may,  at  the  expiration  of  eight 
days  after  such  discharge,  issue  fresh  process,  if  the  answer  be  not 
filed  in  the  mean  time.^  During  vacation,  the  prisoner  may  be 
brought  up  to  the  private  house  of  the  Judge.'' 

In  either  of  these  cases,  whether  the  defendant  be  brought  to 
the  bar  of  the  Court  by  the  messenger,  or  upon  habeas  corpus  by 
the  officer  in  whose  custody  he  is,  the  defendant,  if  he  persists  in 
his  contempt,  will,  upon  motion  of  course  by  the  plaintiff,  be  turned 
over  to  Whitecross  Street  Prison  ;  ^  or  remanded  to  that  prison,  if 
already  imprisoned  or  detained  there.®  Tlie  plaintiff  may  then 
either  press  for  an  answer,  or  proceed  to  take  the  bill  pro  confesso 
against  the  defendant.^" 

If  the  plaintiff  determines  to  press  for  an  answer,  he  should 
move  for  an  order  that  tlie  defendant  may  remain  in  custody  until 
he  has  answered  the  bill."    Notice  of  the  motion  should  be  served 


Ch.  X.  §  1. 


Order  for 
habeas. 


Habeas:  how 
issued ; 

return  day; 


Time  allowed 
to  bring 
defendant  to 
the  bar. 


In  vacation. 


Proceedinga 
on  defendant 
being 
brought  to 
the  bar: 

order  to  turn 
over;  or 
remand. 


Proceedings 
to  detain 
defendant  in 
custody,  till 
answer. 


1  The  practice  here  stated  will  al^o  ap- 
ply to  a  cii^e  where  the  keeper  of  a  [)rison, 
in  which  the  defendant  is  confined,  certi- 
fies thiit  the  defendant  is  in  his  custody. 

2  For  form  of  order,  sec  Seton,  1262, 
No.  8.  The  plaintitT,  instead  of  aiiopling 
this  course,  m^v  servo  notice  of  motion, 
under  Ord.  XXII.  r.  1,  to  take  the  h'lU  pro 
con/ipM<j,  iig  hereiifter  expliiiMcd;  see /;os<, 
p. '619. 

*  For  forms  of  petitiim  and  motion  pa- 
per, see  Vol.  III. 

*  Braitliwnite's  Pr.  224,  225;  and  see 
pf>st,  p.  492,  n.  7.  Wlien  tiie  writ  Iris 
been  duly  executed  and  rcfurMod,it  sli'iiild 
be  filed  in  the  li-cord  and  Writ  ('loiks' 
Omc<-.  DldticM  V.  Cohhftt,  2  I'hil.  289. 
For  fonn.H  of  writ,  itKlorsemcnt,  and  /«•«- 
cipe,  «oo.  Vol.  III. 

«  Ord  XII.  3. 

*  ihifl.  Viications  will  be  reckoned  in 
computing  the  thirty  d:iys.    Fortescuc  v. 


Ilallett,  3  .lur.  N.  S.  806,  V.  C  K.,  where 
it  was  hehl,  that  the  stat.  11  Geo.  IV.  &  1 
Will.  IV.  c.  3C,  §  1.5,  r.  5,  which  allowed 
the  plaintiff  till  the  fourth  chiy  of  the  en- 
suing term,  if  the  thirty  days  expired  in 
vacation,  is  superseded  by  the  General 
Order;  see  also  Flower  v.  Bright,  2  J.  & 
H.  590. 

7  Glarlc  V.  Clark,  1  Phil.  116. 

*  For  form  of  order,  see  Seton,  1262, 
No.  10. 

'J  Jbid.     No.  12. 

1"  The  plaintiff  may  also,  with  leave  of 
the  Court,  file  an  answer  in  the  name  of 
the  defendant,  under  11  Geo.  IV.  &  1 
Will.  IV.  c.  3G,  §  15,  r.  11;  see /w»^  p. 
472;  hut  this  course  is  practically  abol- 
isheil,  MS  the  plauitiff  may  filo  a  travers- 
ing note;  see /«».s/,  p.  513. 

''  For  form  of  order,  see  Scton,  1204, 
No.  14. 


4i)2 


COMrELLING   ANSWER.  —  PUOCEEDINGS    IN   DEFAULT. 


Tii.  X.  5  1. 


l'n)cccdinp;9 
to  take  bill 
j)ro  conj'esso  : 

llnbeas  ; 


how  issued ; 

return 
thereto. 

Remand, 

Order  to  take 

bill 

pro  confesso. 

Practice 
under  the 
General 
Orders 
preferable. 


Time  within 
which  order 
to  take  bill 
pro  confesso 
must  be 
obtained. 


(Ill  tlie  (loti'iulant  ;  ^  antl  the  ore Icr  will  be  made,  if  the  Court  is 
s.itisiied  that  justice  cannot  be  done  to  the  plaintiff  without  an 
answer  to  the  interroEjatories  from  the  defendant  himself;  and  the 
order  will  Jiot  prejudice  the  plaintilf's  rights  to  take  the  bill  pro 

If  the  plaintiff  determines  to  proceed  to  take  the  bill  pro  con- 
fesso against  the  defendant,  he  must  obtain  an  order  for  a  writ  of 
habeas  corpus,  directed  to  the  kee))er  of  the  prison,  commanding 
him  to  bring  the  defendant  to  the  bar  of  the  Court.  This  order 
is  made  on  petition  or  motion  as  of  course,  su))ported  by  the  order 
handing  over  or  remanding  the  defendant  back  to  the  prison,  and 
the  keeper's  certificate  of  his  being  in  custody  there.^  The  appli- 
cation for  the  writ  may  be  made  as  soon  as  the  defendant  is  or- 
dered to  be  committed  or  remanded  back  to  prison;*  but  there 
must  be  at  least  twenty-eight  days  betwx'en  the  day  on  which  the 
defendant  was  committed  or  remanded  back,  and  the  return  of  the 
writ.^  The  Writ  will  be  sealed  at  the  Record  and  Writ  Clerks' 
Office,  on  ]iroduction  of  the  order.®  On  the  return  of  the  writ,  the 
defendant  is  brought  to  the  bar  of  the  Court ;  and  if  he  persists  in 
his  contempt,  he  Avill  be  remanded  to  prison,  to  remain  there  till 
he  answer  the  bill  and  clear  his  contempt;  and  the  bill  will  be 
ordered  to  be  taken  pro  confesso  against  him  at  the  hearing  of  the 
cause.'' 

It  should,  however,  be  mentioned  here,  that  although  the  prac- 
tice above  stated  may  still  be  adopted,  the  General  Orders  have 
given  the  plaintiff  an  easier  mode  of  obtaining  an  order  to  have 
the  bill  taken  pro  confesso,  in  the  event  of  the  attachment  being 
executed  i;pon  the  defendant.* 

If  the  plaintiff  resorts  to  the  practice  above  stated,  no  time 
should  be  lost  in  these  proceedings :  for,  unless  the  plaintifij 
within  six  weeks  after  the  expiration  of  two  calendar  months 
from  the  time  the  defendant  was  lodged  or  detained  in  prison, 
under  the  attachment,  obtain  the  order  that  the  defendant  remain 


1  Avelin?  IV  Martin,  17  Jur.  271,  L.J.J., 
overruling  Maitland  w.  liodger,  14  Sim. 
92;  8  .Jur.  371.  For  furm  of  notice  of 
motion,  see  Vol.  III. 

2  11  Geo.  IV.  &  1  Will.  IV.  c.  .36.  §  15, 
r.  12;  Bniithwaile's  I'r.  276;  Miiitland  v. 
Rodfjer,  ubi  sup.;  Potts  v.  Wliitniore,  8 
Beav.  .317.  If  the  defendant  does  not  ap- 
pesir  on  the  motion,  an  afTnlavit  of  service 
of  the  notice  must  be  pmiluccd  in  Court; 
for  form  of  affiilavit,  see  Vol.  III. 

8  For  forms  of  order,  see  Suton,  1263, 
Nos.  11  and  12;  and  for  forms  of  petition 
and  motion,  see  Vol.  III. 

*  Simpson  i;.  Barton,  13  L.  J.  N.  S.  Ch. 
79,  M.  R. 


5  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  15, 
r.  2. 

6  Hraithwaite's  Pr.  224,  225.  For  forms 
of  writ,  indorsement,  and  praecipe,  see  Vol. 
III.;  and  see  ante,  p   491. 

'  For  forms  of  order,  see  Seton,  1266, 
Nos.  5  and  6  Whi're,  Irom  pressure  of  bus- 
iness or  other  cause,  the  miitter  is  not 
heurd,  the  Court  may  direct  a  new  writ  of 
habeas  corpus  to  issue,  without  payment  of 
any  fee;  see  Ord.  XXX.  3.  The  direction, 
in  such  case,  is  signed  by  the  Kegistrar, 
and  indorsed  on  the  order  directing  the 
former  writ  to  issue.  Braithwaite's  Pr. 
224. 

8  Ord.  XXII.  1.  As  to  taking  bills  pro 
confesso,  see  post,  Chap.  XI. 


AGAINST    UNPRIVrLEGED    DEFENDANTS. 


493 


in  custody  until  answer  or  further  order,  or  that  the  bill  be  taken 
jyro  confesso,  the  defendant  is  entitled  (upon  application  to  the 
Court)  to  be  discharged,  without  payment  of  any  costs  :  unless 
the  Court  see  good  cause  to  detain  him  in  custody.^  Where,  how- 
ever, the  plaintiff  can  show  that  an  answer  is  necessary,  the  Court 
may  refuse  to  discharge  the  defendant,  although  the  plaintiff  has 
neglected  to  obtain  an  order  to  detain  him  in  custody."^ 

If  the  defendant,  upon  the  return  being  made  to  the  attachment 
by  the  sheriff,  be  in  jail  under  sentence  for  a  misdemeanor,  he 
may  be  brought  up  before  the  Court  by  habeas  C07jnis  in  the  man- 
ner before  explained ;  ^  and  thereupon  he  will  be  turned  over  pro 
forma  to  Whitecross  Street  Prison  :  though  actually  carried  back 
to  the  prison  from  whence  he  came.  Thereupon,  a  second  writ 
of  habeas  corpus  issues,  similar  in  all  respects  to  that  before  men- 
tioned, except  in  being  directed  to  the  jailer  or  keeper  of  the 
prison  to  which  the  defendant  has  been  carried  back.  Upon  the 
return  thereof,  the  defendant  is  brought  into  Court,  and  remanded 
to  the  prison  from  whence  he  came,  without  being  turned  over 
again  to  Whitecross  Street  Prison ;  and  the  bill  may  be  taken 
pro  confesso,  in  the  same  manner  in  all  respects  as  if  the  defendant 
had  been  all  along  in  the  custody  of  the  keeper  of  the  latter  prison.* 
Should  it  turn  out  that  the  defendant  is  under  sentence  for 
felony,  there  is  apparently  no  power  in  the-  Court  to  order  his 
removal  until  the  expiration  of  the  sentence  ;  ^  and  consequently, 
in  such  a  case,  it  seems  that,  previously  to  the  General  Order 
above  referred  to,^  no  order  to  take  the  bill  ^:»-o  confesso  could 
have  been  obtained,  nor  could  any  answer  have  been  enforced,  as 
against  a  defendant  in  such  a  position. 

There  seems  to  have  been  some  difference  of  opinion  among 
the  Judges,  whether  the  13th  rule  of  the  statute  confers  upon  the 
defendant  so  absohite  a  right  to  his  discharge  that  it  cannot  be 
waived  by  any  act  done  by  him,  either  previously  or  subsequent 
to  the  expiration  of  the  period  speciHed.  Sir  Lancelot  Sluidwell 
V.  C.  decided,''  that  an  answer  put  in  by  a  prisoner,  when  entitled 
to  Iiis  discharge,  inasmuch  as  it  prevents  the  plaintiff  from  having 
the  bill  taken  ;vro  confesso,  deprives  the  defendant  of  the  right 
conferred  ui)on  liim  by  the  statute,  of  being  discharged  without 
payment  of  the  costs  of  the  contempt;  and  Sir  James  Wigram 
V.  C."  was  of  ojiinion,  that  an  ai»plication  for  time  to  answer, 
made  by  the  <lefendant  prior  to  being  entitled  to  his  discharge, 


Ch.  X.  §  1. 


When 

defendant  in 
jail  for  mis- 
demeanor. 


1  11  Geo.  IV.  &  1  Will.  IV.  c.  3G,  §  1.5, 
r.  13.  1  he  two  month»  and  six  wockM  run 
in  viicalion.  Simmons  v.  Wood,  "2  Hare, 
644. 

2  poiti.  V.  Whitmore,  8  Bcav.  317. 
8  Antt,  p.  4iil. 

«  11  G»o.  IV.  &  1  Will.  IV.  c.  36,  §  16, 


When  under 
sentence  for 
felonv. 


Eight  of  de- 
fendant to  be 
disdiarged. 


r.  4;  5  &  6  Vic.  c.  22,  §  7;  25  &  26  Vic. 
c.  104,  §  2;  IJraitliwaite's  I'r.  283. 

6  HogerH  I).  Kirkpatrick,  3  Ves.  573. 

6  Ord.  XXil.  1. 

1  Williams  v.  Newton,  11  Sim.  45. 

«  Woodward  V.  (Jonebeer,  2  Hare,  606; 
8  Jur.  U42. 


494 


COMPELLING    ANSWER. 


TROCEEDINGS    IN    DEFAULT. 


Oh.  X.§  1. 


On  sheriff's 
return,  H()«  est 
invtntus : 


writ  of 
sequestration 
may  be 
obtained 
immediately; 


or  Sergeant- 
at-Arms. 


Order  to  take 
bill  pro 
conjeeso. 


anil  the  acceptance  of  the  tunc  thcfeui)on  given,  prevented  the 
operation  of  the  statute,  and  phiced  tlie  defendant  in  the  situation 
he  woidd  liave  been  in  liad  its  provisions  never  been  enacted  ; 
whereas,  according  to  Lord  Langdale  M.  \i.,^  a  defenihmt  obtain- 
ing leave  to  answer,  subsequent  to  the  period  when  he  becomes 
entitled  to  his  discharge,  has  still  a  right  to  the  benefit  of  the 
statute :  which  right  he  has  neither  power  nor  capacity  to  waive. 

Thirdly  :  If  the  sheriff  is  unable  to  attach  the  defendant,  and 
return  accordingly,  tliere  are  different  modes  whereby,  under 
different  circumstances,  the  plaintiff  may  proceed  to  take  the  bill 
pro  confesso. 

If  an  affidavit  can  be  made,  that  due  diligence  was  used  to 
ascertain  where  such  defendant  w-'^s  at  the  time  of  issuing  such 
writ,  and  in  endeavoring  to  apprehend  him  under  the  same,  and 
that  the  person  suing  forth  such  writ  verily  believed,  at  the  time 
of  suing  forth  the  same,  that  such  defendant  was  in  the  county 
into  which  such  writ  was  issued,  then,  upon  ex  parte  motion,  sup- 
ported by  such  an  affidavit,  and  the  sheriff's  return,  the  ])laintiff 
is  entitled  to  a  writ  of  sequestration.^  But  the  affidavit  must  be 
precisely  in  the  words,  or  at  least  go  to  the  full  extent,  of  the 
language  just  mentioned ;  and  hence  it  is  often  impossible,  from 
the  conduct  of  the  defendant,  to  frame  an  affidavit  in  the  proper 
terms.^ 

Where  such  an  affidavit  can  be  made,  another  course  for  the 
plaintiff  to  adopt  is,  upon  the  sheriff  returning  non  est  inventus^ 
to  move,  as  of  course,  upon  such  affidavit,  for  the  Sergeant-at-Anns 
to  apprehend  the  defendant.*  If  the  Sergeant-at-Arms  arrest 
the  defendant,  he  must  bring  him  to  the  bar  of  the  Court  within 
ten  days  thereafter.  If  he  find  him  in  prison,  he  lodges  the  order 
and  warrant  with  the  keeper  as  a  detainer,  and  returns  accord- 
ingly, then  the  same  course,  with  respect  to  bringing  the  defendant 
to  the  bar  of  the  Court,  must  be  pursued,  as  if  the  defendant  had 
been  apprehended  by  the  messenger,  and  within  the  same  time.^ 
On  the  other  hand,  if  the  Sergeant-at-Arms  return  that  the  defend- 
ant cannot  be  found,  so  as  to  be  appreliended,  then,  upon  motion 
of  course,  supported  by  production  of  such  return,  the  plaintiff  is 
entitled  to  an  order  for  a  writ  of  sequestration.® 

In  either  of  the  above  cases,  that  is,  whether  the  writ  of  seques- 


1  Havne«  v.  Ball,  4  Beav.  101. 

2  Ord.  XII.  6;  Braitliwaite's  Pr.  287; 
see  Seton,  1260,  is'o.  1 ;  ami  lor  form'*  of 
affidavit,  motion  paper,  writ  of  sequestra- 
tion, M\(X pracipe,  see  Vol.  III. 

3  Storer  v.  Great  Western  Kailway  Com- 
pan3',  1  Y.  &  C  C.  C.  IbO. 

*  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  15, 
r.  1;  lJr:iitli\vaite's  I'r.  2i"(>;  but  see  Se- 
ton, 1200,  iS'o.  2.     The  order  must  be  de- 


livered to  the  Sergeant,  or  his  deputy,  by 
the  Registrar.  Ord.  XXX.  2.  For  form  of 
motion  papei',  see  Vol.  III. 

'i  btoreru.  Grent  Western  Railway  Com- 
panv,  1  Y.  &  C.  C.  C.  180;  Biaithwaite's 
Pr.  2b6 ;  nntt,  pp.  491,  492. 

6  Braithwaite's  Pr.  287.  The  return  is 
filed  at  the  Report  Office.  For  form  of 
order,  see  Seton,  1261,  No.  4;  and  for  form 
of  motion  paper,  see  Vol.  III. 


AGAINST   UNPRIVILEGED    DEFENDANTS.  495 

tration  is  ordered  upon  motion,  supported  by  the  affidavit  men-     Ch.  X.  §  i. 
tioned  above,  or  upon  a  return  oinon  est  inventus  by  the  Sergeant-   '        ^        ' 
at-Arms,  it  would  seem  that  the  plaintiff  may  at  once  obtain  an 
order  to  take  the  bill  pro  confesso :  which  is  granted  on  motion  of 
course. 

According  to   the  old   practice  of  the  Court,  independent  of  Execution  of 
recent  Statutes  and  Orders,  an  order  to  have  the  bill  taken  pro  for'waiu''ot°'j 
confesso  was  of  course,  upon  the  issuing  of  the  writ  of  sequestra-  answer,  con- 
tion,  even  though  it  was  not  executed.'     In  consequence  of  this 
rule,  it  does  not  seem  that  it  ever  has  been  the  ordinary  practice 
to  execute  writs  of  sequestration  upon  mes7ie  process;    and  an 
opinion  appears  at  one  time  to  have  prevailed,  that  such  an  exe- 
cution was  irregular.     The  opinion  seems  to  have  arisen,  in  con- 
sequence of  what   was   said   by  Sir  Thomas   Clarke  M.  R.,^  in 
Heather   v.    Waterman^  and    Vaughan   v.    Williams,'^  where   he 
expressed  an  opinion,  that  when  a  bill  had  been  taken  pro  confesso, 
on  a  sequestration  for  want  of  an  answer,  the  execution  of  the 
sequestration  was  unnecessary  and  improper.     These  cases  appear 
to  have  been  cited  by  Mr.  Dickens,  the  Registrar,  in  the  notes 
banded  up  by  him  to  the  Lords  Commissioners  of  the  Great  Seal, 
in  Rowley  v.  Ridley^  in  support  of  the  distinction  taken  by  him 
between  sequestration  in  mesne  process  and  for  a  duty,  namely, 
that  a  sequestration  in  mes7ie  process  ought  not  to  be  executed ; 
but  upon  reference   to  those   cases,  it  appears  that  they  go  no 
further  than  to  show  that,  when  the  plaintiff  intends  to  proceed  to 
have  the  bill  taken  pro  confesso  against  the  defendant,  the  execu- 
tion of  tlie  sequestration  is  unnecessary,  and  therefore  improper : 
because  the  object  of  executing  the  sequestration  being  merely  to 
compel  an  answer  from  the  defendant,  the  same  purpose  is  effected 
by  taking  the  bill  2yro  confesso  against  him  (by  which  process  the 
plaintiff  obtains  the  same  decree  that  he  would  have  been  entitled 
to,  had  the  defendant  put  in  his  answer  and  admitted  the  whole 
case  made  by  the  bill)  ;  and  this  being  accomplished,  the  process 
drops  as  a  matter  of  course,  and  the  sequestrators  become  account- 
able, not  to  the  plaintiff  or  to  the  Court,  but  to  the  defendant." 

In  fact,  the  practice  a|)pears  to  be  that  a  i)laintiff,  upon  obtain-   In  whatcases 
.  .  I    ,•      1      X    J-  ^      I-  executed. 

mg  a  sequestration  against  a  defendant  for  want  of  an  answer, 

1  Wyatt's  V.  K.  352;    Harr.  by  New].       that  he  could  sec  no  foundation,  either  in 
j4(;_  the  reason  of  tlie  tiling,  or  in  the  iiistory  of 

2  Mionrintpd  "  Sewell,"  in  1  Dick.  335.         the  Court,  for  supposinj;  that  a  sequestra- 

3  1  |)'ck.  335.  ''f>"  *•>  compel  an  appearance  or  answer 
*  lb.  ;{')4.  should  not  be  executed.  See  also  Gold- 
^ 'i    l)ick.    022.      It    appears  from    the        smith  f.  Goldsmith,  6  Hare,  120,  127;  10 

gUitemetii  of  this  case  bv  Lord  Kede-'dale,  Jur.  501. 

then  the  SolicitoMJeneral,  in  Simmondsw.  ^  .See  Goldsmith  v.   Gohlsinith,  5  Hare, 

Lord   Kinnaird,  4  Yes.  736,  73li,  that  the  123;   lO.Iur.  501;  Irom  which  case  it  a(.- 

casc   i8  errori'-ou-ly  rcporte<l;  and  in  the  pears  that  sequestration  will   be  executed 

note  of  the  -ante  case,  in  3  .Swaii'-t.  300,  n.  in  h  proper  case. 

(6),  Lord  Tliurlow  is  reported  to  have  said 


496 


COMrELLINO  ANSWER. 


rROOEEDINGS  IN  DEFAULT. 


Cii.  X.  5  1. 


On  return  nan 
est  inventus, 
bill  should 
be  taken 
pro  conj'esso, 
under  the 
General 
Order. 


has  an  option  wlicthor  he  will  proceed  to  tukc  the  bill^vo  confesso, 
or  to  conij)el  an  answer.  If  the  circumstances  of  the  case  are  such 
that  justice  can  be  obtained  by  taking  the  bill  pro  covfesso^  he 
ought  not  to  cause  the  sequestration  to  be  executed;  but  if  his 
case  is  such  that  an  answ'er  from  the  defendant  is  necessary,  he 
may.  It  should  be  observed,  however,  that  the  cases  in  which  a 
plain tifi'  can  have  occasion  to  compel  an  answer  from  a  defendant, 
instead  of  taking  the  bill  pro  confesso  against  him,  are  conij)ara- 
tively  few,  and  are  in  general  coniined  to  bills  of  discovery,  where 
the  answer  is  wanted  to  be  read  at  Law,  or  to  obtain  some  admis- 
sion from  him  on  which  to  found  some  application  to  tlie  Court ; 
and  that,  unless  in  such  cases,  the  proper  course  to  adopt  is  that 
of  taking  the  bill  p>ro  cofifesso.  For  these  reasons,  the  writ 
of  sequestration  is  very  rarely  executed,  upon  mesne  j)rocess  ;  and 
it  will  be  more  convenient  to  treat  of  the  practice  upon  the  execu- 
tion of  a  writ  of  sequestration  hereafter,  in  the  section  concei'ning 
the  proceedings  to  enforce  decrees.^ 

■  If  the  plaintiff  desires  to  take  the  bill  pro  confesso  against  a 
defendant  who  has  not  been  arrested  on  the  attachment,  or  by  the 
Sergeant-at-Arms,  his  better  course  is  to  proceed  as  against  an 
absconding  defendant,  under  the  General  Order  on  the  subject  of 
taking  bills  jyro  confesso :  ^  which  will  be  considered  in  the  next 
chapter.'' 


Section  II.  —  Against  Particular  Defendants. 


Against 

particular 

defendants. 


Peers  and 
members  of 
parliament: 
■when  bill 
for  relief; 

Sequestration 
nisi. 


Sequestration 
absolute. 


The  course  which  has  been  stated,  in  the  preceding  section,  is 
applicable  to  the  case  of  an  ordinary  defendant,  not  possessed  of 
any  particular  privilege,  and  not  subject  to  any  disability.  It  re- 
mains to  consider  the  practice  to  be  adopted,  for  the  purpose  of 
compelling  an  answer  from  defendants  of  j)articular  descriptions. 

First :  If  the  defendant  is  privileged  from  arrest,  either  by  right 
of  peerage,  or  as  a  member  of  parliament,  and  the  bill  is  for  relief: 
as  soon  as  the  time  for  answering  has  expired,  the  plaintiff^  instead 
of  issuing  an  attachment,  may  move,  as  of  course,  for  a  sequestra- 
tion nisi,  on  an  affidavit  of  the  delivery  of  the  interrogatoiies,  and 
the  Record  and  Writ  Clerks'  certificate  that  no  answer  thereto  has 
been  put  in.'*  The  order  must  be  served  personally  upon  the  de- 
fendant ;  and  at  the  expiration  of  the  time  limited  in  such  order 
nisi  for  showing  cause,^  the  plaintiff  may  move,  as  of  course,  to 
make  tlie  order  absolute,  upon  proof  by  affidavit  of  service  of  the 

1  Post,  Chap.  XXVI.  §  7.  No.  5;  and  for  forms  of  motion  paper  and 

2  Ord.  XXII.  affidavit,  see  Vol.  ill. 

8  I'ast,  p.  hlb  et  seq.  ^  As  to  sli(jwing  cause,  see  Magan  v. 

*  For   form  of  order,  see  Seton,  1261,       Magan,  IC  Jur.  567,  V.  C.  K. 


AGAINST    PARTICULAR    DEFENDANTS.  497 

order  nisi,  and  by  the  Record  and  Writ  Clerk's  certificate  that  no     Cii.  X.  §  2. 

answer  has  been  filed,  and  the  Registrar's  certificate  that  no  cause    "— — r •' 

has  been  shown.^ 

Upon  the  order  for  the  sequestration  being  made  absolute,  the   Bill  may  then 
plaintiff  is  entitled  ^  to  have  the  bill  taken  2^'>'0  confesso,  as  in  the  p';.^'tmfesso. 
case  of  unprivileged  parties  against  whom  sequestration  has  issued.^ 

If,  however,  the  bill  is  for  discovery,*  it  is  not  necessary  for  the   when  bill  for 
plaintiff  to  obtain  a  sequestration ;  but  after  the  time  for  answer-  ^'*y°Yn'^'  ** 
ing  has  expired,  and  an  ajjpearance  has  been  entered  by  the  defend-    default  of 
ant,  or  by  the  plaintiff  on  his  default,^  the  plaintiff  may  apply  at  taken  pro 
once  to  have  the  bill  taken  pro  confesso,^  and  thereupon  the  Court  confesso 

1  1  11-111  1  without  a  se- 

is  empowered  to  make  an  order,  that  the  bill  be  so  taken,  unless  questration; 

the  defendant  shall,  within  eight  days  after  being  served  with  the 

order,  show  good  cause  to  the  contrary^     The  order  is  obtained 

on  ex  parte  motion,  supported  by  an  affidavit  of  the  delivery  of 

the  interrogatories,  and  the  Record  and  Writ  Clerk's  certificate  of 

default ;  *  and  the  order  will  be  confirmed,  in  like  manner  as  an 

order  for  a  sequestration  is  made  absolute.^     When  such  order  hiiis   and  be  read 

been  pronounced,  the  bill,  or  an  examined  copy  thereof,  mav  be   '"  evidence, 
^  '  '  ^  ,^       ..."  as  an  answer 

taken  and  read  in  any  Court  of  Law  or  Lqiiity  as  evidence  of  the  admitting 
same  facts,  and  on  behalf  of  the  same  parties,  as  could  an  answer  ^°i'}*^'*'^'^  ° 
admitting  the  contents  of  the  bill.^° 

Where  the  Attorney-General,  being  a  defendant  to  a  suit,  fails   Attomey- 
to  answer  witliin  a  reasonable  time,  an  order  may  be  obtained  that   General, 
he  put  in  his  answer  within  a  week  after  service  thereof;  or  in  de- 
fault, that,  as  against  him,  the  bill  may  be  taken />ro  confesso}^ 

In  the  case  of  a  corporation  aggregate,  not  answering  within  the   corporationB 
time  limited,  the  plaintifi'  may  issue  the  same  writs  of  distringas   aggregate. 
successively,  and  in  the  same  manner,  as  it  is  before  stated  may  be 
done  to  compel  appearance ;  ^"^  and  should  the  corporation  stand  out 

1  Uraithwaite's  Pr.  297;  see  M-.itter  of  Ihid.  In  New  .lersej',  a  decree />ro  co«- 
Vanderbilt,  4  John.  Oh.  58.  For  form  of  fnao  may  be  taken  lit  any  time,  after  the 
order,  Hee  Setoii,  1261,  No.  6;  iind  for  time  limited  for  ihe  de(cnilaut  to  plead, 
forms  of  motion  paper  and  affidavit,  see  answer,  or  demurrer,  h:is  expireil.  it  may 
Vol.  HI.  be  taken   witiiout  notice,  and  of  course, 

2  Jones  v.  Davis,  17  Ves.  368;  Logan  «  unless  it  appear  that  some  ])re)uiliee  will 
Grant,!  .Mad.  626.  tliereb^' accrue  to  the  adverse  part^'.    Oak- 

3  See  nnU,  pp.  494,  495;  and  see  Braith-  ley  v.  O'Neill,  1  Green  Ch  2b7;  see  Nes- 
waite's  IV.  297.  bit  i».  St.  Patrick's  Church.  1   Stockt.  (N. 

♦  .(ones)'    I)  ivis,  «6t  ««/). ;  and  see  pos^,  J.)  76. 

Chap.  X.X.XIV.  §  2,  liilU  ,</  DUa.ih-nj.  7  11  Gno.  IV.  &  1  Will.   IV.  c.  36,  §  13. 

.  '  Kiilier  iihdnr  11  Geo.  IV.  &  I  Will.  IV.  •*  For  forms  of  motion  paper  and  affi- 

c.  36,  §  12,  or  Grd.  X.  4-7,  it  wouM  hcem.  diivit,  see  Vol.  III. 

Braithwaite'n  I'r.  298.  '■>  Ante,  pp.  496,  497. 

«  Sc.r  O'Brien  v.   Manders,  2  Irisli  Kq.  1«  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  14. 

39;  Wil-on  r.  Sliawe,  Craw.   &  Uix,  62;  ^  Groom   v.    The   Attorney-CJeneral,    9 

StiflTord  r.  Burn,  4  I'aige,  660.  Sim.  325.     Now,  however,  it  is  uiinsual  to 

If  a  defeiKlant,  after  uppeariiig,  will  not  ask   for  any  answer  from    thij  Atioriicy- 

answcr,  the  hill  will  he  taken //)■()  co/i/'cMO.  General.     For  form  of  motion  jjaper,  suo 

(jaines   t;.    Usher.    1  .lohn.  Ch.   8   '  And  Vol.  III. 

where  tlie  hill  is  Inr  reliel  only,  ani  states  ''■^  See  ante,  p.   477;  McKiin  v.   Odoin,  3 

outlicien'  ground,  the  process  lor  contempt  Bland,  407,  426. 
to  comp<-l    an   answer   is  not   necessary. 

VOL.  I.  32 


4i)8 


COMPELLING    ANSWER. 


rROCEEDINGS    IN    DEFAULT. 


(^11.  X.5  2. 


IntaiiU,  and 
pei-st>ns  of 
unsound 
uiiiid  not  so 
found. 


Infants  not 
usually 
required  to 
aiiswer. 


Married 
women. 


Wife  not 
bound  to  join 
in  hu.sband'3 
answer. 


proooss  till  {\\c  ordiT  .Mbsoluto  tor  soijui'stration  issue,  tlion  the 
plaintirt"  upon  obtaining  sucli  onlor,  may  move,  as  of  course,  to 
ha\o  the  bill  taken  pro  confesso} 

ITjion  default  made  in  ajiswering  by  an  infant  defendant,  or  by 
a  defendant  of  weak  or  unsound  mind  not  so  found  by  iiujuisition, 
the  Court  will,  ui)on  the  S2)eeial  motion  of  tlie  ])hiintitf,  order  a" 
solicitor  to  be  assigned  guardian,  by  whom  such  defendant  may 
answer  the  bill  and  defend  tlie  suit.^  The  practice  as  to  this  mo- 
tion, and  the  afh(hvvit  required  in  sup})ort  of  it,  are  simihir  to  tlie 
practice,  before  explained,  in  the  case  of  default  in  ai)pearanoe,' 
Even  when  the  infant  is  a  married  woman,  a  guardian  must  be 
ajipointed  to  ])ut  in  an  answer  on  her  behalf.*  As  we  have  seen, 
however,  no  answer  should  now  be  required  from  an  infant  defend- 
ant. 

In  general,  when  a  husband  and  wife  are  made  defendants  to  a 
cause,  and  no  special  order  has  been  made  with  res})ect  to  the 
plaintiff's  right  to  deraiand  an  answer,  or  affecting  the  liabilities  of 
either  husband  or  wife  for  not  duly  answering,  the  plaintiff  is  en- 
titled to  have  their  joint  answer,  within  the  ordinary  period  after 
service  of  the  interrogatories ;  and  in  default  of  such  joint  answer 
being  put  in,  the  husband  alone  incurs  all  the  ordinary  conse- 
quences of  contempt.^  Their  respective  rights  and  liabilities  are, 
however,  often  varied  upon  the  application,  either  of  the  ])laintiff, 
or  of  the  husband,  or  the  wife  ;  and  the  circumstances  under  which 
such  an  application  may  be  made  to  the  Court,  and  the  course  of 
practice  in  relation  thereto,  have  been  fully  explained  in  a  former 
part  of  this  treatise.® 

When  a  husband  is  willing  to  answer  jointly,  it  must  not  be 
supposed  that  the  wife  is  bound  to  acquiesce  in  any  answer  the 
husband  may  please  to  put  in ;  nor  is  the  husband  justified  in 


1  Braitlnvaite'sPr.  297.  Angell  &Anies, 
Corp.  §  667  et  seq.  For  form  of  order, 
fee  Set  on,  1266,  No.  4;  and  for  (brm  of 
motion  paper,  see  Vol    III. 

2  Ord.  VII.  3. 

3  Ame,  p.  475.  Where  the  infant  had 
appeared,  service  of  the  notice  of  motion 
on  the  s(<licitor  w  ho  tiad  entered  the  iip- 
pearance  was  held  sudicient.  Oonkson  v. 
Lee.  10  Sim.  .302.  In  Hcntley.  Robinson, 
9  Hare  Ap.  76,  a  guardian  was  app'  inted 
for  an  infant  nut  in  default,  on  the  a[)pli- 
calion  of  the  plainfitf;  no  an.swer  being 
required.  Where  the  infant  has  already 
apfifared  by  a  guardian  etd  lilcm,  the 
puardian  may  be  proceeded  again't  in  the 
same  niai.ner  as  other  persons,  to  conijiel 
an  answer.     1  Hoff.  Ch.  I'r.  182. 

*  Colman  ?•.  Nortlicote,  2  Hare,  147, 
and  ca^es  cited,  ib.  148  n. ;  7  .Jur.  .528;  and 
see  ante,  pp.  16.3,  le3. 

6  Gee  V.  Cottle,  3  M.  &  C.  180;  Steele 


V.  Flomer,  2  Phil.  782,  n.  {«);  1  M'N.  & 
G.  83;  better  reported  13  Jnr.  177;  see 
Metiers.  Metier,  4  C.  E.  Green  (N  J.), 
4.57;  IJird  tJ.  Davis,  1  McCarter  (N.  J.),  477. 
The  plaintiff' may  stipulate  to  receive  the 
joint  answer  sworn  to  by  the  husband 
alone.     Leavitt  v.  Cruger,  1  Paige,  422. 

8  Ante,  pp.  IbO,  ISl;  see  Collard  v. 
Smith,  2  licasby  (N.  J.),  45.  If  the  wife 
be  aljseiit,  the  husbuid  may  obtain  time 
to  issue  a  commissit)n  to  obtain  the  wife  9 
oath  to  the  answer,  and  if  she  refu-^e  to 
answiT,  the  bill  mav  be  taken  pi'o  con- 
J'fssu  against  her.  Leavitt  v.  Cruger,  1 
Paige,  422;  Ferguson  v  Smith,  2  .lohn. 
Ch.  139.  But  in  New  Jersey,  if  the 
husband  be  served,  Jind  the  wife  be  out  of 
the  State,  it  is  necessary  to  have  an  order 
of  publicarion  against  lier,  unless  the  hus- 
band appear  for  her.  Ilalst.  Uig.  170- 
174;  Chancery  Rule,  23. 


AGAINST    PARTICULAR    DEFENDANTS. 


499 


using  menaces,  to  constrain  her  consent  to  an  answer  contrary  to     Ch.  X.  §  -2. 
her  belief:  for  such  conduct,  a  husband  is  punishiible  as  for  a  con-  ■"-     ■<       ' 
tempt,  and  the  wife,  thus  conscientiously  dissenting,  may,  upon 
application  to  the  Court,  obtain  an  order  to  answer  separately.^ 

The  separate  answer  of  a  married  woman  cannot  (except  where    Separate- 
her  husband  is  a  plaintift")  -  be  filed  without  a  previous  order  for  ^^1*7^^„^J„t 
that  purpose  ;^  nor  can  she  be  viewed  as  a  substantial  party  to  the  be  filed  with- 
suit,  until  such  order  be  obtained  ;  and  she  is  entitled  to  compute 
the  full  time  for  answering  from  the  date  of  the  order  allowing  her 
to  answer  separately,  without  regard  to  any  orders  for  time  previ- 
ously granted  to  her  husband.'* 

Where  an  order  for  a  married  woman  to  answer  separately  has  where  order 
been  obtained,  the  plaintiff  nu\v  proceed  to  compel  an  answer  by  ^^p'^J'/^riy 
attachment ;  and  this  right  would  seem  to  exist  in  the  plaintiff,   has  been 

,  .  T  ,  .         1       ,  1-^x1  i      obtained,  her 

whatever  be  the  object  ol  the  suit,  whether  relatmg  to  the  separate  answer  may 
estate  of  the  wife  or  not.^  The  attachment  will  not,  however,  be  be  compelled. 
issued  without  an  order :  \\  hich  may  be  obtained  on  an  ex  parte 
motion,®  where  the  order  to  answer  separately  has  been  obtahied 
by  the  married  woman,  but  where  it  has  been  obtained  by  the 
plaintiff,  or  the  husband,  notice  of  the  motion  should,  it  seems,  be 
given  to  her.'' 

Where  the  husband  is  positively  unable  to  conform  to  the  ordi-    Husband 
nary  practice  of  initting  in  a  joint  answer,  an  order  will  be  granted,   "";j''.K ';'  P"^ 
uj)on  his  af)plication,  tor  him  to  answer  separately,  and  he  is  then   answer, 
exonerated  from  all  liability  for  his  wife's  default;  *  but  the  motion   ,„ay  obtain 
for  this  purpose  should  be  made,  before  he  is  in  contempt,  as  the  order  for  him 

.  ,,  -1-1/.1-1-  -11  to  answer 

Court  Will  not,  after  he  has  made  default,  give  hira  an  indulgence  separately; 
to  the  i>rejudice  of  the  plaintiff's  interests.^     To  sui)port  such  an    ^^  ^^ 
application,  the  husband  must  show,  by  his  own  affidavit,  that  his  obtained, 
wile  lives  ajjart,  and  that  he  has  no  influence  over  her,  or  otherwise 
prove   his   inability   to   answer  for  her.^°     Notice   of  the  motion 
should  be  given  to  the  i)laintitF,  and  also  to  the  wife."     It  seems, 
too,  that  the  order  ought  to  direct  the  wile  to  answer  separately, 

1  Aximrte  Halsam,  2  Atk.  50;  ante,  p.  T  Gratiam  v.  Fitch,  2  I)e  (i.  &  S.  240; 
1()1.                                                                           12  .Fur.  8a3;  cviitra,  Taylor  v.  Taylor,  12 

2  Ante,  p.  1R2.  beav.  271;    and  see  llu^llell  v   IJusliell,  1 
«  Ciiirey  r.  W'lrttingliam,  1  S.  &  S.  1G3;        S.  &  S.   164;    and  cases  cited    12   Heav. 

but  no  such  order  is  necessary  whem-ver  271,  n.     For  t'orni  of  order,  see  iSelon,  1250, 

the    wile   is   to  be   considered  as  a  feme  No.   7;    ami  for  forms  of  notice  of  motion 

iulr  ;  utile,  p.  17b.  and  athdavits,  see  Vol.  III. 

<  Jackson  V.   Haworth,  1  S.  &  S.  101,  »  Gar-y  v  WhittiuKlam,  1  S   &  S.  163; 

ante,  p.  D-S.  Brailhwaite's  I'r.  105;  see  Leavitt  v.  Cru- 

(^  I'ubois  B   Hole,  2  Vern.  618;  and  see  ger,  1  I'aige,  422. 

OUw;.y  V    Wing,  12  Sim.  90;  Travcrs  v.  '■>  Gee  i).   Cottle,  3   M.  &  C.    180,    182; 

Bucklv,  1    Ves.   S.  3>-4,  IJhO;  1   Dick.  ISX;  ante,  p.  408.      For  form  of  affidavit,   seo 

Kipp  ;•    llanna,  2  Bland,  20.  Vol.111. 

•   lliirkiits.-e  V.  Acton,  15  .lur.  1052,  V.  '"   Biirry  v.  Cane,  3  Mad.  472;  ante,  pp. 

C.  T. ;  Home  ?'.  Patrick,  3H  Hcav.  405;    8  177,467." 

Jur.  N    S  351;  Bull  v.  Witliey, 'J  Jur.  N.  1'   Hunyan   v     Mortimer,    0    Mad.    278; 

S.  5!)4,  v.  C.  >!.     For  forms  ot  motion  pa-  (iarey  i'."  W  liittitif^liam,  ii/n  sup.     For  form 

per  and  affidavit,  see  Vol.  111.  of  notice  of  motion,  see  Vol.  HI. 


500 


COMrELLING   ANSWER. 


rUOCEEDINGS    IN    DEFAULT. 


Cm.  X.  §  -2. 


Ilusbiuui 
.«lioultt  obtain 
onlor,  lu'lore 
(ilinjj  his  sep- 
arate ajiswer. 


Where 
luisband  a 
hmatie, 
plaintiff  !nay 
obtain  order 
for  wife  to 
answer 
separately. 


Defendant 
unable  to 
answer  from 
poverty: 


inquiry 
whether  he 
is  so; 


if  true, 
counsel  and 
solicitor  are 
assigned  him. 


;is  woll  ;is  (he  luisbniul :  otlicrwisc  (he  plniiitiiV  may  have  to  apply 
aii'ain,  bi'tbri'  lie  can  luiii^-  the  wile  hetbre  tlie  Court. 

Til  all  cases  where  the  hushaiul  wishes  to  answer  separately,  an 
order  lo  that  elleet  ought  in  strictness  to  be  obtained,  before  his 
answer  is  })ut  in.  There  are  cases,  however,  where  he  has  answered 
separately  without  order,  and  then  a])plied  to  the  Court  that  he 
might  not  be  liable  to  process,  on  account  of  his  wife's  del'ault  in 
answering ;  and  the  ai)plication  being  made  before  any  notice  of 
the  irregularity  in  tiling  the  answer,  the  Court  has  made  the  order.^ 
But  such  a  course  is  irregular,  and,  upon  motion  of  the  plaintiff, 
the  separate  answer  of  the  husband  will  be  ordered  to  be  taken 
off  the  file."'^ 

If  the  impossibility  of  obtaining  a  joint  answer  arises,  not  from 
the  refusal  of  the  wife,  but  from  the  lunacy  of  the  husband,  an 
order  for  tlu;  wife  to  answer  se])arately  will  be  made,  u])on  a  like 
application  of  the  plaintiff.^  In  such  a  case,  however,  as  well  as  in 
other  cases  where  it  apj^ears  to  the  Court  that  the  defendant  is  a 
person  of  weak  or  unsound  mind,  not  found  such  by  inquisition, 
the  Court  may,  upon  the  application  of  the  plaintiff,  appoint  one 
of  the  solicitors  of  the  Court  guardian  of  the  defendant,  by  whom 
he  may  appear  to  and  answer  the  bill :  *  but,  in  such  a  case,  no 
answer  should  be  required. 

It  noAV  remains  to  be  considered  in  what  manner  the  Statutes 
and  General  Orders  protect  a  defendant  unable,  from  j)overty,  to 
put  in  an  answer ;  and  prevent  a  party,  under  such  circumstan(!es, 
being  uselessly  detained  in  custody. 

If  a  defendant  is  brought  up  in  custody  for  want  of  his  answer,^ 
and  makes  oath  in  Court,*'  that  he  is  unable,  by  reason  of  poverty, 
to  em])loy  a  solicitor  to  j)ut  in  his  answer,  the  Court,  if  not 
satisfied  of  the  truth  of  that  allegation,  may  direct  an  inquiry  as 
to  the  truth  thereof; ''  and  may  appoint  a  solicitor  to  conduct  such 
inquiry  on  the  behalf  of  such  defendant ;  and  if  it  is  ascertained, 
by  means  of  such  inquiry,  or  if  the  Court  is  satisfied  without  such 
inquiry,**  that  such  defendant  is  unable,  by  reason  of  poverty,  to 
employ  a  solicitor  to  put  in  his  answer,  the  Court  may  assign  a 
solicitor  and  counsel  for  such  defendant,  to  enable  him  to  put  in 


1  Barr\-  v.  Cane,  ubi  sup. ;  Pavie  v. 
A'Court,"l  Dick.  13;  ante,  p.  180. 

2  (Jee  V.  Cottle,  ubi  sup. ;  and  see 
Nichols  V.  Ward,  2  M'N.  &  G.  140;  ante, 
p.  177.  For  form  of  notice  of  motion,  see 
Vol.  III. 

3  Kstcourt  V.  Kwington,  9  Sim.  2-52;  2 
Jur.  414. 

*  Ord.  VII.  .3;  ante,  pp.  176,  47.5.  A  fe- 
male defendant,  uiini;irried,  above  sixty 
years  "f  aije,  who  b;id  been  deafaml  dumb 
from  her  inlancj-,  was  admittid  to  appear 
and  defend  by  guardian.     Alarkle  v.  .Vlar- 


kle,  4.John.  Ch.  168.  Where  a  lunatic  has 
appeared  by  committee,  the  pr;ictice  to 
compel  an  answer  by  committee  is  tiie 
same  as  in  case  of  other  persons.  1  IIofF. 
Ch.  I'r.  182. 

6  Ante,  pp.  490,  491. 

<5  The  oath  is  administered  by  the  Regis- 
trar; see  11  Geo.  IV.  &  1  Will.  IV.  c.  a6, 
§  15,  r.  G. 

■^  I'ending  tjie  inquiry,  it  seems  that 
time  does  not  run  ajjainst  the  plaintiff. 
Potts  V.  Whitmore,  8  IJeav   317,  319. 

8  Daviesu.  Nixon,  11  W.  K.62,  V.C.  K. 


AGAINST    PARTICULAR    DEFENDANTS. 


501 


his  answer.^     It  would  seem,  tliiit  the  application  must  be  made 
by  the  defendant,  and  not  by  the  plaLntiif.'^ 

"When  an  inquiry  is  thus  directed,  an  order  to  that  eiFect  is 
drawn  up ;  *  a  certified  copy  of  it  is  left  at  the  chambers  of  the 
Judge  to  whose  Court  the  cause  is  attached ;  and  a  summons  to 
proceed  on  the  inquiry  is  thereupon  taken  out,*  and  served  on 
the  plaintiff's  solicitor.  On  the  return  of  the  summons,  an  affi- 
davit by  the  defendant  of  his  poverty,  or  other  evidence  thereof, 
is  adduced  on  his  behalf;*  the  plaintiff's  counter  evidence,  if 
any,  is  heard ;  and  the  Chief  Clerk  makes  his  certificate  of  the 
result  of  the  inquiry ;  which  is  afterwards  completed  in  the  ordi- 
nary way.® 

If  the  certificate  is  in  favor  of  the  defendant,  he  may  apply,  by 
ex  parte  motion,  that  a  counsel  and  solicitor  may  be  assigned 
liira  to  put  in  his  answer,  and  defend  the  suit,  in  forma  pauperis.'' 
The  counsel  and  solicitor  to  the  Suitors'  Fund  are  usually  assigned 
him.  The  order  may  also  direct  a  habeas  corpus  to  issue,  to  bring 
up  the  defendant  for  the  purpose  of  taking  the  bill  2^ro  confesso, 
in  the  event  of  the  answer  not  being  put  in  the  mean  time.* 
When  the  answer  has  been  put  in,  the  defendant  may  apply, 
on  motion,  supported  by  the  Record  and  Writ  Clerk's  certificate 
of  tlie  answer  being  filed,  that  he  may  be  discharged  out  of 
custody  as  to  his  contempt  in  not  answering,  and  that  the 
plaintiff's  costs  of  such  contemj)t  may  be  paid  out  of  the  Suitors' 
Fund.« 

Where,  however,  the  defendant,  though  the  certificate  is  in  his 
favor,  neglects  to  apply  for  the  assignment  of  counsel  and  a 
Bolicitor,^"  or  where  the  Chief  Clerk  certifies  that  the  defendant 
is  not  too  poor  to  put  in  his  answer,  or  where,  by  reason  of  the 
obstinacj'  of  the  defendant  in  withholding  information  as  to  his 
means,  the  intjuiry  has  failed,"  tlie  j)laintitr  may  move  ex  parte^^ 


1  Ord.  XII.  4;  Hnd  see  11  Geo.  IV  &  1 
Will.  IV".  c.  36,  §  1"),  r.  C;  see  also  23  &  24 
Vic.  c.  140,  §  4,  wliiili  is  in  nearly  the  s.ime 
words  as  Onl.  XII.  4. 

■i  S.-c  Wafkiii  .'  I'arker,  1  M.&C.370; 
Garrod  v.  Hol-len,  4  lUav.  24.'i.  Tiiesc 
ca^fs  were,  however,  df-ci'lfd  "n  the  Gth 
Kiile  of  U  Geo.  IV.  &  1  Will.  c.  36,  §  1.5. 
In  Uiiyly  v.  Bayly,  11  Heav  2.")6,  it  was 
held,  that  the  7tli  Itnle  applied  to  a  de- 
fendant ilefendinti  'n  a  reiirescntative  char- 
acter, lifter  a  succes'^ful  inquiry  under  the 
Gth. 

i  For  form  of  order,  see  iSeton,  1273,  No. 
12;  and  (or  (orm  of  oder,  without  inquiry, 
ilj.  1272,  No.  11. 

*  For  form  of  summons,,  see  Vol.  III. 
By  Orrl.  XII.  6,  notice  in  writing  of  tlie 
order,  ami  ofcverv  summons  to  proceed 
thereon,  must  he  served  ou  the  solicitor  to 
the  Suitors'  Fund. 


5  See  Williams  v.  Parkinson,  5  Sim.  74, 
75. 

8  See  post.  Chap.  XXIX.,  Proceedings 
in  the  Jm/r/e's  Chambers.  The  solicitor  to 
the  Suitors'  Fund  usually  conducts  the  in- 
quiry on  hcliall Of  tiie  dcfcniismt. 

~   For  form  of  uifition  paper,  see  Vol.  HI. 

8  Welfonl  V.  Diiniell,  'J  Sim.  652 

0  For  form  of  order,  see  Seton,  1273,  No. 
15;  iind  tor  form  of  motion  paper,  see  Vol. 
III.  1{\-  Ord.  XII.  5,  notice  in  wrilin^j  of 
the  applicati'u  mu^t  he  served  on  the  so- 
licitor ot' the  Suitors'  l''und,  two  clear  da\9 
at  least  hef're  it  is  intetided  to  he  made. 

'*  Tattershall  v.  Cramptoii,  cited  Seion, 
1273. 

"  Williams  v   Parkinson,  5  Sim.  74. 

12  For  form  of  order,  see  Seton,  1273,  No. 
14;  and  for  form  of  motion  pap  r,  see  Vol. 
HI. 


Cii.  X.  §  2. 


Plaintiff  can- 
not apply  for 
inquiry. 

Inquiry:  how 

prosecuted. 


Inquiry 
answered : 


Defendant's 
proceedings ; 


Plaintiff's 
proceedings. 


502 


COMPELLING  ANSWKU. 


rROCEEDTNOS  IN  DEFAULT. 


Cm.  X.5  2. 


Solicitor  to 
Suitors'  Foe 
ImiiuI  to  visit 
Wliitei'n)ss 
Street  Trison 
four  times  a 
year; 


oxfimine  the 
I)ris<)ners  in 
eontempt ; 
anfl  report 
thereon  to 
lyord 

(,;hanccUor, 
who  may 
assiiin  a, 
solicitor. 


Jailers  to 
make  reports 
to  Lord  Chan- 
cellor, of  all 
Chancery 
prisoners  in 
other  prisons. 


On  oath  of 
poverty, 


Ix)rd  Chan- 
cellor may  di 
rect  inquiry, 


for  :i  Jidhras  corpus  to  biiiiij^  tlic  (lc(('ii(laiit  to  tlio  bar;^  and 
oil  his  l)i'iii<jj  broiiglit  tip,  m:iy  :i|*I''.^'  ^*'  ''''^'t'  t^ie  bill  taken  pro 
co)if('SiH>;  and  an  onlor  may  l)i'  made  accordinnly,  in  tlic  maimer 
before  explained.'- 

Tn  order  to  prevent  the  possibility  of  any  prisoner  beintr  snffered 
to  remain  in  neglected  imprisonment,  without  reaping  the  benefit 
of  the  provisions  above  mentioned,  for  the  relief  of  defendants 
Avhose  only  reason  for  non-eoin])lianee  with  the  rules  of  the  Court 
is  ]ioverty,  it  is  enacted  that,  in  the  last  Aveek  of  each  of  the 
months  of  January,  April,  July,  and  October  in  every  year,  the 
solicitor  to  the  Suitors'  Fund  for  the  time  being,  or  some  other 
officer  of  the  Court  of  Chancery  to  be  a])poiiitcd  by  the  Lord 
Chancellor  from  time  to  time,  shall  visit  Whitecross  Street 
Prison,^  and  examine  the  prisoners  confined  there  for  contempt, 
and  shall  report  his  opinion  on  their  respective  cases  to  the  Lord 
Chancellor;  and  thereupon  it  shall  be  lawful  for  the  Lord  Chan- 
cellor, if  he  shall  think  fit,  to  assign  a  solicitor  to  any  such  ])ris- 
oner,  not  only  for  defending  him  in  forma  p>afiiperis^  but  generally 
for  taking  such  steps  on  his  behalf  as  the  nature  of  the  case  may 
require ;  and  to  make  all  or  any  such  orders  as  the  Lord  Chan- 
cellor was  empowered  to  make,  after  the  like  report  of  a  Master 
under  the  seventh  rule  of  the  11  Geo.  IV.  &  1  Will.  IV.  c.  36, 
§  lb.' 

It  is  further  enacted,  that  when  any  person  shall  be  committed 
to  any  prison,  other  than  Whitecross  Street  Prison,^  under  any 
writ  or  order  of  the  Court  of  Chancery,  the  jailer  or  keeper  of 
the  prison  in  which  such  person  shall  be  confined  shall,  within 
fourteen  days  after  such  person  shall  have  been  in  the  custody  of 
such  jailer  or  keeper,  make  a  report  to  the  Lord  Chancellor,  con- 
taining the  name  and  description  of  such  prisoner,  with  the  cause 
and  date  of  his  commitment,  and  a  copy  of  the  Avrit  or  order 
under  which  he  was  committed;  and  if  such  prisoner  shall  make 
oath,  before  one  of  the  visiting  Justices  of  such  jail,  or  a  commis- 
sioner for  taking  oaths  in  the  Court  of  Chancery,  that  he  is  unable 
by  reason  of  poverty  to  emj^loy  a  solicitor,  the  report  shall  contain 
a  statement  to  that  effect;  and  it  shall  thereupon  be  lawful  for  the 
Lord  Chancellor  to  direct  the  solicitor  to  the  Suitors'  Fund  to 
ascertain  the  truth  of  such  statement,  and  if  true  to  take  such 


1  As  to  tlie  mode  of  issuing  the  writ,  see 
-c/n^e,  p.  401;  nnd  for  I'nrnis  of  the  writ,  in- 
dor-emeiit,  and  prcecipe,  see  Vol.  III. 

2  Hull  V.  Falkuer,  11  .Jur.  2-3.5,  V.  C.  K. 
Vt.  For  form  of  onler  in  such  ciise,  see 
Se'on,  127.3,  No.  14;  and  see  rmte,  p. -402. 

8  Suhs'ituted  for'the  Queen's  Prison,  by 
25  &  26  Vic.  c.  104,  §  2. 

*  23  &  24  Vic.  c.  149,  §  2.  For  form  of 
order,  gee  beton,  1272,  No.  9;  and  see  ib. 


1284,  No.  16.  The  solicitor  to  the  Suitors' 
Fund  is  usually  assign' d  the  solicitor;  and 
the  counsel  to  that  fund  is  usual!}' !issigned 
ttiH  dcfendani's  counsel.  The  order  may 
also  be  made  bv  the  Lords  .lustices.  23 
&  24  Vic.  c.  149,  §  13;  and  it  may  be 
obtained  on  motion  of  course.  Liiyton  «. 
Mortimore,  2  De  (}.,  F.  &  J.  353;  lind  see 
ante,  p.  154. 
6  See  23  &  24  Vic.  c.  149,  §  2. 


AGAINST   PARTICUIiAR   DEFENDANTS. 


503 


steps,  on  behalf  of  any  such  prisoner,  as  the  nature  of  the  case  may 
require ;  and  the  Lord  Chancellor  may  thereupon,  if  he  shall  see 
fit,  make  such  order  or  orders  as  he  is  empowered  to  make  under 
the  second  section  of  the  Act,  which  is  above  set  forth.^ 

By  the  seventh  rule  of  the  11  Geo.  lY.  &  1  Will.  IV.  c.  3G,  §  15, 
the  Court  is  authorized  to  order  that  the  costs  of  the  contempt 
of  any  such  prisoner  shall  be  paid  out  of  the  Suitors'  Fund,^ 
and  that  any  such  prisoner,  having  previously  done  such  acts  as 
the  Court  shall  direct,  shall  be  discharged  out  of  custody ;  but,  if 
any  such  defendant  become  entitled  to  any  funds  out  of  the  cause, 
the  same  are  to  be  applied,  under  the  direction  of  the  Court,  in 
the  first  instance  to  the  reimbursement  of  the  Suitorg'  Fund.* 
Applications  to  the  Court  under  these  provisions  must  be  made  to 
the  Lord  Chancellor  or  Lords  Justices ;  *  and  as  they  are  entirely 
framed  for  the  relief  of  defendants,  no  such  order  can  be  made 
on  the  application  of  the  plaintiff.^ 

It  is  also  provided,  that  it  shall  be  lawful  for  the  solicitor  to 
the  Suitors'  Fund,  or  other  officer  visiting  the  prison,  to  examine 
the  piisoners  and  all  other  persons  Avhom  he  may  think  proper, 
upon  oath,  and  to  administer  an  oath  or  oaths  to  any  such  pris- 
oner and  other  persons  accordingly,  and  to  cause  any  officers, 
clerks,  and  ministers  of  any  Court  of  Law  or  Equity  to  bring 
and  produce  upon  oath  before  him  any  records,  orders,  books, 
pfipers,  or  other  writings  belonging  to  the  said  Courts,  or  to  any 
of  the  officers  within  the  same,  as  such  officers.® 

If  it  appears  to  the  satisfaction  of  the  Court,  that  any  prisoner 
is  an  idiot,  lunatic,  or  of  unsound  mind,  the  Court  may  appoint 
a  guardian  to  put  in  his  answer  and  discharge  the  defendant : 
jtroviding  for  the  costs  as  •shall  seem  just;  and  if  the  Court 
shall  see  fit,  the  defence  may  be  made  by  such  guardian  in  forma 
pauperis.'' 

The  above  provisions  prevent  the  possibility  of  a  defendant 
being  detained  in  custody  in  consequence  of  his  not  being  able, 
by  reason  of  poverty,  or  of  insanity  or  imbecility  of  mind,  to 
put  in  his  answer  in  the  ordinary  way.     But  it  frequently  happens 


Ch.  X.  §  2. 


and  assign 
fjolititor. 

Costs  of  con- 
tempt may  be 
ordered  out 
of  Suitors' 
Fund. 

Provision  for 
its  reimburse- 
ment. 


Application 
to  be  made 
to  Court  of 
Appeal. 


Visitor  of 
prisoners 
may  examine 
them,  or  other 
persons,  on 
oath; 

and  order 
production  of 
documents. 


^\1iere 
prisoner  is 
of  unsound 
mind ; 


or  where 
obstinate. 


t  23  &  24  Vic.  c.  149,  §  5.  The  like  or- 
der assiniinf;  a  Hf.licitor  iind  counsel  may 
be  mii'le  in  this  ca>"'  a"  under  §4,(^(h/«,  pp. 
600,  f)IM  -.and  bv  the  I.oriN  .lustlces,  as  well 
a.H  by  the  Lord"  CJiaiic-llor.  23  &  24  Vic. 
C  149.  §  13.  For  form  of  order  under  §  5, 
ici"  Se'o:i,  1272,  No.  10. 

2  And  this  miiy  be  done  where  the  de- 
fcntant  is  an  executor.  Bavly  v.  Bayly, 
11  Hoav.  2r)(). 

8  S.-e  also  23  &  24  Vie.  c.  149,  §  6, 
which  ontain-i  similar  provi«i<.ii."»  as  to 
C"M«,  iind  frovidps  aNo  that  any  costs  to 
which  111'-  (lefcndant  may  bccotrie  entitlcil 
in  the  suit  or  proceedingfl,  shall  be  paid 


into  the  Suitors'  Fund.  For  orders  under 
these  sections,  see  Seton,  1273,  Nns.  15,16. 
In  Wiir.l  t'.  Woodcock,  r,  I,.  T.  N.  S  816, 
\j  (',.,  iin  ordc-r  for  pavmeiit  of  the  plain- 
tiffs costs  of  dcfciKbint's  contcinpt,  in  dis- 
obi-vintr  an  injunction,  wiis  reluscd. 

<"23  &  24  Vic.  c.  149,  §  13. 

6  Walk  in  r.  Parker,  1  M.  &  C  370; 
(;;irroil  1).  Holden,  4  Bcav.  245;  ante,  pp. 
600,  501,  note. 

0  23  &  24  Vic.  c.  149,  §  3. 

-  11  (Jeo.  IV.  &  1  Will.  IV.  c.  36,  §  15, 
r.  9.  As  to  the  appoin'mfiit  of  j:uardi:in« 
rul  litem,  and  as  to  dcfendin;;  in  fonnd 
pauperis,  see  ante,  pp.  164.  156,  170. 


504 


COiMrELLINO    ANSWEli. 


PUOCKEDINGS    IN    DEFAULT. 


Oil.  X.§3.  tliat  a  (lofoiulant  is  obstiiialo,  and  refuses  either  to  ajipear  or  to 
put  in  his  answer,  although  he  has  not  the  excuse  of  poverty  or 
want  of  intellect  to  justify  liis  refusal.  In  such  cases,  the  phiin- 
tift"  may  obtain  justice,  in  one  or  other  of  the  modes  above 
pointed  out. 


Section  III.  —  Effect  of  a  Contempt  upon  the  Proceedings  in  the 

Cause. 


Party  in  con- 
tempt cannot 
make  any 
application  to 
the  Court. 


Where  appli- 
cation stands 
over,  and  a 
contempt  is 
incurred 
before  its 
renewal. 
Contemner 
may  move  to 
defend  in 
forma 
pauperis. 


Besides  the  personal  and  pecuniary  inconvenience  to  which  a 
party  subjects  himself  by  a  contempt  of  the  ordinary  process  of 
the  Court,  he  places  himself  in  this  further  predicament ;  viz.,  that 
of  not  being  in  a  situation  to  be  heard,  in  any  application  which 
he  may  be  desirous  of  making  to  the  Court.^  Lord  Chief  Baron 
Gilbert  lays  it  down,  that  "upon  this  head  it  is  to  be  observed,  as 
a  general  rule,  that  the  coiitemnor,  who  is  in  contempt,  is  never  to 
be  heard,  by  motion  or  otherwise,  till  he  has  cleared  his  contem])t, 
and  paid  the  costs  :  as,  for  example,  if  he  comes  to  move  for  any 
thing,  or  desires  any  favor  of  the  Court,"  ^  Thus,  in  I^ord  Wen- 
man  V.  OsbaIdisto?i,^  where  a  defendant,  being  in  contemi)t  for  not 
putting  in  his  examination  pursuant  to  an  order,  to  avoid  a  seques- 
tration moved  the  Court  that,  upon  his  undertaking  to  pay  in  a 
week's  time  what  should  appear  to  be  due  to  the  plaintiff,  all 
further  process  of  contempt  should  be  stayed,  the  Court  declined 
making  any  order  upon  the  motion,  but  directed  the  appellant  to 
clear  his  contempt,  and  then  move  ;  and  this  determination  of  the 
Court  w^as  affirmed  by  the  House  of  Lords,  upon  appeal. 

But  where,  after  a  petition  had  stqod  over  at  the  request  of  the 
respondent's  counsel,  for  his  convenience,  the  petitioner  incurred 
a  contein|)t,  which  liad  not  been  cleared  when  the  petition  came 
on  again,  it  was  held,  that  the  petitioner  was,  nevertheless,  entitled 
to  be  lieard ;  *  and,  it  seems,  that  a  party  who  is  in  contempt  for 

Hayw.  58.  A  defendant,  against  whom 
tli'TB  is  prima  facit  evidence  of  being 
guilty  of  a  breach  of  an  injunction,  can- 
nf)t  he  heard  upon  a  motioi]  to  dischiirge  a 
ne  excnt  against  him  in  the  sanii'  cause, 
until  he  has  purged  himself  of  the  con- 
tempt. Evans  v.  Van  Hall,  1  Clarke,  22.3. 
A  party  in  contempt  may  move  by  coun- 
sel to  set  aside  the  (irder  apainst  him;  for 
every  other  purpose  he  must  appear  in 
vinculis.  ()d(dl  v.  Hart,  1  Moll.  402;  ste 
Lane  v.  Ellzey,  4  lien.  &  M.  504 

2  Gill)      For.     Kom.    102;     Vowles    v. 
Young,  9  Ves.  172,  173. 

3  2  Bro.  P.  C.  ed.  Toml.  276;  2  Kq.  Ca. 
Ab   222,  PI.  1. 

4  Bris'owe  v.  Needham,  2  Phil.  190;  1 
C.  P.  Coop.  t.  Cott.  286. 


1  Where  a  party  is  in  contempt,  the 
C"urt  will  not  grant  an  iipf)lication  in  his 
favor,  which  is  not  a  matter  of  strict  right, 
until  he  has  purged  his  contempt.  .loliii- 
son  V.  Pinney,  1  Paige,  466;  Rogers  v. 
Paterson,  4  Paige,  450;  Kllingwood  v. 
Stevenson,  4  Sandf  Ch.  .366.  He  will 
not  be  allowed  to  contradict  the  iilleea- 
ti'ins  in  the  bill,  or  bring  forward  any  de- 
fence, or  allege  any  new  fact.  Mussina 
V  BHrtlett,  8  Porter,  277;  Savior  ?;.  Mock- 
bie,  9  Iowa  (1  With.),  209".  Nor  is  he 
allowed  to  atipear  and  contest  the  plain- 
tiffs demand,  before  theClerk  and  Master, 
to  whom  the  bill  may  be  referred  to  take 
an  account;  but  the  inhibition  can  at  any 
time  be  removed  by  tiling  a  full  and  com- 
plete answer.  Mussina  v  Barllott,  8  Por- 
ter,  277;    see   Rutherford  v.   Metcalf,   5 


EFFECT    OF    A    CONTEMPT    UPON    PROCEEDINGS    IN    CAUSE. 


505 


non-payment  of  costs,  is  not  thereby  prevented  from  moving  for     Cn.X.  §  3. 
leave  to  defend  in  forma  pauperis}  "^ 

The  rule,  that  a  partv  in  contempt  cannot  move  till  he  has  Rule  against 

^        -.  •  n        1  1  1      motion  by  a 

cleared  his  contempt,  is,  m  practice,  confined  to  cases  wnere  sucn  contemnor  is 
party  comes  forward  voluntarily,  and  asks  for  an  indulgence  ;  and,   l"^^'^^^^"" 
therefore,  a  defendant  cannot  object  to  a  cause  being  heard  be-  applications. 
cause  the  plaintiff  is  in  contempt.^ 

In  like  manner  it  has  been  held,  that  a  mortgagee,  defendant  to  Contemner 

.     .  11^  ;i       *i  ^    cannot  move 

a  bill  of  foreclosure,  who  is  in  contempt,  could  not  move,  under  the   ^^^jg^  j  q^^^ 

7  Geo.  II.  c.  20,  for  a  reference  to  take  an  account  of  the  principal  }^^;^^;j^2Mii 

and  interest  due  upon  the  mortgage.^     And  so,  where  a  party  in  suit; 

contempt  had  ajiplied  for  and  obtained  the  costs  of  an  al^andoned  "or^^^a^^  t^« 

motion,  under  Lord  Eldon's  order,^  Sir  Lancelot  Shadwell  V.  C,  abandoned 

upon  motion,  discharged  the  order.^  '"°  '°'^' 

So  also,  where  a  motion  had  been  refused  with  costs,  it  was  held,  Jj^^J^r^^^^'J^jj 

that  the  motion  could  not  be  renewed,  though  on  different  grounds,  payment  of 

until  the  costs  had  been  paid.*  nai  niotionf ' 

It  is  to  be  observed,  however,  that  the  rule,  that  a  party  cannot 

'  '  .  .  ,.  .       Rule  applies 

move  till  he  has  cleared  his  conteiniit,  is  conhned  to  proceedings  m   only  to  pro- 

the  same  cause  ;  and  that  a  party  in  contempt  for  non-obedience  to  t^fsame"" 
an  order  in  one  cause,  will  not  be  thereby  prevented  from  making  cause. 
an  application  to  the  Court  in  another  cause  relating  to  a  distinct 
matter,  although  the  parties  to  such  other  cause  may  be  the  same  ;'' 
and  this  privilege  has  been  carried  to  the  extent  of  allowing  a  de- 
fendant, in  each  of  two  creditors'  suits  to  administer  the  same 
estate,  to  move  in  one  of  them,  in  which  he  was  not  in  contempt, 
to  stay  proceedings  in  the  other,  in  which  he  was.* 

And  althousrh  it  is  the  general  rule  of  the  Court  that  parties   Contempt 

• .  7/11  1       1  1  i  xi  1       d"cs  not 

must  clear  their  contempt  before  they  can  be  heard,  yet  the  rule  prevent appli- 
must  not  be  understood  as  preventing  their  making  application  to  ^j'^JJ.^'^^^^  ^^^ 
the  Court  to  discharge,  on  the  ground  of  irregularity,  the  order,   contempt 
by  their  non-obedience  to  which  their  contempt  has  been  incurred;   I'^rcgui'^rity ; 
therefore,  where  a  defendant,  in  custody  for  a  contemi)t  in  not 
obeying  an  order  to  pay  in  money,  applied  to  the   Court  to  dis- 
charge him  out  of  custody,  on  tlie  ground   of  irregularity  in  the 
order  (it  having  been  made  jiending  an  abatement  of  the  suit),  he 

1  OMfield  V   Col.bett,  1  I'hil   613.  G14  Coop.   t.  Cott.  207,  where  the   eases  are 

2  Hicketts  V.  Moniingtoii.  7  Sim.  200;  c.  Uceted  as  to  the  pioceedinf;*,  for  his  own 
mid  see  the  ciises  on  this  Btiliject  collected  adviintnv'c,  wliich  a  party  in  contempt 
in  1  (;.  P.  Coop.  t.  (Jott.  208 ;'  see  also  Fut-  cannot  tiike. 

vovc  V   Kennard,  2  (liff  110;  Krv  v   Vim-  0  Oldfnhl  v.  Cobhett,  12  Bcav.  91,  95. 

SHt,  l>  .lur.  N.  S.    ll.Tl;  12  W.  K.  97,   V.  ■  Clark  v.    Dew,   1    K.   &  M.  103,  107; 

C.  W.;  Story  ».   Official    MMniiecr  of  the  Conipertz    v.   15e-t,    1    Y.   &  C.    Kx.    619; 

N.itiomil    Innurance   Society,  2  N.  H.  Z'jI,  T^vh^r  v.  Tavlor,  1   M'N.  &  «.  .•?!)7,  409; 

V.  <;.  \V.  12  Meav    220,  '228;  Kry  v.    Ernest,  9  .lur. 

8  Hewitt  V.  M'f^artney,  13  Ves.  660.  N.  S.  1151;  12  W.  K.  97,  V.  C.  W. 

*  On.  Orl    5  Auf;.,  1818;  Sand.  Ord.  «  Turner  v   Dorpmi,  12  Sim.  r)04;0.Tnr. 

706;  I!  av.  (»rd.3,  now  Onl.  XI..  23.  356;  .M-.rri-on  v.  Morici.son,  4  Hare,  690; 

6  Kllis  V.  WMrn^l.y.    4    L.   .J.   (Jh.   60;  9  .lur.    103;  1    C.    P.  Coop.  t.  Cott.  216, 

S.   C.  nom.  EUice  »."  Walmsley,  1  C.  P.  217. 


500 


COMPELLING  ANSWER.  —  TKOCEEDINGS  IN  DEFAULT. 


Oil.  X.  §  3. 


PlaintifT  may 
attach  for 
wiiiit  of  an 
swiT,  tluniiih 
in  custody  for 
non-payment 
of  costs  to 
same  defend- 
ant. 

Contemnor 
may  oppose 
special 
ajijilication 
aicainst  him; 

may  move  to 
discharge 
order,  by 
appeal ; 

may  show 
irrefrnlarity 
of  proceed- 
ings under 
the  contempt; 

may  give 
notice  of 
motion,  be- 
fore contempt 
cleared ;  and 
may  proceed 
with  a  taxa- 
tion of  costs. 

Contempt  not 
incurred  till 
writ  sealed. 


was  not  only  hoard,  but  the  order  for  his  disdiarc^e  was  made  : 
thoui^h,  under  the  cireuuistanees,  without  costs.^  In  such  cases,  it 
is  to  be  observed  that,  in  niakinu;  his  a])])Ucation,  the  party  in  con- 
tempt ought  to  confine  his  motion  lo  the  object  of  getting  rid  of 
the  order  of  which  he  complains;  and  that  if  he  em))races  other 
matters  in  his  notice  of  motion,  he  will  not  be  allowed  to  go  into 
such  other  matters  till  lie  has  shown  that  the  order  upon  which 
his  contempt  has  been  incurred  was  irregular.'^ 

A  plaintiiFis  entitled  to  sue  out  an  attachment  against  a  defend- 
ant for  want  of  answer,  although  he  is  himself  in  custody  for  a 
contcmi)t  in  non-payment  of  costs  to  him.^ 

It  is  also  to  be  observed,  that  the  circumstance  of  a  party  being 
in  contempt,  will  not  prevent  his  being  heard  in  opposition  to  any 
special  api)lication  Avhich  the  other  side  may  make,  upon  notice 
duly  served  upon  him  ;  and  where  a  plaintiff  had  obtained,  from  a 
Vice-Chancellor,  an  order  for  payment  of  a  sum  of  money  into 
Court,  against  a  defendant,  who  was  in  contempt,  the  Lord  Chan- 
cellor allowed  him  to  move  to  discharge  that  order,  on  the  ground 
that  it  Avas  a  rehearing  of  the  original  application.*  So  also,  where 
there  is  any  irregularity  in  the  prosecution  of  the  decree  or  order 
obtained  under  the  contempt,  a  party  in  contempt  may  be  heard 
to  obtain  redress.^ 

Although  a  party  cannot  move  until  he  has  cleared  his  contempt, 
yet  he  may  give  notice  of  his  motion  before  he- has  done  so ; "  and 
a  party  to  whom  costs  are  awarded,  may  proceed  in  the  taxation, 
notwithstanding  he  may  be  in  contempt.' 

Although  a  defendant,  not  appearing  or  answering  within  the 
regular  time,  is  frequently  said  to  be  in  contempt,  yet  it  does  not 
seem  that  the  contempt  is  actually  incurred  until  the  writ  enforc- 
ing obedience  to  the  orders  of  the  Court  has  been  sealed.  Thus, 
after  the  regular  time  for  answering  has  expired,  provided  no  at- 
tachment has  issued  against  a  defendant,  he  may  file  a  joint  de- 
murrer and  answer :  ^  which,  had  process  actually  commenced, 
might  have  been  taken  off  the  file  for  irregularity.^ 


1  Wilson  V.  Metcalfe,  MSS.  In  matt-rs 
of  contempt,  exceptions  may  be  taken  on 
the  question  of  juris'liction,  where  it  is 
distinctly  raised  and  adj-udicated  upon  as 
matter  of  law.  Androscoggin  and  Ken- 
nt-bec  K.K.  Co.  ti.  Androscoggin  R.R.  Co., 
49  M;iine,  392. 

2  Jbid.  ;  1  C.  P.  Coop.  t.  Cott.  216 ;  4 
Hare.  595. 

3  Wilson  V.  Bates,  9  Sim.  54;  2  Jur. 
107;  3  M.  &  C.  197,  204;  2  .Jur.  319;  and 
Pee  1  C.  P.  Coop.  t.  Cott.  220,  where  the 
cases  are  collected  as  to  the  proceedings, 
for  liis  own  adviintage,  which  a  party  in 
contem|)t  mav  take. 

■•  I'arker  v.  Dawson,  5  L.  J.  Ch.  108; 
Bee  also  £x  parte.  Chad  wick,  15  Jur.  597, 


V.  C.  K.  B  ;  Reeve  v.  Hodson,  10  Hare 
Ap.  41;  Bickford  v.  Skeeves,  10  Sim. 
193,  196;  S.  C.  nom.  Bickford  v.  Skewes, 
3  .lur.  818;  Futvoye  v.  Kennard,  2  (iiff. 
110 

5  King  V.  Bryant,  3  M.  &  C.  191,  195; 
2  Jur.  106. 

6  Chuck  V.  Cremer,  1  C.  P.  Coop.  t. 
Cott.  247. 

7  Newtcm  V.  Ricketts,  11  Beav.  67. 

8  East  India  Coiiifjany  v.  Henchman,  3 
Bro.  C  C.  372;  Sowerby  v.  Warder,  2 
Cox,  268. 

'•*  Curzon  V.  De  la  Zouch,  1  Swanst. 
185;  1  Wils.  C  C.  469:  see  aNo  Attornej^- 
(jen'-ral  v.  Shield,  U  Be;iv.  441,  wliere  it 
was  held,  that  taking  an  oflice  copy  of  the 


HOW    CONTEMPTS    CLEARED,  WAIVED,  OR    DISCHARGED. 


507 


It  seems,  that  a  party  in  contempt  can  apply  for  the  pur])ose  of 
reraovhig  scandal  from  the  records  of  the  Court.^  Although  it  was 
held  by  Lord  Cottenham,  in  Wilso7i  v.  JBates,'^  that  a  plaintiff  in 
contempt  is  not  precluded  from  availing  himself  of  the  ordinary 
process  to  enforce  an  answer,  it  appears  that  the  fact  of  his  being 
in  contempt  may  be  made  the  ground  of  a  special  application  by 
the  defendant  to  stay  proceedings  in  the  cause,  until  such  contempt 
has  been  cleared.^  And  in  general,  whenever  a  party  in  contempt 
is  entitled  to  be  heard,  there  exists  a  right  of  apj^eal,  and  applica- 
tions may  be  made  with  immediate  reference  to  the  motion  upon 
which  he  is  so  ])rivilcged  to  be  heard,  or  for  the  purjDOse  of  obtain- 
ing evidence  in  support  of  it.^ 


Ch.  X.  §  4. 


Contemner 
may  appeal. 


Section  IV. —  In  what  manner    Contempts  in   Process  may  he 
cleared,  waived,  or  discharged.^ 


An  ordinary  contempt  in  process,  as  it  is  a  matter  merely  be- 
tween the  parties,  may  be  cleared  by  the  contemnor  doing  the  act, 
by  the  non-performance  of  which  the  contempt  was  incurred,  and 
paying  to  the  other  party  the  costs  he  has  occasioned  by  his 
contumacy. 

Where  process  has  been  issued  against  a  defendant  in  contempt 
for  want  of  appearance  or  answer,  but  has  not  been  executed,  the 
defendant  should  enter  his  appearance  or  put  in  his  answer,  and 
pay  or  tender  to  the  plaintiff's  solicitor  the  costs  of  the  contem])t, 
if  the  amount  of  such  costs  can  be  licpiidated  :  as  in  the  case  of  an 
attachment;"  but  if  the  amount  of  the  costs  cannot  be  ascertained, 
he  should  tender  such  a  sum  as  will  cover  their  probable  amount.'' 
If  the  plaintiff's  solicitor  accept  the  costs  so  tendered,  it  will  be 
at  the  i)laintiff's  own  risk  if  he  afterwards  puts  the  ])rocess  into 
execution.  If  his  solicitor  refuse  to  accept  the  costs  when  tendered, 
it  is  necessary,  in  onler  that  the  defendant  may,  upon  ))ayment  or 
tender  of  tlie  ])laintitrs  costs  of  the  contempt,  be  discharged  from 
his  contempt,  that  he  should  obtain  an  order  for  that  purpose  : 


Orriinary 
contempt 
cleared,  by 
doing- the  act, 
and  paying 
the  costs. 


Where 
process  has 
not  been 
executed : 

Payment  or 
tender  of 
costs. 


If  costs  ac- 
cepted, no 
order  neces- 
sary. 

Sacuf,  if  not 
accejjted. 


answer  wns  not  a  waiver  of  the  objection. 
But  if  the  pliiiiiliff  ri-tain  tlie  oflice  copy 
till  the  time  for  exc"i)linK  to  tiie  answer 
for  insuHicuncy  lias  clap-ed,  tlie  ontemjit 
will  be  waived.  Ilerrett  v.  Reynolds,  2 
Gitr.  409;  0  Jur.  N.  S.  880. 

•  Kverett  r.  Trvtherfjch,  12  Sim.  36.3; 
Cattelj  V.  SinioiiS,  5  IJeav.  39G;  Ajck. 
Cb.  Pr.  (Lond.  ed.  1841)  197,  198;  1 
Smith,  Cli.  I'r.  (2d  Am.  ed.)  r,G9,  fi70; 
Ilowuril  »•   Newman,  1  Mull.  221. 

2  3  M.  &  (J.  197,204;  2  .lur  319;  see 
al»o  Hirkford  i-    Skewcs,  ubi  gup. 

=•  Hnidiitiry  v.  Sbawe,  14  .(iir.  1042, 
V.  C.  K,.  U. ;  Futvoye  v.  Kennard,  ubi  sup. 


For  form  of  notice  of  motion  in  such  case, 
see  V<d.  [H. 

*  Catteil  V.  Simons,  tibi  sup. 

^  See  Lowe  v.  ISIake,  .3  Dedans.  209; 
.Siieiliiiff  «.  Watrous,  2  rai<;e,  314. 

0  Wilkin  V.  Naiiiby,  4  Hare,  473,  475; 
10  .Iiir.  73.5.  The  amount  parable  to  clear 
a  coiit''m[)t,  on  an  attachment  executed, 
is  1.3.1.  M.:  Mrown  v.  Lee,  11  Beav  379; 
if  not  executed,  11."!.  'Id.:  Mriiithwiiiie  s 
I'r.  l.')4;  and  2«.  iUi  extra  for  each  addi- 
tion!! I  dereiidant:  ibid. 

'  WdUin  V.  }\a\\\hy,vbi  iup. ;  Rrough- 
t'ln  V.  Martyn,  4  IJro.  C.  C  296. 


508 


COMPELLING    ANSWER. 


rilOCEEDINGS    IN    DEFAULT. 


Cn.  X.  5  4. 


Where 

Eroooss  has 
een  exe- 
cuted : 

Payment  or 
tender  of 
costs. 


Order  always 
necessary, 
unless  plain- 
tiff accepts 
answer  and 
the  costs. 


Defendant 
may  be  dis- 
charged, 
upon  putting 
in  answer, 
though  its 
safficiency 
not  ascer- 
tained. 

Ifinsufficient, 
process  may 
be  resumed. 


olIuTwisc,  the  ('oiilcMn]it  will  I'oiUinuo.'  An  order  of  this  niiture 
is  inatle  on  iiu)tioii  of  course,  or  on  petition  of  course  at  the  liolls,'^ 
upon  the  Keeord  :in<l  Writ  Clerk's  certificate  of  tlie  defendant's 
appearance  or  answer." 

Where  the  process  has  been  carried  into  effect,  and  tlie  defend- 
ant is  in  actual  custody,  he  cannot  be  discliarged  wdtliout  an  order: 
which  must  be  obtained  in  a  simih^r  manner,*  and  which  will  direct 
the  defendant  to  be  discharged,  upon  payment  or  tender  of  the 
costs  of  the  contempt.  These  costs  are  either  fixed  or  taxed  costs, 
according  to  the  stage  which  the  contempt  process  has  rea("hed  : 
thus,  if  the  defendant  has  merely  been  arrested  on  the  attachment, 
the  costs,  as  we  have  seen,*^  are  of  a  fixed  amount ;  but  if  he  has 
been  brought  up  by  tlie  messenger,  or  upon  habeas  corpus,  or  by 
the  Sergeant-at-arms,®  he  is  liable  to  pay  taxed  costs.'  If  the  par- 
ties can  agree  upon  the  amount,  the  defendant  should  pay  it ;  but 
if  they  cannot,  he  should  tender  to  the  plaintiff  such  a  sum  as  will 
cover  the  amount  which  will  probably  be  allowed  on  taxation. 

It  woidd  ap])ear,  moreover,  that  strictly  in  all  cases  of  C()ntem])t 
(except  where,  the  defendant  not  being  in  custody,  the  plaintiff  is 
willing  to  accept  the  answer  and  the  costs  tendered),  the  defend- 
ant ought,  upon  filing  an  answer,  to  obtain  an  order  for  his  dis- 
charge, on  payment  or  tender  of  costs :  as  otherwise,  the  plaintiff 
may  move  to  have  the  answer  taken  off  the  file  for  irregularity.^ 

It  is  to  be  observed,  that  where  process  of  contempt  has  been 
issued  against  a  defendant  for  want  of  an  answ^er,  he  is  entitled  to 
be  discharged  from  his  contempt  immediately  upon  his  putting  in 
an  answer,  and  paying  or  tendering  the  costs  of  his  contempt ; 
and  the  Court  will  not  detain  him  in  custody  till  the  sufficiency  of 
his  answer  has  been  decided  upon :  ^  unless  he  has  already  put  in 
three  answers,  which  have  been  found  insufficient.^"  If,  however, 
the  ])laintiff  takes  exceptions  to  the  answer,  and  the  answer  is  held 
insufficient,  he  Avill  be  entitled  to  resume  the  process  of  contempt 
where  it  left  off;"  and  so  he  will,  where  the  defendant  submits  to 
answer  the  exceptions.^^   Nor  will  the  acceptance  of  costs  be  con- 


1  Green  v.  Thomson,  1  S.  &  S.  121. 

2  l'"or  Corms  of  motion  paper  and  peti- 
tion, see  Vol.  III. 

3  Green  v.  Thomson,  and  Wilkin  v. 
Nainbv,  uhi  sup. 

■»  Gfav  V.  Cumpbell,  1  R.  &  M.  .323; 
Edmonson  v  Heyton,  2  Y.  &  ().  Kx.  3. 
But  a  defetjdant  in  contempt  for  want  of 
answer,  ciinnot  file  an  answer  and  de- 
murrer. Ciirzon  V.  De  In  Zouch,  1  Swanst. 
185,  193;  Vigers  v.  Lord  Audlev,  2  M.  cfe 
C.  49,  52;  l.Iur.  51;  Attornev-General  »;. 
Shield.  11  Beav.  441,  446.  For  forms  of 
motion  paper  and  petition,  see  Vol.  III. 

5  Ante,  p.  4GC,  ti.  (in). 

fl  Ante,  pp.  448,  449,  452. 


7  Wilkin  V.  Nainbv,  4  Hare,  473,  475; 
10  .Tur.  735;  Bi  aithwaite's  I'r.  154. 

8  Haynes  ('.  Ball,  5  Beav.  140;  Wilkin 
V.  Nm i nbv,  «ij  su^  ;  Coyle  v.  Alleyne,  16 
Beav.  548. 

0  Dupont  V.  Ward,  1  Dick.  133;  Child 
»!.  Brabson,  2  Ves.  S.  110;  Boelim  v.  I)e 
Tastet,  1  V.  &  B.  324,  327. 

10  Hailev  v.  Bailev,  11  Ves.  151. 

n  Anon.,  2  P.  Wms.  481;  Wallop  v. 
Brown,  4  Bro.  C.  C.  212,  223;  Biomlield 
V.  Cliiche,-ter,  1  Dick.  379 ;  Bailey  r.  \i:\\\'-y, 
and  Boehm  v.  De  Tastct,  uhi.  sup..;  Coul- 
son  V.  (Jrahairi,  1  V.  &  H.  331;  Taylor  v. 
Salmon,  3  M.  &  C.  109. 

12  Waters  v.  Taylor,  16  Ves.  417. 


HOW    CONTEMPTS    CLEARED,  WAIVED,  OR    DISCHARGED. 


509 


sidered  as  a  waiver  of  the  contempt  by  the  plaintiff:  for,  where  a 
defendant,  in  contempt  for  want  of  answer,  obtains,  upon  tiling 
his  answer,  the  common  order  to  be  discharged  as  to  his  contempt, 
on  payment  or  tender  of  the  costs  thereof,  or  the  plaintiff  accepts 
the  costs  Avithout  order,  the  plaintiff  cannot  be  compelled,  in  case 
the  answer  is  insufficient,  to  recommence  the  process  of  contempt 
against  the  defendant,  but  is  at  liberty  to  take  up  the  process  at 
the  point  to  which  he  had  before  pi'oceeded.^ 

But  although  a  plaintiff  does  not  now,  by  accepting  the  costs 
from  a  defendant  upon  his  putting  in  an  answer,  forfeit  his  right  to 
reconimence  the  process  of  contempt  at  the  point  where  it  left  off, 
yet  if,  after  answer  put  in,  he  accepts  the  answer,  or  takes  a  step  in 
the  cause,  he  waives  the  contempt,  and  cannot  renew  the  process, 
or  take  any  other  advantage  of  it.  Thus,  if  a  plaintiff  reply  to 
the  answer,-  or  move  upon  an  admission  contained  in  it,**  he  waives 
the  contempt ;  and  so,  where  a  messenger  had  been  ordered,  upon 
a  return  of  cepi  corpus,  and  in  the  mean  time  the  defendant  filed 
his  answer,  which  the  plaintiff  accepted,  and  then  applied  for  his 
costs  by  motion,  it  was  hold,  that  the  acceptance  of  the  answer 
precluded  him  from  his  right  to  costs.*  And  where  a  defendant, 
who  was  in  contempt,  put  in  an  answer,  without  paying  or  tender- 
ing the  costs,  and  the  plaintiff  replied  to  the  answer,  but  did  not 
proceed  with  the  cause  for  tliree  terms,  whereupon  the  defendant 
moved  to  dismiss  the  bill  for  want  of  prosecution :  upon  the  plain- 
tiff's objecting  that  the  defendant  could  not  make  the  motion,  in 
consequence  of  his  being  still  in  contempt.  Lord  Eldon  held,  that 
the  contempt  was  gone,  and  that  the  defendant  was  in  a  situation 
to  make  the  motion.^  It  has  been  held,  however,  that  the  mere 
fact  of  the  plaintiff  bespeaking  a  copy  of  the  answer  does  not 
operate  as  a  waiver  of  the  contempt.* 

Where  the  plaintiff  accei)ted  the  answer,  without  insisting  upon 
the  costs  of  the  contempt,  Lord  Kldon  held  that  the  plaintiff  had 
not  thereby  given  up  his  right  to  the  costs,  as  costs  in  the  cause, 
but  had  only  waived  his  right  to  enforce  them  by  means  of  the 
process  of  contem'pt.''  And  where  a  defendant,  in  contempt  for 
want  of  an  answer,  had  put  in  three  insufficient  answers,  and, 
pending  a  reference  of  the  fourth,  put  in  a  tilth  answer,  wiiich  was 
accepted  by  the  plaintiff,  upon  which  a  motion  was  made  that   the 


Ch.  X.  §  4. 


Waiver  of 
contempt : 


by  accepting 
answer. 


After  accept- 
ance of 
answer,  costs 
of  contempt 
can  only  be 
enforced  as 
costs  in  the 
cause. 


>  Ord.  XII.  7. 

2  Mavries  V.  I'.ail,  f>  Beav.  140. 

8  II..;kins  f.  Lloyd,  1  S.  &  S.  VM\ 
Chuck  r.  Oeiiier,  1  C.  I'.  (Joop.  f.  (jott. 
247;  find  hpc  Woodwiiril  ii.  'I'w  inaine,  it 
8im.  301;  14.1ur. '20;  Ilcrntti;.  UeyMoMs, 
2  (jiff.  40y;  6  Jur.  N.  S.  febO;  (inie.'p.  506, 
n.  ». 

«  Smith  V.  Blofield,  2  V.  &  B.  100. 


fi  Anon.,  15  Ves.  174;  and  the  priictice 
i-i  the  Slime,  whether  the  dcfunilant  be  iict- 
uallv  in  cuviodv  or  not.  Olddeld  v.  Cob- 
bctt",  1  I'liil.  5.07. 

6  Woodward  v.  Twinainc,  and  Herrett 
V.  Keynold.s,  u/nnup. 

'  Anon.,  15  Vci>.  174;  sec  also  Smith  v. 
Blofield,  ul/i  sup. 


510 


COMrELLING  ANSWER. —  TROCEEDINGS  IN  DEFAULT. 


Ch.  X.  §  4. 


Ordor  to 
aiiR'iui  only 
is  iioi,  luit  to 
ainciul  and 
aii8w«r 
amendments 
and  exoop- 
tions  toj^ether 
is,  a  waiver. 


Where 
defendant  in 
custody, 
plaintiti'  niiu' 
obtain  si)efial 
leave  to 
amend, with- 
out discharg- 
ing tlie 
contempt; 


and  defend- 
ant may  be 
allowed  to 
answer. 


Filing  a  cross- 
bill, no' waiver 
of  contempt 
incurred  by 
plaintiff  in 
original  suit. 


Contempt 
discharged 
for  irregu- 
larity, on 
motion. 


doiVii(l:mt  iiii^lit  it:iv  tlio  costs  ol'  tlic  ('()ntc>ni|tt,  :m(l  ol'  the  lour 
insurticR'iil  ansAviMs,  Sir  Tlioinas  Plumor  V.  C.  held,  that  he  could 
not  accede  to  the  motion.' 

In  the  case  of  JJrlngstoiie  v.  Cooke^--  it  appeal's  that  Sir  Lance- 
lot Shadwell  V.  C.  decided,  that  a  mere  order  to  amend  the  bill 
did  not  operate  as  a  waiver  of  the  contempt:  upon  the  ground 
that  it  creates  no  obstacle  to  the  defendant  putting  in  his  answer ; 
it  was  admitted,  however,  tliat  an  order  to  amend,  and  for  the 
defenthmt  to  answer  the  exceptions  :it  the  same  time,  does  operate 
as  a  waiver  of  the  contempt,  as  it  prevents  the  delen(hint  from 
putting  in  his  answer.  AVhere  the  defendant  has  been  brought  to 
tlie  bar  of  the  Court  for  his  contempt,  and  refuses  to  answer,  it  is 
provided,  by  the  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  15,  rule  10, 
that  the  Court  may,  upon  motion  or  petition,  of  which  due  notice 
must  be  given  personally  to  the  defendant,  authoiize  the  plaintiff 
to  amend  his  bill,  without  such  amendment  operating  as  a  discharge 
of  the  contempt,  or  rendering  it  necessary  to  proceed  with  the 
process  of  contempt  de  novo:^  but  after  such  amendment,  the 
plaintift"  may  proceed  to  take  the  amended  bill  pro  confesso,  in 
the  same  manner  as  if  it  had  not  been  amended:  provided,  that  if 
the  defendant  desires  to  answer  the  amended  bill,  the  Court  shall 
allow  him  such  time  as  seems  just  for  that  purpose ;  but  if  he 
shall  not  put  in  a  sufficient  answer  Avithin  the  time  limited,  the 
process  for  taking  the  bill  ^^ro  confesso  may  be  resumed  and  carried 
•  on.  It  would  appear,  that  an  order  to  discharge  a  defendant  in 
custody  for  a  contempt,  upon  the  j^laintiif 's  amending  his  bill, 
where  the  amendment  is  not  made  under  the  above  statute,  may 
be  obtained  ex  parte,  and  without  payment  of  costs.^ 

It  is  to  be  observed,  that  a  step  taken  in  the  cause  must,  in 
order  that  it  may  have  the  eifect  of  a  waiver  of  contempt,  be  in 
the  cause  itself  in  which  the  contempt  has  been  incurred ;  there- 
fore, where  a  plaintiff  was  in  contempt  for  non-})ayment  of  some 
costs,  the  filing  of  a  cross-bill  by  the  defendant  was  held  not  to  be 
a  waiver  of  the  contempt  by  the  defendant,  so  as  to  permit  the 
plaintiff  to  make  a  motion  in  his  own  cause.® 

Where  any  of  the  processes  of  continript  before  referred  to  have 
been  irregularly  issued,  the  defendant  should  apply  to  the  Court 
on  motion,  and  notice  to  tlie  plaintiff, ''  su])ported  by  affidavit,  to 


1  Const  V.  Ebers,  1  Mad.  530,  531.  It 
seems,  liowever,  tliat  acconiing  to  the 
practice,  in  taxation  as  between  piirty  and 
piirty,  the  costs  of  the  conteni[jt,  even 
where  there  is  ii  decree  for  the  plaintiff 
with  costs,  will  not  be  allowed  him  as  costs 
in  the  CMUse.  Attorney-General  v.  Lord 
Cairington,  G  lleav.  454,  400. 

'-  9  .Sim.  4tj^;  but  see  Symonds  v. 
Duchess  of  Cumberland,  2  Cox,  411. 


3  See  ante,  p.  ZhQ.  It  is  presumed  the 
ai)|<licati<)n  ciimot  be  nnidi'  by  summons, 
notwithstandrng  15  &  Iti  Vic.  c.  80,  §  26. 
For  form  of  notice  of  motion,  see  Vol.  III. 

4  GrHV  V.  Campbell,  1  H.  &  M.  323; 
Ball  V.  Etches,  ib.  324. 

fi  Gonipertz  v.  Best,  1  Y.  &  C.  Ex.  619; 
anil  see  ante,  p.  464. 

*  Eor  form  of  notice  of  motion,  see  Vol. 
lU. 


HOW    CONTEMPTS    CLEARED,  WAIVED,  OR    DISCHARGED. 


511 


set  them  aside  or  discharge  them  with  costs ;  and  we  have  seen, 
that  the  circumstance  of  his  being  in  contempt  will  not  preclude 
his  making  such  an  application.^ 

Where  a  sole  plaintiff  died,  leaving  a  sole  defendant  in  custody 
for  contempt,  he  was  ordered  to  be  discharged  from  prison,  on  his 
own  motion,  su^^ported  by  affidavit  proving  these  facts.- 

It  is  to  be  observed,  that  the  Court  will  not  permit  the  regu- 
larity of  its  process  to  be  decided  upon  by  any  other  tribunal ;  and 
therefore,  in  Frowd  v.  Lawrence^  where  a  defendant,  who  had 
been  taken  into  custody  u])on  an  attachment  which  was  irregularly 
issued,  obtained  an  order  to  discharge  the  attachment  with  costs, 
and  afterwards  comnjenced  an  action  against  the  plaintiff  and  the 
sheriff,  for  false  imprisonment,  and  another  action  against  the 
plaintiff  for  maliciously  suing  out  the  attachment :  Lord  Eldon, 
upon  the  authority  of  Bailey  v.  Devereux^^  and  May  v.  HooTc^ 
made  an  order  for  an  injunction  to  restrain  the  defendant  from 
proceeding  with  his  actions  at  LaAV.  His  Lordship,  however,  held 
that,  by  such  an  injunction,  the  Court  does  not  intend  that  the 
persons  concerned  in  issuing  the  attachment  are  not  to  make  the 
party  satisfaction ;  but  only  that  it  should  not  be  done  by  an 
action  at  Law :  because  "  it  is  impossible,  from  the  nature  of  the 
thing,  that  they  can  try  the  regularity  of  an  attachment  in  a  Court 
of  Law;"  and  he,  therefore,  ordered,  that  the  injunction  should 
be  without  2>rejudice  to  any  a])])lication  that  the  defendant  might 
be  advised  to  make  for  comi^ensation,  or  for  the  costs  at  Law. 
The  same  principle  was  afterwards  acted  upon  by  Lord  Lyndhurst, 
in  i/x  parte  Clarke.^  It  seems,  however,  that  leave  will  be  given 
to  bring  an  action  for  the  danuiges  suffered  by  the  irregular  pro- 
cess, if  the  Court  considers  that  the  question  can  be  better  adjudi- 
cated u|ion  at  Law.'' 

It  is  to  be  remarked  that,  in  James  v.  P]dli2:)s^  where  the 
irregularity  in  the  process  had  been  occasioned  by  one  of  the 
Registrars  of  the  Court  not  entering  the  attachment,  although  he 
or  his  agent  had  received  the  usual  fee  for  so  doing,  the  Court 
ordered  the  Master  to  tax  the  defendant's  costs  out  of  pocket,  and 
directed  that  they  should  be  j)aid  by  the  plaintiff,  who  was  report- 
ed to  have  been  guilty  of  the  irregularity,  but  tliat  they  should  be 
pail]  over  to  tin'  |)l:iliitill'  by  tlie  liegistrar;  alter  tins  the  Uegistrar 


Ch.  X.  §  4. 


Sole  defend- 
ant in  cus- 
tody for 
contempt, 
discharged 
on  sole  plain- 
tiff's death. 

Injunction  to 
restrain 
action  at  law, 
upon  con- 
tempts 
irregularly 
issued. 


Defendant's 
costs  out  of 
pncket,  of 
attachment 
irregularly 
issued 

til  rough  neg- 
ligi'uce  of  a 
puhlic  ollicer, 
directed  to  1)0 
paid  hy 
plaintiff,  and 


'   Anlt,  p   o06. 

2  Terrell  ».  Soucli,  4  Hare,  535. 

8  1  .1.  &  W.  655. 

«  1  Vern.  26J);  1  J.  &  W.  CGO,  n. 

6  Cited  2  Dick.  61U;  re|)orted  1  .1.  & 
W.  «(',;$,  n. 

«  1  k.  &  M.  063,  670;  and  see  .Moore  v. 
Moore,  25  Heav.  H;  4  .lur.  N.  8.  250; 
Walker  V.  .Mickli'tliwait,  1  Dr.  &  S.  lit; 
see  aho  Arrowsinilh  v.  Hill,  2  Phil.  60i), 


612;  Kx jmrte,  Van  Sniulau,    1   Phil.   445, 
44.S,  n.;  it  .lur.  l'J3. 

7  Wliitehe:i(l  v.  I.yiics,  11  Jur.  N.  S.74; 
l.-J  W.  K.  DOC,  M.  li.;  Z\  Heav.  UW;  and 
on  iippc.il,  12  L.   r.  N.  S.  332,  L.  C. 

8  2  P.  Wnis.  667.  As  to  the  responsi- 
bility of  piihliu  officers,  see  Tohin  v.  The 
Queen,  16  C.  IJ.  N.  S.  310;  10  .lur.  N.  S. 
1U2'J. 


512 


COMPELLING  ANSWER. PROCEEDINGS  IN  DEFAULT. 


Cu.  X.  §  4. 


Motion  to 
disohjirge 
process  tor 
irrcfjularity, 
must  bo  made 
before  com- 
pliance. 

But  where 
before,  or  for 
■want  of,  ap- 
pearance, the 
defendant 
must  enter 
conditional 
appearance. 


Appearance 
will  not  cure' 
defect  in 
former  pro- 
cess. 


died,  ami  tlio  costs  lia\  iiii:;  1>ih'ii  taxinl  at  £58,  the  matti'r  came  on 
a^ain  iipon  lu't'uioii,  wlieii  tlie  Court  beiiii;'  ot"  opinion  that,  as  the 
Registrar  had  received  his  lee,  his  omittini^  to  enter  tlie  attach- 
ment was  a  breach  of"  contract,  and  not  a  mere  personal  nei^lect, 
made  an  order  lor  payment,  by  the  athiiinistratrix,  out  of  the 
Kegistrar's  assets;  and  there  being  no  one  in  Court  to  admit  assets 
for  Iter,  it  was  ordered  that  she  should  be  examined  as  to  assets. 

If  a  party  wishes  to  discharge  a  jn-ocess  for  irregularity,  he  must 
make  his  ap})lication  before  he  complies  with  it :  t)thervvise,  he  will 
be  considered  as  waiving  the  irregularity.^  Thus,  where  a  de- 
fendant has  been  taken  upon  process  of  contempt  for  non-appear- 
ance, he  must  not  enter  his  appearance  in  the  ordinary  way : 
otherwise,  his  appearance  will  cure  the  defect ;  he  must,  however, 
submit  himself  to  the  jurisdiction  of  the  Court,  in  such  a  maimer 
that,  if  his  objection  is  held  invalid,  the  plaintiff  shall  not  be  de- 
prived of  the  benefit  of  his  process.^  The  Court,  therefore,  before 
the  Orders  of  August,  1841,  required  the  defendant,  before  moving 
to  discharge  the  attachment,  to  enter  a  conditi(mal  apj»earance 
with  the  Registrar :  "^  the  effect  of  which  was,  to  enable  the  plain- 
tiff, in  case  the  Court  should  decide  that  the  process  had  been 
regularly  issued,  to  send  the  Sergeant-at-Arms  at  once,  without 
any  intervening  proceeding ;  but  the  7th  of  those  Orders  *  pro- 
vided, that  no  order  should  thereafter  be  made  for  the  Sergeant-at- 
Arms  to  take  the  body  of  a  defendant,  to  compel  appearance. 
Accordingly,  in  the  case  of  Price  v.  Webb,^  Sir  James  Wigram 
V.  C.  directed,  that  the  order  for  liberty  to  enter  the  conditional 
appearance  should  be  made,  upon  the  consent  of  the  defendant  to 
submit  to  any  process  which  the  Court  might  direct  to  be  issued 
against  him,  for  want  of  appearance,  in  case  the  subpoena  should 
not  be  set  aside  for  irregularity. 

It  is  to  be  observed,  that  a  subsequent  appearance  by  a  party 
cannot  be  construed  to  have  a  relation  back,  so  as  to  bring  him 
into  contempt  for  disobeying  a  writ  or  other  process  issued  before 
his  waiver  of  the  informality  had  made  the  process  valid  against 
him ;  and  therefore,  where  an  attachment  was  issued  against 
a  defendant  for  non-appearance  to  a  subpoena,  which  had  been 
issued  against  him,  and  in  which  he  was  described  by  a  wrong 
name,  it  was  held,  by  the  Court  of  Exchequer,  that  his  appearance 
for  the  purpose  of  discharging  the  attachment  would  not  relate 
back,  so  as  to  cure  the  defect  in  the  subpoena,  and  bring  him  into 
contempt  for  not  appearing  in  time.® 

1  Anon.,  3  Atk.  f)67;  Fl'iyd  v.  Nangje,  ^  Davidson  t>.  Marchioness  of  Hastings, 
ib.  569 ;  Bound  v.  Wells,  3  Mad.  434 ;  Rob-       2  Keen,  609. 

in.soii  V.  Nash,  1  Anst.  76.  *  Now  Ord.  X.  10. 

2  For  the  manner  in  which  a  conditional  6  2HMre,.'Jll;  and  seeBraithwaite'sPr. 
appearance  is  entered,  see  pusl,   p.  536;       321,  i^nd  /ws/,  p.  ft'M. 

and  see  Seton,  1249.  6  Robinson  v.  Nash,  1  Anst.  76. 


PROCESS    BY    TRAVERSING   ANSWER,    OR    TRAVERSING   NOTE.  513 

It  should  be  noticed  also,  that  the  principle  of  waiver  applies     Ch.  X.  §  5. 
only  to  an  irregular,  and  not  to  an  erroneous  order ;  and  therefore,   "        y        ' 
where  an  order  had  been  made  that  service  upon  the  attorney  Waiver 
should  be  good  service,  and  service  was  accordingly  effected  upon  frreguiar"  but 
the   attorney,  who  thereupon  entered  an  appearance,  but  it  was   ^|;|f^|^"g^°g 
found,  afterwards,  that  the  affidavit  upon  which  the  order  for  sub-  order. 
stituted  service  had  been  made  was  insufficient,  whereupon  the 
defendant  moved  to  set  aside  that  order  and  all  the  subsequent 
proceedings  :  Sir  John  Leach  V.  C.  made  the  order,  on  the  ground 
that  the  original  order  was  eiToneous,  and  not  in-egular ;  and  that, 
being   erroneous,  the   defect  was   not   cured   by   the   subsequent 
appearance  of  the  party.^ 


Section    V.  —  Process    by  Filing  a    Traversing    Answer,    or 
Traversitig  Note?' 

Having  considered  the  various  means  which  the  practice  of  the  in  what  cases 

Court  affords,  for  the  purpose  of  compelling  an  answer  from  the  };'/^'^',;;*f^°;:^^j 

defendant^  it  remains  to  state  particular  cases  in  which  the  plaintiff  cktcudant,  or 

may  himself,  if  he  thinks  fit,  file  an  answer  for  a  defaulting  defend-  l^^e^""''"^ 
ant,  or  a  "Traversing  Xote,"  which  has  the  effect  of  an  answer. 

Where  the  defendant  is  not  required  to,  and  does  not  answer,  Traverse  by 

the  plaintiff's  bill,  he  is  to  be  considered  to  have  traversed  the  statute, 
case  made  by  the  bill ;  ^  it  is  only  in  those  cases,  therefore,  in  which 
the  defendant  has  been  required  to  answer,  and  is  in  default,  that 
the  plaintiff  can  file  an  answer  for  hi'm,  or  a  traversing  note.* 

By  the  11  Geo.  IV.  and  1  Will.  IV.  c.  36,  §  15,  rule  11,  it  is  Answer  by 

enacted,   "That   in   every  case   where   the   defendant   has   been  plaintiff  for 

,,  r.,^  1-  ^xi?  A    detendant, 

brought  to  the  bar  of  the  Court,  to  answer  his  contempt  tor  not  under ii  Geo. 
answering,  and  shall  refuse  or  neglect  to  answer  within  the  next   J^-  '^  i^'^^- 
twenty-one  days,  the  plaintiff  shall  be  at  liberty,  with  the  leave   §  15,  r.  11. 
of  the  Court,  upon  ten  days'  previous  notice  to  the  defendant,^ 
after  the  expiration  of  such  twenty-one  days,  unless  good  cause  be 
sliown   to  the  contrary,   instead   of  })roceeding   to  have   the   bill 
taken  pro  confesso,  to  put  in  such  an  answer  to  tlie  bill  as  lierein- 
after  is  mentioned,  in  the  name  of  tlic  defendant,  without  oath  or 
signature ;  and  thereupon  the  suit  shall  proceed,  in  the  same  man- 
ner as  if  such  answer  were  really  the  answer  of  the  defendant, 

1  L(!vi   V.    Ward,    1    S.  &  S.  .334;    see  sec /x;*^  p.  61G;  but  not  on  bill  and  answer. 
Wliittinfjton  r.  Ivlwi.r.i-,  3  De  U.  &  .1.  243.  Biiiithw<iite's  I'r.  70. 

2  See    Stuirip  v.    13>!iittv,    «   Dana,   14;  <  Hcatti  v.  Lewis,  17  Jur.  1090,  M.  K. ; 
Chde»  V.  Boon.  3  H.  Mon."«2.  Ord.  XVII.  1;  ai]d/>o«<,  Chiip.  XXI.,7i(7>- 

8  l.')  &  16  Vic.  c.  bfi,  §  26.    Issue  is  to  be  liailion. 

joined   in  fiuli  ca.-e,  bv  filing  replicjitioii.  *  For   form   of  order,  see  Seton,   1264, 

t)rd.  XVII.    1 ;    or  tlic  caune  may  be  set  No.  13;  and  for  form  of  notice  of  motion, 

down  to  be  litard  on  motion  lor  decree,  see  Vol.  III. 
vou  I.                                                     33 


514 


COMPELLING  ANSWER.  —  PROCEEDINGS  IN  DEFAULT. 


Cm.  X.  §  5. 


Evidence  in 
sii])]>i)rt  of 
motion  for 
leave  to  tile. 


Traversing 
note : 


to  oricfinal,  or 
supplemental 
bill;  or  bill 
amended  be- 
fore answer; 


to  amended 
bill,  after 
answer; 


after  excep- 
tions. 


Effect  of  the 
note. 


Service  of 
copy. 


witli  wliirli  the  plniiititV  was  satisfied  ;  and  tlic  costs  of  tlie  con- 
t(.'iiii>t,  and  of  putting  in  such  answer,  may  be  provided  for  in  like 
ni:inncr  as  if  the  defendant  lihnself  liad  put  in  sucli  answer;  and 
such  answer,  besides  tlie  formal  ])arts  tliereof,  shall  be  to  the  fol- 
lowing effect :  that  the  defendant  lea\es  tlu^  ])laintilf  to  make  such 
proofs  of  the  several  matters  in  the  bill  alleged,  as  he  shall  be  able, 
or  be  advised,  and  submits  his  interests  to  the  Court." 

The  a])plieation  must  be  supported  by  ])roduction  of  tli(j  con- 
tempt orders,  the  keeper's  certificate  of  the  defendant  being  in 
custody,  the  Record  and  Writ  Clerk's  certificate  of  no  answer 
having  been  filed,  and  an  affidavit  of  service  of  tlie  notice  of  motion. 

The  practice  under  this  rule  is  not  of  so  much  importance  as  it 
was  formerly ;  because  the  ])laintiff  has  now  a  remedy  of  a  similar 
kind,  though  more  generally  a})plical)le :  for  after  the  expiration 
of  the  time  allowed  to  a  defendant  to  plead,  answer,  or  demur  (not 
demurring  alone)  to  any  original  or  su])plemental  bill,  or  bill 
amended  before  answer,  which  he  has  been  required  to  answer,  if 
such  defendant  has  not  filed  any  })lea,  answer,  or  demurrer,  the 
plaintiff  may  file  a  note  at  the  Record  and  Writ  Clerks'  Office,  to 
the  following  efiect :  "  The  plaintiff  intends  to  proceed  with  his 
cause,  as  if  the  defendant  had  filed  an  answer,  traversing  the  case 
made  by  the  bill."  ^  In  the  case  of  a  bill  amended  after  answer, 
upon  the  like  default,  he  may  file  a  note  to  the  following  effect : 
"  The  plaintiff  intends  to  proceed  with  his  cause,  as  if  the  defend- 
ant had  filed  an  answer,  traversing  the  allegations  introduced  into 
the  bill  by  amendment."  ^  And,  after  the  expiration  of  the  time 
allowed  to  a  defendant  to  put  in  his  further  answer  to  any  bill, 
the  plaintift'  (if  such  defendant  shall  not  have  put  in  any  further 
answer)  may  file  a  note  to  the  following  effect :  "  The  plaintiff 
intends  to  proceed  with  his  cause  as  if  the  defendant  had.  filed  a 
further  answer,  traversing  the  allegations  in  the  bill  whereon  the 
exceptions  are  founded,"  ^ 

When  a  co])y  of  the  traversing  note  has  been  duly  sei'ved,  it  has 
the  same  effect  "  as  if  the  defendant  against  whom  such  note 
is  filed  had  filed  a  full  answer  or  further  answer,  traversing  the 
whole  bill,  or  those  parts  of  the  bill  to  which  the  note  relates,  on 
the  day  on  which  the  note  was  filed."  ^ 

When  a  traversing  note  has  been  filed,  a  copy  thereof  nmst  be 
served  upon  the  defendant  against  whom  the  same  is  filed,  in  the 
manner  directed  for  the  service  of  documents  not  requiring  per- 
sonal service.^ 


1  Ord.  xiir.  1. 

2  Ord.  XI 11.  2. 
2  Ord.  XIII.  3. 

*  Ord.  XIII.  6;  but  it  has  not  the  same 
effect,  for  the  purpose  ol  evidence,  as  an 


answer  on  oath.      Martin   v.  Norman,  2 
Hare,  Tj'jO,  5'j8. 

6  Ord.  XIII.  6;  III.  4,  6,  ante,  pp.  454, 
455.  No  time  is  limited  within  which  the 
note  is  to  be  served ;  but  it  is  in  practice 


PROCESS  BY  TRAVERSING  ANSWER.  OR  TRAVERSING  NOTE. 


515 


service. 

Service 
ex  jur.  not 
permitted. 

Form. 


The  rule  last  referred  to  applies  only  to  cases  where  the  defend-  Cn.  X.  §  5. 
ant  has  appeared  by  a  solicitor,  or  personally ;  and  not  to  cases 
where  the  plaintiif  has  entered  an  appearance  for  him.^  It  has 
been  held,  however,  that  in  such  a  case  the  Court  can,  under  its 
general  jurisdiction,  make  a  special  order  for  service  of  the  trav- 
ersing note  on  the  defendant.'-^ 

The  ap]dication  should  be  made  ex  parte  ;  and  be  supported  by  Evidence  in 

an  affidavit  of  service  of  the  bill  and  interrogatories,  and  by  the   support  of 

^  ''  application. 

Record  and  Writ  Clerk's  certificate  that  the  planitili  has  appeared 
for  the  defendant,  and  has  filed  the  traversing  note.  It  seems 
usual,  though  not  essential,  to  prove  by  affidavit  that  the  defendant 
is  within  the  jurisdiction.^ 

In  a  proper  case,  the  Court  will  order  substituted  service  of  the   Substituted 
traversing  note,*  on  application  by  ex  parte  motion,  supported  by 
the  affidavit  and  certificates  above  mentioned;^  but  leave  to  serve 
the  note  on  a  defendant  out  of  the  jurisdiction  will  not  be  given.® 

A  traversing  note  is  to  be  intituled  in  the  cause,'  and  written 
on  paper  of  the  same  description  and  size  as  that  on  which  bills 
are  printed,®  '  It  must  be  underwritten  or  indorsed  with  the  name 
and  place  of  business  of  the  plaintiflT's  solicitor,  and  of  his  agent, 
if  any,  or  with  the  name  and  place  of  residence  of  the  jjlaintiff, 
where  he  acts  in  person ;  and,  in  either  case,  with  the  address  for 
service,  if  any.®  The  names  of  several  defendants  may  be  included 
in  one  traversing  note,  notwithstanding  that  they  have  appeared 
by  separate  solicitors." 

After  service  of  a  copy  of  the  travei-sing  note,  the  deiendaut  Defendant 
cannot  plead,  answer,  or  demur  to  the  bill,  or  put  in  any  further  ^^?""after'^'^'^' 
answer  thereto,  without  the  special  leave  of  the  Court ;  and  the 
cause  is  to  stand  in  the  same  situation  as  if  such  defendant  had 
filed  a  full  answer  or  further  answer  to  the  bill,  on  the  day  on 
which  the  note  was  file<l.'^ 

Where  the  plaintiff  filed  a  traversing  note,  knowing  that  the  Traversing 
defendant's  answer  was  swoni,  though  not  filed,  the  traversing  UJ^|^;g^|,\'jj'j. 

answer 

4  WhIIIs  v.  Darljv,  6  Hare,  618;  Scott  t>.    sworn, 
Wheeler,  uh'x  sup  ■    Hunt  v.   Niblett,    25    thoufrh  not 
Heav.  124;  4  .lur.  N.  S.  444.  iiled,  ordered 

''  For  I'orms  of  motion  pap;>r  and  alii-    off  tlie  lile. 
d^ivit,  see  Vol.  III. 

0  Anderson  v.  Stnther,  11  .lur.  90,  V.  C 
K.  15 

■^  For  forms  of  traversing  notes,  see  Vol. 
III. 

8  Ord.  f.  Mar.,  1860,  r.  16.  As  to  such 
paper,  see  Ord.  IX.  'i;  nnle,  \>.  361. 

w  Ord.  III.  2,  f);  (inle,  pp.  4.1.3,  4.'J4.  No 
(ft',  i-i  payable  on  filing  a  traversing  note, 
r.riiifhwilite's  Fr.  67. 

Ki    Jhi-l. 

U  Oni.  XIII.  7. 


.service,  with- 
out leave. 


treated,  in  respect  of  notice,  as  an  answer, 
and  a.s  within  th.;  operation  of  Ord.  III.  9; 
80  tliat  the  copy  should,  if  possible,  be 
served  on  the  day  on  which  the  note  is 
filed.  Hraithwaite's  Manual,  144;  Veal's 
Pr.  24. 

1  Anon,  11  Jur.  28,  L.  C- ;  Hraith- 
waite's I'r.  68. 

2  Mo-«  V.  Buckley,  2  Phil.  628;  12  Jur. 
487;  and  for  the  onler  in  that  case,  see 
Seton,  1246,  No.  10;  and  see  Laurie  v. 
Burn,  6  Ihirc,  308;  12  Jur.  698;  llorlock 
V.  Wilson,  12  Beav.  .14.");  see  also  Scott  v. 
Wheeler,  l.'i  Bcav.  2H'J. 

'  For  forms  of  motion  pnper  and  alB- 
davit,  see  Vol.  III. 


r>ic> 


COMrELLING    ANSWER. PROCEEDINGS    IN    DEFAULT. 


I'll.  X. 


IV'foiulaiit 
iiKiv  move 
ti)  taki' 
traversiuL,' 
nolo  i>tV  the 
lilt',  iiiul  to 
|iiit  ill  a  plea, 
answer,  or 
(leimirrer,  on 
payment  of 
costs. 

Travei^inff 
note  cannot 
be  tiled 
against 
int'aut. 


Mairied 
woman. 


Proof  of  ser- 
vice of  the 
note. 

Where 
demurrer  or 
plea  to  whole 
bill  over- 
ruled. 


Traversing 
note  <:annot 
be  taken  off 
the  file 
ex  parte. 

Traversing 
note  does 
not  prevent 
motion  for 
decree. 


note  w:is  onlcivd  to  be  taken  ort'tlie  file,  uj)on  ])ayment  of  costs  by 
the  (let'en.lant.' 

Wliei-e  a  detendant  wishes  to  put  ina])lea,  answer,  or  demurrer, 
or  a  I'lirtlier  answer,  after  a  traAersiiig  note  has  been  filed,  he 
should  iij^ply,  on  motion,  with  notice  to  the  plaintiif,  for  leave  so 
to  do,  and  for  that  purpose  that  the  note  may  be  taken  off  the  file. 
The  order  will  only  be  made  on  payment  of  costs  by  the  defend- 
ant." The  a))])lication  shotdd  be  supported  by  an  affidavit  ex))lain- 
ing  the  delay,  and  that  the  defendant  is  advised  to  put  in  the 
proposed  defence. 

It  seems  that  a  traversing  note  cannot  be  filed  in  the  case  of  an 
infant  defendant;^  but  inasmuch  as  it  is  only  necessary  to  file  it, 
in  those  cases  in  which  an  answer  has  been  required,  and  none 
put  in,  a  case  could  scarcely  now  arise  in  practice,  in  which  it 
could  be  desired  to  file  a  traversing  note  against  an  infant  de- 
fendant :  no  answer  being  usually  required  in  such  a  case.  Where 
a  married  woman  is  co-defendant  with  her  husband,  a  traversing 
note  cannot  be  filed  against  her  separately,  unless  an  order  for  her 
to  answer  separately  has  been  obtained. 

Due  service  of  the  traversing  note  must  be  proved  against  the 
defendant  at  the  hearing,  if  he  does  not  appear.* 

Where  a  demurrer  or  plea  to  the  whole  bill  is  overruled,  the 
plaintifl[",  if  he  does  not  require  an  answer,  may  immediately  file 
his  note,  in  manner  above  pointed  out,  as  the  case  may  require, 
and  with  the  same  effect:  unless  the  Court,  upon  overruling  such 
demurrer  or  plea,  gives  time  to  the  defendant  to  plead,  answer,  or 
demur ;  and  in  such  case,  if  the  defendant  does  not  file  any  plea, 
answer,  or  demurrer,  witliin  the  time  so  allowed  by  the  Court,  the 
plaintiff,  if  he  does  not  then  require  an  answer,  may,  on  the  expira- 
tion of  such  time,  file  such  note.^ 

When  a  traversing  note  has  once  been  filed,  the  plaintiff  cannot, 
without  notice  to  the  parties  affected  by  it,  obtain  an  order  to 
take  it  off  the  file.^ 

The  filing  of  a  traversing  note  does  not  prevent  a  cause  being 
heard  on  motion  for  decree ;  but,  for  that  puqjose,  the  traversing 
note  is  equivalent  to  an  answer.' 


1  Kigbv  t).  Rigbv,  6  IJeav.  265. 

2  Towne  V.  IJonnin,  1  I)e  G.  &  S.  128; 
11  Jur.  261.  For  form  of  notice  of  motion, 
see  V.<1.  III. 

3  Emery  f.  Newson,  10  Sim.  564. 

*  Evans  »;.  Willi:ims,  6  Beav.  118;  and 
see  Reg.  Refrul.  15  .March,  I860,  r.  25. 
For  form  ol  iiffiilavit  of  service  of  a  trav- 
ersing note,  see  Vol.  III. 


6  Ord.  XIII.  4. 

G  Simmons  v.  Wood,  5  Beav.  390.  For 
form  of  notice  of  motion  in  sucli  case,  see 
Vol.  III. 

■?  Manic-re  v.  Leicester,  5  De  G.,  M.  & 
G.  75;  18  Jur.  320.  As  to  motions  to  dis- 
miss for  want  of  [)rosecutii>n,  where  a 
traversing  note  has  been  tiled,  see  Ord. 
XXXIII.  10. 


CHAPTER  XI. 


TAKING     BILLS     PRO     CONFESSO. 

Section  I. — Preliminary  Order. 

In  preceding  chapters,  the  reader's  attention  has  been  drawn  to  Nature  of 
the  method  which  the  Court  adopts,  to  compel  a  refractory  defend-  ^,1^1^^^^^ 
ant  to  appear  to,  and  answer  the  bill.  By  means  of  the  process 
there  pointed  out,  the  plaintiff  may,  if  the  defendant  is  not  a  priv- 
ileged person,  take  his  body  as  a  secmity  for  his  obedience ;  or  if 
he  be  a  privileged  person,  or  manages  to  keep  out  of  the  way  so 
successfully  as  to  avoid  an  arrest,  the  ))laintiff  may  proceed  to  com- 
pel his  submission,  by  taking  from  him  the  enjoyment  of  his  proji- 
erty  and  effects,  until  he  submits.  It  is  obvious,  however,  that  in 
a  Court  of  Equity,  where  the  nature  of  the  relief  to  be  granted 
frequently  de])ends  upon  the  discovery  to  be  elicited  from  a  de- 
fendant by  his  answer,  the  mere  taking  a  party  into  custody,  or 
sequestrating  his  pro])erty,  cannot  always  answer  the  object  of 
doing  that  justice  to  the  plaintiff  which  it  is  the  business  of  Equity 
to  secure.  The  Court  has,  therefore,  adopted  a  method  of  render- 
ing its  process  effectual,  by  treating  the  defendant's  contumacy  as 
an  admission  of  the  ])laiiitiff\s  case,  and  by  making  an  order  that 
the  facts  of  the  bill  shall  be  considered  as  true,  and  decreeing 
against  the  defendant  according  to  the  equity  arising  upon  the 
case  stated  by  tlie  plaintiff.  This  proceeding  is  teinned,  taking  a 
bill  pro  (-(mfeHHo} 

It  seems  that  tliis  practice  is  not  of  very  ancient  standing,  and   Not  of 
that  the  custom  formerly  Avas  to  put  the  plaintiff  to  Tuakc  ])roof  of  "."',jj"^,, 
the  substance  of  his  hill  ; '^  but  the  course  of  taking  the  bill  -pro 
co7ifesso  has  now,  for  some  time,  been  the  established  practice  of 

1  A  rule  for  an  answer  whore  procesR  Corradine  i'.  0'(^(iiinor,  21  Aln.  573;  Attor- 

has  not  Ix'cn  ri(;litly  Hcrvfid,  ami  a  (Iccrfic,  ncy  (icncral  r.  f'arviT,  12  Inil.  (  N.  ('. )  2:il ; 

pro  rtmfftx",  for  want  of  an  answer,  are  ir-  Smith  r.    Triinlile,  27  111.  l^'i;   Stedieiis  v. 

regular.     Treadwell  v.  Clcavdund,  3  Mc-  I'.ichnell,  27  III.  441.    'Ilic  ih  I'liKhmi  may, 

I..ean,  2^3.  in  such  rase,  without  dcmurriiiK.  <al<e  ad- 

"^  Sec  Rose  «.  WoodrnfT,  4  .John.  Ch.  .'■i47,  vaiitaee  of  any  matter  which  would  he  a 
64f<; /xm/,  .020.  note;  I'ierson  v.  David.  4  fcood  cause  (if  demurrer.  Wilson  y.  Water- 
Iowa,  410;  Jobnaou  v.  Duunull,  10  111.  1*7;  man,  U  Rich.  Kq.  (S.  C.)  206. 


518 


TAKING    BILLS   PRO    CONFESSO. 


Cu.  XI.  §  1. 
Y 

1  distinction, 
wlu'rv 

liotiMulaiit  is, 
anil  when'  lie 
is  not,  in 
eiistoily. 


Preliminary 
onler  to 
take  bill 
pro  coiif'tsso 
necessary ; 
and  cause  to 
be  set  (U>wn, 
to  be  licard 
on  a  future 
day. 

Under  the 
statute: 
against 
defendant, 
wlu)  has 
absconded, 
without 
appearance ; 


tlio  Court.'  And  tliis  prnrlice  has  boon  vory  ii>:itori:illy  extended 
and  t-u'ilitatod  by  Acts  of  PailiaiiUMit  and  Geni'val  Orders  of  the 
Court,  Considc'ral)li'  diHi'ri-ni'i'  lornu-rly  existed  in  tlie  practice  of 
taking  bills  pro  co7)fesso,  in  cases  where  the  defendant  was  in  cus- 
tody, and  in  those  where  he  was  not;  but  the  General  Orders  have 
so  far  assimilated  the  practice  in  the  two  cases,  that  it  will  be  most 
convenient  to  state  the  general  rules  a]i])licable  to  all  cases  in 
which  a  bill  is  taken  pro  confesso :  remaiking  any  j)eculiarities  re- 
sulting from  the  particular  circumstances  in  which  a  defendant  may 
be  ])laced. 

Where  a  decree  is  intended  to  be  sought  against  a  defendant, 
by  taking  the  bill  pro  confesso,  an  order  for  that  i)urpose  must  be 
obtained  upon  motion,  of  which  notice  must  be  given  ;  '^  and  then 
the  cause  must  be  set  down  to  be  heard ; '  and  it  cannot  be  heard 
on  the  same  day  on  which  the  order  to  have  it  taken  2^'^o  confesso 
is  made.^ 

AVhere  the  defendant  is  beyond  seas,  or  has  absconded  to  avoid 
being  served,  and  it  is  intended  to  proceed  to  have  the  bill  taken 
pro  confesso^  without  any  appearance  having  been  entered  by  him, 
or  on  his  behalf,  the  proceedings  must  be  taken  under  the  stat.  11 
Geo.  IV.  &  1  Will.  IV.  c.  36,  §  3.^  The  mode  i)rescribed  by  that  Act 
must  be  strictly  complied  with ;  ®  and  it  seems  that  the  Act  applies 
to  all  cases  Avhere  a  party  goes  abroad,  to  avoid  process.'' 

It  has  already  been  observed,  that  the  General  Order,  enabling 


1  Hawkins  v.  Crook,  2  P.  Wms.  550; 
Johnson  v.  Desmineere,  1  Vern.  223;  Gib- 
S"n  ?.'.  Scerengton,  Ib.'iA'i.  In  New  Hamp- 
shire, if  tlie  defendant,  having  received  due 
notice,  siiall  neglect  to  enter  his  appear- 
ance at  the  return  term,  or  shall  neglect  to 
deliver  to  the  plaintiff's  solicitor  his  plea, 
answer,  or  demurrer,  within  two  calendar 
moiitlis  after  service  of  the  bill,  the  bill 
may  be  taken  />;'o  covft-sso,  and  a  decree 
entered  accordinglv.  llule  16  of  Chancery 
Practice.  38  N.  H.  608.  Rule  18  of  the 
Equity  Rules  of  the  United  States  Court, 
provides  for  the  entry  of  an  ordi  r  that  a  bill 
De  taken  pro  amftsso  on  failure  of  the  de- 
fendant to  file  his  plea,  demurrer,  or  answer 
to  the  bill,  in  the  Clerk's  office,  on  the 
rule-day  next  succeeding  that  of  entering 
his  apitenraiice. 

2  Ord.  XXII.  1  ;  11  Geo.  IV.  &  1  Will. 
IV.  c.  36.  §§  3,  15;  and  see  Collins?).  Coll- 
yer,  3  Beav.  600;  Brown  i'.  Home,  8  Beav. 
607.  For  firms  of  order,  see  Seton,  1265- 
1267,  Nos.  1-7  ;  and  for  forms  of  notice  of 
motion,  see  Vol.  III. 

8  See  Pendleton  v.  Evans.  4  Wash.  CO. 
335;  Rose  v.  W'oodruff,  4  John.  Ch.  547. 
An  order  to  take  a  h\\\ pro  confesso^  unless 
the  defendant  answers  it  by  a  day  given, 
cannot  be  anticipated,  suiil  a  decree  pro 
conftiso  pjissed  in  anticipation  of  such  (lav. 
Fitzhugh  V.  Mcpherson,  9  (iill  &  J.  52. 

It  is  error  to  take   a  bill  pro  conftsso 


against  several  defendants,  when  process 
has  been  served  onlv  upon  one.  Robertson 
V.  Crawford,  1  A.  'K.  Marsh.  449.  As  to 
what  service  of  the  suhpmna  is  necessary 
before  a  bill  can  be  taken  as  confessed,  see 
Sawver  y,i.  Sawyer,  3  Paige,  263;  Sullivant 
r.  Weaver,  lO'  Ohio,  275 ;  Treadwell  v. 
Cleaveland,  3  McLean,  283. 

4  Ord.  XXII.  6  ;  Brown  v.  Home,  vhi 

SUJ). 

5  See  nnie,  pp.  456,  457. 

6  Short  V.  i)owner,  2  Cox,  84;  see  Baker 
V.  Keen,  4  Sim.  498,  where  the  proceed- 
ings are  set  out  in  detail. 

T  Mawer  v.  Msiwer,  1  Cox,  104  ;  1  Bro. 
C.  C.  388;  Henderson  v.  Meggs,  2  Bro.  C. 
C.  127;  James  v.  Dore,  1  Dick.  63.  Rule 
5,  of  the  Rules  for  Practice  in  Chancery  in 
Massachusetts,  provides  for  notice  to  de- 
fendants in  Equity  suits,  who  reside  out  of 
the  Commonwealth,  and  the  method  to  be 
pursued  to  entitle  the  plaintifl"  in  such 
cases  to  obtiiin  an  order  to  have  liis  bill 
taken  for  confesseii.  In  Mnine,  where  the 
rightsofa  defendant  in  Kquity,  who  resides 
out  of  the  State,  and  has  had  notice  of  the 
suit,  but  does  not  appear  and  answer,  will 
not  be  prejuHiced  by  the  decree,  the  bill  maj' 
be  t;iken  pro  cimjesso  as  to  him.  Adams 
)•.  Stevens,  49  Maine,  362;  see  Evarts  v. 
Beeker,  8  Paige,  606 ;  Christy  v.  Christy, 
6  Paige,  170. 


PRELIMINARY    ORDER.  519 

a  plaintiff  to  enter  an  appearance  for  an  absconding  defendant,^  Ch.  xi.  §  i. 

applies  to  the  same  circumstances  as  those  provided  for  by  the  ^— — y~— ' 

Act ;  and  although  it  seems  that  this  order  has  not  superseded  the  Practice 

Act,2  it  is  undoubtedly  the  usual  practice,  in  all  cases  where  it  is  gtamte*^^ 

intended  to  take  a  bill  ^yro  confesso  against  a  defendant,  to  enter  superseded 

an  appearance  for  him,  and  to  proceed  under  the  provisions  of  the  oVder. 
General  Order. 

Where  any  defendant,  whether  mthin  or  not  within  the  juris-  Defendant 

diction  of  the  Court,  does  not  put  in  his  answer  in  due  time  after  P"*^  answer- 

'  ^  ing,  and  not 

appearance  entered  by  or  for  hira,^  and  the  plaintiff  is  unable,  with  to  be  found, 
due  diligence,*  to  procure  a  writ  of  attachment,  or  any  subseqvient   havTab-" 
process  for  want  of  answer,  to  be  executed  against  such  defendant,  sconded  to 
by  reason  of  his  being  out  of  the  jurisdiction  of  the  Court,  or  be- 
ing concealed,  or  for  any  other  cause,  then  such  defendant  is,  for 
the  purpose  of  enabling  the  plaintiff  to  obtain  an  order  to  take  the 
bill  pro  confesso,  to  be  deemed  to  have  absconded  to  avoid,  or  to 
have  reftised  to  obey,  the  process  of  the  Court.^     And  where  any  where  he  has 
defendant  who,  under  the  last-mentioned  rule,  may  be  deemed  to  appeared  in 

,  1  11  •!  1  r>        -,  t  -,  ^  person,  or  by 

nave  absconded  to  avoid,  or  to  have  remsed  to  obey  the  process  of  his  solicitor, 
the  Court,  appears  in  person  or  by  his  ow^n  solicitor,  the  plaintiff  n°ot?on°to 
may  serve  upon  such  defendant  or  his  solicitor  a  notice,  that  on  a  take  bill 
day  in  such  notice  named  (being  not  less  than  fourteen  days  after  to  be'^iven. 
the  service  of  such  notice),  the  Court  will  be  moved  that  the  bill 
may  be   taken  pro  confesso  against  such  defendant ;  ^   and   the 
plaintiff  must,  upon  the  hearing  of  such  motion,  satisfy  the  Court 
that  such  defendant  ought,  under  the  provisions  of  the  last-men- 
tioned rule,  to  be  deemed  to  have  absconded  to  avoid,  or  to  have 
refused  to  obey,  the  process  of  the  Court ;  and  the  Court,  if  so 
satisfied,  and  if  an  answer  has  not  been  filed,  may,  if  it  so  think 
fit,  order  the  bill  to  be  taken  joro  confesso  against  such  defendant, 
either  immediately,  or  at  such  time,  or  upon  such  further  notice  as, 
under  the  circumstances  of  the  case,  the  Court  may  think  proper^ 

1  Ord.  X.  6;  ante,  p.  459.  5  Qrd.  XXII.  2. 

2  Wilkin  t>.  NMJnby,  4  Hare,  47R;  10  .Tur.  6  For  form  of  notice,  see  Vol.  III.  Short 
73.0;  Dresser  «.  Morton,  1  C.  I'.  Coop.  t.  notice  of  motion  allowed,  where  a  defeiid- 
Cott.  .370;  R>'c,  howevt.T,  Korte^cue  i".  Ilal-  ant,  who  had  obtained  further  time,  le- 
lett,  3.1ur.  N.  .S.  M)t;;  .0  W.  K.  747,V.  C.  K.  fused    to    put    in    his    answer,    and    an 

8  Where  a  defendant  had  been  (hily  attachment  could  not  be  executed  against 
served  witli  the  bill  and   interrogatories,        him.     VVedderburne  v.    Thomas,   10  Jur. 

N.  S.  92,  V.  <;.  W. 


but  did  not  anp'-ar  or  an-(wer,  and  with- 
drew himself  lieyoud  the  jurisdiction,  the 


...  Or.l.  XXII.  3.     If  a  defendant,  .iilter 

Court  onlerefl  notice  to  Ix?  given  to  him,  appearing,  wdl  not  answer,  the  bill  will  be 

thiit  unless  an  iiu'wer  was  put  in  within  taken  jiro  cunfesso.     Caines  r.   Fisher,  1 

fourteen  dii\«  from  tin- s.-rvue  of  the  notice,  .lolin.  Cli.   8.  "And  where  the  bill  is  for 

an  nppeariince  would  be  entered  for  him,  relief  only,  and  states  sufKcierit  ground, 

and    proceedings   taken   to  have   the   bill  the  process  for  contempt  to  compel  an  an- 

taken    pro  am/etso.     (;rover   and    Hnker  swer  is  not  necessary.     Caines  v.  Fisher, 

Sewing    Machine  Company  v.  Millard,  8  tuprn.     In  New  .ler-ey,  a  decree  pro  c<>n~ 

Jur.  N.  S.  7t:t.  V.  C.  W.  ft-sso  may  be  taken  at  iinv  time  after  the 

*  Orrl.   XXII.  2.     The    sherift's   oflicer  time   limited   for  the  defendant  ti>  ple;id, 

must  swear,  that  he  has  used  due  diligence.  answer,  or  d'-mur  hiis   expired.     It  may 

Yearsley  v.  Budgett,  11  Beav.  144.  be  taken   without  notice,  and,  of  course, 


520 


TAKING   BILLS   PRO    CONFE8SO. 


Ch.XI.§  1. 


Whero  flio 
plaintitV  has 
oiitorod  :\n 
appoarance 
for  him, 
notice  to  be 
gazetted. 


Interrog- 
atories must 
be  filed. 


The  last-mentioned  rule  gives  the  Court  a  discretion  as  to  order- 
ing a  bill  to  be  taken  pro  coiifcsso  ;  and,  in  the  exercise  of  this 
discretion,  the  Court  refused  to  make  the  order,  where  the  defend- 
ant had  always  been  resident  abroad,  and  had  not  absconded,  and 
there  was  no  evidence  of  liis  refusal  to  obey  tlie  order  of  the 
Court. ^ 

"Where  any  defendant  who,  under  the  above-mentioned  rule, 
mav  be  deemed  to  have  absconded  to  avoid,  or  to  have  refused  to 
obey,  the  process  of  the  Court,  has  had  an  a])i)earance  entered  for 
him  by  the  plaintiff,^  and  does  not  afterwards  appear  in  person  or 
by  his  own  solicitor,  the  plaintiff  may  cause  to  be  inserted  in  the 
London  Gazette,  a  notice,  that  on  a  day  in  such  notice  named  ' 
(being  not  less  than  four  weeks  after  the  first  insertion  of  such 
notice  in  the  London  Gazette),  the  Court  will  be  moved  that  the 
bill  may  be  taken  pro  con/esso  against  such  defendant ;  and  the 
plaintiif  must,  upon  the  hearing  of  such  motion,  satisfy  the  Court 
that  such  defendant  ought,  under  the  provisions  of  the  above-men- 
tioned rule,  to  be  deemed  to  have  absconded  to  avoid,  or  to  have 
refused  to  obey,  the  process  of  the  Court ;  and  that  such  notice  of 
motion  has  been  inserted  in  the  London  Gazette,  at  least  once  in 
every  entire  week,  reckoned  from  Sunday  morning  to  Saturday 
evening,  which  shall  have  elapsed  between  the  time  of  the  first 
insertion  thereof,  and  the  time  for  which  the  notice  is  given  ;  and 
the  Court,  if  so  satisfied,  and  if  an  answer  has  not  been  filed,  may, 
if  it  so  thinks  fits,  order  the  bill  to  be  taken  pro  confesso  against 
such  defendant,  either  immediately,  or  at  such  time,  or  upon  such 
further  notice,  as  under  the  circumstances  of  the  case  the  Court 
may  think  proper/ 

It  seems  that,  where  it  is  intended  to  take  the  bill  pro  confesso 
under  the  foregoing  rules,  interrogatories  must  have  been  filed  ;  ^ 
but  where  the  defendant  has  absconded,  or  cannot  be  found,  the 
delivery  may  be  dispensed  with.® 

unless  it  appear  that  some  prejudice  will 
thereby  accrue  to  the  adverse  party.  Oak- 
ley V.  O'Neill,  1  Green  Ch.  287;  see  Nes- 
bit  V.  St.  Patrick's  Church,  1  Stockt. 
(N.  J.)  76.  For  form  of  order  to  take  the 
bill  ;«'o  confesso  in  this  case,  see  Seton, 
1205,  No.  2. 

1  Zulueta  V.  Vinent,  15  Beav.  272;  16 
Jur.  6-31 ;  see,  however,  Hele  v.  Oji\e,  2 
Hare,  623.  under  1st  Order  of  April,  1842; 
Sand.  Ord.  196;  Beav.  Ord.  195. 

2  Under  Ord.  X.  4,  6,  or  7;  see  ante, 
pp.  45!j,  460. 

3  Wiiich  may  be  any  day  in  term  ;  but 
must,  It  is  presumed,  be  on  a  seal  day  out 
of  term.  Ch.ifFers  v.  Baker,  5  De  (i.,  M. 
&  G.  482  ;  1  Jur.  N.  S.  32.  In  Millar  v. 
Elwin,  25  Be-.iv.  674;  4  .lur.  N.  S.  600, 
however,  it  seems  tliat  the  adverti-ement 
was  for  a  day  out  of  term,  which,  at  the 


time  the  advertisement  was  issued,  could 
not  iiave  been  known  t<>  be  a  seal  day. 

4  Ord.  XXII.  4.  For  (•n-m  of  order,  see 
Seton,  1265,  No.  3.  Where  the  delendant 
has  absconded,  it  must  be  shown  that  he 
cannot  be  found  at  tlie  time  of  making  the 
application.  Wilkinsoii  v.  Turner,  14  W. 
K.  813,  M.  R. 

5  Battler  v.  Mathews,  19  Beav  549. 

6  Anon.,  4  .lur.  N.  S  583,  V.  C.  W.;  S. 
C.  novi  Baker  v.  Dean,  6  W.  R.  719;  But- 
tler  V.  Mathews,  19  Beav.  549;  Anthony  v. 
Cowper,  11  Jur.  N.  S.  73  ;  13  VV.  K.  286, 
M.  R. ;  34  Beav.  77.  Sometimes  the  filing 
of  the  interrogatories  has  been  directed  to 
be  ailvertised ;  see  Anon.,  vbi  svp. ;  but  this 
does  not  seem  to  be  necessary.  Antiiony 
V.  Cowper,  ubi  sup. ;  Darlow  v.  Sinnock,  1 
W.  N.  154,  V.  C.  K. ;  S.  C.  Mm.  Dariow 
V.  Simlock,  14  W.  R.  383. 


PRELIMrNART    ORDER. 


521 


Where  the  defendant  is  out  of  the  jurisdiction,  it  is  not  neces- 
sary to  issue  an  attachment,  in  order  to  take  the  bill  pro  confesso 
against  him  under  these  rules.^ 

The  plaintiff  having  advertised,  in  the  Gazette,  his  notice  of 
motion  to  take  the  bill  pro  confesso,  may  save  it  on  the  day  men- 
tioned in  the  advertisement,  until  next  motion  day,  without  men- 
tioning such  saving  expressly  to  the  Court.^  And  where  the 
advertisement  gave  six  weeks'  notice,  instead  of  four,  it  was  held, 
that  the  insertion  of  the  advertisement  for  the  first  four  of  the  six 
weeks  was  sufficient.^ 

Upon  the  motion,  the  plaintiff  must  show,  by  affidavit,  that 
proper  inquiries  have  been  made  after  the  defendant,  and  the 
means  which  the  deponent  had  of  knowing  the  parties,  and  the 
facts  to  which  he  deposes,*  and  that  the  case  is  within  the  rules 
above  referred  to.^  Thus,  it  must  appear  by  affidavit  ®  that  inter- 
rogatories have  been  filed,  and  also  delivered  where  delivery  is 
necessary ;  that  due  diligence  has  been  used  to  execute  the  attach- 
ment or  other  process  for  want  of  answer,  where  process  haa 
issued ; ''  and  that  notice  of  the  motion  has  been  served  on  the 
defendant  or  his  solicitor ;  or,  if  not  so  served,  the  Gazettes  con- 
taining the  notice  must  be  produced.®  The  sheriff's  return  to  the 
process,  if  issued,  is  also  required ;  and  also  the  Record  and  Writ 
Clerk's  certificate  that  the  defendant  has  not  put  in  his  answer; 
and  if  the  plaintiff  has  entered  an  appearance  for  the  defendant, 
that  fact  should  appear  by  the  certificate.® 

If  the  defendant  puts  in  his  answer,  after  service  of  the  notice 
of  motion,  but  before  the  motion  has  been  brought  on,  it  may  be 
brought  on  for  the  purpose  of  obtaining  the  costs.^" 

In  determining  the  question,  whether  the  bill  should  be  ordered 
to  be  taken  pro  confesso  "  immediately,"  or  at  some  future  time,  or 
upon  some  further  notice,  the  Court  is  guided  by  the  circmustances 
of  the  case ;  but,  in  general,  it  does  not  direct  the  bill  to  be  taken 
pro  confesso  immediately." 

Where  a  cause  had  been  set  down  to  be  heard  pro  confesso,  and 
had  been  struck  out,  in  consequence  of  the  absence  of  counsel,  it 


Ch.  XI.  §  1. 


Attachment 
unnecessary, 
if  defendant 
ex  jur. 

Saving 
motion. 

Where  exces- 
sive time 
notified. 


Evidence  in 
support  of 
motion. 


1  Biittler  V.  Mathews,  19  Beav.  549,  and 
cases  thtre  referred  to;  Hodjjson  v.  Iloilf^ 
soil,  23  Meav.  604  :  Hraithwail'-'s  Pr.  295; 
and  see  Anon.,  9  F..  1'.  N.  S  674,  M.  R  , 
for  practice  whore  there  is  delay  between 
the  making;  iind  lirawin;:  up  of  the  order. 

2  Torr  r.  'I'orr,  .Johns.  (>i;0.  Where,  (or 
WHnt  oi  business,  the  Court  did  not  sit  on 
tlie  day  in  lerm  nientionitd  in  the  notice, 
the  motion  Wiis  permilti'd  tn  bo  made 
on  the  succei'dinf;  dav.  I'oslh-tliwaite  v. 
Travers,  1  N.  K.  :J54,'V.  r,.  S.  dub. 

3  Millar  r.  Elwin,  25  \i\t^L\  074  :  4  Jur. 
N.  S.  600. 


<  Harrison  v.  Stewardson,  2  Hare,  583, 
534,  n.;  see  also  Anstey  «  Hobson,  2  W. 
It.  46,  V.  C.  S. ;  Robaon  u.  Earl  of  Devon, 
ib.  485,  V.  C.  S. 

6  Ord.  XXII.  2,3. 

6  Kor  form  of  aliidavit,  sec  Vol.  III. 

7  Y.arsley  v.  IJudgett,  11  Beav.  144; 
ante,  p.  519,  n.  4. 

»  See  Seton,  12G5,  Nos.  2,  3. 
!»  Ibid. 

10  Spooncr  v.  I'avne,  2  De  G.  &  S.  430, 
445;    12  Jur.  642.  ' 

11  Courage  v.  Wurdell,  4  Hare,  481  ;  9 
Jur.  1056. 


"Where 

answer  put  in 
atler  service 
of  notice. 

Not  usual  to 
take  bill 
/);•()  confesso 
immediately. 


Cause  struck 

out,  restored 
oiiapplic'ition 
of  i)laiutitr 
only. 


522 


TAKING   BILLS    PRO   CONFESSO. 


On.  XI.  §1. 


Striotnoss 
rciiiiiivJ. 


Amendment 
of  bill  will 
vitiate  pro 
confisso  pro- 
ceedings ; 


unless  imder 
llGeo.  IV.  & 
1  Will.  IV.  c. 
3G,  §  15,  r.  10. 


Against 
defendant  in 
custody. 


w.is  permitted  to  be  restored  to  tlie  ]>:iper,  on  the  application  of 
the  i)l:iiii(irt'  iilone.^ 

It  is  to  bo  observed,  ijjenerally,  that,  in  procee(iing  to  take  a  bill 
pro  confestio,  the  greatest  care  must  be  taken  to  bring  the  case 
strietly  Avithin  tlie  General  Orders;'^  and  all  formalities  must  be 
scrupulously  complied  with.  Thus,  an  advertisement  in  the 
Gazette,  which  omitted  the  defendant's  name  as  a  party  to  the 
cause,  although  the  notice  was  addressed  to  him,  and  stated  that 
apjjlication  would  be  made  to  have  the  bill  taken  pro  confesso 
against  him,  Avas  held  insufficient.^ 

And  so,  after  an  order  to  take  the  bill  ptro  confesso  has  been  ob- 
tained, the  bill  cannot  be  amended,  even  to  the  extent  of  correcting 
a  clerical  error,  without  vitiating  the  proceedings,  and  rendering 
the  order  useless.*  If,  however,  a  defendant,  who  has  been 
brought  to  the  bar  of  the  Court  for  his  contempt  in  not  answering, 
refuses  or  neglects  to  answer  (not  being  idiot,  lunatic,  or  of  un- 
sound mind),  the  Court  may,  upon  motion  or  petition,  of  which 
due  notice  must  be  given  personally  to  the  defendant,  authorize 
the  plaintiff  to  amend  his  bill  without  such  amendment  operating 
as  a  discharge  of  the  conteinpt,  or  rendering  it  necessary  to  proceed 
with  the  process  of  contempt  de  novo  /  and  after  such  amendment, 
the  plaintiff  may  proceed  to  take  the  amended  bill  joro  confesso,  in 
the  same  manner  as  if  it  had  not  been  amended.^ 

We  have  before  seen,  that  where  a  defendant  is  in  actual  custody 
for  contempt  in  not  putting  in  his  answer,  it  is  incumbent  upon 
the  plaintiff  not  to  detain  the  defendant  in  prison  beyond  a  certain 
limited  time,  without  bringing  him  to  the  bar  of  the  Court,"  If, 
however,  the  plaintiff  determines  at  once  to  take  the  bill  }')ro 
confesso,  he  need  not  bring  the  defendant  to  the  bar ;  but  may, 
upon  the  execution  of  an  attachment  for  want  of  answer,  or  at 
any  time  within  three  weeks  afterwards,  serve  the  defendant  with 
a  notice  of  motion,  to  be  made  on  some  day  not  less  than  three 
weeks  after  the  day  of  such  service,  that  the  bill  may  be  taken 
pro  confesso  against  him ;  and  the  Court  may  thereupon  order  the 
bill  to  be  taken  pro  confesso  against  him.^  The  motion  must  be 
supported  by  the  sheriff's  return  to  the  attachment,  the  Record 
and  Writ  Clerk's  certificate  that  the  defendant  has  not  put  in  his 
answer,  and  an  affidavit  of  service  of  the  notice  of  motion.* 


1  Harvey  «.  Renon,  12  .lur.  445,  V.  C. 
K.  B. 

2  Battler  v.  Mathews,  19  Bc-av.  649. 

3  .Jones  V.  Brandon,  3  Jur.  N.  S.  1146, 
V.  C.  W. 

<  Weiglitman  v.  Powell,  2  De  G.  &  S. 
670;  12  .lur.  958. 

6  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  §  15, 
r.  10;  ante,  pp.  425,  510. 


8  Ante.  pp.  490,  491. 

■?  Oril  XXII.  1.  Kor  form  of  order,  see 
Seton,  1265,  No.  1;  iind  for  form  of  notice 
of  motion,  see  Vol.  III.  The  times  of  va- 
cation ;ire  reckoned  in  the  three  weeks,  at 
the  expiration  of  which  the  motion  may  be 
made.  Kitchin  v.  Hughes,  11  ,Jur.  N.  S. 
902;  14  W.  R.  93,  V.  0.  K. 

8  For  form  of  affidavit,  see  Vol.  III. 


PEELIMINAEY    ORDER. 


523 


As  before  stated,^  a  sequestration  is  the  first  compulsory  pro- 
cess which  issues  against  a  peer  or  member  of  Parliament.  Upon 
the  order  for  the  issuing  of  the  writ  being  made  absolute,  then,  by 
the  original  practice  of  the  Court,  if  the  defendant  persists  in  his 
contempt,  an  order  to  have  the  bill  taken  pro  confesso  may  be 
obtained,  upon  motion  of  course.^  In  the  case,  however,  of  a 
bill  for  discovery,  upon  the  expiration  of  the  time  for  answering, 
an  order  nisi  to  take  the  bill  pro  confesso  may  be  obtained  at  once, 
where  the  defendant  is  in  contempt  for  want  of  answer,  without 
any  order  for  a  writ  of  sequestration ;  and  such  order  "will  be  made 
absolute,  unless  the  defendant  shows  good  cause  to  the  contrary, 
as  before  explained.' 

In  like  manner,  in  the  case  of  corporations  aggregate,  after  an 
order  absolute  for  a  sequestration  has  been  made,  the  plaintiff 
may  obtain,  upon  motion  of  course,  an  order  to  take  the  bill  pn'o 
confesso  against  the  corjjoration.* 

Although  no  compulsory  process  issues  against  the  Attorney- 
General,  we  have  seen  that  an  order  may  be  obtained,  on  ex  parte 
motion,  for  him  to  put  in  his  answer,  within  a  certain  time,  or 
that  the  bill  shall  be  taken  pro  confesso.^ 

Where  a  husband  an<l  wife  are  defendants  to  a  bill,  the  husband 
is,  as  we  have  seen,^  liable  to  process  for  want  of  a  joint  answer, 
unless  he  obtains  an  order  to  answer  separately;  and  the  bill 
may  be  taken  />ro  confesso  against  him,  as  against  any  other  de- 
fendant.'' Where  the  decree  sought  to  be  obtained  affects  the 
wife's  inheritance,  and  the  husband  does  not  answer,  it  seems 
doubtful  how  far  such  a  decree  can  be  had  against  the  wife.* 

The  preliminary  order  for  taking  the  bill  pro  co7ifesso,  having 
been  obtained  by  one  or  other  of  these  means,  it  remains  only  to 
be  observed,  that  the  mere  putting  in  an  answer  by  the  defendant, 
will  not  be  a  sufficient  ground  for  moving  to  set  it  aside ;  ®  and 
where,  upon  that  ground,  a  motion  was  made  to  discharge  an 
order  for  taking  a  bill  pro  confesso,  it  was  refused  with  costs.^° 

Nothwitlistaiuling  that,  at  one  time,  there  seems  to  have  been 
some  doubt  upon  the  subject,"  it  is  now  clearly  settled  that,  for 


Ch.  XI.  §  1. 


Against 
peers,  or 
M.Ps. ; 

where  bill  for 
discovery. 


Against 
corporations. 


Against 
Attorney- 
General. 


Against 
hiisl)and 
and  wil'e. 


Order  not 
discharged, 
upon  mere 
putting  in  of 
answer. 


Upon  insuffi- 
cient answer. 


1  See  ante.  pp.  473,  490. 

2  Lord  \Vcll<;«ley  v.  Karl  of  iMoriiingtcin, 
rited  Seton,  12.0fi.  Kor  form  of  order,  see 
ib.  No.  4:  and  for  form  of  motion  paper, 
sc!e  Vol.  III. 

a  Ante,  p.  406;  11  Geo.  IV.  &  1  Will. 
IV.  c.  .38,  ^§  12,  13.   For  form,  see  Vol.  III. 

*  ylnle,  p.  4!t7 ;  Hrii^kwood  v.  Harvey,  8 
Sim.  2fll;  2  .liir.  2;t7 ;  Hniitliwaitc'.s"  I'r. 
2!t7.  For  form  of  nnler,  hcc  Seton,  1206, 
No.  4;  iind  for  form  of  motion  paper,  see 
Vol.  III. 

*  Ante,jt  4!>7:  I'efo  «.  Attorney-Gener- 
al, 1  Y.  &  J.  bO'J;    Groom   v.  Attorney- 


General,  9  Sim.  32.5.     For  form  of  notice 
of  motion,  see  Vol.  III. 

6  Ante,  pp.  IfiO,  498. 

7  (Jee  /'  Cottle,  3  M.  &  C.  180;  and  .see 
Bilfon  V.  Mcnnett,  4  Sim.  17. 

"  Arite,  J),  is.'i;  and  see  Alexander  v. 
Osborne,  11  .Iiir.  444,  L.  (J. 

'•>  Carter  v.  i'oi  ranee,  11  (Jeo.  654;  Hiin- 
ter  V.  Kolibitis,  21  Ala.  585;  James  v. 
Cresswicke,  7  Sim.  143. 

1"  Williams  n.  Thompson,  2  I5ro.  C.  C. 
280;   1  Cnx,  413. 

11  Hawkins  v.  Grookc,  2  !'.  W'ms.  506;  2 
Eq.  Ca.  Ab.  178,  pi.  4. 


524 


TAKING    KILLS    VllO   CONFESSO. 


Ch.  XI.  §1. 


Upon  answer 
bv  husbuud 
aloue. 


Where 
amended  bill 
not  answered. 


How  process 
waived. 


Upon  what 
terms  order 
discharged. 


the  imrpose  of  iKivint^  tlie  bill  taken  ^;ro  confesso,  an  insufficient 
answer  is  to  be  treated  as  no  answer,  and  that  the  whole  bill  is 
taken  pro  confesso,  in  the  same  manner  as  it  is  where  no  answer 
at  all  has  been  put  in.^  And  so  also,  where  a  husband  and  wife 
are  defendants,  and  the  husband  puts  in  an  answer  without  his 
wife  joining  in  it,  and  without  an  order  to  warrant  such  a  proceed- 
ing, the  Court  treats  the  answer  as  a  nullity,  and  will  make  an 
order  for  taking  the  bill  p7'o  confesso}  It  has  likewise  been  held, 
that  where,  after  a  full  answer,  a  bill  has  been  amended,  and  the 
amended  bill  is  not  answered,  the  ])laintiff  is  entitled  to  an  order 
to  have  the  bill  taken  pro  confesso  generally :  ^  an<l  where  an 
order  was  made  for  the  clerk  in  Court  to  attend  with  the  record  of 
the  bill,  in  order  to  have  it  taken  pro  confesso,  as  to  the  amend- 
ments only.  Lord  Apsley  discharged  the  order :  being  of  opinion, 
that  the  original  and  amended  bills  were  one  record,  and  that 
the  amendments  not  being  answered,  the  record  was  not  an- 
swered.* 

If  the  plaintiff  receives  the  costs  of  the  contem})t,  or  accepts  the 
answer,  by  taking  a  copy  of  it  or  otherwise,  or  takes  exce])tions  to 
it,  he  will  waive  the  process ;  the  reason  of  which  is,  that  he 
cannot,  after  an  answer  is  actually  filed,  have  a  decree  pro  con- 
fesso without,  in  the  first  instance,  moving  to  take  the  answer 
off  the  file,  which  he  cannot  do  after  any  of  the  above-men- 
tioned acts.^ 

But  although  the  mere  gratuitously  putting  in  an  answer  will 
not  be  suflScient  to  discharge  the  order  for  taking  a  bill  pro  con- 
fesso, yet,  wherever  an  order  of  this  nature  has  been  made,  and 
the  defendant  comes  in  upon  any  reasonable  ground  of  indulgence, 
and  pays  the  costs,  the  Court  will  attend  to  his  application,  unless 
the  delay  has  been  extravagantly  long.^     It  is  not,  however,  a 


1  Davis  V.  Davis,  2  Atk.  24  ;  Turner  v. 
Turner,  cited  4  Ves.  619;  Dangerfield  v. 
Claiborne,  3  Hen.  &  M.  17  ;  Caines  v. 
Kisber,  1  John.  Ch.  8;  Clason  v.  Morris,  10 
John.  524  ;  Buckingham  v.  I'eddicord,  2 
Bland,  447  ;  Mayer  v.  Tyson,  1  Bland,  560. 
A  bill,  answered  in  part  only,  may  be 
taken  as  confessed  in  otiier  parts  not  an- 
swered. Weaver  v.  liivingston,  Hopk. 
493;  Pepg  v.  Davis,  2  Bbickf.  184. 

2  Biltoii  f.  Bennett,  4  Sim.  17;  Leavitt 
V.  Cruger,  1  Paige,  421;  see  New  York 
Chem.  Co.  v.  Flowers,  6  Paige,  654;  Col- 
lard  V.  Smitli.  2  Beasley  (N.  J.),  4.3,  45; 
Allen  V.  Smith,  ib.  45;  ante,  182.  Where 
a  joint  answer  l)y  husband  and  wife  is  put 
in,  it  must  be  sworn  to  by  botli.  If  not  so 
sworn  to,  and  no  valid  defence  is  set  up 
therein,  it  will,  on  motion,  be  taken  ofT  the 
fdes  for  irregularity,  and  the  bill  be  taken 
as  confessed.  New  York  Ciiem  Co.  v. 
Flowers,  6  Paige,  634;  Coilard  v.  Smith,  2 
iJeasley  (N.  J.),  43.     So  where  au  answer 


is  not  signed  by  the  defendant,  idthoiigh 
an  answer  on  oath  is  waived.  Dennison  v. 
Bassford,  7  Paige,  370. 

3  Jopling  V.  Stuart,  4  Ves.  619;  Trust  & 
Fire  Ins.  Co.  v  Jenkins,  8  Paige,  589. 

4  Bacon  V.  Griffith,  4  Ves.  619,  n. 

5  Sidgier  v.  Tyte,  11  Ves.  202;  Coyle  v. 
Allevne,  16  Beav.  548. 

6  "Williams  v.  Thompson,  2  Bro.  C.  C. 
280;  1  Cox,  413  ;  see  Robertson  v.  Miller, 
2  Green  Ch.  451,  453,  454;  Wooster  v. 
Woodhull.  1  John.  Ch.  541  ;  Parker  v. 
Grant,  1  John.  Ch.  630;  Emery  v.  Down- 
ing, 2  Beaslev  (N.  J.),  59  ;  Oram  v.  Den- 
nison, 2  Beasley  (N.  .1.),  438.  But  even 
after  a  decree  pro  confesso,  order  of  refer- 
ence, and  report  of  AlasteV,  the  decree  will 
be  opened,  and  the  defendant  let  in  to  an- 
swer, if  the  equity  of  the  ciise  requires  such 
relaxati  'ii  of  the  rules  of  tlie  Court.  VVil- 
liain.-on  v   Sykes,  5  Beiisley  (N.  J.),  182. 

By  the  (/ractice  in  New  Jer.-ey,  the  de- 
fendant's application  for  this  purpose,  may 


HEARING,    DECREE,  AND    SUBSEQUENT    PROCEEDINGS. 


525 


matter  of  course  to  discharge  the  order  for  taking  the  bill  pro  con-    Ch.  XI.  §  2. 

fesso ;  and  the  Court,  before  doing  so,  will  require  to  see  the   "^ v ' 

answer  proposed  to  be  put  in,  in  order  that  it  may  form  a  judg- 
ment as  to  the  propriety  of  it,  and  wall  not  put  the  plaintiff  to  the 
peril  of  having  just  such  an  answer  as  the  defendant  shall  think 
proper  to  give.^ 

If  a  defendant  is  in  custody  for  want  of  his  answer,  and  is   Submission 
willing  to  submit  to  have  the  bill  taken  pro  confesso  against  him,   ^^j. Jj^  ^,?^"^ 
he  may  apply  to  the  Court,  upon  motion  with  notice  to  be  served   confesso. 
on  the  plaintiff,'^  to  be   discharged   out  of  custody ;    and  there- 
upon the  Court  may  order  the  bill  to  be  taken  pro  confesso  against 
such  defendant,  and  may  order  him  to  be  discharged  out  of  cus- 
tody upon  such  terms  as  appear  to  be  just :  unless  it  appears  from 
the  nature  of  the  plaintiff's  case,  or  otherwise  to  the  satisfaction  of 
the  Court,  that  justice  cannot  be  done  to  the  plaintiff  without 
discovery,  or  further  discovery,  from  such  defendant.^ 


Section  II.  —  Hearing.,  Decree.,  and  Subsequent  Proceedings. 


The  preliminary  order  having 
for  investigation  is  the  manner 
the  decree  perfected.* 

be  made  either  by  petition  properly  veri- 
fied, or  upon  motion  sustained  by  aflidavit. 
The  former  mode  is  more  usual  and  formal, 
but  either  may  be  resorted  to.  Emery  v. 
Dowiiing,  2  Beasley  (N.  J.),  60. 

1  Hearne  v.  Ogilvie,  11  Ves.  77;  Emery 
V.  Dowiiin;;,  2  Beasley  (N.  J.),  59.  A  de- 
cree pro  amfesio  will  not  be  set  nside  to 
allow  a  plea  to  be  filed.  Bank  of  St.  Mary 
V.  St.  John,  25  Ala.  566. 

2  For  form  of  notice  of  motion,  see  Vol. 
III. 

a  Ord.  XXII.  5;  see  also  11  Geo.  IV.  & 
1  Will.  IV.  c.  36,  §  16,  r.  12;  and  for  a 
ca.^e  where  the  Court  thought  that  justice 
required  (hat  iliscovery  should  be  obtained 
from  the  defendant,  i-ee  Maitland  v.  Rodger, 
14  him.  92;  b  Jur.  371. 

*  Under  18tli  Kquity  Rule  of  the  United 
States  Courts,  tifler  an  order  that  the  bill 
be  taken  /))•<;  omffMn,  the  cause  proceeds 
ex  p'nie,  and  the  matter  of  the  bill  may  be 
decreed  Uy  the  Court  at  the  next  ensuing 
term  thereof  aci-ordingly.  if  the  same  can 
be  ilone  without  an  answer,  anil  i.s  pmper 
to  be  decreed;  or  the  plalntilf,  if  h>;  re- 
quires itny  discovery  or  answer  to  enable 
him  to  obtain  a  proi)er  decree,  sliiill  he  en- 
titled to  pre  cesH  of  iittachmcnt  agnin^t  the 
dclt'ndani,  to  compel  an  answer ;  and  the  de- 
fendant hliall  not,  when  iiriesti'd  upon  such 
proces",  he  discliargcil  therefrom,  unlc-s, 
upon  fdiiig  his  answer,  or  otherwise  coni- 
plyiiig  with  such  orler,  as  the  Court  or  a 
judge  thereof  may  direct,  as  to  pleading 


been  obtained,  the  next  subject   Hearing  of 
in  which  the  cause  is  heard,  and  *^^^^^' 


to,  or  fully  answering  the  bill,  within  a 
period  to  be  fixed  by  the  Court  or  judge 
and  undertaking  to  speed  the  same. 

The  bill  being  taken  jaro  cwi/esso  against 
a  defendant  does  not  preclude  him  from 
disputing  the  amount  of  the  plaintifTs 
deniiind  in  the  Master's  office.  Clayton  v. 
Chichester,  Craw.  &  Dix,  73;  Pendleton 
V.  Evans,  4  Wash.  C.  C.  31)1.  But  the 
plaintifl'  is  not  in  such  case  bound  to  prove 
the  contract  stated  in  the  hill.  Douglass  «. 
Evans,  1  Tenn.  18.  The  allegations  in 
the  bill  are  thereby  impliedly  admitted, 
and  the  Court  ma}'  decree  thereupon. 
Baltzel  V.  Hall,  1  Litt.  «8,  Attorney- 
General  V.  Carver,  12  Ired.  231 ;  Harmon 
V.  Campbell,  30  111.  25.  Hut  the  neglect 
of  11  detendatit  to  answera  bill,  up^n  which 
a  decree  pro  covftsso  is  passed,  amounts  to 
an  admission  ouly  ol  the  allegations  m  the 
bill,  liobinson  v.  Townsenci,  3  (iill  &  J. 
413.  Il  the  charge  ill  the  bill  be  not  stated 
with  suflicient  certainty,  the  |)laiut  ff  can- 
not, even  after  a  decree  pro  coti/'tsso,  have 
a  final  decree,  unless  he  cstahlish  his  de- 
niaiKl  by  satisfactory  evidence.  Pegg  v. 
Davis,  2" Hlackf.  2.^1";  see  I'latt  ?'.  .ludson, 
3  IM'ckt.  237;  Atkins  v.  Faulkner,  11 
Iowa  (3  With.),  326.  Soufion  a  hill  taken 
pro  ciiji/\.»so,  Mild  an  order  of  n'lcrence 
thereupon  to  a  Master,  such  allegations  of 
the  bill  as  are  distinct  and  positive  are  to 
be  taken  as  true,  without  proof.  Hut  not 
such  as  are  indefinite.  Williams  v.  Cor- 
win,  Hopk.  471;  Piatt  v.  Judson,  3  Blackf. 


526 


TAKING    BILLS    PRO    CONFESSO. 


Cn.XI.  §'2. 


Appoaraiuo 
of  (lofoiiilaiit, 
and  waiviT  of 
all  otijeitiou 
to  the  onlor. 

Nature  of 
decree  made. 


Bill  may  be 
read  from 
authenticated 
copy,  without 
Record  and 
Writ  Clerk's 
attendance. 


A  ilofondant,  ng.'iinst  whom  an  order  to  take  a  bill  jt^ro  confesso 
is  made,  is  at  liberty  to  :i])|)c:ir  at  the  beariiiL;;  of  the  cause;  and 
it"  he  waives  all  objection  to  tlie  order,  Imt  not  otherwise,  he  may 
be  heard  to  argne  the  case  upon  the  merits,  as  stated  in  the  bill.^ 

At  the  hearing  of  the  cause,  the  Court,  u])on  reading  the  bill, 
and  taking  it  to  be  true,  will  make  such  decree  as  seems  just;^ 
and  in  the  case  of  any  defendant  who  has  appeared  at  the  hearing, 
and  Avaived  all  objection  to  the  order  to  take  the  bill  pro  confesso, 
or  against  whom  the  order  has  been  made  after  ap])earance  by  him- 
self or  his  own  solicitor,  or  U])on  notice  served  on  him,  or  after  the 
execution  of  a  writ  of  attachment  against  him,  the  decree  is  to  be 
absolute.^ 

Formerly,  it  was  necessary  that  the  Record  itself  should  acitually 
be  produced  and  read  in  Court,  and  the  Clerk  of  Records  and 
Writs  attended  in  Court  with  the  record  for  that  purpose  ;  now, 
however,  the  bill  may  be  read  at  the  hearing  from  a  printed  copy 
(or,  where  amended,  without  a  reprint,  a  partly  written  and  partly 
printed  copy),  stamped  with  a  proper  stamp,  by  one  of  the  Clerks 
of  Records  and  Writs,  indicating  the  date  of  the  filing  of  such  bill 
(and  of  the  amendment,  w^hen  amended),  without  the  attendance 
of  the  Clerk  of  Records  and  Writs.* 


235;  Atkins  v.  Faulkner,  ubi  supra;  but 
see  Singleton  v.  Gale,  8  I'orter,  270;  Wil- 
kins  V.  Wilkins,  4  I'orter,  245,  where  it  is 
said,  that  before  a  decree  is  pionounced  on 
a  bill  pro  amftsso,  the  Court  must  be  satis- 
tied  by  sufficient  evidence,  of  the  justice 
of  the  plaintiff's  demand.  See  also  Levert 
t'.  Redwood,  9  I'orter,  80.  In  an  anony- 
mous case,  4  Hen  &  M.  47G,  it  was  held, 
that  on  a  bill  taken  pi-u  cunfesso,  a  plain- 
tiff Ciinnot  obtain  a  final  decree  with- 
out filing  his  documents,  and  proving  his 
case;  see,  liowever,  the  qucert  upon  this 
point  in  Coleman  v.  L.\ne,  4  Rand.  454. 
In  Larkin  v.  ilann,  2  I'aige,  27,  it  was 
held,  that  if  a  bill  be  taken  pro  confesso, 
the  proof  of  the  plaintitPs  title  may  be 
made  before  a  iVIaster,  on  reference.  But 
if  an  is>ue  of  lact  is  joined  in  the  cause, 
the  plaintifl'  may  make  the  necessary  proof 
and  produce  the  abstract  of  the  convey- 
ances, before  the  exmniner.  In  I'endleton 
V.  Evans,  4  Wash.  C.  C.  391,  it  was  held, 
that  if  a  bdl,  being  for  the  balance  of  an 
account,  is  taken  pro  confesso,  the  amount 
must  be  referred  to  a  jNI aster.  Tlie  decree 
is  always  nisi.  See  h'obertson  v.  Miller, 
2  Green  Ch.  451;  post,  531,  note. 

Where  a  bill  agiiinst  heirs  does  not 
allege,  that  an3'  estate  has  descended,  tak- 
ing it  pro  confesso  will  not  amount  to  a 
confiession  that  any  has.  Carneal  v.  Day, 
2  Lift.  397. 

Where,  to  a  bill  against  resident  and 
non-resident  defendants,  the  resident  de- 
fendants answer,  denying  all  the  equity  of 
the  bill,  and  it  is  taken  pro  confesso  against 


the  others,  without  proof,  no  decree  can  be 
taken,  even  against  the  latter.  Cunning- 
ham V.  Steele,  1  Lilt.  58.  It  a  bill  is  taken 
pro  confesso  against  a  defendant,  who  is 
absent  from  the  State,  he  maj',  under 
the  statute  of  New  York,  come  in  after 
the  decree  and  answer  and  defend  the 
suit.  Davoue  t'.  Fanning,  4  John.  Ch.  199. 
A  decree  is  erroneous,  if  taken  against 
infants,  by  default,  without  proof,  thuugh 
there  be  a  guardian  ad  litem.  iMassie  v. 
Donaldson,  8  Ohio,  377;  see  Carneal  v. 
Stlireshley,  1  A.  K.  Marsh.  471;  Chaflin  «. 
Kimball,  23  III.  26.  For  forms  of  decree 
when  bill  is  taken />7'0  corfesso,  see  Brown 
V  Home,  8  Beav.  tilO;  feeton,  1128,  No.  1. 
As  to  Setting  down  the  cause  lor  hearing, 
bue  post,  Ctiap.  XXllI. 

1  Ord.  XXII.  7;  Gi eaves  v.  Greaves,  12 
Beav.  422;  and  for  form  of  decree  in  ihaD 
case,  see  Seton,  1128,  No.  2;  see  note  above. 

•■'  Ord.  XXII.  8.  The  Court  will  only 
make  such  a  decree  as  it  would  have  made, 
if  the  defendant  had  appeared.  Brurly 
V.  Ward,  15  ,Jur.  277,  V.  C  K.  B.,  which 
was  a  foreclosure  suit ;  see  Haynes  v.  Ball, 
4  Beav.  103;  Stanley  v.  Bond,  ti  Beav. 
421;  Simmonds  ».  I'alles,  2  .Jo.  &  Lat.  489. 

8  Ord.  XXII.  8;  Grover  &  Uaker  Sew- 
ing Machine  Company  v.  Millard,  8  Jur. 
N.  S.  713,  V.  C.  W.  Notice  of  an  order 
pro  confesso  must  be  given  before  final 
decree.  VVampler  v.  Wolfinger,  13  Md. 
337. 

4  Ord.  13  .July,  1861.  No  fee  is  paya- 
ble, on  stamping  the  copj'. 


HEARING,   DECREE,  AND    SUBSEQUENT    PROCEEDINGS.  527 

A  decree,  founded  on  a  bill  taken  p^o  confesso,  is  to  be  passed    Ch.  XI.  §  2. 

and  entered  as  other  decrees  ;  ^  and  thereupon  an  office  copy  of  it   "-^ > ' 

must  (unless  the  Court  dispenses  with  service  thereof)  be  served  Senice  of 
on  the  defendant  against  whom  the  order  to  take  the  bill  pro  corv-  '^6^^®^' 
fesso  was  made,  or  his  solicitor ;  and  where  the  decree  is  not  abso-  and  notice, 
lute,2  such  defendant,  or  his  soUcitor,  is  to  be  at  the  same  time   abgXte-^ 
served  with  a  notice,  to  the  effect,  that  if  such  defendant  desires 
permission  to  answer  the  plaintiff's  bill,  and  set  aside  the  decree, 
application  for  that  purpose  must  be  made  to  the  Court  Avithin  the 
time  specified  in  the  notice,  or  that,  otherwise,  such  defendant  will 
be  absolutely  excluded  from  making  any  such  application.^ 

If  such  notice  is  to  be  served  within  the  jurisdiction  of  the  Court,   time  to  be 
the  time  therein  specified  for  such  appUcation  to  be  made  by  the  ^"^"j^g';'^ '° 
defendant,  is  three  weeks  after  service  of  such  notice ;  but  where 
such  notice  is  to  be  served  out  of  the  jurisdiction  of  the  Court, 
such  tune  is  to  be  specially  appointed  by  the  Court,  on  the  ex  ^Mrte 
application  of  the  plaintiff.* 

In  pronouncing  the  decree,  the  Court  may,  either  upon  the  case   court  may, 
stated  in  the  bill,  or  upon  that  case,  and  a  petition  presented  by  f^^'^direcr 
the  plaintiff  for  the  purpose,  as  the  case  may  require,  order  a 
receiver  of  the  real  and  personal  estate  of  the  defendant,  against  receiver  to  be 
whom  the  bill  has  been  ordered  to  be  taken  pro  con/esso,  to  be  *PP°'"  ®  ' 
a})pointed,  with  the  usual  directions,  or  direct  a  sequestration  of  or  seques- 
such  real  and  personal  estate  to  be  issued,  and  may  (if  it  appears    ^°' '""' 
to  be  just)  direct  payment  to  be  made  out  of  such  real  or  personal  and  paj-- 
estate  of  such  sum  of  money,  as  at  the  hearing,  or  any  subsequent  ^^^^' 
stage  of  the  cause,  the  plaintiff  appears  to  be  entitled  to:  pro- 
vided that,  unless  the  decree  be  absolute,  such  payment  is  not  to   upon  security 
be  directed  without  security  being  given  by  the  plaintiff  for  resti-  ti*mrif  decree 
tution,  in  case  the  Court  afterwards  thinks  tit  to  order  restitution  not  absolute. 
to  be  made.*     But  no  proceeding  is  to  be  taken,  and  no  receiver 
appointed    under   the   decree,   nor   any   sequestrator,   under   any  But  direction 

'  '  .         .  ,  .  '  .1  r  •  \     ^   1  •  i-    not  to  be 

sequestration  issued  in  jtursuance  thereoi,  is  to  take  possession  oi,  acted  upon 
or  in  any  manner  intermeddle  with  any  part  of  the  real  or  personal 
estate  of  a  defendant,  and  no  other  process  is  to  issue  to  comi)el 
performance  of  the  decree,  without  leave  of  the  Court,  to  be  ob- 
taine<l  on  motion,  with  notice  served  on  such  defendant,  or  his 
solicitor,  unless  the  Court  dispenses  with  such  service.*' 

1  Ord.  XXII.  10.  is  kept  in  the  Kegistrar's  oflicc;  and  the 

2  Ord.  XXII.  H,tJAsup.  Decree  against  pp'iiLT  time  is  inserted  by  tlie  lifgistrar  in 
a  bare  trustee  made  au.solute  in  tlie  first  tlic  order,  in  drawiug  it  up.  For  form  of 
in.s'ance,  nnd  service  on  liini  dispeiiHud  order,  see  Set' n,  1130,  No.  1;  and  for 
Willi.     I, cite  u.  Vicini,  12  W.  K.  by",  M.  H.  forms  ol    motion   paper,    and   allidavit  in 

8  Urd.  XXII.  11;  see  r/n<e,  &'.i4  and  note.  support,  seer  Vol.  III. 
For  form  of  notice,  see  Vol.  III.  '>  Ord.  XXII.  'J;    see  Lett  v.  Kiindall,  7 

*  (Jrd.  XXlI.  12.     A  list  of  times  for  the  .Jur.  lU?.');    I'orr  i;   Torr,  .lohn.  (JtiO. 
different  colonic^,  and   foreign   countries,  o  (^)r,i.  XXII.  13.    The  motion,  of  which 

according  to  their  distance  fiom  Luglaiid,  notice  is  to  he  thus  given,  is  uul  fur  the 


without 
leave. 


528 


TAKING   BILLS    VllO   CONFESSO. 


Cii.XI.  §2. 


When  decree, 
not  absolute 
at  hearing, 
may  become 
absolute. 


What  suf- 
ficient notice, 
under  Ord. 
XXII.  11. 


Application 
to  dispense 
with  service, 
to  be  made 
after  expira- 
tion of  three 
years. 

Summons  to 
proceed  must 
also  be 
6er\'ed. 


Any  (lofoiulant,  waiving  all  ol)joction  to  the  order  to  take  the 
bill  pro  co?ifesso,  and  submitting  to  pay  such  costs  as  the  Court 
niay  direct,  may,  before  enrolment  of  the  decree,  have  the  cause 
reheard,  upon  the  merits  staled  in  the  bill  :  the  petition  for  rehear- 
ing being  signed  by  counsel,  as  other  jtetitions  for  rehearing.^ 

In  cases  where  a  decree  is  not  absolute  xuider  Rule  8,  the  Court 
may  order  the  same  to  be  made  absolute,  on  the  motion  of  the 
plaintiff,  made, — 

1.  Alter  the  expiration  of  three  Aveeks  from  the  service  of  a  copy 
of  the  decree  on  a  defendant,  where  the  decree  has  been  served 
within  the  jurisdiction. 

2.  After  the  expiration  of  the  time  limited  by  the  notice  pro- 
vided for  by  Rule  11,  wliere  the  decree  has  been  served  without 
the  jurisdiction. 

3.  After  the  expiration  of  three  years  from  the  date  of  the 
decree,  where  a  defendant  has  not  been  served  with  a  copy 
thereof.^ 

And  such  order  may  be  made,  either  on  the  first  liearing  of  such 
motion,  or  on  the  expiration  of  any  further  time  which  the  Court 
may,  on  the  hearing  of  such  motion,  allow  to  the  defendant  for 
presenting  a  petition  for  leave  to  answer  the  bill.^ 

Where  a  defendant  was  out  of  the  jurisdiction,  service  of  an 
office  copy  of  the  order,  limiting  the  time  within  which  he  might 
apply  for  leave  to  ansAver  the  bill,  and  set  aside  the  decree,  was 
held  to  be  a  sufficient  notice  under  the  rule  above  referred  to.* 

The  application  to  the  Court,  to  dispense  with  service  of  the 
decree,  should  be  made  after  the  expiration  of  the  three  years 
mentioned  in  Rule  15.^ 

Where  proceedings  are  to  be  taken  in  Chambers  under  the  de- 
cree, the  defendant  must  be  served  with  the  summons  to  proceed 
upon  the  decree,  as  well  as  with  the  decree ;  and  no  proceedings 
ought  to  be  taken  in  Chambers,  until  the  expiration  of  the  time 
limited  for  setting  aside  the  decree.® 


appointment  of  a  receiver  (which  may  be 
done  unrJer  the  decree,  without  notice),  but 
that  the  receiver  may  take  possei^sioti. 
Dresser  v.  Morton,  2  Pliil.  286;  and  see 
Brown  v.  Home,  10  Heuv.  400,  where  leave 
was  given  to  jilamtiir,  under  tliis  rule,  to 
issue  process  ol  contempt.  For  forms  of 
orders  under  this  rule,  see  Seton,  1131, 1132, 
Nos.  3, 4, 5 ;  and  lor  forms  of  notice  of  motion, 
see  Vol.  III. 

1  Ord.  XXII.  14.  And  see  post,  Chap. 
XXXII.,  Rtlitarinys  and  Apptah. 

2  Unl.  XXII.  lu.  This  period  will  not 
be  di>ix;n>-ed  with.  Darlow  v.  Siiiiiock,  1 
W.  AI.  154,  V.  C.  K. 

8  For  form  of  order,  see  Seton,  1130,  No. 


2;  and  for  forms  of  motion  paper,  and 
affidavit  iti  support,  see  Vol.  III. 

4  Irilly  V.  Keefe,  16  Beav  83;  16  Jur. 
442. 

''  Vaughan  v.  Rogers,  11  Beav.  165; 
James  v.  Kice,  5  De  G.,  M.  &  G.  401;  18 
Jur.  818.  It  was  dispensed  witli  before 
the  cxpiniti<m  of  the  three  years,  however, 
in  Kemp  v.  Latter,  16  Jur.  770,  M.  K. ; 
Bentiow  V.  Davies,  12  Beav.  421;  and  see 
Hrierly  v.  Ward,  15  Jur.  277,  V.  C  K.  B. 
These  cases  are,  it  is  conceived,  overruled 
by  James  v.  Hice ;  and  see  Tliurgood  v. 
Cane,  11  \V.  K.  2'j7,  M.  K. 

fi  Golden  V.  Newton,  Johns.  720;  andsee 
King  V.  Bryant,  3  xM.  &  C.  191, 196;  2  Jur. 
106. 


HEARING,   DECREE,  AND    SUBSEQUENT    PROCEEDINGS. 


529 


Where  the  decree  is  not  absolute  under  Rule  8,  and  has  not 
been  made  absolute  under  Rule  15,  and  a  defendant  has  a  case 
upon  merits  not  appearing  m  the  bill,  he  may  aj^ply  to  the  Court 
by  petition,  stating  such  case,  and  submitting  to  such  terms  with 
respect  to  costs  and  otherwise,  as  the  Court  may  think  reasonable, 
for  leave  to  answer  the  bill ;  and  the  Court,  if  satisfied  that  such 
case  is  proper  to  be  submitted  to  the  judgment  of  the  Court,  may, 
if  it  thinks  fit,  and  upon  such  terms  as  seem  just,  vacate  the  en- 
rolment (if  any)  of  the  decree,  and  permit  such  defendant  to  answer 
the  bill ;  ^  and  if  permission  be  given  to  put  in  an  answer,  leave 
may  be  given  to  file  a  separate  replication  to  such  answer ;  and 
issue  may  be  joined,  and  witnesses  examined,  and  such  proceedings 
bad,  as  if  the  decree  had  not  been  made,  and  no  proceedings  against 
such  defendant  had  been  had  in  the  cause.^ 

The  rights  and  liabilities  of  any  plaintiff"  or  defendant,  under  a 
decree  made  upon  a  bill  taken  j-^ro  coiifesso,  extend  to  the  represent- 
atives of  any  deceased  plaintitt"  or  defendant,  and  to  any  persons 
chiiming  under  any  person  who  was  plaintiff"  or  defendant  at  the 
time  when  the  decree  was  pronounced ;  and  with  reference  to  the 
altered  state  of  parties,  and  any  new  interests  acquired,  the  Court 
may,  upon  motion  or  petition,  served  in  such  manner,  and  supported 
by  such  evidence  as,  under  the  circumstances  of  the  case,  the  Court 
deems  sufficient,  permit  any  party,  or  the  representative  of  any 
party,  to  file  such  bill,  or  adopt  such  proceedings  as  the  nature 
and  circumstances  of  the  case  require,  for  the  purpose  of  having 
the  decree  (if  absolute)  duly  executed,  or  for  the  purpose  of 
having  the  matter  of  the  decree  (if  not  absolute)  duly  considered, 
and  the  rights  of  the  parties  duly  ascertained  and  determined.* 

The  Act  of  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  is  not,  as  has  been 
before  observed,  repealed  ;  *  and  although  the  general  practice  is, 
in  all  cases  where  bills  are  intended  to  be  taken  j^ro  con/esso, 
to  proceed  under  the  General  Orders  which  have  been  above 
referred   to,  yet,  special  cases   may  still  occur  under  the  Act ; '' 


Ch.  XI.  §  2. 


J  UnJer  the  19th  txjiiity  Rule  of  the 
United  States  Courts,  when  the  bill  is 
taken /wo  confessn,  the  Court  rniiy  proceed 
to  a  (lec-ree  at  the  next  ensuing  term  there- 
of, Hud  such  decree  rendered  Khali  be 
deemed  absolute,  unless  tlie  Court  shall, 
at  the  Riime  term,  set  aside  the  same,  or 
enlarge  the  time  lor  lilinK  the  answer,  upon 
cause  shown  upon  motion  iiiid  iiHiilavit  of 
the  defendant.  And  no  such  motion  .shall 
be  ((runted,  unless  up'>n  the  jmvment  of 
the  costH  of  the  phiintiir  in  the  suit  up  to 
thiit  time,  or  such  part  tlierer)f  as  the  Court 
shall  d'-em  rea-i  nable,  and  unless  the  <lo- 
fendiint  slinll  un'ieriake  to  file  his  answer 
within  such  time  as  the  Court  shall  direct, 
and  submit  to  such  other  terms  as  the 
Court  shall  direct,  for  the  purpose  of  speed - 
VOL.  I.  34 


How  far  rep- 
rei^entatives 
of  parties 
bound. 


Procedure 
under  11  Geo. 
IV.  &  1  Will. 
IV.  c.  36: 

is  now 
obsolete. 


ing  the  cause;  see  Wooster  «.  WoodhuU, 

1  John.  Cli.  539;  Purker  v.  Cniiit,  IJuhn 
Ch.  030;  Williamson  i-.  Sykes,  2  Beaslev 
(N.  .1.),  182;  Kobertsoii  r.  .Miller,  2  Grc.  h 
Ch.  451;  Emery  v.  downing,  2  lleasley 
(N.  J.),  69,60;  Oram  I'.  Otnuisoii,  2  iJeas- 
ley  (N.  J.),  238;  aule,  624,  note. 

••^Ord.  .\.\II   10.     Inlnglisy.  Cumjibell, 

2  W.  K.  3%,  V.  C.  K.,  which  was  a  fore- 
closure suit,  permission  wus  given  under 
this  rule,  on  paynn  tit  of  the  costs  ot  the 
application  and  of  the  suit. 

a  Urd.  XXII.  17. 

■»  Ante,  p.  518;  Wilkin  v.  Naiuby,  4 
Hare,  470;  10  Jur.  735. 

Ml  Geo.  IV.  &  1  Will.  IV.  c.  30,  §§3-8 
iinlusive. 


330 


TAKING  BILLS    VllO   CONFESSO. 


(^1.  XI.  $-2. 


Statuton- 
tiine  at  which 
decree 
becomes 
absolute. 


Statute 
applied  only 
to  cases  where 
defendant 
had 
absconded. 


General 
Order  applies 
to  all  cases. 


Statutory 
provision,  as 
to  bills  for 
discovery, 
where 

defendant  is 
privileged. 


but  thov  will  ]>vi)bal)ly  be  so  rare  that  it  is  not  thonglit  desira- 
ble, in  the  present  work,  to  refer  to  the  provisions  of  the  Act  in 
detail. 

It  may  be  observed  tliat,  under  the  Act,  a  decree  did  not  be- 
come absolute  against  a  defendant  who  was  out  of  the  realm,  or 
had  absconded,  and  had  never  been  served  with  a  copy  of  it,  until 
the  exjiiration  of  seven  years  from  the  date  of  the  decree;^  where- 
as, under  the  15th  Rule  above  refeiTed  to,  the  Court  may,  in  the 
same  case,  order  the  decree  to  become  absolute,  after  the  expiration 
of  three  years  from  the  date  of  the  decree.^ 

The  pi'ovisions  of  the  statute  applied  only  to  cases  where  the 
defendant  absconded  to  avoid  being  served  with  process.'  In 
cases  falling  within  the  ordinary  course  of  the  Court,  unaffected 
by  the  statute,  a  decree  made,  upon  taking  a  bill  pro  confesso,  was 
absolute  in  the  first  instance,  and  no  day  was  given  for  showing 
cause  against  it.* 

The  General  Order,  however,  applies,  as  we  have  seen,^  as  well 
to  suits  where  the  defendant  absconds,  as  to  other  cases  where  the 
plaintiff  is  enabled  to  have  his  bill  taken  pro  confesso  for  want 
of  answer.  It  introduces,  as  w^e  have  seen,"  some  peculiarities 
into  the  manner  of  proceeding  under  a  decree  obtained  by  the  bill 
being  taken  pro  confesso  ;  but,  in  all  other  respects,  a  decree  pro 
confesso  is  executed  in  the  same  manner  as  a  decree  made  upon  a 
regular  hearing. 

With  respect  to  bills  for  discovery,  the  General  Order  does  not 
make  any  distinction  between  such  bills,  and  bills  for  reUef ; ''  but 
the  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  36,  gives  an  additional  facility 
in  obtaining  the  order  to  take  a  bill  for  discovery  pro  confesso,  as 
against  a  person  having  privilege  of  Parliament :  for,  in  the  case  of  a 
bill  for  relief,  no  order  to  take  the  InW  pro  confesso  can  be  obtained 
against  a  privileged  defendant,  until  the  writ  of  sequestration 
has  issued;  but  under  the  13th  section  of  that  Act,  in  the  case  of 
a  bill  for  discovery,  the  Court  may,  upon  the  application  of  the 
plaintiff,  as  soon  as  the  time  for  answering  has  expired,  although 
no  sequestration  has  issued,  order  the  bill  to  be  taken  pro  confesso, 
unless  the  defendant  shall,  within  eight  days  after  being  served 
with  such  order,  show  good  cause  to  the  contrary.  With  this 
exception,  there  does  not  seem  to  be  any  difference  between  the 
case  of  a  bill  for  discovery  and  one  for  relief,  so  far  as  regards  the 
practice  in  obtaining  an  order  to  take  the  bill  pro  confesso  /  but 
after  the  preliminary  order  is  obtained,  there  does  not  seem  to  be 


30, 


1  11  Geo.  IV.  &  1  Will.   IV 
5  5,8. 

2  Ord.  XXir.  15. 

3  Ante,  p.  518. 

<  Laudon  v.  Keady,  1  S.  &  S.  44;  Ogil 


vie  V.  Ilearne,   13  Ves.   563;    Knight  v. 
Young,  2  V.  &  B.  184. 

5  Ante,  p.  518. 

6  Ante.  pp.  525-528. 

7  See  Gaines  v.  Fisher,  1  John.  Ch.  8. 


HEARING,  DECREE,   AND    SUBSEQUENT    PROCEEDINGS.  531 

any  necessity  for  a  fiirther  hearing  of  the  cause,  unless  it  is  ren-    Cn.  xi.  §  2. 
dered  necessary  by  the  General  Order.^  -^ y ' 

There  is  a  case  of  Logan  v.  Grant^  before  Sir  Thomas  Plumer  Wiiether  §  13 
V.  C,  by  the  report  of  which  it  would  appear,  that  he  considered  appJeslfbm 
that  the  45  Geo.  III.  c.  124,  §  5,^  which  is  identical  in  language  for  relief, 
with  the  13th  section,  just  referred  to,  applied  to  bills  for  relief,  as 
well  as  to  those  for  discovery,  and  that  he  made  an  order  to  take 
a  bill  pro  confesso,  upon  this  construction  of  the  Act.     In  the  case 
before  him,  a  sequestration  had  issued,  so  that  by  the  ordinary 
practice  of  the  Court,  independent  of  the  statute,  the  plaintiff  was 
entitled  to  have  his  bill  taken  ^>ro  confesso:^   consequently,  there 
was  no  occasion  for  any  decision  upon  the  statute.     The  words  of 
the  13th  section  seem  clearly  applicable  only  to  bills  for  discovery; 
and  this  is  the  construction  which  was  put,  by  Lord  Eldon,  upon 
the  5th  section  of  the  former  Act,  above  mentioned.^ 

Ai'ter  the  order  has  been  pronounced  for  taking  a  bill  j^'i'O  goiv-  After  order, 
fesso,  the  bill,  or  an  examined  copy  thereof,  is  to  be  taken  and   l»ll  n?ay  be 

.  T-i  •  re&a  in  evi- 

read,  m  any  Comt  of  Law  or  Equity,  as  evidence  of  the  facts,  dence,  as  an 
matters,  and  things  therein  contained,  in  the  same  manner  as  if  adndnin"- 
such  facts,  matters,  and  tilings,  had  been  admitted  to  be  true,  by  the  facts: 
the  answer  of  the  defendant  put  in  to  such  bill,®  and  such  bill,  so 
taken  pro  confesso^  is  to  be  received  and  taken  in  evidence  of  such 
and  the  same  facts,  and  on  behalf  of  such  and  so  many  persons,  as 
the  answer  of  the  defendant  to  the  bill  could  and  might  have  been 
read  and  received  in  evidence  of,  in  case  such  answer  had  been 
put  in  by  the  defendant  thereto,  and  had  admitted  the  same  facts, 
matters,  and  circumstances,  as  in  such  bill  stated  and  set  forth ; 
and  in  like  manner,  every  other  bill  of  discovery  taken  pro  cori- 
Jhsso,  under  any  of  the  provisions  of  the  Act,  is  to  be  taken  and 
read  in  evidence  of  the  facts,  and  matters,  and  things  therein  con- 
tained, to  the  extent  aforesaid.'     It  may  be  observed,  that  this 
l;ist   provision   for  making  the  bill   evidence,  is  not   confined  to 
privileged  defendants,  l>ut  it  apphes  to  all  cases  where  tlie  bill  is   j,,  gjl  cases 
taken  p*ro  confesso  under  the  provisions  of  the  Act.     It  does  not 
seem  that  there  is  any  direct  order  or  statute,  by  whicli  a  bill 
taken  pro  confesso,  otherwise  than  under  the  Act,  is  made  evidence 
against  the  defendant.^ 

'  ()r<l.  XXn.  C.  _  taken  as  Cfnilesseil,  to  renuirc  proof  of  all 

'^  1  Mud.  G2^;,  ex  relatione.  or  anv  portion  of  the   allej^^atidns  in  the 

8  Repealed  by  1 1  Geo  IV.  &  1  Will.  IV.  bill ;  iuuth  v.  Trimble,  27  III.  V,2\  Steehens 

c.  30,  §  1.  V.  IJickiieli,  27  III.  444;  or  the  Court  may 

*  Ante,  p    453.  take  the  allef^ation.n  as  confesseil,  and  eii- 

f>  .lones  t'.  Diivis,  17  Ves.  368.  ter  tlie  d.-cree  without  proof.     Harmon  r. 

«  See  Mallord  r.   Brown,  4  I'aJL'e.  360;  Campbell,  HO  III.  2r,.     j'.ut  it  is  opiMi  to  the 

Atkins  I'  Faulkner,  11  Iowa  (3  With. ),  326;  deli'inlant  on  error  to  show  thnl   the  aver- 

iiitlc,  .026,  note.  meiits  in  the  bill  do  not  jui-tily  the  decree. 

7  11  (Jeo.  IV.  &  1  Will.  IV.  c  36,  §  14.  Gault  v.  IIoaKland,  26  III.  266. 

8  See  ante,  026,  note.     Hut  it  is  discre-  In  all  suits  (or  the  I'oreelosure  or  satia- 
tionary   with   the    Court,  where   a  bill  is  faction    of  u   mortgage,   in    New   Jersey, 


532 


TAKING    BILLS    PRO    CONFESSO. 


Ch.  XI.  §  2.  wlicn  the  plaintiff's  bill  slinll  bo  ordered  to 
be  taiion  as  conlossed,  or  fbo  del'eiidant 
sball  make  default  at  tiie  liearing,  aiul  tbe 
whole  niuouiit  of  the  debt  inteiuled  to  bo 
secured  by  the  mort^ane  shall  have  become 
due,  no  order  of  relereuce  to  a  Master  to 
ascertain  and  rejiort  the  sum  due  to  tlie 
plaintid'  shall  be  necessary,  unless  specially 
directed  by  the  Court ;  but  a  report  by  a 
Master  being  made  of  the  amount  due  upon 
tlie  mortgage,  the  same,  if  no  cause  is 
shown  to  tlie  contrary,  shall  be  filed  of 
course,  and  without  any  motion  or  rule  for 
that  purpose,  or  for  confirmation,  and  a 
decree  made  accordinglj-.  So,  in  all  cases, 
where  the  plaintifTs  bill  shall  be  taken  as 
confessed  against  the  mortgagor,  and  other 


defendants  claiming  to  be  incumbrancers 
file  their  answer  or  answers  setting  up  said 
incumbrances,  if  the  order  of  priority  shall 
not  appear,  upon  the  face  of  the  pleadings, 
to  be  disputed  by  the  parties,  either  plain- 
tiff or  defendant,  and  the  amounts  respec- 
tively claimed  as  due  do  not  appear  to  be 
denied,  and  a  report  be  made  upon  an 
order  of  reference  to  a  Master,  it  shall  not 
be  necessarj'  to  enter  a  rule  nisi  to  confirm 
the  report,  or  to  set  the  cause  down  for  a 
hearing  upon  it;  but  a  decree  final  may 
be  entered  thereon,  as  of  course,  upon  the 
coming  in  of  the  Master's  report.  Chan- 
cery Rules  of  New  Jersey,  84,  86,  88;  2 
McCarter,  631. 


CHAPTER   Xn. 


THE    DEFENCE    TO    A    SUIT. 


In  the  preceding  chapters,  the  attention  of  the  reader  has  been 
principally  directed  to  the  case  on  the  part  of  the  plaintiff,  the 
method  of  submitting  it  to  the  Court,  and  the  means  provided  by 
the  practice  of  the  Court  for  compelling  the  defendant  to  submit 
himself  to  its  jurisdiction;  or,  in  case  of  his  refusal,  of  depriving 
him  of  the  benefit  of  his  contumacy,  by  giving  to  the  plaintiff  the 
relief  to  which  the  justice  of  his  case  appears  to  entitle  him.  The 
line  of  conduct  to  be  jmrsued  by  a  defendant,  who  is  willing  to 
submit  himself  to  the  authority  of  the  Court,  and  to  abide  its 
decision  upon  the  matter  in  litigation,  will  now  be  considered. 

The  first  step  to  be  taken  by  or  on  behalf  of  a  defendant  who 
intends  to  defend  the  suit,  is  to  enter  an  appearance  within  the 
proper  time,  at  the  ofiice  of  the  Clerks  of  Records  and  Writs.^ 
Unless  the  suit  is  defended  by  the  defendant  in  personj  this  is 
done  by  his  soUcitor.  A  special  authority  is  not  necessary  to 
enable  a  solicitor  to  undertake  the  business ;  a  general  authority 
to  act  as  solicitor  for  his  client  is  sufficient :  ^  although  a  solicitor 
ought  not  to  take  upon  himself  to  enter  an  aj^pearance  for  a  de- 
fendant without  some  authority;  and  where  a  solicitor,  without 
any  instruction,  had  caused  an  appearance  to  be  entered  for  an 
infant  defendant,  the  appearance  was  ordered  to  be  set  aside,  and 
the  solicitor  to  ]>ay  the  costs.^  The  retainer  need  not  be  in  writ- 
ing ;  *  but  if  it  is  not,  and  his  authority  is  afterwards  challenged, 
the  solicitor  nms  a  risk  of  having  to  pay  the  costs,  if  he  have  only 
assertion  to  offer  against  assertion.'' 

The  «U'f('n<lant  will  know  whetlier  or  not  an  appearance  is  re- 
quired, by  the  copy  of  the  bill  with  which  he  is  served:  if  it  bears 
an  indorsement  commanding  his  a])j)earance,  he  must  appear;  but 
if  there  is  no  such  indorsement,  his  a])pearance  is  not  required." 


Course  to  be 
pursued,  to 
defend  a  suit ; 


Entry  of  ap- 
pearance. 


General  au- 
thority to  act 
sufficient. 


Authority 
need  not  be 
in  writing. 


Necessity  for 
appearance : 
how  indi- 
cated. 


1  Ord.  I.  35. 

2  Wright  «.  Castle,  3  Mer.  12;  ante,  p. 
307. 

•  Richards  v.  Dadley,  Rolls,  sittings 
nftfT  Triiiitv  Term,  183*  ;  andsecLeese  v. 
Knight,  8  Jur.  N.  S.  1000;  10  W.  li.  711, 


V.  C.  K.;  see  Amer.  Ins.  Co.  r.  Dadlev,  9 
I'aipe.  496. 

*  Lord  V  KelJett,  2  M.  &  K.  1.  For 
form  of  retainer,  see  Vol.  III. 

6  Wiggins  V.  I'oppiii,  2   IJeav.  403,  405. 

0  See  ante,  p.  440,  post,  p.  538. 


534 


THE    DEFENCE    TO    A    SUIT. 


Cn.  XII. 


DotViuos 
open  to  lie- 
ti'iulaiit : 

By  luiswer; 
it'  not  intor- 
roLcatod,  not 
homul  to  au- 

but  may  put 
in  a  volun- 
tarv  answer. 


By  demurrer, 
or  plea. 


The  aofondnnl  liaviiii^  ;i].i)(>;iiv.I  to  ihe  bill,  the  next  point  for 
ooiisidoration  in  the  ()i-<linary  course  of  tlic  cause  is,  the  nature  of 
the  defence  to  be  jnit  in.^  It  was  formerly  incumbent  upon  :i  de- 
fendant, \inless  he  pleaded  or  demurred  to  the  bill,  to  put  in  an 
answer  of  some  descrii)tion  ;  but  now,  since  the  Chancery  Amend- 
ment Act  of  185*2,  unless  interrogatories  are  filed,  and  a  copy  of 
them  duly  served  on  liim  or  liis  solicitor,  the  defendant  is  not 
obliged  to  put  in  an  answer,'^  He  may,  however,  put  one  in,  if  he 
thinks  fit,  even  though  no  interrogatories  are  served :  ^  the  answer 
in  such  case  being  called  voluntary.*  The  propriety  of  putting  in 
a  vohuitary  answer  depends  upon  the  circumstances  of  each  case ; 
and,  in  general,  where  the  defendant  relies  upon  a  case  which  does 
not  appear  upon  the  bill,  he  should  put  in  a  voluntary  answer.  If 
he  does  not  do  so,  he  will  be  considered  to  have  traversed  the 
case  made  by  the  bill.^  The  defendant  will  therefore,  in  general 
have  to  see  whether  any  answer  is  called  for  from  him,  and  if  not, 
whether  the  circumstances  of  the  case  require  that  he  should  put 
in  a  voluntary  answer. 

It  may,  however,  happen  fi-om  some  cause,  either  apparent  upon 
the  face  of  the  bill  itself,  or  capable  of  being  concisely  submitted 
to  the  Court,  that  the  plaintiff  is  not  entitled  to  the  relief  or  part 
of  the  relief  which  he  has  prayed :  in  such  cases,  the  defendant 
may,  according  as  his  objection  goes  to  the  whole  or  to  part  of  the 
reUef,  submit  the  grounds  upon  which  he  considers  the  plaintiff 
not  entitled  to  what  he  seeks,  in  a  concise  form  to  the  Court,  and 
pray  the  judgment  of  the  Court  whether  the  plaintiff  is  entitled  to 
the  reUef  prayed  by  his  bill,  to  which  the  defendant  objects. 
This  species  of  defence,  if  the  objection  appeals  upon  the  face  of 
the  bill  itself,  is  made  by  Demurrer;  ^  but  if  it  depends  upon  any 
matter  not  in  the  bill,  it  must  be  submitted  to  the  Court  in  the 
form  of  a  Plea?  If  the  defence  submitted  to  the  Court,  in  either 
of  the  above  forms,  is  admitted,  or  held  upon  argument  to  be  good, 
the  effect  of  it,  if  it  be  a  demurrer,  is  to  put  the  bill,  or  that  part 
of  it  which  has  been  demurred  to,  out  of  Court ;  or,  if  it  be  a  plea, 
to  Umit  the  matter  in  dispute  to  the  question  whether  the  point 
raised  by  it  be  true  or  not :  in  which  case,  if  the  defendant  suc- 
ceeds in  estabUshing  the  point  raised  by  the  plea,  by  evidence  at 
the  hearing,  the  bill,  so  far  as  it  is  covered  by  the  plea,  will  be 
dismissed.  If  the  demurrer  or  plea  be  held  upon  argument  to  be 
bad,  the  effect  of  the  judgment  of  the  Court,  in  general,  is,  that 
the  defendant  must  defend  the  cause,  and  put  in  an  answer  to.  the 


1  In  Massachusetts  "  a  defence  in  Equity 
shall  be  made  by  deinurrer,  plea,  or 
answer."  Genl.  Sts.  c.  113,  §  5;  see  Story 
Eq.  I'l.  §  433  et  seq. 

2  15  &  16  Vic.  0.  86,  §  12. 


8  lb.  §  13. 

4  See  forms  of  answers.  Vol.  III. 

5  15  &  n  Vic.  c.  86,  §  26. 

6  See  forms  of  demurrer,  Vol.  III. 

7  See  forms  of  plea,  Vol.  III. 


THE    DEFENCE    TO    A    SUIT.  535 

interrogatories,  if  any  have  been  served :  he  may,  however,  if  his      Ch.  xii. 

first  defence  has  been  by  demurrer,  be  admitted,  under  certain    ""^ y ^ 

circumstances,  to  dispute  tlie  right  of  the  phimtiff  to  the  relief 
prayed,  by  means  of  a  plea ;  or  by  demurrer  less  extensive  than 
the  first. 

K  the  defendant  thinks  proper  to  relinquish  any  claim  he  may  By  disclaim- 
have  to  the  property  in  question  in  the  suit,  he  can  do  so  by  put-  ^^' 
ting  in  a  species  of  answer  called  a  Disclaimer  /   by  which  he 
disclaims  all  interest  in  the  matters  in  question  in  the  suit.-^ 

1  See  forms  of  disclaimer,  Vol.  III. 


CHAPTER  XIII. 


APPEARANCE. 


A)ipoarance 
de  lined: 


Conditional 
appearance. 


Where  entry 
of  appearance 
dispensed 
with. 


Appearance  is  the  process  by  which  a  person,  against  wliom  a 
suit  has  been  commenced,  submits  himself  to  the  jurisdiction  of 
the  Court ;  and  he  will  not  be  permitted  to  take  any  step  in  the 
cause  until  an  appearance  has  been  entered  on  his  behalf.^  Even 
if  he  desires  to  object  to  the  regularity  of  the  proceeding  by  which 
the  plaintiff  has  sought  to  compel  his  appearance,  he  must  first 
enter  what  is  called  a  conditional  appearance.'^  Where,  however, 
a  defendant  had  appeared  by  counsel  at  the  hearing  of  a  motion, 
and  by  the  order  then  made  all  further  proceedings  were  stayed, 
he  was  allowed  to  apply  to  the  Court  for  the  purpose  of  having 
the  order  carried  into  effect,  without  having  entered  any  appear- 
ance.^ 

and  executed  upon  any  defendant,  tlie 
clerli  shall  enter  the  suit  upon  his  docket 
as  pending  in  the  Court,  and  shall  state 
the  time  of  the  entry." 

A  demurrer  to  the  bill,  signed  by  the 
Attorney-General  of  a  State,  is  a  suflicient 
appearance  by  such  State,  in  a  suit  brought 
against  it.  New  .Jersey  v.  New  York, 
6  Peters,  32-3.  Where  a  defendant  puts  in 
an  answer,  which  is  read  in  Court,  by  con- 
sent of  the  opposite  counsel,  and  ordered 
to  be  filed,  and  a  decretal  order  is  made 
thereon  in  favor  of  the  defendants,  it  is  an 
appearance  on  the  records  of  the  Court. 
Livingston  y.  Gibbons,  4  .John.  Ch.  94. 

2  Ante,  pp.  453,  512;  Robinson  v.  Nash, 
1  Anst.  76;  Anon.,  3  Atk.  567;  Floyd  v. 
Nangle,  ib.  569;  Mackreth  v.  Nicholson,  19 
Ves.  367;  Bound  v.  Wells,  3  Mad.  434; 
Davidson  v.  Marchioness  of  Hastings,  2 
Keen,  509;  Price  v.  Webb,  2  Hare,  511; 
Johti.son  V.  Barnes,  1  De  G.  &  S.  129;  11 
Jur.  261;  Lewis  v.  Baldwin,  11  Beav.  154; 
Maclean  v.  Dawson,  4  De  G.  &  J.  150, 152; 
5  Jur.  N.  S.  663;  National  Assurance 
Company  v.  Carstairs,  9  Jur.  N.  S.  956, 
M.  li  ;  l-'oleyi).  Maillardet,  1  De  G.,  J.  & 
S.  389;  Hinde,  144;  Braithwaite's  Pr.  321. 
An  appearance  entered  with  the  Record 
and  Writ  Clerk  would  waive  the  irregular- 
ity. Braithwaite's  Pr.  321 ;  and  U7tte,  p. 
512.  For  the  mode  in  which  a  conditional 
appearance  is  entered,  sen  post,  p.  537. 

a  Hetts  V.  Barton,  3  Jur.  N.  S.  164,  V. 
C.  W. 


1  Even  if  he  denies  the  jurisdiction  of 
the  Court.  Fclkin  v.  Lord  Herbert,  1  Dr. 
&  Sm.  608;  8  Jur.  N.  S.  9('.  In  Maine, 
each  defendant  shall  enter  his  appearance 
on  the  docket  on  the  return  day.  And 
upon  proof  of  neglect,  when  there  has 
been  personal  notice,  a  default  maj'  be  en- 
tered, the  bill  be  taken  as  confessed,  and  a 
decree  be  entered  accordingly.  Rule  4,  of 
Chancer}-  Practice.  In  Ma-sachusetts, 
"  the  day  of  appearance  shall  be  the  return 
day  of  the  writ  or  subpana,  when  personal 
service  shall  be  made  on  the  defendant,  or 
he  shall  have  had  personal  notice  of  the 
suit ;  or  the  return  day  of  any  order  issued 
under  the  fourth  or  fifth  rule,  when  no 
personal  service  shall  be  made.  And, 
if  the  defendant  shall  not  appear  and 
file  his  answer,  plea,  or  demurrer,  within 
one  month  after  the  day  of  appearance, 
the  plaintiff  may  enter  an  order  to  take 
his  bill  for  confessed;  and  the  matter 
thereof  may  be  decreed  accordingly  unless 
good  cause  be  shown  to  the  contmry." 
Rule  9,  of  the  Rules  of  Practice  in  Chan- 
cery. B}'  the  17th  Equity  Rule  of  the 
United  States  Courts,  the  appearance  day 
of  the  defendant  shall  be  the  rule  day  to 
which  the  mhpremi  is  made  returnable; 
provided,  he  has  been  served  with  the  pro- 
ce.ss  twenty  days  before  that  day;  other- 
wise, his  appearance  day  shall  be  the  next 
rule  day  succeeding  the  rule  day  when  the 
process  is  returnable.  By  the  16th  rule, 
"  upon  the  return  of  the  sul/pmna,  as  served 


APPEARANCE. 


537 


An  ordinary  appearance  is  entered  in  the  Record  and  Writ 
Clerks'  Office.^  For  this  purpose,  a  praecipe  (fonns  of  which  may 
be  obtained  in  the  office)  must  be  filled  up  with  the  name  of  the 
defendant,  and  imderwritten  with  the  name  and  place  of  business 
of  his  solicitor,  and  of  the  agent  of  such  solicitor,  if  any,  or  with 
the  name  and  place  of  residence  of  the  defendant  where  he  enters 
the  appearance  in  person,  and,  in  either  case,  with  the  address  for 
sen-ice,  if  any ;  ^  and  such  praecipe  must  be  left  at  the  seat  of  the 
Record  and  Writ  Clerk  to  whose  division  the  cause  is  attached.' 
An  appearance  by  a  defendant  served  wathin  the  jurisdiction 
should  be  entered  within  eight  days  after  service  of  the  bill ;  it 
will,  however,  be  accepted  at  the  Record  and  Writ  Clerks'  Office 
at  any  time ;  and,  if  before  decree,  without  order.^ 

A  conditional  appearance  is  entered  ^\^th  the  Registrar.^  For 
this  purpose,  an  order,  giving  leave  to  enter  the  appearance,  is 
necessary.  The  order  is  obtained  on  an  ex  parte  motion  or  on 
petition  of  course  at  the  Rolls  ;  ^  but  the  defendant  must,  by  his 
counsel,  consent  to  submit  to  any  process  which  may  be  issued 
against  him  on  such  aj^pearance.''  The  appearance  is  entered  by 
the  defendant's  solicitor  attending  at  the  entering  seat  in  the  Reg- 
istrars' office,  and  signing  an  entry  in  the  Registrars'  Book.  The 
entry  will  be  made  by  the  entering  clerk,  on  the  order  being  pro- 
duced to  him.^  If  the  process  is  discharged  for  irregularity,  the 
order  discharging  the  process  should  also  discharge  the  appearance.^ 

When  an  appearance  has  been  entered,  notice  of  it  must  be  given 
on  the  same  day  to  the  plaintiff's  solicitor,  or  to  the  plaintiff  if  he 
acts  in  person,^"  before  two  o'clock  on  Saturday,  and  seven  o'clock 
on  any  other  day :  otherwise,  the  service  will  stand  for  Monday  in 
the  one  case,  and  in  the  other  for  the  next  day.^^ 

Where  a  husband  and  wife  are  defendants,  the  husband  should. 


Ch.  XIII. 


Conditional 
appearance : 
how  entered. 


1  Ord.  I.  35  By  the  I7th  of  the  Equity 
Rules  of  the  Unitci  States  Courts,  the 
appenrance  of  the  defendant,  eitlier  per- 
Bonally  or  by  his  solicitor,  shall  be  entered 
in  the  order  book  on  the  day  thereof  by 
the  dork. 

2  Onl.  in.  2,  5. 

8  Any  number  of  defendants  may  be 
included  in  one  jirceripe ;  and  the  names 
of  all  the  deft'iidiints  so  included  must  be 
set  forth,  notwitbstaiidin'  the  same  so- 
licitor appears  for  all.  Where  a  solirilor 
who  in  himself  a  d'-fcndant.  and  defend^  in 
person,  is  concf-rned  rorco-dcf'-n'lants,  the 
appearance  for  himself  must  be  entered  on 
a  Heparate  pneripe,  unless  he  Ik;  in  the 
*nmc  interest  with  them.  Hraithwaife's 
I'r.  325.  The  following  fees  are  paval)Ie, 
in  Chancery  fee  fuu'l  stumps,  impressed  fin 
or  affixed  to  the  /inrrl/ir,  nn  entering;  an 
appearance.  If  not  more  than  three  de- 
fendants, 7». ;  if  more  than  three,  and  not 
exceeding  six  defenr|ant«,  14». ;  and  the 
same  proportion  for  every  like  number  of 


defendants.  Resul.  to  Ord.  Sched.  4.  In 
this  computation,  husliand  and  wife,  when 
thev  appear  Jointlv,  are  reckoned  as  one 
person.  Bniithwalte's  Pr.  325.  For  forms 
of  prtecipe.  see  Vol.  III. 

4  Ord.  X.  3;  Rraithwaite's  Pr.  .328;  and 
see  (Iriinin^i  v.  Prioleau,  10  .lur.  N.  S.  60; 
12  W.  K.  141,  M.  R.;  33  Heav.  221.  For 
the  practice  as  to  enterinff  an  appearance 
after  decree,  see  ante,  p.  151 ;  and  ]}Ost,  p. 
540. 

6  For  when  a  conditional  appearance 
should  be  entered,  see  n?Ue,  pp.  453,  512, 
537. 

0  For  form  of  motion  paper,  see  Vol.  III. 

T  See  Trice  V.  Webb,  2  Hare,  611. 

8  For  forms  of  order  and  entr^-,  see 
Seton,  1249;  and  see  ante,  p.  512. 

«  .Johii'^on  1'.  Hanies,  1  I)e  G.  &  S.  129, 
131;  11  .lur.  261.  The  application  to  set 
aside  the  i)rocess  is  maile  bv  motion. 

1"  Oni.  III.  9;  ""''',  pp.453,  454.  For 
form  of  notice,  see  Vol.  III. 

11  Ord.  XXXVII.  2;  ante,  p.  466. 


Notice  of  ap- 
pearance. 


Appearance 
by  husband 
and  wife. 


538 


APPEARANCE. 


Cii.  Xlll. 


Appearance 
by  infants, 
and  persons 
of  unsoimd 
mind. 

Paupers. 


Appearance 
to  bill  not 
original ; 

and  to  sup- 
plemental 
statement. 


No  appear- 
ance neces- 
sary to  notice 
of  "decree. 

Appearance 
to  revivor  and 
supplemental 
orders ; 


imilor  ordinary  circumstances,  a]>pear  for  both  ;  and  he  will  be 
liable  to  process  of  contempt  for  the  non-a])pearance  of  his  wife,  as 
well  as  his  own.-^  The  wife  may,  however,  in  all  cases,  without  any 
special  order,  enter  an  ap])earance  for  herself,'^  and,  as  we  have 
seen,  the  ]>laintitf  is  entitled,  in  some  cases,  to  treat  her  as  ^  feme 
sole  in  this  respect.^ 

Ap))earances  are  entered  on  behalf  of  infants,  and  persons  of  un- 
sound mind,  in  their  owm  names,  as  in  the  case  of  ordinary  defend- 
ants ;  but  they  cannot  put  in  their  answers,  or  take  any  other  step 
in  the  cause,  until  tjuardians  ad  litem  have  been  appointed.* 

A  person  intending  to  defend  a  suit  in  forma  2xiu2:>eris,  usually 
enters  an  appearance,  and  pays  the  fee,  before  he  petitions  for  the 
order  to  defend  in  forma  pai<peris  /  but  upon  procuring  an  in- 
dorsement, by  the  proper  officer,  upon  his  petition,  that  the  affidavit 
as  to  poverty  has  been  filed,  he  may  obtain  the  order  before  he 
enters  his  appearance :  in  which  case,  on  jjroduction  of  the  order, 
he  may  enter  his  appearance  without  payment  of  the  fee.^ 

An  appearance  to  a  bill  not  original  is  subject  to  the  same  regu- 
lations as  an  appearance  to  an  original  bill.'' 

In  the  case  of  a  supplemental  statement,'^  such  proceedings  by 
way  of  answer,  evidence,  and  otherwise  are  to  be  taken  upon  it  as 
if  it  were  embodied  in  a  supplemental  bill ;  ®  and,  therefore,  an 
indorsement  requiring  appearance  must  be  made  on  a  sujjplemental 
statement,  and  an  appearance  entered  thereto.^ 

No  appearance  is  necessary,  in  the  case  of  a  party  served  with 
notice  of  a  decree,  under  Rule  8  of  the  15  &  16  Vic.  c.  86,  §  42." 

Where  an  order  of  Revivor  or  supplemental  order  has  been  ob- 
tained," the  practice  is  to  require  an  appearance  by  the  defendants 
brought  before  the  Court  by  such  order ;  but  not  to  require  any 
new  appearance  by  the  original  defendants.-^-    This  practice  seems 


1  Where  a  bill  is  filed  against  husband 
and  wife,  the  liusband  is  bound  to  enter  a 
joint  appearance,  and  put  in  a  joint  answer 
for  botL  Leavitt  v.  Cruger,  1  Paige,  421; 
see  ante,  182,  note,  524,  note. 

2  Braithwaite's  Pr.  321;  Rudge  v.  Wee- 
don,  7  W.  R.  .368  (n),  V.  C.  K. 

8  See  a7ite,  pp.  179,  181,  445,  476. 

4  Braithwaite's  Pr.  322;  see  ante,  pp. 
162,  177;  and  see  Ord.  VII.  3;  Ord.  X.  5; 
Leese  v.  Knight,  8  Jur.  N.  S.  1006;  10  W. 
R.  711,  V.  C.  K.  Infants  can  only  appear 
and  answer  by  their  guardian  appointed 
for  that  purpose.  And  it  is  erroneous  to 
proceed  against  them  till  such  appoint- 
ment. Irons  V.  Crist,  3  A.  K-  Marsh.  143 ; 
Bradwell  v.  Weeks,  1  .John.  Ch.  325.  It 
is  irregular,  after  appointment  of  a  guar- 
dian for  an  infant,  to  take  the  bill  pro 
confesso  against  him,  for  want  of  an  ap- 
pearance or  of  answer.  Carneal  v.  Sthresh- 
ley,  1  A.  K.  Marsh.  471. 

A  party  who  takes  a  copy  of  a  bill  filed 


against  him  as  committee  of  a  lunatic, 
and  enters  bis  appearance  without  his 
addition  of  committee,  &c.,  cannot  after- 
wards, after  suffering  the  plaintiff  to  go  on 
to  a  finsil  decree,  object  that  the  subpoena 
was  against  him  individually,  and  not  as 
committee,  &c.  Brasher  v.  Cortlandt,  2 
John.  Ch.  247. 

6  1  Turn.  &  Ven.  512;  Braithwaite's  Pr. 
322,  563.  For  form  of  petition,  see  Vol.  III. 

6  Braithwaite's  Pr.  329. 

1  15  &  16  Vic.  c.  86,  §  53. 

8  Ord.  XXXII.  2. 

9  Braithwaite's  Pr.  81,  331. 

10  lb.  323 ;  ante,  p.  437. 

11  Under  15  &  16  Vic.  c.  86,  §  52;  see 
post,  Chap.  XXXIII.  Revivor  and  Supple- 
ment. 

12  Braithwaite's  Pr.  331,  659;  Seton, 
1171;  Cross  v.  Thomas,  16  Beav.  592;  17 
.Jur.  336;  Forster  «.  Menzies,  17  ,Jnr.  657; 
10  Hare  Ap.  36;  16  Beav.  568;  Ward  v. 
Cartwright,  10  Hare  Ap.  73;  17  Jur.  781. 


APPEARANCE. 


539 


scarcely  consistent  with  the  words  of  the  Act ;  ^  and  its  propriety- 
has  been  doubted.- 

Where  the  plaintiiF  amends  his  bill,  he  must,  as  we  have  seen, 
serve  the  defendants  with  a  copy  of  the  amended  bill ;  but  the  de- 
fendants, if  they  have  appeared  to  the  original  bill,  need  not  enter 
any  appearance  to  the  amended  bill :  unless  required  so  to  do  by 
the  indorsement  on  the  amended  bill.^ 

Where  a  formal  defendant  is  served  with  a  copy  of  the  bill  under 
the  General  Order,*  he  may  appear  in  common  form,  at  any  time 
within  twelve  days  fi-om  the  service  of  the  copy  of  the  bill  :^  or  he 
may,  within  the  same  time,  enter  a  special  appearance,  for  the 
purpose  of  being  served  with  notice  of  all  proceedings  in  the  suit.® 
After  the  expiration  of  the  twelve  days,  neither  the  common  nor 
special  appearance  can  be  entered,  without  an  order  for  that 
purjiose.' 

A  defendant  may,  if  he  has  been  informed  of  a  bill  being  filed 
against  him,  enter  an  appearance,  or  cause  an  appearance  to  be 
entered  for  him,  without  waiting  to  be  served  with  the  copy  of  the 
bill.  This  is  called  appearing  gratis^  and  is  generally  resorted  to 
where  a  plaintifl"  has  served  some  only  of  the  defendants  with  the 
bill,  and  a  defendant  who  is  not  served  wishes  to  make  an  imme- 
diate application  to  the  Court  in  the  cause.* 

In  Barkley  v.  Lord  Reay^  Sir  James  Wigram  V.  C.  decided 
that  a  defendant  against  whom  it  is  prayed  that,  upon  service 
of  a  copy  of  the  bill,  he  may  be  bound  by  the  proceedings 
in  the  cause,  is  entitled  to  appear  gratis,  either  before  or  after 
service. 

A  defendant  may,  likewise,  in  certain  cases,  appear  gratis  at  the 
hearing,  and  consent  to  be  bound  by  the  decree  ;^*^  but  where  a 
person,  not  a  party  to  the  suit,  who  was  interested  in  a  question, 
appeared  by  counsel,  and  submitted  to  be  bound  by  the  decision, 


1  See  15  &  16  Vic.  c.  ft6,  §  25;  but  see 
Hanbun-  r.  Ward.  18  Jur.  222,  V.  C.  S.; 
Hull  v..  Kadclitle,  2  J.  &  H.  765. 

2  See  1  Smith's  I'r.  805. 

8  ( 'heesl)orouf;h  r.  Wricht,  28  Beav.  173 ; 
Barrv  v.  Oosskey  (Xo.  2),  2  .J.  &  H.  130; 
f?  Jur.  N.  S.  114;  Braithwaite'.s  Pr.  328; 
Bruittiwaitft's  Maniiiil,  159;  and  see  ante, 
pp  446,  5.33.  Whore  deftMidants  have  not 
iin.-iwercd  the  'iritcinal  hill,  but  arc  called 
upon  hy  an  amended  hill  .simultiineousl}' 
to  atiswer  both,  it  is  not  ncccssnn,'  to  issue 
a  n»-w  snhjmna.  Fit/.hunh  v.  Mcl'lierson, 
9  (iill  &  .1.  1.  See  <,"unnini?ham  v.  Pell, 
6  I'aifjc,  655;  Longworth  v.  Taylor,  514. 

*  I'rd.  X.  11. 

6  Ord.  X.  14,  16;  anle,\>.  432. 

«  Ord.  X.  15;  nnle,  p.  432. 

">  Ord.  X.  16,  16;  and  see  ante,  pp.  432, 
433,  for  the  practice  as  to  entering  a  com- 


mon or  special  appearance,  and  obtaining 
an  order  for  leave  so  to  do. 

8  I'ell  V.  Christ's  College.  2  Bro.  C.  C. 
279;  Hume  t'  Babington,  1  Hog-an,  8.  So 
where  thestihpnnn  is  irregularly  served,  as 
where  it  is  served  out  of  the  State,  the 
defendant  mny  voluntarily  appear.  Dunn 
r.  Dunn,  4  I'aige,  425;  see  Seebor  u.  Hess, 
5  I'aige,  85.  Where  a  plaintiff  neglects  to 
serve  a  mhjxnna  on  a  defeiulant  in  a  bill 
against  whom  an  injunction  has  been 
granted  aft'ecting  his  rights,  such  defend- 
ant ma}'  appear  voluntarily,  and  apply  to 
dissolve  the  injunction,  without  waiting 
for  the  service  of  the  auli/xeiin.  Waffle  v. 
Vandnrhcv<lon,  8  I'aige,  45;  see  llowo  v. 
Wilhinl,  40  Vt.  654. 

!'  2  Iliire,  309. 

in  Capel  v.  Butler.  2  S.  &  S.  457,  462; 
Sapte  r.  Ward,  1  Coll.  24;  see  form  of 
order,  ib.  25  (n.);  Seton,  8. 


Ch.  xm. 


and  to 

amended 

biUs. 


Common  ap- 
pearance by 
formal  party; 


Special 
appearance. 


Gratis 
appearance : 


when 
resorted  to ; 


by  a  formal 
party; 


allowed  at  the 
hearing,  if 
named  de- 
fendant to 
bill; 

or  by  consent 
if  not. 


540 


APPEARANCE. 


Ch.  XIII. 


Appearance 
artor  decree. 


Appearance, 
by  mistake, 
in  defend- 
ant's name. 


Plaintiff  now 
usually  ap- 
pears for  de- 
fendant, on 
default. 


Appearance, 
by  mistake, 
by  plaintiff 
for  defendant. 


the  Court  held,  that  he  could  not  be  heard  without  the  consent  of 
the  other  defendants.^ 

Arter  decree,  an  appearance  cannot  be  entered  by  a  defendant 
except  by  leave  of  the  Court,  on  an  application  by  hin\  for  liberty 
to  enter  such  ap])earance,  and  attend  the  proceedings :  the  defend- 
ant submitting  to  be  bound  by  the  decree  and  proceedings  already 
had.  Tlie  apj>lication  may  be  made  by  petition  of  course,  if  the 
plaintiif  will  consent;  and  if  he  Avill  not,  by  motion  or  summons, 
as  before  explained.'^ 

If  an  appearance  has  been  entered  in  the  name  of  a  defendant 
by  mistake,  and  no  proceeding  has  been  subsequently  taken,  such 
ap])earance  may  be  withdrawn,  at  the  request  of  the  party  who 
entered  it,  and  with  the  consent  of  the  plaintiff;  but  if  any  pro- 
ceeding has  been  taken,  a  special  order,  which  may  be  obtained 
either  on  motion,  with  notice,  or  on  summons  at  Chambers,  is 
necessary.  If  it  is  only  desired  to  alter  the  name  of  the  solicitor 
who  has  entered  the  appearance,  the  common  order  to  change  so- 
licitors is  sufficient.^ 

If  the  defendant  does  not  enter  an  appearance  by  himself  or  his 
solicitor  within  the  time  limited  for  that  purpose,  the  plaintiff  may 
enter  an  ap])earance  for  him ;  *  and  as  an  attachment  to  compel 
appearance  cannot  now  be  issued  without  a  special  order  of  the 
Court,  and  no  order  -will  be  made  for  a  messenger  or  Sergeant-at- 
arms  to  take  the  body  of  a  defendant  for  the  purpose  of  compelling 
his  appearance,^  it  has,  as  we  have  seen,®  become  the  usual  practice 
for  the  plaintiff  to  enter  an  appearance  for  the  defendant,  in  default 
of  such  appearance  being  entered  by  the  defendant. 

An  apjDcarance  which  has,  by  mistake,  been  entered  by  the 
plaintiff,  as  if  concerned  for  a  defendant,  may  be  withdrawn  with 
the  consent  of  the  defendant,  on  the  request  of  the  plaintiff's  so- 
licitor, if  the  application  is  made  before  the  expiration  of  three 
weeks  from  the  service  of  the  copy  of  the  bill ;  but  if  the  defend- 
ant will  not  consent,  or  the  application  is  made  after  such  three 
weeks,  an  order,  which  may  be  obtained  on  motion  with  notice,  or 
on  summons  at  Chambers,  is  necessary.'' 


1  Bozon  V.  Holland,  1  R.  &  M.  69 ;  Attor- 
ney-General V.  Pearson,  7  Sim.  290;  Dy- 
son V.  Morris,  1  Hare,  413;  6  .Jur.  297; 
Lewis  V.  Clewes,  10  Hare  Ap.  62;  see  also 
ante.  p.  153. 

2  Braithwaite's  Pr.  323;  ante,  p.  153. 
In  Morgan  v  Day,  V.  C.  S.  in  Chnmb.  3 
Feb.,  1865,  a  person  not  a  party  to  the  suit, 
but  claiming  to  be  interested  under  the 
■will  of  the  testator,  was,  by  consent,  per- 
mitted to  enter  an  appearance,  and  defend 
the  suit,  on  consentinf;  to  be  bound  by  the 
decree,  and  the  proceedings  had  there- 
under, as  if  she  had  originally  been  made 


a  defendant.    For  forms  of  petition,  notice 
of  motion,  and  summons,  see  Vol.  III. 

3  Braithwaite's  Pr.  323,  324;  Martin  v. 
Patching,  i/>.  338.  For  forms  of  request, 
consent,  notice  of  motion,  and  summons, 
see  Vol.  HI. 

4  Ord.  X.  3,  4,  nnte,  pp.  460-462. 

6  Ord.  X.  10;  Ilackwood  «.  Lockerby,  7 
Pe  G.,  M.  &  G.  238. 

6  Ante,  pp.  460-462. 

7  Braithwaite's  Pr.  337,  338;  and  Mar- 
tin V.  Patching,  there  cited.  For  forms  of 
request,  con.sent,  notice  of  motion  and 
summons,  see  Vol.  III. 


APPEARANCE. 


541 


We  have  before  seen,  that  a  defendant,  notwithstanding  an  ap- 
pearance has  been  entered  for  him,  may  afterwards  appear  for  him- 
self in  the  ordinary  way :  but  that  such  appearance  is  not  to  affect 
any  proceeding  duly  taken,  or  any  right  acquired  by  the  plaintiff 
under  or  after  the  appearance  entered  by  him,  or  prejudice  the 
plaintiff's  right  to  be  allowed  the  costs  of  the  first  appearance  ;  ^ 
and  it  seems  that,  in  practice,  wherever  an  appearance  for  a  de- 
fendant has  been  entered  by  the  plaintiff,  such  defendant  must, 
nevertheless,  enter  an  appearance  for  himself,  before  he  can  be 
allowed  to  defend  the  suit.^ 


1  Ord.  X.  9;  ante,  p.  479. 

2  Ante,  p.  479.  In  Groome  v.  Spome, 
M.  R.  1863,  G.  No.  4,  a  motion  by  a  de- 
fendant, who  had  not  appeared  to  the  bill, 
and  against  whom  the  bill  had  been  taken 
pro  confesso,  to  set  aside  the  proceedings 
for  irregularity,  was  permitted  to  proceed, 


on  his  entering  a  conditional  appearance 
with  the  Registrar,  and  undertaking,  by 
his  counsel,  to  enter  an  ordinary  appear- 
ance; which  was  afterwards  entered  ac- 
cordingly, upon  the  Registrar's  minute, 
without  any  formal  order. 


Ch.  XIII. 


After  appear- 
ance has  been 
entered  by 
plaintiff  for 
defendant, 

defendant 
must  appear 
for  himself 
before  he 
takes  any 
step  in  the 
cause. 


CHAPTER  XIV. 


DEMURRERS. 


Section  I.  —  The  general  Nature  of  Demurrers. 


Demurrer; 

■when 

appropriate. 


Effect  on 
right  to  costs, 
of  neglect  to 
demur. 


Doubtful 
questions  of 
title  not  de- 
termined on 
demurrer. 


WnEiSTEVER  any  ground  of  defence  is  aj^parent  upon  the  bill 
itself,  either  from  the  matter  contained  in  it,  or  from  defect  in  its 
frame,  or  in  the  case  made  by  it,  the  appropriate  mode  of  defence 
is  by  demurrer.^ 

Demurrers  are  now  of  much  less  frequent  occurrence  than  for- 
merly ;  the  readiness  Avith  which  the  Court  gives  the  plaintiff  leave 
to  amend  his  bill  rendering  it  inexpedient  to  demur,  in  any  case, 
where  the  defect  in  the  bill  can  be  cured  by  amendment ;  ^  but 
where  the  question  raised  by  the  bill  can  be  properly  determined 
on  demurrer,  a  defendant,  by  neglecting  to  demur,  injures  his 
I^osition  with  respect  to  the  costs  of  the  suit.  Thus,  bills  dis- 
missed at  the  hearing,  have  often  been  dismissed  without  costs,  on 
the  ground  that  they  might  have  been  demurred  to ;  ^  or  the 
defendant  has  only  been  allowed  the  same  costs  as  he  would  have 
received  Lf  he  had  demurred.*  The  defendant  is  not  justified  in 
neglecting  to  demur  to  the  bill,  because  it  contains  charges  of 
fraud  which  he  is  desirous  of  answering.^ 

The  Court  sometimes  declines  to  decide  a  doubtful  question  of 
title  on  demurrer :  in  which  case,  the  demurrer  will  be  overruled, 
without   prejudice   to   any  question.'^     A  demurrer  may  also   be 


{ 


1  Ld.  Red.  107;  see  Tappan  «.  Evans,  11 
N.  H.  311;  Harris  v.  Thomas,  1  Hen.  & 
M.  18;  Aldersoii  v.  Biggars,  4  Hen.  &  M. 
472;  Mitchell  t'.  Lenox,  2  Paige,  280; 
Brill  V.  Styles,  36  111.  305. 

In  Equity,  a  demmrer  is  only  a  mode 
of  defence  to  a  bill.  It  is  never  resorted  to 
for  the  purpose  of  settling  the  validity  of  a 
plea  or  answer.  Travers  r.  Koss,  1  M'Car- 
ter  (N.  .J.),  254;  Raymond  v.  isimonson,  7 
Blackf.  79 ;  Thomas  v.  Brathear,  4  Monroe, 
65;  Cooper  Eq.  PI.  110;  Stone  v.  Moore, 
26  III.  165. 

2  As  to  the  expediency  of  demurring, 
see  Wigi'am  on  Disc.  158. 

3  Jones  V.  Davids,  4  Kuss.  277;  Hill  v. 
Reardon,  2  S.  &  S.  431,  439;  Uollings- 


worth  V.  Shakeshaft,  14  Beav.  492;  Webb 
V.  England,  29  Beav.  44;  7  Jur.  N.  S.  153; 
Ernest  v.  Weiss,  9  Jur.  N.  S.  145;  11  W. 
K.  206,  V.  0.  K. ;  Nesbitt  v.  bei  ridge,  9 
Jur.  N.  S.  1044;  11  W.  H.  446,  M.  K.;  but 
see  Morocco  Compan}'  v.  P'ry,  11  Jur.  N. 
S.  76,  78;  13  W.  li.  310,  312,  V.  C.  S. 

4  Godfrey  v.  Tucker,  9  Jur.  N.  S.  1188; 
12  W.  K.  33,  M.  K;  33  Beav.  280. 

5  Nesbitt  V.  Berriiige,  ubl  sup. ;  but  see 
S.  C.  before  L.  C,  10  Jur  N.  t>.  53;  12  W. 
K.  283. 

•5  Brownsvvord  v.  Edwards,  2  Ves.  S. 
243,  247;  Mortimer  v.  Hartley,  3  I)e  G.  & 
S.  316;  Evans  v.  Evans,  18  Jur.  666, 
L.  JJ.;  Cochrane  v.  Willis,  10  Jur.  N.  S. 
162,  L.  J  J. ;  Ld.  lied.  154,  n.  {j}). 


GENERAL  NATURE  OF  DEMURRERS. 


543 


overruled,  with  liberty  to  the  defendant  to  insist  upon  the  same 
defence  by  answer,  if  the  allegations  of  the  bill  are  such  that  the 
case  ought  not  to  be  decided  without  an  answer  being  put  in.-' 

A  demurrer  has  been  so  termed^  because  the  party  demumng 
demoratur^  or  will  go  no  fxirther :  ^  the  other  party  not  having 
shown  sufficient  matter  against  him;  and  it  is  in  substance  an 
allegation  by  a  defendant,  which,  admitting  the  matters  of  fact 
stated  by  the  bill  to  be  true,  shows  that,  as  they  are  therein  set 
forth  they  are  insufficient  for  the  plaintiff  to  proceed  upon,  or  to 
obhge  the  defendant  to  answer ;  or  that,  for  some  reason  apparent 
on  the  face  of  the  bill,  or  because  of  the  omission  of  some  matter 
which  ought  to  be  contained  therein,  or  for  want  of  some  ch'- 
cumstance  which  ought  to  be  attendant  thereon,  the  plaintiff  ought 
not  to  be  allowed  to  proceed.  It,  therefore,  demands  judgment  of 
the  Court,  whether  the  defendant  shall  be  compelled  to  make  any 
further  or  other  answer  to  the  plaintiff's  bUl,  or  that  particular  part 
of  it  to  which  the  demurrer  applies.^ 

A  demurrer  will  lie  wherever  it  is  clear  that,  taking  the  charges 
in  the  bill  to  be  true,  the  bill  would  be  dismissed  at  the  hearing  ;* 
but  it  must  be  founded  on  this :  that  it  is  an  absolute,  certain, 
and  clear  proposition  that  it  would  be  so ;  ^  for  if  it  is  a  case  of 
circumstances,  in  which  a  minute  variation  between  them  as 
stated  by  the  bill,  and  those  established  by  the  evidence,  may 
either  incline  the  Court  to  modify  the  relief  or  to  grant  no  i*elief 
at  all,  the  Court,  althougli  it  sees  that  the  granting  the  modified 
relief  at  the  hearing  will  be  attended  with  considerable  difficulty, 
will  not  support  a  demurrer.^  Therefore,  where  a  bill  was  filed 
for  the  sjtecific  ])erformance  of  an  agreement,  and  the  case  turned 
upon  the  point,  whether  the  facts  stated  amounted  to  a  ])erfect 
agreement.  Lord  Rosslyn  thought  that,  although  the  circumstances, 


Ch.  XIV.  §  1. 


Origin  of 
term. 


Nature  of 
defence  by- 
demurrer. 


Demurrer 
does  not  lie, 
unless  it  is 
clear  bill 
would  be  dis- 
missed at  the 
hearing. 


1  CoUingwood  v.  Russell,  13  W.  R.  63, 
L.  JJ.;  10  Jur.  N.  S.  1062;  Lautour  v. 
Attorney-Genenil,  11  Jur.  N.  S.  48;  13  W. 
R.  305,  L.  J.J. ;  lia.xendale  v.  W'estmiriturn 
R.  W.  Co.,  8  Jur.  N.  S.  11G3,  L.  C. 

2  3  Bl.  Com.  314;  Tonilins'  &  Burrili's 
Law  Diet.  Tit.  "  Uemurrcr; "  Story  Yj\. 
PI.  §  441.  A  demurrer  is  an  answer  in 
law  to  the  hill,  tiiough  not,  in  a  technical 
ecnsc,  an  answer  according;  to  the  common 
language  ol  practice.  New  Jersey  r  New 
York,  e  I'eterK,  323.  The  32d  Kqiiity  Kule 
of  the  L'nife<l  States  (Jourts,  declares, 
"  The  defendant  may,  at  any  time  before 
the  bill  is  taken  for  confessed,  or  altcr- 
■wards,  with  the  leave  of  tiie  (Jourt  demur 
or  pleiid  to  the  whole  bill  or  part  of  it,  and 
he  mny  demur  to  part,  plead  to  part,  and 
answer  as  to  the  residue ;  l)ut  in  every  case, 
in  which  the  bill  specially  charges  fraud 
or  combination,  a  i>lea  to  such  part  must 
be  accompanied  with  an  answer  fortifying 


the  plea,  and  expressly  denying  the  fraud 
and  combination,  and  the  facts  on  which 
the  charge  is  founded."  Story  Kq.  I'l. 
§  441  (3d  ed.),  note  (6).  A  similar  rule 
has  been  adojjted  in  Massachusetts.  Rule 
10,  of  the  Hules  for  Practice  in  Chancer}'. 

8  \A.  Ked.  107. 

*  Utterson  /'.  Mair,  2  Ves.  J.  95;  4  Bro. 
C.  C.  270;  Hovenden  i'.  Lord  Amiesley,  2 
Sch   &  Lef  G07,  038. 

'>  Brooke  v.  Hewitt,  3  Ves.  253,  255; 
Morrison  v.  Morrison,  4  Drew.  315. 

0  See  Story  Vai  I'l.  §§  440,  447,  478; 
Lub(',  Kq.  I'l.' 338,  330,  340.  A  demurrer 
to  a  bill  must  be  fouiuled  on  some  strong 
point  of  law,  which  goes  to  the  absolute 
denial  of  the  relief  sought,  an<l  not  on  cir- 
cumstances in  which  a  minute  variation 
may  incline  the  Court  either  to  giMut, 
modify,  or  refuse  the  application.  Ver- 
plaiick  V.  Caines,  1  John.  Cb.  08. 


544 


DEMURRERS. 


Cn.XIV.  §1. 


DoTmirrer 
admits  facts 
to  bo  true; 


even  though 
contents  of  a 
document  be 
misstated. 


Where  bill 
professes  to 
set  out  a  deed 
inaccurately, 
because  it  is 
in  the  defend- 
ant's  posses- 
sion, plaintiff 


as  stated  in  the  bill,  amounted  more  to  a  treaty  than  a  complete 
agreement,  the  question  whether  it  was  an  agreement  or  not 
depended  very  mueh  upon  the  effect  of  the  evidence,  and  therefore 
overruled  the  demurrer.^ 

As  a  demurrer  proceeds  upon  the  gi-ound  that,  admitting  the 
fjicts  stated  in  the  bill  to  be  true,  the  plaintiff  is  not  entitled  to 
the  relief  he  seeks,  it  is  held  that,  at  least  for  the  purpose  of  argu- 
ment, all  the  matters  of  fact  wdiich  are  stated  in  the  bill  are 
admitted  by  the  demurrer,'^  and  cannot  be  disputed  in  arguing 
the  question  Avhether  the  defence  thereby  made  be  good  or  not ; 
and  such  admission  extends  to  the  whole  manner  and  form  in 
which  it  is  there  stated.  Upon  this  ground,  where  a  bill  misstated 
a  deed,  by  alleging  it  to  contain  a  proviso  which  it  did  not,  Lord 
Cottenham,  upon  the  argument  of  a  demurrer  to  the  bill,  refused 
to  allow^  the  defendant's  counsel  to  refer  to  the  deed  itselt;  for  the 
purpose  of  showing  the  incorrectness  of  the  manner  in  which  it 
was  set  out :  although  the  bill  contained  a  reference  "  for  greater 
certainty  as  to  its  contents,  &c.,"  to  the  deed,  as  being  in  the  cus- 
tody of  the  defendants.  His  Lordship  said,  that  to  hold  otherwise 
would  be  to  give  the  defendants  an  advantage,  depending  upon 
the  accident  of  their  having  the  custody  of  the  document  which 
the  bill  purported  to  set  out,  and  would  in  effect  be  to  decide  the 
question  raised  by  the  demm-rer,  upon  matter  which  was  dehors 
the  record.^  In  this  case,  the  object  of  referring  to  the  deed  was 
to  contradict  a  statement  in  the  bill :  and  where  the  object  is  to 
support,  and  not  contradict,  the  plaintiff's  case,  it  aj^pears  that  the 
Court  mil  still  refuse  to  look  into  the  document.* 

It  is  also  to  be  remarked,  that  where  a  bill  professes  to  set  out 
a  deed  inaccurately,  and  alleges,  as  a  reason  for  so  setting  it  out, 
that  it  is  in  the  possession  of  the  defendants,  a  demurrer  to  the  bill 
cannot  be  sustained,  although,  according  to  the  temis  of  the  deed, 
as  stated  by  the  plaintiff,  he  can  take  no  title  under  it :  because 


1  Brooke  v.  Hewitt,  vhi  sup. ;  Heffield 
Waterworks  v-  Yeomans,  L.  J.  2  Cli.  Ap. 
8;  but  see  Keeves  v.  Greenwich  Tanning 
Company,  2  H.  &  M.  54. 

2  k.  1.  Company  v.  Henchman,  1  Ves.  J. 
289;  and  seeNesbittu.  Berriiige,  9  Jur.  N. 
S.  1044;  11  W.  K.  446,  M.  K. ;  Story  Eq. 
n.  §  402;  Mills  v.  Brown,  2  Scam.  549; 
Goble  V.  Andras,  1  Ureen  Ch.  t>6;  Niles  v. 
Anderson,  5  How.  (MibS.)  3tj5;  Green  v. 
Robinson,  i6.  SO;  Smith  i).  Allen,  1  Saxton 
(N.  J.),  43;  Wales  v.  Bank  of  Michigan, 
Marring.  Cb.  308.  But  it  cannot  supply 
defects  in  substance,  or  cure  a  defective 
statement  of  title.  Mills  v-  Brown,  and 
Goble  V.  AniJras,  tibi  supra. 

Where  a  cause  is  argued  upon  a  demur- 
rer, and  plea  in  bar,  the  averments  in  the 
plea,  for  the  purpose  of  considering  their 


legal  effect,  must  be  taken  to  be  true. 
York  Manuf.  Co.  v.  Cutts,  18  Maine,  204. 
A  demurrer  is  a  denial  in  form  and  sub- 
stance of  the  plaintiff's  right  to  bave  his 
case  considered  in  a  Court  of  Equity,  and 
an  admission  of  all  its  allegations  thai  are 
properly  pleaded.  Grifliug  v.  Gibb,  2 
Black,  U.  S.  519. 

3  Campbell  v.  Mackay,  1  M.  &  C.  603, 
613;  Cuddon  v.  Tite,  1  Gift'.  395. 

*  Harmer  v.  Gooding,  3  De  G.  &  S.  407, 
410,411;  13  Jur.  400,  402;  see,  however, 
Weld  V.  Boubam,  2  S.  &  S.  91;  and  as  to 
Acts  of  Barliaraent,  see  Wilson  v.  Stan- 
hope, 2  Coll.  629;  10  Jur.  421 ;  Apperly  v. 
Bage,  1  Phil.  779,  785 ;  11  J  ur.  271 ;  Bailey 
V.  Birkenhead  Junction  Railway,  12  Beav. 
433,443;  14  Jur.  119,  122. 


GENERAL  NATURE  OF  DEMURRERS. 


545 


the  Court  will  not,  under  such  circumstances,  bind  the  plaintiff  by 
the  statement  he  has  made,  which  he  alleges  to  be  inaccurate,  and 
which  the  defendant,  therefore,  by  his  demurrer  admits  to  be  so. 
In  a  case  of  this  description,  if  the  defendant  means  that  the  Court 
should  at  once  be  called  upon  to  detennine  the  true  construction 
of  the  deed,  he  must  plead  it.^ 

On  a  demurrer,  ambiguous  statements  are  construed  adversely 
to  the  pleader :  but  a  defendant  is  not  entitled  to  press  the  prin- 
ciple so  far,  as  to  draw  any  inference  of  facts  he  pleases  which  may 
happen  to  be  not  inconsistent  with  the  averments  of  the  bill.^ 

But  although  a  demun-er  confesses  the  matters  stated  in  the  bill 
to  be  true,  such  confession  is  confined  to  those  matters  which  are 
well  pleaded ;  i.  e.,  matters  of  fact.^  It  does  not,  therefore,  ad- 
mit any  matters  of  law  which  are  suggested  in  the  bill,  or  inferred 
from  the  facts  stated ;  *  for,  strictly  speaking,  arguments,  or  infer- 
ences, or  matters  of  law,  ought  not  to  be  stated  in  pleading,^ 
although  there  is  sometimes  occasion  to  make  mention  of  them  for 
the  convenience  or  intelligibility  of  the  matter  of  fact.  Thus, 
in  the  case  of  Campbell  v.  Mackay,  above  referred  to,  if  the  bill 
had  gone  on,  after  stating  the  alleged  words  of  the  proviso,  to  aver 
a  legal  inference  from  them  which  such  words  did  not  authorize, 
the  demurrer,  although  it  was  held  to  confess  the  existence  in  the 
deed  of  a  proviso,  in  the  words  stated,  as  a  matter  of  fact,  would 
not  have  been  considered  as  admitting  the  inference  of  law. alleged 
to  have  arisen  from  it.  An  inference  of  this  nature  is  called  a 
Bepvfjriancy  ;  and  it  is  a  rule  in  pleading  that  a  demurrer  will  not 
admit  matters,  either  of  law  or  of  fact,' Avhich  are  re])ugnant  to  each 
other.  Thus,  where  a  bill  Avas  filed  for  a  discovery,  and  for  an 
account  and  delivery  up  of  the  possession  of  land,  on  the  ground 
that  the  plaintiff  could  not  describe  the  land  so  as  to  proceed  at 
Law,  by  reason  of  the  defendants  having  got  possession  of  the 
title-dec<l8  and  mixed  the  boundaries,  Lord  Kosslyn  allowed  a 
demurrer,  because  the  bill  was  a  mere  ejectment  bill;  but  he  inti- 
mated that,  even  if  the  bill  had  been  for  a  discovery  only,  it  could 
not  have  been  sustained :  because  the  averment,  that  the  jilaintiff 
couM  W)\  ascertain  the  lands,  was  contrary  to  the  facts  disclosed 
in  tlie  bill,  in  which  the  lands  Avere  sufficiently  described."     And 

381 ;  Redmond  v.  Dickerson,  1  Stockt. 
(N.  J.)  607;  Lea  v.  Kobeson,  12  Gray, 
280. 

•»  Leii  V.  Robeson,  12  Gray,  280;  Story 
Eq.  PI.  §452;  Bryan  v.  S|)ruill,  4  Jones 
Kq.  (N.  C.)  27;  Dike  v.  (Jrcene,  4  K.  1. 
285. 

C  Merrill  v.  riainfiebi,  45  N.  II.  120; 
Murcli  V.  ('oncord  Hailiuad,  2'J  N.  H.  33; 
Woottcn  V.  ISurch,  2  Md.  Cli.  Dec.  100. 

c  Loker  v.  Kollc,  3  Ves.  4,  7. 


Ch.  XIV.  §  1. 


will  not  be 
bound  by  his 
statement 
upon 
demurrer. 

Ambiguous 
statements 
construed 
adversely  to 
pleader. 

Matters  of 
fact  only 
admitted  by  a 
demurrer : 


and  not  infer- 
ences of  law : 


or  matters 
which  are 
rcpufifnant, 
whether  of 
fact  or  law. 


1  Wright  V.  Plumptree,  3  Mad.  481,  490. 

2  Siuijison  V.  Fogo,  1  J.  &  II.  18;  6  Jur. 
N.  H.  "J4'.t. 

8  Fonl  r.  Peering,  1  Ves.  .1.  72,  78; 
Commenial  Bank  of  Manchester  v.  Uuck- 
ner,  20  How.  IJ.  S.  108;  I'litersoii's  11.  K. 
R.  K.  Co.  V.  .Jers<'V  City,  1  Stockt.  (N.  J.) 
434;  see  Story  l':q.  V\.  §  452;  Milli  v. 
Brown,  2  Scam.  640;  Goble  «.  Amlras,  1 
(Jreen  Ch.  Ott;  NileB  v.  Anderson,  5  How. 
(MiH9.),  3e5;   Baker  v.  Booker,  0  Price, 


36 


546  DEMURRERS. 

rii.xiv.§  1.    so,  wluMV  a  record  is  ploiulcd,  it  has  been  held,  lliat  a  demurrer  is 

^- — Y never  a  eontession  of  a  thing  stated  in  the  bill,  repugnant  to  the 

record.' 
When  tho  It  may  be  noticed  here,  that  there  are  some  facts  of  which  the 

Court  i-i  Court  is  said  to  take  jitdicial  notice:   thus,  it  recognizes  foreign 

lioimti  to  ''  ... 

knowjuiii-  States;  and  when  facts  are  averred  in  a  bill  which  are  contrary 
avorm'nf  ^'^^  ^^Y  ^'^^^'^  of  Avhich  the  Court  takes  judicial  notice,  the  Court  will 
'^'■■*^-  not  })ay_any  Jittention  to  the  averment.     Thus,  Avhere,  in  order  to 

prevent  a  demurrer,  it  was  falsely  alleged  in  the  bill  that  a  revolted 
colony  of  Spain  had  been  recognized  by  Great  Britain  as  an  inde- 
pendent State,  Sir  Lancelot  Shadwell  V.  C,  upon  the  argument  of 
a  demurrer  to  the  bill,  held,  that  the  fact  averred  was  one  which 
the  Court  Avas  bound  to  take  notice  of  as  being  false,  and  that  he 
must,  therefore,  take  it  just  as  if  there  had  been  no  such  averment 
Kactis,  of  on  the  record.'-  It  is  to  be  observed,  that  besides  the  rec- 
which  the        ognition  of  foreign  States,  the   Court  will  also    take   judicial  or 

( .ourt  takes  ^  &  '  J 

judicial  official  notice  of  a  war  in  which  this  country  is  engaged ;  but  not 

oogiii/.ance.  ^^  ^  ^^^^,  j^y^^y^jf^^  foreign  countries.^  The  Court  is  also  bound  to 
notice  the  time  of  the  Queen's  accession,  her  proclamations,  and 
privileges;  time  and  place  of  holding  Parliaments,  the  time  of 
sessions  and  prorogation,  and  the  usual  course  of  proceedings ;  the 
Ecclesiastical,  Civil,  and  Maritime  Laws ;  the  customary  course  of 
descent,  in  Gavelkind  and  Borough  English  tenures ;  *  the  course 
of  the  Almanac;^  the  division  of  England  into  counties,  prov- 
inces, and  dioceses ; "  the  meaning  of  English  words ''  and  terms 
of  art,  even  when  oidy  local  in  their  use ;  legal  Aveights  and  meas- 
ures, and  the  ordinajy  measurement  of  time;  the  existence  and 
course  of  proceeding  of  the  Superior  Courts  at  Westminster,  and 
the  other  Courts  of  General  Jurisdiction :  ^  such  as  the  Courts  of 
the  counties  palatine,  &c. ;  and  the  privileges  of  its  OAvn  officers.^ 
It  follows,  therefore,  from  the  principle  before  laid  down,  that 
where  a  bill  avers  any  fact  in  opposition  to  what  the  Court  is  so 
officially  bound  to  notice,  such  averment  will,  in  arguing  a 
demurrer  to  the  bill,  be  considered  as  a  nullity.^" 

1  Arundel    v.   Arundel,   Cro.    Jac.    12;  nipiseoRee  Lake  Co.  v.  Young,  40  N.  H. 

Com.  Dig.  Pleader,  Q.  6;  Green  v.  Dodge,  420.     But  not  the  local  situation,  and  dis- 

6  Haie,  80;  Mortimer  v.  I'Yaser,  30  Jan.  tance  of  dilferent  places  in  a  county  from 

1837,  reported  upon  another  point,  2  M.  &  each  other.  Deybel's  case,  4  B.  &  Aid.  243. 

C.  173.  ''  Commonwealth  v.  Kneeland,  20  Pick. 

^  Taylor  v.   Barclay,  2  Sim.  213,   220,  239. 

an/e,  p.  18,  19.  8  Newell    v.    Newton,    10    Pick.   470; 

3  Dolder  v.  Lord  Iluntingfield,  11  Yes.  Ilawkes  n.  Kennebeck,  7  Ma=s.  461;  Kip- 

292,  «n<e,  p.  54  ley  v.   Warren,  2   Pick.    592;    Despau  v. 

*  Crosby  V.  Hetherington,  4  Man.  &  Gr.  Swindler,  3  Martin  (N.  S.),  705;  Jones  v. 

946.  Gale,  4   Martin,  635;    Woods  v.  Fitz,  10 

6  Mayor  of  Guildford  v.  Clark,  2  Vent.  Martin,  I'JO. 

247.       "  '•'  Taylor  on  Evid.  Chap.  IL;  Stephen 

6  Courts  ex  officio   take   notice   of  the  on  PI.  269;  and  see  1  Chitty  on  PI.  236  et 
civil  divisions  of  the  State  created  by  pub-  seq..  where  further  information  on  the  sub- 
lie  laws,  as  counties  and  townn,  and  of  its  ject  is  to  be  found;  see  also  1  Greenl.Evi- 
great   geographical  features,  as  its  large  dence,  §§4  0;  Story  Eq.  PI.  §  24. 
lakes,  rivers,  and  mountains.     The  Win-  i"  Courts  will  not,   ex  officio,  take    no- 


DIFFERENT    GROUNDS    OF    DEMURRER. 


547 


Sectiox  II.  —  The  different  Grounds  of  Demurrer. 


Ch.XIV.§2. 

>. ^ • 


by  several  modes  of  defence.  He  may 
demur,  answer,  and  plead  to  diiferent 
parts  of  tlie  bill;  so  that  if  a  bill  for  dis- 
covery and  relu'f  contains  proper  matter 
for  the  one  and  not  lor  the  other,  the  de- 
fendant should  answer  the  proper,  and 
demur  to  tl.e  iinprnper,  matter.  But  if  he 
demurs  to  the  whole  bill,  tlie  demurrer 
must  be  overruled;  "  see  post,  584.  So  in 
Wright  V.  Dame,  1  Met.  241,  Mr.  Justice 
Putnam,  delivering  the  opinion  of  the 
Court,  said,  "  We  adi>pt  the  old  rule  of 
pleading  in  Kquitj',  that  on  a  general  de- 
murrer "to  the  whole  bill,  if  there  is  any 
part,  either  as  to  the  reliel'  or  discovery,  to 
which  the  defendant  ought  to  put  in  an 
answer,  the  demurrer,  being  entire,  ought 
to  be  overruled."  And  he  cites,  1  Harri- 
son Ch.  Pr.  (7th  ed.)  414;  see  Higgin- 
bothnui  V.  lUirnet,  5  John.  Ch.  186;  Co- 
nant  f.  Warren,  6  Gray,  5G2;  Brockway 
V.  Copp,  3  Paige,  539 ;  Sikes  v:  Truitt,  4 
Jones  Kq.  (N.  C.)  361;  Atwill  v.  Fcrrett, 
2  Blatch.  C.  C.  39;  Metier  v.  Metier,  3  C. 
E.  Green  (N.  J.),  270;  .Metier  v.  Metier,  4 
C.  E.  Green  (N.  J  ),  457;  Baiita  v.  Moore, 
2  McCarter  (N.J),  97;  Miller  t'.  Ford, 
Saxtoa  (N.  J.),  365;  Holmes  i'.  I]ohnes,36 
Vt.  525,  537.  "  The  defendant  should  an- 
swer as  to  the  discovery,  and  demur  as  to 
the  relief."  Laight  v.  Morgan,  1  John. 
Cases,  434.  But  where  a  bill  seeks  gen- 
eral and  special  relief,  and  also  discovery, 
and  relief  is  the  principal  object,  and  dis- 
covery is  sought  merely  as  incidental  to 
the  relief,  if  the  plainiiif  shows  no  title  to 
the  relief  sought,  a  demurrer  lies  to  the 
whole  bill.  Poole  v.  Llovd,  5  Met.  525; 
see  MitchelH'.  Green,  10  Met.  101 ;  Walker 
V.  Locke,  6  Cush.  90,  93;  but  sec  Holmes 
V.  Holmes,  36  Vt.  525,  037.  A  del'endant 
cannot  j)icad  or  answer,  and  demur  both, 
to  the  whole  bill  or  to  tlr;  same  ])an  of 
a  bill.  Clark  v.  I'helps,  6  .lohn.  Ch.  214; 
neauchami)  I'.  Gibbs,  1  Bibb,  481;  Hob- 
crtsoii  V.  Bingly,  1  M'Cord  Ch.  362;  see 
jKist,  ')>>'.>,  n.  8. 

a  Angel  I  v.  Westcombo,  0  Sim.  30; 
Amliury  V.  .loncs,  Yoimge,  199;  .lames  v. 
Herriot't,  0  Sim.  428;  Hose  r.  (iannel,  3 
Atk.  439;  Baker  v.  Bramah,  7  .Sim.  17; 
Southeastern  Kailw;iy  (;ompany  v.  Sub- 
marine I'eU'gra])!!  (Jomjiany,  Ih  Bcav.  429; 
17  .lur.  1014;  and  see ;j(Mf,  Chap.  XXXI V. 
§  2,  JJills  of  JJiscovery. 


relief. 


A  demurrer  may  be  either  to  the  relief  prayed,  or,  if  discovery   to  the  reUef, 

is  souglit,  to  the  discovery  only,  or  to  both.     If  the  demurrer  is   ^jg^^°^g^_ 

good  to  the  relief,  it  will  be  so  to  the  discovery;^  if,  therefore, 

a  plaintiiFis  entitled  to  the  discovery  alone,  and  goes  on  to  pray 

relief,  a  general  demun-er  to  the  whole  bill  will  be  good ;  ^  and, 

for  the  purposes  of  a  demurrer,  a  prayer  for  general  relief  renders 

the  bill  a  bill  for  relief^      A  praver  will  not,  however,  convert  a  What  consti- 
tutes bill  for 

tice  of  foreign  laws,  and  consequently 
they  must,  when  material,  be  stated  in 
pleading.  Campian  v.  Kille,  1  McCarter 
(N.  J.),  229. 

1  Ld.  Red.  183;  Loker  v.  Rolle,  3  Ves. 
4,7;  Kyves  );.  h'y ves. /6.  343,  347 ;  Mnc- 
kleston'v.  Brown^  6  Ves.  63;  Barker  v. 
Dacie,  ib.  686 ;  Hodgkin  v.  Longden,  8  Ves. 
3;  Williams  r.  Steward,  3  Mer.  502;  Gor- 
don V.  Simpkinson,  11  Ves.  509;  Speer  v. 
Crawter,  17  Ves.  216;  Evan  v.  Corpora- 
tion of  Avon,  29  Beav.  144. 

^  Price  V.  .lames,  2  Bro.  C.  C  319;  Col- 
lis  V.  Swavne,  4  Bro.  C.  C.  480;  Albretcht 
V.  Sussma"n,  2  V.  &  B.  328;  see  Miller  v. 
Ford,  1  Saxton  (N.  J.),  360;  Coombs  v. 
Warren,  17  Maine,  404;  Sauza  v.  Belcher, 
3  VAw.  Ch.  117.  It  is  said  by  Mr.  Justice 
Storv,  in  note  to  Story  Eq.  PI.  §  412,  re- 
marting  on  the  rule  In  the  text,  that  "  the 
rule  formerly  adopted  in  Ivigland  was  dif- 
ferent. It  was,  that  if  a  bill  was  for  dis- 
covery and  relief,  and  it  was  good  for 
discovery  only,  a  general  demurrer  to  the 
whole  bi'll  was  bal;  for  though  the  party 
was  not  entitled  to  relief,  he  was  not  to  be 
prejudiced  for  having  aske  I  too   much." 

To  this  he  cites,  Brandon  v.  Sands,  2  Ves. 
J.  514;  Salter  i:.  Sorborough,  9  Ves.  75; 
Attornev-General  i'.  Brown,  1  S«anst. 
294;  M'iford  Eq.  PI.  by  Jeremy,  183,  184. 

"  In  New  York,"  the  same  learned  author 

adds,  •'  the  old  English  rule  is  adhered  to; 

and  indeed  it  h.is  much  to  commend  it." 

See  Laight  v.  Morgan,  1  John.  Cases,  429; 

S.  C.  2  Caiiies's  Ca.  in  Krror,  344;  Le  Hoy 

V.  Veeder.  1  John   (Jases,  423;  Le  Koy  v. 

Servis,  1  Caines's  Ca.  in  Error,  1 ;  S.  C. 

2  (!ai(ies's  (Ja.  in  Error,  175;  Kimberly  v 

Sells,  4  John.  Cli.  467;  Living-ton  v.  IJv- 

ingston,  4  .John.  (Jh.  400;  llif;ginbotliani 

p.  Burnet,  5  John.  Cli.   184.      I  he  pr'per 

course  is  held,  in  New  York,  to  be,  to  de- 

njur  to  the  relief  and  to  answer  to  the  dis- 
covery.   Ilig^ihbothain  v.  Burnet,  5  .lohn. 

Ch.  l"b4.      I  he  same  dxirine.  was  aflirmed 

in  the  Supreme  (-'ourti  f  the  United  Stales 

in  IJving-loii  v.  Story,  9  Peters,  632,  658, 

where  .Nlr.  Justice  'I'hompson  i-aid,  "And 

if  any  [lart  of  the  bill  is  good,  and  entitles 

the  |)luin;  iff  either  to  relief  or  to  di.scovery, 

a  demurrer  to  the  whole  bill  cannot  bo 

su!itained.  It  is  an  established  and  uni- 
versal rule  of  pleading   In   (Jhaneery,  that 

a  defendant  may  meet  the  plamtilf'ii  bill 


548 


DEMURRERS. 


Cn.XlV.§'2. 


Di'fomiant 
iiKiy  ili'iiuir  to 
n'licl'.  without 
domiirriiii;  to 
discover)' ; 


But  cannot 
demur  to 
discovery, 
witliiiiit 
deniun'ing  to 
relief ; 


Exceptions  to 
the  rule. 


bill  inio  one  for  rrlicll  if  it  incivly  ]ir:iys  for  the  equitable  assist- 
Miiee  oi'  till'  Court,  eouse(|iieiit  ial  ti|>oii  I  lie  prnyer  for  disoovery  :^ 
ijueh  as,  a  writ  of  iuiimetion,  or  a  eoiiunissioii  to  examiue  wit- 
nesses abroad,'-  or  that  the  testimony  of  witnesses  may  be 
perpetuated,^  or  that  defendant  may  set  tbi-tli  :i  list  of  deeds."* 

Motwithstaniling  the  g'eneral  rule,  that  if  the  relief  jirayed  is 
unnecessary  ttr  iniprojier,  the  defendant  may  cover  himself  by  a 
general  demurrer,  yet  this  will  not  preclude  the  defendant,  in  cases 
where,  if  the  bill  had  been  for  a  discovery  only,  there  would  have 
been  a  right  to  such  discovery,  from  demurring  to  the  relief  only, 
and  answering  as  to  the  discovery,  or,  in  other  words,  giving  the 
discovery  required.^ 

The  converse  of  this  proposition,  however,  will  not  equally  hold  : 
for  it  has  been  determined,  that  Avhere  a  bill  ])rays  relief  as  well 
as  discovery,  the  defendant  cannot  demur  to  the  discovery  and 
answer  to  the  relief:  for  then  he  does  not  demur  to  the  thing  re- 
quired, but  to  the  means  by  which  it  is  to  be  obtained." 

There  are,  however,  some  exceptions  to  the  last-mentioned  rule : 
as  where  the  discovery  sought  would  subject  the  defendant  to 
punishment,  or  to  a  penalty,  or  forfeiture ;  or  is  immaterial  to  the 
relief  prayed;  or  is  of  matters  Avhich  have  been  (communicated 
imder  the  seal  of  professional  confidence ;  or  Avhich  relate  entirely 


1  A  mere  bill  of  discovery  cannot  prop- 
er!)' prHV  tor  relief.  Where  upon  the  facts 
stated,  the  relief  prayed  for  by  the  bill  is 
proper,  the  bill  is  something  more  than  a 
mere  bill  of  discovery.  Where  the  bill  is 
for  discovery  merely,  as  distinguished 
from  a  bill  of  discovery  and  relict,  an  in- 
junction to  stay  proceedings  in  a  suit  at 
Law  for  which  the  discovery  is  sougiit, 
must,  accordint;  to  the  practice  in  New 
Jersey,  be  ilis'-olved,  the  Court  of  Chan- 
cery in  that  State  never  having  adopted 
the  princijjle,  that  because  its  jurisdiction 
has  once  rightfully  attached,  it  will  retain 
the  cause,  iis  a  matter  of  right,  for  the 
purposes  of  complete  relief  Little  v. 
Cooper,  2  Stockt.  (N.  J.)  273;  IJrown  v. 
Edsall,  1  Stockt.  (N.  J.)  256;  see  Pool 
V.  Llovd,  5  Met.  525. 

But"  in  Holmes  v.  Holmes,  36  Vt.  525, 
537,  Poland  C.  J.  said,  "  '1  he  rule,  as 
■we  understand  it,  is,  that  when  a  bill  is 
brought  seekmg  both  discovery  and  relief, 
and  material  discovery  is  elicited,  the 
Court  u  ill  proceed  to  grant  the  projier  re- 
lief, and  will  not  turn  the  plaintilf  around 
to  seek  relief  at  Law,  even  if  the  relief 
were  such  as  a  Court  of  Law  miglit  grant. 
It  may  not  be  univer.'aliy  true  that  obtain- 
ing discovery  will  give  a  Court  ot  Equity 
jurisdiction  to  grant  relief,  but  thi.s  is  the 
general  rule."  And  in  many  cases  it  has 
been  held,  that  where  a  party  has  a  just 
title  to  come  into  Equity  for  a  discovery, 
and  obtains  it,  the  Court  will  go  on  and 


give  him  the  proper  relief;  and  not  turn 
him  round  to  the  expenses  and  inconven- 
iences of  a  doubtful  suit  at  J>aw.  See  a  full 
discussion  of  this  subject,  and  a  citation 
of  the  authorities,  1  Story  Eq.  Jur.  §  64  A 
ei  seq. 

2  Brandon  v.  Sands,  2  Ves.  J.  514; 
Noble  V.  Garland,  19  Ves.  376;  Lousada 
V.  Templer,  2  Kuss.  561;  King  v.  Allen,  4 
]Mad.  247;  sec  also  Duke  of  Dorset  v. 
(iirdler,  Prec.  in  Ch.  532. 

3  Hall  V.  lloddesdon,  2  P.  Wms.  162; 
Vaughan  v.  Fitzgerald,  1  Sch.  &  Lef.  316; 
Rose  V.  Gannell,  3  Atk.  439. 

4  Crow  V.  Tyrell,  2  Mad.  397,  408. 

5  Hodgkin  v.  Longden,  8  "Ves.  2;  Todd 
V.  Gee,  17  Ves.  273;  see  Story  Eq.  PL 
§  312  and  cases  in  note ;  Brownell  v.  Cur- 
tis, 10  Paige,  214. 

e  Morg;in  v.  Harris,  2  Bro.  C.  C.  121, 
124;  Story  Eq.  PI.  §  812,  in  note,  §§  441, 
546;  Brownell  v.  Curtis,  10  Piiii;e,  214; 
ante,  547  note.  It  has  been  suggested  that 
this  rule  may  possibly,  in  some  cases,  be 
affected  by  Order  XIV.  8;  that  "no  de- 
murrer or  plea  shall  be  held  bad,  and  over- 
ruled upon  argument,  oidy  because  such 
demurrer  or  plea  does  not  cover  so  much 
of  the  bill  a.s  it  might  liy  Law  have  ex- 
tended to."  But  .see  Dell  v.  Hale,  2  Y.  & 
C.  C.  C.  1;  C  .lur.  986;  and  ;w,s-/,  p.  584. 
This  rule  has  been  ado[)ted  by  the  Su- 
pieme  Court  of  the  United  States.  Equity 
Kule,  38;  Story  Eq.  PI.  §  443. 


DIFFERENT    GROUNDS    OF    DEMURERR. 


549 


to  the  defendant's  title,  and  not  to  that  of  the  plamtift:     In  cases  of  Cn.XlV.§2. 

this  nature,  the  Court  will  allow  a  defendant  to  pi-otect  himself  by   ' y ' 

demurrer  from  the  particular  discovery  sought :  though  it  will  not 
protect  him  fi-om  the  relief  prayed,  if  the  plaintiflf's  title  to  it  can 
be  established  by  other  means  than  the  discovery  of  the  defendant 
himself  Thus,  in  a  bill  to  inquire  into  the  reality  of  deeds,  on  a 
suggestion  of  forgery,  the  Court  has  entertained  jurisdiction  of  the 
cause,  though  it  does  not  oblige  the  party  to  a  discovery,  and 
has  directed  an  issue  to  try  whether  the  deeds  were  forged  or 
not.^ 

It  is  proposed  now  to  consider :  first,  the  grounds  of  demurrer  to 
the  reUef ;  and  then  those  of  demurrer  to  the  discovery  only. 

Demurrers  to  the  relief  may  be  either :  To  the  jurisdiction ;  the  Different 
person  ;  or  the  matter  of  the  bill,  either  in  its  substance  or  form.       demurre°to 

Demurrers  to  the  jurisdiction  are  either  on  the  ground:  I.  That  relief. 
the  case  made  by  the  bill  does  not  come  Avithin  the  description  of  j[^° ; 5?^^;^^ . 
cases  in  Avhich  a  Court  of  Equity  assumes  the  power  of  decision ; 
or,  II.  That  the  subject-matter  is  within  the  jurisdiction  of  some 
other  Court.^ 

I.  It  would  be  a  task  far  exceeding  the  limits  of  this  work,  and  i.  Because 
not  strictly  within  its  object,  to  attempt  to  point  out  the  cases  in  * f "tii"  s{|lf ig 
which  a  demurrer  will  hold  to  a  bill,  on  the  ground  that  the  case  not  within 

.  -.  J,  Ti?'  the  junsQic- 

made  by  it  does  not  come  withm  the  onhnary  cases  tor  relict  m  a  tj^n  of  a 
Court  of  Equity.     It  is  sufficient  to  direct  the  reader's  attention  to   JJ^'^^Jf^f 
the  admirable  statement  of  the  general  objects  of  the  jitrisdiction 
of  a  Court  of  Equity,  which  is  to  be  found  in  Lord  Redesdale's 
Treatise  upon  Pleading ;  ^  and  to  observe,  that  if  the  case  made 
by  the  bill  appears  to  be  one  on  which  tlic  jurisdiction  of  the  Court 
does  not  arise,  a  demurrer  will  hold.*     And  it  is  to  be  observed,  where  defect 
that  a  demuiTcr  will  hold  equally,  where  the  defect  arises  from  the  the  onSn 
omission  of  matter  which  ought  to  be  contained  in  the  bill,  or  of  of  a  necessary 
some  circumstance  which  ought  to  be  attendant  thereon  for  the   stance; 


1  Per  Lord  Hardwickc  in  Brownsword 
e.  Edward-",  2  Yes.  S.  240;  Attorney-Gen- 
eral V.  Siuiell,  I'rec.  in  Ch.  214. 

'•2  A  demuirer  for  wunt  of  equity,  in- 
cludes a  demiirror  for  wnnt  of  .jurisdic- 
tion. 'I  li<>iii|ison  »'.  Uiiiversitv  of  London, 
33  L.  .J.  ("h.  620;  10  .hii.  N.S.  fiOO.  V.C. 
K.;  BPC  also  Hiirbcr  »;.  Barber,  4  Drew. 
666;  5  .Iiir.  N  .S.  1107;  Oiokm-v  v.  Aii- 
d<'rson,  .'U  I'.CHV.  452;  H  .lur.  N.'S.  1220; 
1  I)e  G.,.(.  &  .S.  aCO;  !»  .lur.  N.  S.  736.  As 
to  the  form  of  <li'iiiiirrc'r  for  want  of  juris- 
diction, see  Hailjor  t).  IJiirher.  nbi  tup. 

"  And  Hec  i''onl).  on  I'>|.;  Coop.  Kq.  PL; 
Story  lv|.  Jur. ;  Story  ICq.  I'l. 

<  iSlfplicni'on  V.  Davis,  /J6  Miiiiip,  73.74, 
75;  Storv  Kq.  I'l.  §§  466,  407;  Miiford 
Kq.  !M.  iiy  .IiTomy,  iio  ti  »(■({.  ;  Blount  v, 
G'lren,  3  li:ivw.  bH;  Liviiiu'^tou  v.  LiviuKs- 
ton,  4  John.  Ch.  287.     Where  a  bill   in 


Equity  sets  forth  various  clnims,  and  the 
defentlaiit  files  ii  general  demurrer,  tlie  de- 
murrer will  be  overruleii  if  any  of  the 
claims  be  proper  for  the  Jurisdiction  of 
the  Oourt  of  Equity.  Castlemaii  v.  Veitch, 
3  IJaiid.  5118;  Kim'berly  v.  Sells,  3  .John. 
Ch.  407;  Graves  v.  Downey,  3  Monroe, 
3.')0;  liloiint  v.  Giircti,  3  llayw.  8S;  Rlor- 
toiie  V.  Grciiuda  Aciuleniii  s,  8  Sui.  &  M. 
773.  A  demurrer  to  Ilie  whole  of  a  bill 
containing  some  matters  relicvable  anil 
others  not,  is  bad,  unless  the  bill  is  multi- 
furions.  Dimmock  v.  Bi.\I)y,  20  I'ii'k.  368. 
In  order  to  sustain  n  dfininrcr  for  w.nil  of 
jurisdiction  to  the  whole  oC  a  I'ill,  il  niiisl 
'ii[)pc,nr  that  no  substantial  and  i's-^i'Mti;il 
part  ol  the  comi.laint  in  williiii  tlic  juris- 
diction of  the  Court.  Boston  Water  I'owcr 
(^o.  V.  Boston  &  Worcester  Kli  ,  16  Tick. 
C12. 


550 


DEMURRERS. 


Cii.  XIV.  §  2. 


wherr 

defendants 
arc  rvsidont 
abroad. 


II.  Because 
the  stibject  of 
the  suit  is 
within  the 
jurisdiction 
of  some  other 
Court: 


1.  That  a 
Court  of  Law 
is  the  proper 
tribunal. 


]mrposo  of  briiio-iiio:  \hv  cnsc  pvo])orly  Avilliiii  llic  Jurisdiction;  as 
wIkmv  it  apjK'ais  (hat  (ho  case  is  siu-h  as,  under  no  eirciunstance, 
can  bo  brought  witliin  the  ordinary  scope  of  a  Oourt  of  Equity.^ 
Thus,  wluMo  it  a)i])oars  on  tlic  face  of  tlic  bill  that  tlie  defendants 
"wore,  at  the  time  of  the  institution  of  the  suit,  resident  in  a  foreiji'n 
country,  and  that  the  suit  does  not  relate  to  any  of  the  subjects  in 
respect  of  which  the  Court  is  warranted  in  exercising  jurisdiction 
against  persons  so  resident,  a  demurrer  for  want  of  equity  will  be 
allowed.- 

11.  A  demurrer,  because  the  subject-matter  of  the  suit  is  within 
the  cognizance  of  some  other  Court,  may  be  on  the  ground  tliat  it 
is  witliin  the  jurisdiction  either  :  1.  Of  a  Court  of  Common  Law ; 
2.  Of  the  Courts  of  Probate  or  Divorce  ;  3.  Of  the  Court  of  Admi- 
ralty or  Commissioners  of  l*rize  ;  4.  Of  the  Couit  of  Bankruptcy  ; 
5.  Of  some  statutory  jurisdiction  ;  or,  6.  Of  some  other  Court  of 
Equity. 

1.  If  it  appears  by  the  bill,  that  the  plaintiff  can  have  as  effectual 
and  conqjlete  a  remedy  in  a  Court  of  Law  as  in  a  Court  of  Equity, 
and  that  such  remedy  is  clear  and  certain,  the  defendant  may  de- 
mur.''    Thus,  Avhere  a  bill   was  brought  by  the   executrix   of  an 


1  Ld.  Red.  108;  see  Columbine  v.  Chi- 
chester, 2  Phil.  27;  1  C.  P.  Coop.  t.  Cott. 
295;  10  .Inr.  626.  For  forms  of  demurrer 
for  want  of  equity,  see  2  Van  Hej'.  74,  75, 
80,  92;  iind;w*7,  Vol.  III. 

2  Cookne}'  v.  Anderson,  nbi  svp. ;  and 
see  FolfV  v.  Maillarciet,  1  De  G.,  J.  &  S. 
389;  10  iur.  N.  S.  161;  Samuel  w.  Rogers, 
1  De  G.,  J.  &  S.  396;  and  ante,  pp.  449- 
451. 

8  Ld.  R<'d.  123 :  Storv  F.q.  PI  §  473 ;  Coop. 
Eq.  PI.  124;  Lynch  i'."Willar(l,6  .John.  Ch. 
342;  May  v.  Goodwin,  27  Geo.  352;  Reedr. 
Bank  of  Newburv,  1  Paipe,  215;  Boslev  v. 
M'Kim,7  liar.  &'J.  160;  Reed «;.  Clarlie,  4 
Monroe,  19;  N.  London  Bank  ».  Lee,  11 
Conn.  112;  Coombs  v.  Warren,  17  Maine, 
404;  Caldwell  v.  Knott,  10  Yerger,  209; 
CInrk  V.  Flint,  22  Pick.  231;  Ilonre  v. 
Conten(in,l  Bro.  C  C.  (Perkins's  ed.)  27, 
29,  note  ('().  a"<l  cases  ci'ed;  IlMmmoml 
V.  Messenger,  9  Sim.  327;  Bottorf  v.  Con- 
ner, 1  Blackf.  2h7;  Foster  v.  Swasey,  2 
Wood  &  M.  217;  Pierpont  v.  Fowle,  2 
Wood.  &  M.  23 ;  Smith  v.  Morelicad,  6 
Jones  Eq.  (N.  C.)  3G0.  In  First  Cong. 
S'icietv  in  Ravnham  v.  Trustees  of  the 
Fund,"&(!.,  in  Ravnham,  23  Pick.  148,  it 
was  hi'id,  tliat,  if  a  defendant  in  a  suit  in 
Kquity,  answi-rs  and  submits  to  the  juris- 
diction of  tlift  Court,  it  is  too  late  for  him 
to  object,  that  tlie  plaintift'  has  a  [ilain  and 
adequate  reniedj-  at  Law.  This  objection 
ghouli  be  taken  at  the  earliest  opportunity. 
The  above  rule  must  be  taken  witli  the 
qualification  that  it  is  competent  for  tlie 
Court  to  grant  the  relief  sotiglit,  and  that 
it  has  juri-diction  of  the  subject-miitter. 
Clark  V.  Flint,  22  Pick.  231;  Russell  w. 


Loring,  3  Allen,  125,126;  see  also  Lud- 
low V.  Simond,  2  Caines's  Cas.  Error,  40, 
56;  Underhill  v.  Van  Cortlandt,  2  John. 
Ch.  369;  McDomild  r.  Crockett,  2  M'Cord 
Ch.  135;  Pierpont  v.  Fowle,  2  Wood.  & 
M.  35;  Grandin  v.  Lerov,  2  Paige,  509; 
Kobbie  V.  Underbill,  3  Sandf.  Ch.  277; 
Sperry  v.  Miller,  2  B;irb.  Ch.  632; 
Ohliiig  V.  Luitjens,  32  111.  23.  The  above 
ohjection  mtiy  and  should  undoubtedly  be 
taken  by  demurrer,  when  it  appears  on 
the  f;icp  of  the  bill;  but  when  a  disclosure 
is  sought,  "  the  Court  should  in  no  case," 
said  Mr.  Justice  Woodbury,  "  send  the 
matter  to  Law  till  iitt^r  the  answer  and  dis- 
closure are  completed  in  Kquitv."  Foster 
V.  Swasev,  2  Wood.  &  M.  221  &  222;  see 
Warner  'v.  Daniels,  1  id.  110,  111.  In 
Parker  V.  Winnipiseoi?ee, &c.  Co.,  2  Black 
U.  S.  715,  it  was  held  that  where  the 
plaintiff  has  a  clear  remedy  at  Law,  his 
bill  ma}'  be  dismissed  bj'the  Judges  of  the 
United  States  Courts,  sua  sponle-,  tliough 
its  defects  are  not  noticed  either  in  the 
pleiidings  or  arguments. 

But  in  New  York,  under  the  Code,  there 
is  no  longer  any  distinction  between  suits 
at  Law  and  in  I'^quity,  as  arising  from  the 
form  of  the  pleadings  or  the  jurisdiction 
of  the  Court.  (Jcncral  JNIutual  Insurance 
Co.  V.  Benson,  5  Duer  {N.  Y.),  168. 

And  hi'iice,  if  the  sufliciency  of  a  com- 
plaint, as  not  stating  facts  constituting  a 
cause  of  action,  is  now  denied,  the  only 
question  is,  whether,  if  the  fiicls  stated  are 
admitte(L  the  plaintiff  is  entitled  to  the 
relief  he  claims,  without  relcrence  to  its 
nature  as  legal  or  equitable.  Jbid.;  see 
also  Foster  v.  Watson,  16  B.  Men.  377. 


DIFFERENT    GROUNDS    OF   DEMURRER. 


551 


attorney,  for  money  due  from  the  defendant  for  business  done  as  an   Ch.  XI v.  §  2. 
attorney,  the  Court  allowed  a  demurrer  to  the  relief:  because  the 
remedy  was  at  Law,  and  an  Act  of  Parliament  had  pointed  out  a 
summary  method  of  obtaining  it.^     And  where  the  plaintiff  had 
contrived  to  purchase  goods  for  export  to  America,  and,  after  the 
ship  had  sailed  Avith  them,  it  was  discovered  that  there  had  been 
fraud  used  in  the  quantity  and  quality  of  the  goods,  but  the  plain- 
tiff, being  threatened  with  an  action,  paid  the  original  juice  under 
a  protest  that  he  would  seek  relief  in  Equity,  a  demui-rer  was 
allowed  to  a  bill,  when  it  was  afterwards  brought  for  a  discovery 
and  account :  though  it  is  quite  clear  that,  if  the  plaintiff  had  not 
paid  the  money,  the  Court  would  have  granted  him  relief,  by  in- 
junction, against  the  threatened  action  for  the  price.^     Upon  the 
same  principle,  if  a  bill  is  filed  for  an  account,  where  the  subject  is 
matter  of  set-off,  and  capable  of  proof  at  Law,  it  may  be  denmrred 
to.^     And  so,  if  a  bill  is  filed  for  the  possession  of  land,  or  an  Eject- 
In   Frev  V.  Demarest,  1  C.   E.   Green 
(N.  J.),  236,  238,  Chancellor  Green  said, 
"  The  Court  of  Cliuncery  is  not  deprived 
of  its  original  jurisdiction   iti   any    case, 
either  by  the  operation  of  a  sttitute  con- 
ferring siniiltr  jurisdiction  upon  the  com- 
mon-law Courts,  or   by  the  adoption  in 
tho'^e  Courts  of  the  principles  or  practice 
of  Courts  of  Kfiuity.'' 

1  Parry  v.  Owen,  3  Atk.  740;  Amb. 
109.  For  form  of  the  demurrer,  see  ibid. ; 
Beames  on  Costs,  376;  also  Maw  v.  Pear- 
son, 28  Ikav.  196. 

2  Kemp  V.  Prvor,  7  Ves.  237,  251. 
8  Dinwiddle  v.  Bailey,  6  Ves.  136,  141. 

It  is  a  difficult  question  to  determine, 
wiien  there  is  an  account  between  two 
persons,  consisting  of  items  cognizable  at 
Law,  under  what  circum-tances  a  concui"- 
rent  juri-dicti^m  in  Kquiiy  exists;  for 
ca^es  oil  the  subject,  see  I  (dey  r.  Hill,  1 
J'hil.  3H'J,  403;  N'onh  Ea-tern  P.aiiway 
(Joni()any  r.  Martin,  2  Phil.  758,  763;  .S. 
C.  ruiii).  .Sou'li  Ka'^teru  l.'ail"  ay  Company 
V.  Martin,  13  Jur.  1;  South  Ivis'erti  Kaif- 
way  (Joinpany  v.  IJrogden.  3  M'N.  &  G. 
8,  16,  2">;  14  Jur.  7"J5,  71)7;  I'hillips  v. 
Piiilhps,  1»  Hare,  471;  Navuhhaw  v. 
Brownriu'g,  2  De  (J.,  M.  &  (J.  441 ;  16  Jur. 
1>71*;  Padwick  v.  lliir^t,  \h  IJ.  av.  575;  18 
Jur.  763;  linker  t).  Tayl'tr,  3  Drew.  1^3; 
Cro«key  «.  Kurofiean  and  Ami'rican  Slii|)- 
pinf;  Company.  1  J.  &  II.  lOH;  o  Jur.  N. 
S.  115(0;  ISarrV  »  Stevens,  31  Bcav.  258; 
9  Jur.  iV.  S.  "l43;  Sheparl  r.  Brown,  4 
GiflT.  20«;  <J  Jur.  N.  rt.  11)5;  Siniih  f. 
Leveaux.D  Jur.  N.  S.  1140.  L.  J.I.;  12  \V. 
R.  31;  2  ])e  (J.,  J.  iSc  S.  1;  lleminps  v. 
Pugh,  4  Gi(r.  450;  0  Jur.  N.  S.  1124; 
Makepeace  v.  Kogerft,  13  W.  (i  450.  V. 
C  S.;  11  Jur.  N.  S.  215,  iiffirmed  bv  L.J  J. 
11  Jur  \.  S.  314;  13  VV.  IJ.  50fi;"Kerriot 
V.  Potter,  3  Dc  C,  F.  &  .1.  447;  Kdwards- 
Wood  r.  liahlwin,  4  Giff.  613;  '.)  .lur  N. 
S.  1280;  l^iibbs  V.  Nugent,  11  Jur.  N.  S. 
943;  14  W.  H.  94,   V.   C.  S.;   llocktont). 


Peake,  10  L.  T.  N.  S.  173,  L.  JJ. ;  Hunter 
V.  Belcher,  2  De  G.,  J.  &  S.  194;  10  Jur. 
N.  S.  663.  It  has  been  held  that  the  Court 
of  Chancery  exercises  a  c'lncurrent  juris- 
diction with  Courts  of  Law  in  all  matters  of 
account.  Duncan  v.  L3-on,  3  Joiin.  Cb. 
351,361;  Ludlow  v.  Siinond,  2  Caines's 
Ca.  Error.  1,  38,52;  Post  v.  Kimberly,  9 
John.  470,  493;  Ilawley  v.  Cramer,  4 
Cowen,  717;  Martin  v.  Spiers,  1  Hayw. 
371;  Slothart  v.  Burnet,  Cooke,  420; 
Breckenridge  v.  Brooks,  2  A.  K.  Marsh. 
338;  Fowie  v.  Lawrason,  5  Peters,  495; 
Cummings  v.  White,  4  Blackf.  356;  Power 
V.  Reeder,  9  Dana,  10:  1  St<iry  Kq.  Jur. 
§§  451-457;  King  v.  Baldwin,  17  John. 
384.  In  Massachusetts,  the  jurisdiction 
in  Equity  over  accounts  is  limited  to  those 
accounts  of  which  the  nature  is  such  that 
they  cannot  be  conveniently,  atid  properly 
adjusted  and  settled  in  an  action  at  Law. 
Genl.  Sts.  c.  113,  §  2;  see  Locke  v.  Ben- 
nett, 7  Cush.  445,  449;  Bartlett  v.  Parks, 
1  Cush.  82.  But  to  sustain  a  bill  for  an 
account,  there  must  be  mutual  demands, 
or  a  series  of  transactions  on  one  side, 
and  of  i)ayn)ents  on  the  other.  Porter  v. 
Spencer,  2  John.  Ch.  171;  1  Story  Eq. 
Jur  §  458.  Where  all  the  items  of  account 
are  on  one  side,  the  bill  cannot  be  sus- 
tained; Pearl  t'.  Corp.  of  Nashville,  10 
Yerger,  179;  1  Story,  Eq.  Jur.  §§'458,459; 
unless  a  discovery  is  sought  and  obtivined 
ill  ail  of  the  account.  1  Story  Eq.  Jur. 
§§  67,  458,  459,  and  cases  cited;  see 
Pleasants  v.  (ilasscock,  1  Sm.  &  M    17. 

Ill  New  , Jersey,  the  concurrent  jurisdic- 
tion of  the  CNiurt  of  Iu|uity  with  the  Pre- 
rogative (Jourts  over  the  administration  of 
the  estates  ol  deceased  persons,  has  been 
long  and  well  settled.  This  jurisdiction 
in  E()uity  extend'*  to  the  accounts  of  ex- 
ecutors and  ailmiiiisir.iiors,  .-ind  to  Iho 
claims  of  creditors,  legatees,  and  n'-.xt  of 
kin.  Frev  v.  Demurest,  1  C.  Iv  (iroeii 
(N.  J.),  230,  238,  239. 


5.52 


DEMURRERS. 


(11.  XIV.  5 -3. 


I  lomurrer 
<l(ios  not  lie, 
where  Courts 
of  Law  have 
.1  ooncurivnt 
jurisdiction; 


.H3  in  cases  of 
traud, 


unless  it  be 
fraud  in 
procuring  the 
execution  of 
a  will. 


Extension  of 
Common  Law 
jurisdiction 
has  not 
destroyed, 
jurisdiction 
in  Equity. 


mcnt  Bill,  as  it  is  callotl,  it  may  1k'  doiimnvd  to,  oven  tli()ii!j;Ii  the 
Mil  I'liavoos  Iho  (U'liMidants  to  liavo  <j:ot  the  title-deeds,  and  to  have 
mixed  the  boundaries,  and  jirays  a  discovery,  possession,  and  ac- 
count:  lor  the  ].laintiff,  thouij^h  he  is  entitled  to  a  discovery,  has, 
by  praying  such  relief,  rendered  his  whole  hill  liable  to  demurrer.^ 

It  is  to  be  recollected  that,  in  many  cases,  Courts  of  Equity  have 
assumed  a  concurrent  jurisdiction  Avith  Courts  of  Law,  as  in  cases 
of  account,  partition,  and  assignment  of  dower  ;  '^  and  that,  where 
an  instrument  on  which  a  title  is  founded  is  lost,  or  fraudulently 
supi>ressed  or  withheld  from  the  party  claiming  under  it,  a  Court 
of  Equity  will  interfere  to  su])i)ly  the  defect  occasioned  by  the  ac- 
cident or  suppression,  and  will  give  the  same  remedy  Avhich  a 
Court  of  Common  Law  Avould  have  given,  if  the  instrument  had 
been  forthcoming.^  In  all  such  cases,  therefore,  a  demurrer,  be- 
cause the  subject-matter  of  the  suit  is  within  the  jurisdiction  of  a 
Court  of  Law,  will  not  hold,* 

Amongst  other  cases  in  which  Courts  of  Equity  and  Courts  of 
Law  entertain  a  concurrent  jurisdiction,  are  those  arising  upon 
frauds ;  therefore,  where  fraud  is  made  the  ground  for  the  inter- 
ference of  this  Court,  a  demurrer  will  not  hold.  There  is,  how- 
ever, one  case  in  wdiich  fraud  cannot  be  relieved  against  in  Equity, 
though  a  discovery  may  be  sought :  namely,  fi-aud  in  obtaining  a 
will,  which,  if  of  real  estate,  must  be  investigated  in  a  Court  of  Com- 
mon Law  or  the  Court  of  Probate  ;  ^  and  if  of  personal  estate,  in 
the  last-mentioned  Court.*' 

Although  the  extension  of  the  jurisdiction  of  the  Courts  of  Com- 
mon Law  has  prevented  the  necessity  of  resorting  to  the  Courts 
of  Chancery,  in  many  cases  in  which  it  was  foi-merly  necessary  to 
do  so,  yet,  the  jurisdiction  of  the  Court  of  Chancery  is  not  thereby 
destroyed.'' 


1  Loker  v.  RoUe,  3  Ves.  4,  7 ;  Ryves  v. 
Ryves,  ib.  343;  Vice  v.  Tlioma.s,  4  Y.  & 
C.  Ex.  538;  see  Story  Eq.  1^1.  §  476;  1 
Ston-  Eq.  .Jur  §  71;  "Coop.  Eq.  PL  125; 
Russell  V.  Clark,  7  Cranch.  69,  89. 

2  L(i.  Red.  120,  123 ;,1  Story  Eq.  Jur. 
§  75  ei  stq. 

8  Ld.  Red.  113,  1  Story  Eq.  Jur.  §  81 
et  seq.  and  ca.ses  in  notes;  Bromley  v.  Hol- 
land, 7  Sumnpr's  Ves.  3  and  note  (d). 

4  1  Story  Eq.  Jur.  §  184  et  stq-  and 
notes;  Anderson  v.  Lewis,  1  Freeman, 
206. 

6  See  20  &  21  Vic.  c.  77,  §§  G1-G.3. 

6  Kerrick  v.  Bransby,  7  Uro.  I'.  C.  ed. 
TomL  437;  Webb  v.  "Claverden,  2  Atk. 
424;  Bennet  v.  Vade,  ib.  324;  Anon.,  3 
Atk.  17;  Allen  v.  Macplierson,  1  I'hil.  133, 
143;  7  Jur.  49;  Afld.  11  Jur.  785,  11.  L.; 
Gini^ell  V.  Home,  9  Sim.  539,  548;  Jones 
V.  Gretror}-,  4  Giff.  468;  9  Jur.  N.  S.  1171; 
2  De  G.,  J.  &  S.  83;  Afld.  10  Jur.  N.  S. 
69;  12  W.  R.  193,  L.  JJ.;  and  see  Boyse 


V.  Eossboroiigh,  Kav,  71;  3  De  G.,  M.  & 
G.  817;  18  Jur.  205;"6  H.L.  Cii.  1;  3  Jur. 
N.  S.  373;  1  Story  Eq.  Jur.  §  184,  note, 
§  238;  2  ib.  §§  1445-1448;  Story  Eq. 
IM.  §  474;  Gaines  v.  Chew,  2  How.'U  S. 
619;    I'arver  v.  Tarver,  9  Peters,  180. 

■J  Kemp  V.  Pryor,  7  Ve.s.  237,  249;  Brit- 
i<ih  ICmpire  Shippinp;  Coni|)any  v.  Somes, 
3  K.  &  .J.  433;  Atheiia'um  Lite  Assurance 
Society  v.  Pootey,  3  De  G.  &  J.  294,  299; 
Oriental  Bank  v.  Nicholson,  3  Jur.  N.  S. 
857,  V.  C.  S.;  Croskey  v.  liumpeun  and 
American  Steam  Sliippinff  Company,  1 
J.  &  11.  108;  6  .Jur.  N.  S.  1190;  Sliepard 
V.  Brown.  4  Gill'.  208;  9  Jur.  N.  S.  195; 
Prey  D.  Uemarest,  1  C.  E.  Green  (N.  J.), 
236^  238.  Hut  where  a  party  has,  under 
the  p'oyisions  ot  the  Common  Law  Pro- 
cedure Act.  1854  (17  &  18  Vic.  c.  125,  §§ 
83-86),  pleaded  equitable  matter  in  the 
action  at  Law,  lie  will  not  l)e  permitted  to 
apply  subsequent)}'  to  the  Court  of  Chan- 
cery  on   the  same    grounds.      Terrill   v. 


DIFFERENT    GROUNDS    OF    DEMURRER. 


553 


2.  That  the  objection,  on  account  of  the  jurisdiction,  is  not  con- 
fined to  cases  cognizable  in  Courts  of  Law,  is  evident  from  the 
case  ah'eady  put  of  proceedings  instituted  to  set  aside  a  will  of 
personal  estate  on  the  ground  of  fraud,  wliich  can  only  be  done  in 
the  Comt  of  Probate  :  that  Court  haA"ing  exclusive  jurisdiction,  in 
all  cases  relating  to  wills  and  intestacies  of  persons  dying  possessed 
of  personal  property.  The  Court  of  Divorce  has  exclusive  juris- 
diction of  the  rights  and  duties  arising  from  the  state  of  marriage ; 
but  it  seems  that  the  Court  of  Chancery  will,  at  the  suit  of  the  wife 
and  her  trustees,  restrain  the  husband  from  breaking  the  covenants 
of  a  separation  deed.^ 

Foimerly  it  was  held,  that  a  bill  of  discovery  could  not  be  filed 
in  the  Court  of  Chancery,  in  aid  of  proceedings  in  the  Ecclesiasti- 
cal Court  ;  ^  but  it  seems  that  the  Court  of  Probate  does  not  pos- 
sess the  same  powers  to  obtain  discovery  as  the  Ecclesiastical 
Court  did  ;  and  that  such  a  bill  may  be  filed  in  aid  of  proceedings 
in  the  Probate  Court.^ 

3.  If  the  Court  of  Admiralty,  or  Court  of  Piize,  is  competent  to 
decide  upon  the  subject-matter  of  the  suit,  a  demurrer  will  also 
hold.  Upon  this  jainciple,  the  Court  of  Chancery  refused  to  inter- 
fere, by  granting  a  prohibition  against  a  monition  to  bring  in 
property  which  had  been  received  as  a  consignment  to  a  merchant : 
Lonl  Eldon  holding,  that  the  Prize  Jurisdiction  extends  to  the 
question,  whether  a  person  who  received  and  sold  the  proi)erty, 
received  it  as  consignee  for  a  valuable  consideration,  or  as  a  prize 
agent.* 

4.  The  Court  of  Bankruptcy  exercises  a  special  jurisdiction  de- 
fined by  statute;''  and  any  bill  is  liable  to  demuiTcr,  the  subject- 
matter  of  which  is  within  the  jurisdiction  of  that  Court.® 

5.  Where  a  new  mode  of  proceeding  is  provided  by  statute,  and 
the  ordinarj'  mode  of  proceeding  by  bill  is,  either  expressly  or  im- 
pliedly, taken  away,  a  demurrer  will  lie,''  Thus,  a  demurrer  will 
lie  to  a  bill  to  set  aside  an  award  made  inider  9  &  10  Will.  III.  c. 
15  :  that  statute  having  excluded  any  jurisdiction,  to  interfere  with 

HiKK^,  1  De  G.  &  J.  388;  4  .lur.  N.  S.  41; 
Walker  v  Micklethwaitp,  1  Dr.  &  Sm.  49; 
and  spo  EviiiiH  »-.  IJi-eimidfrp,  2  K.  &  .1. 
174,  181;  8  De  <;..  M.  &  (J.  100,  109; 
Stewart  v.  (Jreat  We-tcni  Kailwiiv  f'o.,  2 
Dr.  &  Sin.  4:jt<;  .iflinii.'  I  2  D»  (i.,".I.  &  S. 
319;  11  .lur.  N.  S.  •i27;  Waterlow  v. 
Hncoii,  L.  K.  2  i:q.  514;  12  Jur.  N.  S. 
•;14,  V.  C.  K. 

'  Hunt  V.  riiint,  8  .lur.  N.  S.  8.5;  10  W. 
H.  21'),  L.  f  V  ;  (t'-e  a'«o  Wilsf)n  v.  Wilson, 
1  n.  L.  Cn.  638;  .5  II.  [,.  ('a.  40;  Kvans 
V.  CarrinKton.  1  .T.  &  11.  .59S;  fj  Jur.  N. 
S.  2fih;  2  Dp  G.,  V.  k  .».  4K1;  7  .lur.  N. 
S.  197;  nn'l  the  otlier  ca.ies  referred  to  in 
Hunt  r.  Hunt. 

■^  Dunn  r.  Coates,  1  Atk.  288;  Anon.,  2 
V'es  S.  4oI. 


Ch.  XIV.  §  2. 


8  Fuller  V.  Ingram,  5  .Jur.  N.  S.  510;  7 
W.  R.  302,  V.  C.  W. 

*  Case  of  the  Danish  ship  Noysomhed, 
7  Ves.  593;  see  also  (Jastelli  v.  (Jnok,  7 
Hare,  89;  .larvis  v.  Chandler, T.  &  K.  319; 
Storj-  Kf|.  PI.  §  490,  and  see  24  &  25  Vic. 
c.  10,  Adniiraiiv  Court  Act,  18tJl;  27  & 
28  Vic.  c.  25,  Xaval  Prize  Act,  1804. 

6  12  &  13  Vic.  c.  100;  17  &  18  Vic.  c. 
119;  24  it  25   Vice.  134. 

«  Saxton  V.  Davis  18  Ves.  72,  82;  Pres- 
ton V.  Wilson,  5  Hare,  185,  193;  larieton 
V.  Hombv,  1  Y.  &  C.  Ex.  172,  188;  sco 
ante,  p.  61    ft  scfj. 

^  See  Parry  v.  Owen,  3  Atk.  740;  ante, 
p.  500;  Frev  v.  Deinare.st,  1  C.  K-  Green 
(N.  J.),  230. 


Bill  of  dis- 
covery lies  in 
aid  of 
proceedings 
in  Probate 
Court. 


3.  That  the 
Court  of 
Admiralty  is 
the  proper 
jurisdiction. 


4.  That  the 
Court  of 
Bankruptcy 
is  the  proper 
jurisdiction. 

5.  That  a 
statutory 
jurisdiction 
is  provided. 


554 


DEMURRERS. 


G.  That  some 
other  (.\itirt 
ot'  Kqnity  has 
jurisdiction: 


Cm. XIV. §2.    the  I'ttron'oiiicnt  of  (lu>  award,  Itul  tliat,  wh'wh  is  spoeially  provided 
by  the  statute.* 

0.  With  n'siHH-t  to  tho  objection,  that  some  other  Court  of  Equity 
lias  the  iirdper  jurisdiction,-  it  is  to  be  observed  that  the  establisli- 
nuMit  of  Courts  of  Equity  has  obtained  throuoliout  the  wlu)le  sys- 
tem of  our  judicial  polity,  ami  that  most  of  the  inferior  branches 
of  that  system  huve  their  peculiar  Courts  of  Etputy :  the  Court  of 
Chancery  assuming  a  general  jurisdiction,  in  cases  not  within  the 
bounds,  or  beyond  the  powers,  of  inferior  jurisdictions."  The 
principal  of  the  inferior  jurisdic-tions  in  England  which  have  cog- 
as  the  Courts  ni/,ance  of  equitable  cases,  are  those  of  the  counties  palatine  of 
Lancaster  and  Durham,^  the  Courts  of  the  two  Universities  of 
Oxford  and  Cambridge,'' the  Courts  of  the  city  of  London,"  and  the 
Stannary  Courts  of  Devon  and  Cornwall,''  and  wherever  it  aj^pears, 
on  the  face  of  the  bill,  that  any  of  these  Courts  has  the  jiroper 
jurisdiction,  either  immediately  or  by  way  of  ap))cal,  the  defendant 
may  demur  to  the  jurisdiction  of  the  Court  of  Chanceiy.^  Thus, 
to  a  bill  of  appeal  and  reviciw  of  a  decree  in  the  county  palatine 
of  Lancaster,  the  defendant  demurred,  because  on  the  face  of  the 
bill,  it  was  apparent  that  the  Court  of  Chancery  had  no  jurisdic- 
tion, and  the  demurrer  was  allowed.^  Demurrers  of  this  kind, 
however,  are  very  rare;  for  the  want  of  jurisdiction  can  hardly  be 
apparent  upon  the  face  of  the  bill,  at  least  so  conclusively  as  to 
deprive  the  Court  of  Chancery  of  cognizance  of  the  suit :  it  being 


of  the 
counties 
palatine,  tScc 


1  Heming  v.  Swinnertnn,  2  Phil.  79;  1 
C.  P.  Coni).  t.  Cott.  386;  10  Jur.  907; 
Nicliolls  V.  Roe,  3  M.  &  K.  431,  442,  over- 
ruling S.C.  5  Sim.  150;  Londonderry  ;ind 
Eniiisiiillen  Kailwaj-  Company  v.  Leish- 
man,  12  Beav.  423^  429.  As  to  awards, 
see  now  17  &  18  Vic.  c.  125,  §§  3,  5-17; 
and  as  to  the  present  jurisdiction  of  the 
Court  of  Chancery  oTer  awards,  see  Hard- 
ing f.  \\  ickham,  2  .J.  &  H.  67(5;  Smith  v. 
Whitmore,  10  .Jur.  N.  S.  65;  12  W.  R.  244, 
V.  C.  \V.;  10  .lur.  N.  S.  1190;  13  W.  R. 
2,  L.  .JJ. ;  2  Ue  G.,  ,1.  &  S  297;  Wakefield 
V.  Llanolly  Railway  and  Dock  Co.,  3  l)e 
G.,  J.  &  S.  11;  11  Jur.  N.  S.  456;  and  see 
Russell  on  Arbitration;  and  post,  Chap. 
XV.  §  2,  niffareut  Grounds  of  Pleas ;  Ch. 
XLV.  Statutory  Jurisdiction. 

2  See  Storv  Kq.  PI.  §  490;  Ld.  Red.  125, 
126 ;  Jlead  v.  Merritt,  2  Paige,  402. 

3  J.d.  Red.  151.  For  a  Tabular  View  of 
all  the  Courts  of  I^quity  in  England  and 
Wales,  and  of  the  (Jourts  of  Appeal  there- 
from, see  Trower  on  Debtor  and  Creditor, 
474-48.5,  498. 

4  As  to  the  Court  of  Chancery  of  Lan- 
caster, see  13  &  14  Vic.  c.  43;  17  &  18  Vic. 
c.  82.  15y  the  0  &  7  Will.  IV.  c.  19,  mite, 
p.  6,  the  palatine  jurisdiction  of  the  county 
of  Durham  has  been  separated  from  the 
bishopric,  and  transterred  to  the  Crown; 
but  the  jurisdiction  of  the  Courts  still  re- 


mains. See  Cox's  Institutes,  584;  Trower, 
4S0;  and  see  21  &  22  Vic.  c.  45. 

s  See  3  Bla.  Com.  83;  Geldart's  Civil 
Law,  153;  and  the  Oxford  University 
Acts,  17  &  18  Vic.  c.  81 ;  18  &  19  Vic.  c. 
36;  19  &  20  Vic.  c.  31;  20  &  21  Vic.  c.  25; 
23  &  24  Vic.  c.  23;  25  &  26  Vic.  c.  26; 
and  Cambridge  University  Act,  22  &  23 
Vic.  c.  34,  and  Acts  cited. 

6  See  i'ulling's  Customs  of  London, 
Chap.  13.  Formerly  the  county  palatine 
of  Chester,  tiie  principality  of  Wales,  and 
the  Cinque  Ports  haa  Courts  of  equitable 
jurisdiction.  Ld.  Red.  151;  see  ante,\).  7. 
11  Geo.  IV.  &  1  Will.  IV.  c.  70,  §  14;  18 
&  19  Vic.  c.  48;  20  &  21  Vic.  c.  1. 

'  It  was  formerly  held,  that  the  Stannary 
Courts  were  only  Courts  of  Law,  and  not 
Courts  both  of  Law  and  ICquity.  Irelaw- 
nev  V.  Williams,  2  Vern.  483;  but  see  now 
6  &  7  Will.  IV.  c.  106;  2  &  3  Vic.  c.  58; 
18  &  19  Vic.  c.  32;  Procedure  in  the 
Stannaries,  IntroducUn-y  Notice;  Trower, 
482;  Cox's  Institutes,  585. 

**  The  County  Courts  have  now  an  equi- 
table jurisdiction. 

'•'  .Itniu't  V.  liishopp,  1  Vern.  184.  B}' 
17  &  18  Vic.  c  82,  the  Lords  Justices  and 
the  Chancellor  of  the  Duchy  are  created 
the  Court  of  Appeal  in  Ch:in'ery  for  the 
county  palatine;  and  see  13  &  14  Vic. 
0.  43;  Trower,  480;  Winstaidey's  Pra. 
Chap.  1. 


DIFFERENT    GROUNDS    OF   DEMURRER.  555 

a  rule  that,  where  a  Court  is  a  Superior  Court  of  general  jurisdic-  Ch.XIV.  §2. 

tion,  the  presumption  will  be  that  nothing  shall  be  intended  to  be    " y ' 

out  of  its  jurisdiction  that  is  not  shown  and  alleged  to  be  so.^ 

The  general  way  of  objecting  to  the  jurisdiction  of  the  Court  is  Howobjec- 
by  plea ;  2  and  in  Boberdeau  \^ Boiis,^  in  which  a  bill  was  filed  for  ^'°''  ^''^°' 
delivery  of  ])Ossession  of  lands  in  St.  Christopher's,  Lord  Hard- 
wicke  held,  that  the  objection  that  the  Court  had  no  jurisdiction 
over  land  in  that  island,  although  right  in  principle,  was  irregu- 
larly and  informally  taken  by  demun-er,  and  should  have  been 
pleaded.      Lord  Redesdale,   however,  appears   to   have   been  of 
opinion,  that  the  rule,  that  an  objection  to  the  jurisdiction  should 
be  pleaded,  and  not  be  taken  by  demurrer,  can  only  be  considered 
as  referring  to  cases  where  circumstances  may  give  the  Chancery 
jurisdiction,  and  not  to  cases  where  no  circumstance  can  have  that 
effect;    and  that,  Avhere  all   the   circumstances  which   would   be 
requisite  in  a  plea  to  show  that  the  Court  has  no  jurisdiction  are 
shown  in  the  bill  a  demurrer  Avill  lie.*     What  those  circumstances  wjthin  what 
are,  will  be  stated  when  we  come  to  treat  of  pleas  to  the  juris-  time  objec- 
diction.^     In  the  mean  time,  it  may  be  observed,  that  if  the  objec-  taken. 
tion  on  the  ground  of  jurisdiction  is  not  taken  in  proper  time, 
namely,  either  by  demurrer  or  plea,  before  the  defendant  enters 
into  his  defence  at  large,  the  Court  having  the  general  jurisdiction 
will  exercise  it,®  unless  in  cases  where  no  circumstances  whatever 
can  give  the  Court  jurisdiction,  as  in  the  case  before  put,  of  a  bill 
of  a])j)eal  and  re\aew  from  a  decree  in  a  county  palatine;  in  which 
case,  the  Court  cannot  entertain  the  suit,  even  though  the  deiend- 
ant  does  not  object  to  its  deciding  on  the  subject.'^ 

1  Per  Lord  ITardwicke,  in  Earl  of  Derbj'  in  Equity  to  enforce  a  trust  arising  under 

r.  Duke  of  Atliol,  1  Ves.  S.  204.  the   will  of  a  foreigner,   wliich   lias  been 

'■^  I,d.  It'  d.  102;  Bank  r.f  liellows  Falls  jiroved  and  allowed  in  a  forfign  countrv 

V.  Kut.  &  Ilur.   li.Ii.  Co  ,  2S  Vt.  470;   Fre-  only,  and  no  certilied   copy  of  wliicli  has 

mont  V.  MiTced   Mining  Co.,  1  McAll.  C.  been  filed  in  the  Probate  Court  there;  and 

C.  (Cal.)  267.  the  objection  is  properly  taken  by  demur- 

*  1  Atk.  54.3.  rer.     Campbell  v.  Wallace,  10  Grav.  102; 

*  Ld.  Red.  ].".2,  15.3.  In  the  case  of  Campbell  v  Sheldon,  13  Pick.  8;  Mny  v. 
Henderson  r.  Henderson,  3  Hare,  100, 110,  Parker,  12  Pick.  34.  So  in  any  case  wliere 
118,  a  demurrer  was  allowed  on  the  ground  there  is  no  sufllcient  ground  shown  for  the 
that  the  whole  of  the  matters  were  in  ques-  interference  of  a  Court  of  Equity.  Story 
tion  hr-tween  the  parties,  and  miglit  have  V.(\.  PI.  §§  14,  34.  472;  Foster  1,'.  Swasey,  2 
been  the  f'Ubject  of  adjudication  in  a  suit  Wood.  &  M.,  217;  Pierpont  v.  Fowie,  2 
l>efore  the  Supreme  Court  of  Newfound-  Wood.  &  XI.  23;  IJaker  v.  Diddle,  1  Bald, 
land.  C.  C  411,  412. 

*  Post,  Chap.  XV.  §  2.  In  Maine,  it  ia  said,  tliiit.  as  the  Criurt 
'  Livingston  v.  Livingston,  4  .John.  Ch.        has  not  geneni!  but  limiti'd  juri-diriidii  in 

287;  UnderluJI  v.  Van  (.'ortlindt,  2  .John.  Eciuitj',  it  is  necessary  that  the  bill  -liould 

(Jh.  30!t;   White  T>.  (,'arpent'-r,  2  I'aigt;,  217;  show  upon  its  fncc,  that  the  Courthasju- 

Haiik  ot  M.jliiws  Falls  t'   Kut.  &  I'.ur.  RK.  risdiction  of  the  subject-matter  coniplaiiied 

Co.,  2^  Vf.  470.     (Jeiicrally,  an  objection  of.     This  may  be   inquired   into  under  a 

to  the  jurisdiction  canntjt  be  taken  at  the  special  or  general  demurrer.      Stephenson 

heariiig.     Niles  v.  Williams.  24  Conn.27'J.  v.  Davis,  56  Maine,  74. 
Where  the  want  of  jurisdiclioii  ap[iears  on  '  Ld.  Pcd.  153.     In  all   bills  in  Ivjuity 

the  face  of  the    bill,  advantage   should   be  in   the   Courts   of  the    L'nited    .^Ijites,  tlio 

taken   of  it    by  demurrer.     NicboKon   v.  citizenship  should  apjiear  on  the  ficc  of 

l'im,5  Ohio(N'.  8.),  25;  Kcndrick*  Whit-  the  bill  to   entitle  the  Court   to  take  ju- 

ficld,  20  Geo.  379.  ri.sdiction,   othcrwi.se   the   cMuse    will    he 

In  Massachusetts,  there  is  no  jurisdiction  dismissed.      Uodgc  v.  Perkins,  4  Mason, 


556 


DEMURRERS. 


Oil.  XIV.  §  J. 

Y ^ 

DonuirriT  to 
the  jwrson  : 


extends  to 
the  whoK' bill. 


Demurrer  to 
the  matter  of 
the  bill. 


I.  Demurrer 
to  the 

substance : 


1.  That  plain- 
tiif  has  no 
interest 


The  objcrtioiis  MrisiiiLi,-  iVoni  I  he  |H'i-son:il  (lis;il)ilily  of  Iho  ))l:iin- 
till"  h;ive  been  ah-eady  diseusseil.^  All,  theivtbri',  that  need  now 
be  s.iid  n|)on  the  subjeet  is,  that  if  any  ol'  tliesc  ineapaeities  apjtear 
n|ton  the  faee  of  the  bill,  the  defi'mlant  may  demur.  So,  also,  he 
may,  if  the  ineapaeity  is  sueh  only  as  prevents  the  party  from 
sninsi;  alone,  as  in  the  ease  of  an  intimt  or  a  married  woman,  an 
idiot  or  a  lunatic:  in  which  cases,  if  no  next  friiiid  or  committee 
be  named  in  the  bill,  a  demurrer  Avill  lie.'-^ 

This  objection  extends  to  the  whole  bill;''  and  advaiitao^e  may 
be  taken  of  it,  as  well  in  the  case  of  a  bill  for  discovery  merely,  as 
in  the  case  of  a  bill  for  relief:  for  the  defendant,  in  a  bill  Ibr  dis- 
covery, being  always  entitled  to  costs,  after  a  full  answer,  as  a 
matter  of  course,  would  be  materially  injured  by  being  compelled 
to  answer  a  bill  by  persons  whose  property  is  not  at  their  own 
disposal,  and  who  are,  therefore,  inca])able  of  paying  the  costs.^ 

We  come  now  to  the  consideration  of  demurrers  aiising  upon 
objections  applying  more  specifically  to  the  matter  of  the  bill ; 
these  may  be  either  :  I.  To  the  substance  ;  or,  II.  To  the  form  in 
which  it  is  stated. 

I.  Demurrers  to  the  substance  are  :  1.  That  the  jilaintiff  has  no 
interest  in  the  subject ;  2.  That  although  the  plaintiff  has  an  in- 
terest yet  the  defendant  is  not  answerable  to  him,  but  to  some 
other  ])orson ;  3.  That  the  defendant  has  no  interest ;  4.  That  the 
plaintiif  is  not  entitled  to  the  relief  which  he  has  prayed ;  5.  That 
the  value  of  the  subject-matter  is  beneath  the  dignity  of  the  Court; 
6.  That  the  bill  does  not  embrace  the  Avhole  matter  ;  7.  That  there 
is  a  want  of  proper  parties ;  8.  That  the  bill  is  multifarious,  and 
impro]»erly  confounds  together  distinct  demands;  9.  That  the 
plaintiff's  remedy  is  barred  by  length  of  time;  10.  The  statute  of 
frauds;  11.  That  it  apj^ears  by  the  bill,  that  there  is  another  suit 
depending  for  the  same  matter.^ 

1.  In  a  former  section,  in  which  the  matter  of  a  bill  has  been 
discussed,  the  reader's  attention  has  l)een  directed  to  the  necessity 
of  showing  that  the  plaintiff  has  a  claim  to  the  thing  demanded. 


435;  Story  Eq.  PI.  §  492.  The  want  of 
such  :in  averment  may  be  taken  advan- 
tafje  of  by  demurrer;  Story  Eq.  I'l.  §  492; 
and  where  the  want  of  jurisdiction  is  ap- 
parent on  the  face  of  the  proceeding.^,  from 
a  defective  statement  of  the  citizenship  of 
the  different  parties,  it  is  fatal  at  all  times, 
and  niiiy  1)0  insisted  on  by  way  of  motion 
or  otherwise,  in  any  stage  of  the  cause,  and 
even  upon  ap[)eMl.  Dodge  v.  Perkitis,  4 
Mason,  437;  see  also  Story  Eq.  I'l.  §  26 
note,  §§  10,34,  492;  Bingham  v.  Cabot, 
.3  Dali,  382;  .Jackson  v.  Ashton,  8  Peters, 
148;  Hughes  v.  .Jones.  2  Md.Ch.  Dec.  178; 
Niles  V.  Williams,  24  Conn.  279;  Kctclium 
V.  Driggs  0  McL'^an,  13. 
1  Ante,  Chap.  III. 


2  Ante,  Chap.  JJJ.  §§  6,  7.  8.  A  married 
woman  may,  however,  under  certain  cir- 
cumstances, sue  without  a  next  friend,  and 
an  idiot  or  lunatic  by  his  next  friend,  with- 
out a  committee;  see  ante,  pp.  82,  SO,  111. 
A  lunatic  must  be  made  a  (lartj-,  tliough 
his  committee  is  so,  or  a  demurrer  lies. 
Harrison  v.  Howan,  4  VVash.  C.  C.  202. 
But  on  a  demurrer  for  his  omission,  leave 
will  be  granted  to  amend,  lierrv  v.  Kogers, 
2  B.  Mon.  308. 

8  Gilbert  v.  Lewis,  1  De  G.,  J.  &  S.  38; 
9  Jur.  N.  S.  187. 

4  See  post,  Chap.  XXXIV.  §  2,  Bills  of 
Discovery. 

6  See  Davis  v.  Hall,  4  .Jones  Eq.  (N.  C) 
403. 


DIFFERENT    GROUNDS    OF    DEMURRER.  557 

or  such  an  interest  in  the  subject  as  gives  him  a  right  to  institute  Ch.  XIV.  §2. 

a  suit  concerning  it.^  ' y— — ' 

2,  3.  The  same  section  also  exhibits  the  nature  of  the  privity  2.  That  de- 

which  it  is  necessary  the  bill  should  aver  to  be  existing  between  ang'^e'^jable  to 

the  plaintiff  and  defendant,  and  the  application  of  the  rule  which  plaintiff,  but 

requires  that  the  bill  should  show  that  the  defendant  has  an  inter-  „'^^°°   ^^' 

•       1  1  •  /•    1  •         T       1  •  1  ^-  That  de- 

est  in  the  sulyect-matter  01  the  smt.     It  also  points  out  the  excep-  fendanthas 
tions  to  the  rule,  in  certain  cases  in  which  persons,  who  have  no  ^^  interest. 
interest  in  the  subject-matter,  may  be  made  parties  for  the  pur- 
pose of  eliciting  discovery  from  them,  and  in  which  they  are  pre- 
vented from  availing  themselves  of  a  demurrer,  to  avoid  answering 
the  bill.- 

4.  It  has  been  before  stated^  as  one  of  the  requisites  to  a  bill,  ■!•  That  plain- 
that  it  should  pray  proper  reUef :  to  which  may  be  added,  that  if  entitled  to  the 
for  any  reason  founded  upon  the  substance  of  the  case,  as  stated  relief  prayed; 
in  the  bill,  the  plaintiff  is  not  entitled  to  the  relief  he  prays,  the 
defendant  may  demur.     Many  of  the  grounds  of  demurrer,  already 
mentioned,  may  perhaps  be  i-eferred  to  this  head ;  and  in  every 
instance,  if  the  case  stated  is  such  that,  admitting  the  whole  bill 
to  be  true,  the  Court  ought  not  to  give  the  plaintiff  the  relief  or 
assistance  he  requires,  either  in  the  whole  or  in  part,  the  defect 
thus  appearing  on  the  face  of  the  bill  is  a  sufficient  ground  of 
demurrer.* 

It  is  to  be  observed,  in  this  place,  that  the  question  upon  a  de-  effect  of 
murrer  of  this  nature  is,  irequently,  not  whether,  u])on  the  case  general  relief, 
made  by  the  bill,  the  plaintiff  is  entitled  to  all  the  relief  prayed, 
but  whether  he  may,  under  the  prayer  for  general  relief,  be  en- 
titled to  some  relief.®  The  question,  how  far  the  defects  in  the 
relief  ])rayed  in  the  prayer  for  special  relief  may  be  supplied  under 
the  j>rayer  for  general  relief,  which  forms  part  of  every  bill,  has 
been  before  discussed ;  ®  it  is  only  necessary  now  to  remind  the 
reader,  that  such  relief  must  be  consistent  with  the  special  jirayer, 
as  well  as  with  the  case  made  by  the  bill. 

1  Ante,  p.  314;  At  will  v.  Ferrett,  2  bill,  can  make  the  suhject-mntler  of  the 
I'.latch.  ('.  C.  3'J;  Ilii.skell  v.  Hilton,  30  suit  a  proper  case  for emiitable cognizance. 
Maine,  419;  Ld.  lied.  154,  I08.  If,  of  sev-  Bleeker  v.  IJinjrham.  3  riiifje,  246;  Morton 
eral  iilniiitiir-',  some  have  ati  interest  in  v.  Grenada  Academies,  8  Sni.  &  iM.  773; 
the  matter  of  the  suit,  and  otiieis  have  no  Clark  v.  Davis,  Harrinj^.  Cii.  227;  Dike  v. 
interest  in  it,  but  are  merely  the  agents  Greene,  4  K.  I.  285;  Spni;;ue  «.  I.'liodcs,  4«6. 
of  their  co-plaiiiti(ls,  a  peneral  demurrer  301.  See  the  form  of  a  f^encral  demurrer 
to  the  whole  iiill  is  a  good  di;fence.  King  for  want  of  equitv,  Willis,  401 ;  Storv  Kq. 
of  Spain  r,  Machado,  4  Ituss.  224;  and  I'l.  §  483  (3d  ed.),"  note  (4);  /»'«/,  Vol.' III. 
see  (Juff  I-.  riiUett,  ib.  242;  Clarkson  v.  De  ^  Atile.  p.  378  ;  llariley  r.  Uu^^vU,  2  S. 
Feyster,  3  i'lige,  33S);  L)ias  v.  liouchaud,  &  S.  244,  253.  A  demurrer  to  the  whole 
10  I'aiire,  445.  bill  does  not  lie  merelv  because  the  prayer 

2  Ante.  p.  322.  for  relief  is  too  broad. "  Whitbeck  i\  Julgur, 
8  Ante.  pp.  325,  377,  378.  2  Harb.  Ch.  100. 

*  See  Ki.llins  v.  Forbes,  10  Gal.  299.  A  0  Ante,  p.  378.  The  fact  that  the  plain- 
demurrer  f..r  want  of  Cfpilt}'  cannot  be  tiff  does  not  ask  for  the  proper  relief,  or 
sustained  iiidc^s  the  ('nun  i-i  s  itisfied  that  asks  for  inconsistent  relief,  is  not  prouiid  of 
no  di-c'»verv  or  proof  proiierly  called  for  demurrer.  Connor  «.  Hoard  of  ICducation, 
by,  or  founded  upon,  the  allegations  in  the  10  Minn.  439. 


558 


DEMURRERS. 


Cii.XIV.  §2. 


C.  That  bill 
does  not  i-in- 
brace  tho 
whole  matter. 


7.  For  want 
of  parties. 


fi.  It  h;is  boon  bofotv  obsiT\  cmI,  tliat  ovcry  bill  must  be  for  a 
iiKittor  of  suirK-'u'iit  valuo:  otherwise,  it  will  not  be  consistent  with 
the  dignity  of  the  Court  to  entertain  it.^  TliQ  usual  method  of 
taking  advantage  of  an  objection  of  this  nature  is,  as  we  have 
seen,'-  by  motion  to  take  the  bill  ott"  the  file.  There  is  no  doubt, 
however,  that  if  the  objection  aj)i)ears  u})on  the  face  of  the  bill,  a  de- 
murrer, upon  the  ground  of  inadequacy  of  value,  will  l)e  held  good.^ 

0.  A  bill  must  not  only  be  lor  matter  of  a  sutticient  value,  but 
it  must  be  for  the  whole  matter.  It  is  not,  however,  necessary  to 
discuss  here  the  principle  and  ajjjilication  of  this  rule,  the  reader's 
attention  having  been  already  fully  called  to  it.*  iVll  that  need 
be  said  is,  that  if  it  ai:)pears  by  the  bill  that  the  object  of  the  suit 
does  not  embrace  all  the  relief  which  the  plaintilf  is  entitled  to 
have  against  the  defendant,  under  the  same  representation  of  facts, 
it  will  be  liable  to  demurrer,  unless  it  comes  within  any  of  the 
excejitions  before  pointed  out.^ 

7.  The  question :  who  are  the  proper  parties  to  be  brought  be- 
fore the  Court,  for  the  purpose  of  enabling  a  Court  of  Equity  to 
do  complete  justice,  by  deciding  upon  and  settling  the  rights  of  all 
persons  interested  in  the  subject  of  the  suit,  so  as  to  make  the  per- 
formance of  the  order  of  the  Court  perfectly  safe  to  those  who  are 
comi^elled  to  obey  it,  and  to  prevent  future  litigation,  has  been 
before  so  fully  discussed,®  that  nothing  remains  to  be  said  upon  it 
here,  further  than  to  remind  the  reader,  that  wherever  a  want  of 
pai'ties  appears  on  the  face  of  a  bill,  it  is  a  cause  of  demurrer:'' 
unless  a  sufficient  reason  for  not  bringing  them  before  the  Court  is 
suggested,  or  unless  the  bill  seeks  a  discovery  of  the  persons  inter- 


1  Ante,  p.  328. 

2  An(e,  p.  329. 

3  Can-  V.  Iiiglehart,  3  Ohio  (N.  S.),  467. 
If  it  appe:ir  (jii  the  face  of  the  bill,  that 
the  matter  in  dispute,  exclusive  of  costs, 
does  not  exceed  the  amount  to  which  the 
juiisdictiou  of  the  Court  is  limited,  the 
deteiuiant  may  either  demur,  or  move  to 
have  the  bill  dismissed  with  costs;  or,  liit 
doe.s  not  appear  on  tlie  face  of  the  bill,  it 
may  be  pleaded  in  bar  of  the  suit.  Sniets 
V.  VVilliains,  4  Paige,  364;  Mcl-.hvain  v. 
Willis,  3  I'aige,  506;  S.  C.  on  Appeal,  9 
Wendell,  64b;  Schroeppel  v.  Redlield,  6 
I'aige,  246;  liradt  v.  Kukpatrick,  7  Paige, 
62.  liy  '•  exclusive  of  costs"  is  meant  the 
costs  oi  the  suit  in  Chancery.  Van  Tyne  v. 
Bunce,  1  Kdw.  Ch.  583;  see  further,  Sloore 
V.  J^y tt le,  4  John.  Cli.  183 ;  Fullerton  v.  Jack- 
ton,"  6  i(j.  270;  Douw  v.  Jjheld'm,  2  I'aige, 
303;  Vredenburg  v.  Johnson,  1  flopk.  112; 
Mitchell  V.  Tighe,  1  Hopk.  119. 

*  Ante,  p.  330. 

5  Ante,  p.  330. 

6  Ante,  Chap.  V.;  Ld.  Red.  164  etseq.; 
Story  Eq.  PI.  §§  72,  236. 

7  Ld.  lied.  IfcO;  Story  Eq.  PI-  §  541; 
Farnham  v.  Clements,  51  Mame,  426,  429; 


Elmendorfv.  Taylor,  10  Wheat.  152;  Crane 
V.  iJeming,  7  Coiin.  387 ;  Mitchell  v.  l.enox, 
2  Paige,  280  ;  l{obiiison  v-  Smith,  3  ib. 
222  ;  see  the  form  of  a  demurrer  for  want 
of  parties,  Willis,  462  and  note  (b)  ;  2  Eq. 
iJrafis,  81;  lulwarils  on  Parties,  275;  Story 
I'lq.  Pi.  (3d  ed.)  §  543,  note  (4);  post,  Vol. 
III.  A  demurrer  for  want  of  parties  must 
show  who  are  the  jiroper  parties;  not  in- 
deed by  name,  lor  that  might  be  impossi- 
ble; but  in  such  manner  as  to  point  out  to 
the  phiinliif  the  olijectiun  to  liis  bill,  and 
enable  him  to  ameiid  by  adding  the  proper 
parties.  Ld.  Red.  18u,  181  ;  Attorney- 
General  V.  Poole,  4  M.  &  C-  17;  Story  Eq. 
PI.  §  543;  ante,  288;  IJobinson  v.  Smith,  3 
Paige,  222. 

It  has,  however,  been  held,  that  upon  a 
demurrer  to  a  bill  for  want  of  equity,  the 
objection  thtit  the  bill  is  defective  for  want 
ot  parties,  may  well  be  taken.  Vernon  v. 
Vernon,  in  Chancer}-  ( England),  Feb.,  1837, 
cited  Story  Eq.  PI.  §  643  (3d  ed.),  note  (4). 
So  the  objection  mu}-  be  taken  in  the  same 
way,  if  persons  arc  improperly  made  plain- 
tiffs. Gething  v.  Vigurs,  beliire  the  Vice- 
Chancellor  of  England,  Nov.,  1836,  cited 
Story  Eq.  PI.  ubi  supra. 


DIFFERENT   GROUNDS    OF   DEMURRER. 


559 


osted   in  the  matter  in  question,  for  the  purpose  of  making  them   Ch.  XIV.  §  2 

parties ;  ^  but  it  is  no  answer  to  a  demurrer  that  the  addition  of  "*"     y ' 

the  party  wouhl  render  the  bill  multifarious.-  In  consequence  of 
the  alterations  in  the  rules  of  the  Court  as  to  parties,  before  pointed 
out,  demurrers  for  want  of  parties  are  now  of  comparatively  rare 
occurrence.^ 

8.  The  subject  of  multifiriousness  has  been  already  discussed;*  s.  Formulti- 
and  it  need  only  be  added,  that  a  bill  is  demurrable  on  this  ground ;  <"a"ousness: 
and  that  a  demurrer  for  multifariousness  goes  to  the  whole  bill,  and  goes  to  the 
it  is  not  necessary  to  specify  the  particular  parts  of  the  bill  which 
are  multifarious.^ 

9.  In  determining  Avdiether  the  length  of  time  which  has  elapsed 
since  the  plaintiff's  claim  arose  is  a  bar  to  the  relief  which  he  asks. 
Courts  of  Equity  have  considered  themselves  bound  by  the  Statute 
of  Limitations,  21  Jac.  I.  c.  16,  as  to  all  legal  titles  and  demands : 
although  suits  in  Equity  are  not  within  the  Avords  of  that  statute ;  ^ 
and  as  to  all  equitable  titles  and  demands,  they  act  in  analogy  to 
the  statute.''  The  modern  Statutes  of  Limitations,*  apply,  for  most 
purposes,  to  suits  in  Equity,  as  well  as  actions  at  Law.  The  objec- 
tion of  lapse  of  time  was  ionnerly  considered  a  proper  ground  for 
a  plea,  and  not  for  a  demurrer ;  ^  and  in  Gregor  v.  3Iolesicorth,^^ 


whole  bill. 


9.  For  length 
of  time. 


1  Ld.  Red.  180;  ante,  p.  288. 

-  Lumbsdeii  v.  Fraser,  1  M.  &  C.  589, 
602 :  and  as  to  amending  in  such  cases,  see 
S.  C. ;  Attorney-General  v.  Tlie  Merchant 
Tailors'  Company,  1  M.  &  K.  189,  191, 
and  ante,  p.  289. 

"  For  form.s  of  demurrers  for  want  of 
[larties,  .see  2  Van  llcv.  81;  awii  post,  Vol. 
III.  In  Way  v.  Bmgaw,  1  C.  E.  Gre^n 
(N.  J.),  213,  one  ground  of  demurrer  was 
that  tlie  bill  shouM  have  been  for  tlie  bene- 
fit of  all  the  creditors  of  the  defendant 
jointly  witli  the  plaintiff.  The  Chancellor 
.said,  "  The  same  objectiun  was  raised, 
under  similar  circumstances,  in  E  igell  v. 
Haywood,  3  Atk.  ;3o".  But  Lord  llard- 
wicke  saiil,  'The  person  who  first  sues 
has  an  advantage  by  his  legal  diligence  in 
all  ca.ses.  The  plaintiff,  by  his  judgment 
and  execution  at  law,  and  by  his  diligence 
in  this  Court,  has  obtained  a  position  which 
entitles  him  to  priority  over  the  orlier 
credit'irs  of  the  deb'or.  lie  does  not  stand 
in  the  attitnib;  of  a  plaintiff  in  an  ordinary 
creditors'  bill.  It  doei  not  appear  that 
there  is  any  creditor  of  equal  degree  with 
the  plnintijf. '  "  Clarkson  v.  Dep^-ystcr,  3 
I'aigc,  320;  I'armelec  v.  Egan,  7  I'aige, 
010  ;  Grosvei)or  v.  Allen,  9  I'aige,  74  ; 
Farnham  v.  Campbell,  10  I'aige,  598. 

*  Ante,  p.  333  el  seq. ;  see  Story  E(p  I'l. 
5§  530-540 ;  (Jraves  v.  Fresh,  9  Giir&  .1. 280 ; 
Bryan  v.  Hlythe,  4  Blackf.  331;  Coe  v. 
Turner,  5  Conn.  80  ;  Mulock  v.  Jlulock,  1 
Kdw.  14;  Thurmiin  i;.  .Shflton,  10  Ver^'er, 
383;  Emans  v.  l'>mans,  1  McCarter(  N.  .1.), 
1 14.    A  demurrer  to  a  bdl  for  multifarious- 


ness should  be  taken  before  the  case  comes 
to  the  Appellate  Court.  Wellborn  v.  Tiller, 
10  Ala.  305. 

^  East  India  Company  V.  Coles,  3  Swanst. 
142,  n. ;  see  Dimmock  v.  Bixbv,  20  Pick. 
368;  Gibbs  V.  Claggett,  2  Gdl  &  J.  14; 
Boyd  V.  Hoyt,  5  Paige,  05 ;  White  v.  White, 

5  Gill,  359.  For  forms  of  demurrers  for 
multifariousness;  see  2  Van  Hev.  79,  80  ; 
ami  post,  YolUl. 

c  liovenden  v.  Lord  Annesley,  2  Sch.  & 
Lef.  C30,  G31 ;  Honv  v.  Honj',  1  S.  &  S.  568, 
580. 

">  See  Bond  v.  Hopkins,  1  Sch.  &  Lef. 
428;  Hoveiiden  v.  r.,ord  Annesley,  ubi  sup.  ; 
Stackhouse  v.  Barnston,  10  Ves.  460 ;  Ex 
parte  Dewdney,  15  Ves.  496  ;  Beckfxrd  v. 
Wade,  17  Ves.  96  ;  Lord  Cholmondelcy  v. 
Lord  Clinton,  2  .1.  &  W.  1,  101,  192. 

8  3  &  4  Will.  IV.  cc.  27,  42;  7  Will.  IV. 

6  1  Vic.  c.  28  ;  19  &  20  Vic.  c.  97,  §§  9, 
10,  11 ;  23  &  24  Vic.  c.  38,  §  13;  see,  as  to 
these  Acts,  Sugd.  li.  P.  Stat.  Chap.  I. 

"  If  the  lapse  of  the  period  of  limitation 
appears  with  certainty  on  the  f.ice  of  tlio 
bill,  the  objection  may  be  taken  by  de- 
murrer. Deloraine  v.  Browne,  3  Bro.  C. 
C.  (Perkins's  ed.)  633,  Mr.  Belt's  note  (1; 
430,  Mr.  Eden's  note  (7),  and  cases  cited  ; 
Wisner  v.  Barnet,  4  Wash.  C.  C.  631; 
Dunlap  V.  Gibbs,  4  Yerger,  94  ;  I''oster  v. 
IIo,lg,i,n,  19  Ves.  180  ;  Hoare  v.  Peck,  C 
him.   51  ;  Story  Eq.   I'l.  §§  484,  751,  aud 


1"  2  Ves.  S.  109  ;  aeo  also  Apgas  v. 
Pickerell,3  Alk.225;  iJelnraiiie  w.  Browne, 
3  Bro.  C.  C.  G33,  046. 


560 


DEMURUEUS. 


Ch.  XIV.§'2. 


EtVect  of 
Statute  of 
IJuiitntions. 


Where  no 
positive  limi- 
tation of  time, 
question  is 
only  whetlier, 
upon  the 
fact^,  the 
Court  will 
infer  acquies- 
cence. 


l.onl  lliinlwiolvi'  rt'fusod  to  alIt)W  a  doinnrrcr  of  this  nature,  allojjj- 
iiig  as  his  roasoii,  that  several  exceptions  might  take  it  out  of  the 
length  of  time,  as  infancy,  or  coverture,  which  the  ])arty  should 
have  the  advantage  of  showing,  but  which  cannot  be  done  if  de- 
murred to.  This,  however,  can  hardly  be  a  sufficient  reason  for 
the  distinction  in  this  case  between  a  plea  and  a  demurrer,  as  the 
plaintiff,  if  he  has  any  reason  to  allege  to  take  his  case  out  of  the 
bar,  arising  from  the  length  of  time,  should  show  it  by  his  bill ; 
and  it  is  now  clearly  the  rule  of  the  Court,  that  the  Statute  ol 
Limitations,  or  objections  in  analogy  to  it,  uj)on  the  ground  of 
laches,  may  be  taken  advantage  of  by  way  of  demurrer,  as  well  as 

Where  there  is  no  positive  limitation  of  time,  the  question 
whether  the  Court  will  interfere  or  not  depends  upon  whether 
from  the  facts  of  the  case,  the  Court  will  infer  accjuiescence,  or 
confirmation,  or  a  release.  Such  inference  is  an  inference  of  fact, 
autl  not  an  inference  of  law,  and  cannot  be  raised  on  demurrer :  ^ 


notes  ;  Hanlj-  v.  Reeves,  4  Sumner's  Vcs. 
466,  note  {b);  FreaUe  v.  Cninfelt,  3  M. 
&  C.  499;  Tyson  v.  I'ole,  3  Y.  &  C.  266; 
Humbert  v.  Rector,  &c..  Trinity  Church,  7 
Paiiie,  195;  Van  Hook  v.  Whitlock,  7 
Paige,  373;  S.  C.  24  Wend.  587;  Coster  r. 
Jlurray,  ■')  John.  Ch.  521;  Waller  v.  De- 
mint,  i  Dima,  92;  see  M'L)owl  v.  Charles, 
6  John.  Ch.  132. 

1  Ld.  Red.  212,  n. ;  Saunders  v.  Hord.  1 
Ch.  IJep.  184  ;  Jenner  v.  Tracey,  3  P. 
Wm?.  287,  n. ;  Hovemien  v.  Lord  Anneslej', 
2  Srh.  &  J.ef.  607,637;  Foster  r.  Ho<lgson, 
19  Vcs.  IbO;  Hoare  v.  Peck,  6  Sim.  51; 
Banipton  v.  liirchall,  5  Beav.  67,  76  ; 
Prance  v.  Sympson,  Kay,  678,  680;  Smith 
V.  Vox,  6  Hare,  386,  891;  Rolfe  v.  Gregorv, 
8  Jur.  N.  S.  606;  10  W.  R.  711,  V.  C.  K. ; 
see  Marsh  v.  Oliver,  1  McCarter  (N.  .J.), 
259;  Aclierley  v.  Roe,  5  Sumuer"s  Ves. 
565,  Perkins's  note  (i),  and  cases  cited,  573, 
note  («),  and  cases  cited;  Stockhouse  v. 
Barnston,  10  Sumner's  Ves.  453,  Per- 
kins's notes  (c)  and  (f/),  and  cases  cited; 
Hardy  v.  Reeves,  4  Sumner's  Ves.  465, 
notes  (a)  and  (6);  Mitford  liq.  PI.  by 
Jeremy,  272,  273  (5tli  Am.  ed.)  ,  note  (1) 
and  ca-cs  cited;  Piersonv.  David,  1  Clarke 
(Iowa),  23;  Subletted.  Tinnev,  9  Cal.  428; 
Bangs  V.  Hiill,  2  Pick.  (2d  ed.  )''372,  note  (1), 
and  CMses  cited;  Harris  i'.  Mills,  28111.  44. 
In  Mas'«achusetts,  the  Statute  of  Limita- 
tions operates,  in  cases  where  it  applies, 
ex  propiio  viijwe,  in  Fquity  as  well  as  at 
Law.  Farnam  v.  Brooks,  9  Pick.  243; 
Joiins'in  1'.  Ames,  11  Pick.  182  ;  Bowman 
V.  Wathen,  1  How.  U.  S.  189.  In  Ken- 
tucky, the  Statute  of  Limitations  is  a  bar 
in  Kquitv.  M'Dowell  v.  Heath,  3  A.  K. 
Mnrsh.  223  ;  Bcckenbridge  v.  Churchill,  3 
J.  .1.  Mar-h.  15.  It  seems,  howuvur,  that 
it  does  not  apjdy  in  Uttidi'm  vtrbis,  but  has 
been  adopted  as  reasonable  and  consistent. 
Crain  v.  Prather,  4  J.  J.  Marsh.  77.     Tho 


principles  of  the  Statute  of  Limitations,  as 
applied  to  suits  in  lypiity,  are  recognized 
by  the  Revised  Statutes  of  New  York. 
Before  such  recognition,  they  received  the 
same  application.  Kane  v.  Bloodgood,  7 
John.  Ch.  90  ;  Stiilford  v.  Brvan,  1  Paige, 
239;  Bertine  v.  Varian,  1  lidw.  Ch.  843; 
see  2  Rev.  Stat.  N.  Y.  301;  and  Van  Hook 
V.  Whitliick,  3  Paige,  409.  In  New  York, 
aside  from  the  Revised  Statutes,  the  bar 
would  seem  to  operate  by  the  discretion 
of  the  Court.  Jlurrav  ».  Coster,  2  John. 
583  ;  Arden  v.  Ardeii,  1  Jolm.  Ch.  316. 
See  the  s-.ime  doctrine  held  by  Elniendorf 
V.  Taylor,  10  Wheat.  152;  Coulson  v. 
Walton,  9  Peters,  82 ;  and  see  Kobinson  v. 
Hook,  4  Mason,  150.  In  Connecticut, 
where  a  delny  has  been  such  as  to  be  a  bar 
at  Law,  it  will  be  so  in  Ecjuity.  Banks  v. 
Judah,  8  Conn.  145.  I'he  same  principle 
exists  in  the  Courts  of  the  United  States. 
Elmendorf  v.  Taylor,  10  Wheaton,  152; 
Miller  v.  M'Intyre,  6  Peters,  61.  In  Maine, 
the  Statute  of  Limitations  operates  on  suits 
in  lujuit}'  as  well  as  on  actions  at  Law. 
Denny  v.  Oilman,  26  Maine,  149,  154; 
Chapman  v.  Butler,  22  Maine,  191.  Wheth- 
er this  can  :ipply  to  cases  purely  of  equita- 
ble jurisdiction,  see  Robinson  v.  Hook,  4 
Mason,  150;  Murray  ».  Coster,  2  John.  583; 
Kane  v.  Bloodgood,  7  John.  Ch.  90;  Arm- 
strong V.  Campbell,  3  Yerger,  232;  Bigelow 
V.  Bigelow,  6  Ohio,  97.  In  case  of  a  direct 
trust,  no  length  of  time  bars  the  claim  be- 
tween the  trustee  and  cestui  que  trust.  Cook 
V.  Williams,  1  Green  Ch.  209;  Baker  v. 
Whiting,  3  Sumner,  470  ;  Armstrong  v. 
Campbell,  3  Yerger,  201  ;  Overstreet 
V.  Bate,  1  J.  J.  Marsh.  370;  Trecothick  v. 
Austin,  4  Mason,  16,  and  other  cases  cited 
in  Perkins's  note  (i)  to  Acherley  v.  Roe 
5  Sumner's  Ves.  573. 
2  Cuthbert  v.  Creasy,  6  Mad.  189. 


DIFFERENT    GROUNDS    OF    DEMURRER. 


561 


because  a  defendant  has  no  right  to  avail  himself,  by  demurrer,  of  Ch.  xrv.  §  2. 
an  inference  of  fact  upon  matters  on  which  a  jury,  in  a  Court  of  '        f       ^ 
Law,  would  collect  matter  of  fact  to  decide  then-  verdict,  if  sub- 
mitted to  them,  or  a  Court  would  proceed  in  the  same  manner  in 
Equity.^ 

10.  The  non-coni})liance  with  the  requirements  of  the  Statute  of  lo.  The 
Frauds  may  also  be  a  ground  of  demurrer;  for  there  can  be  no  Frauds. 
doubt  but  that  a  bill  may  contain  such  statements  as  to  entitle  a 
defendant,  by  general  demurrer,  to  take  advantage  of  the  want  of 
signature  to  an  agreement :  because  it  might  appear  clear  that  the 
plaintift'  was  not  entitled  to  the  relief  he  asked.^     It  is,  however, 

more  usual  to  plead  this  statute,  as  it  is  seldom  that  the  bill  dis- 
closes evei-y  thing  necessary  for  the  defence.^ 

11.  If  it  api  tears,  by  tlie  bill,  that  another  suit  is  pending  relat-  ii.  Another 
ing  to  the  same  matter,  a  defendant  may  demur.     Such  a  demurrer,  ^r  same 
however,  will  not  hold,  unless  it  appears,  by  the  bill,  that  the  suit  matter. 
already  depending  will  afford  to  the  plaintiff'  the  same  relief  as  he 

would  have  been  entitled  to  under  the  bill  which  is  the  subject  of 
the  demurrer.* 

II.   The  grounds  upon  which  a  bill  may  be  demurred  to,  by  II.  Demurrer 
reason  of  a  deticiency  in  matters  of  form,  are,  as  we  have  seen,  as 
follows.'^     1.  Because  the  plaintiff''s  place  of  abode  is  not  stated.^ 


to  the  form. 


1  Ld.  Red.  213.  A  demurrer  would  un- 
doubtedly lie  to  ii  bill  for  tlie  redemption 
of  a  niortgiif^e,  after  a  great  length  of  time 
had  elapsed,  if  the  bill  wa.s  s-o  framed  as  lo 
jiresent  the  objection  without  any  attend- 
ant circumstances  to  obviate  it.  Story  Eq. 
I'l.  §  003,  and  cases  in  note.  As  to  the 
length  of  time,  which  will  bar  a  redemp- 
tion ot  a  mortgage,  see  Aeherley  v.  Roe,  5 
Sunmer's  Ves.  073,  Perkins's  note  (") 
and  cases  cited ;  Hardy  v.  Reeves,  4  Sum- 
ner's \'es.  4ti*i,  note  («);  Trash  «.  White, 
3  I5ro.  C.  C.  (Perkins's  ed.)  2'j1  ;  note  ("), 
and  cases  cituil;  Phillips  v.  Sinclair,  20 
Maine,  209. 

In  reference  to  the  length  of  time  which 
will  bar  a  hill  lor  an  account,  see  Aeherley 
V.  Roe,  5  Sumner's  Ves.  50.5,  Perkins's 
note  {'/),  and  cases  cited;  Stackhouse  i'. 
Harnston,  10  iii.  453,  note  (d),  and  cases 
cited. 

•^  Per  Lord  Langdale  in  Field  v.  Hutchin- 
son, 1  IJeav.  600;  3  Jiir.  7U2;  see  also 
Howard  v.  Okcover,  3  Swanst.  421,  n.; 
liarkworth  v.  Young,  4  l)rew.  1 ;  3  .lur.  N. 
S.  34;  \V..o.|  v.  Midgley,  6  l»e  G  ,  M.  & 
(t.  41;  Middlet)ro>>k  r.  f'.romlcj'. !)  .lur.  N. 
S.  014;  11  W.  1!.  712,  V.  (J.  K.;  l)avi<sr. 
(»tlv,  10  .lur.  N.  S.  .'■jOG,  M.  H.  ;  33  lieav. 
r.40";  2  !)<•  (i.,  J.  &  S.  238  ;  Storv  Kq.  PI. 
§  &03;  Mtach  r.  Stone,  1  l>.  Chip".  Ib2.  In 
a  suit  for  specific  fierrormancc  of  a  contract 
in  rt'laiion  to  laii'l,  if  the  a;.'reenient  a])- 
pear.H  in  the  bill  tf)  be";v;/,  imd  no  facts  nre 
alleged  to  lake  the  case  out  of  the  Statute 
vol..  I. 


of  Frauds,  the  defendant  may  demur  to 
the  bill.  Cozine  r.  Graham,  2  Paige,  177; 
Walker  v.  Locke,  5  Gush.  90,  93.  But  if 
the  agreement  does  not  appear  in  the  bill 
to  be  oral,  the  proper  course  to  take  advan- 
tage of  the  Statute  of  Frauds  is  by  plea  or 
answer.  Cranston  v.  Smith,  0  I!.  I.  231  ; 
Dudley  v.  Bachelder,  53  Maine,  403,  406. 
If  it  is  stilted  general!}'  in  a  bill  that  an 
agreement  or  contract  was  made,  the  Court 
will  presume  it  was  a  legal  contract  until  the 
contrary  appears;  and  the  defendant  must 
either  plead  tlie  fact,  that  it  w:is  not  in 
writing,  or  insist  upon  that  defence  in  his 
answer.  Dudley  v.  Bachelder,  53  Maine, 
403,  406 ;  Farnham  v.  Clements,  51  Maine, 
426. 

8  For  form  of  demurrer  in  this  case,  see 
Vol.  III. 

*  Law  V.  Rigbv,  4  Rro.  C.  C.  CO,  63;  and 
see  post,  (Jliaj).  W.,  Picas  ;  see  also  Pear- 
eth  V.  Peareth,  .lohn.  58  ;  5  Jur.  N.  S.  60  ; 
Singleliin  r.  Selwyn,  9  .lur.  N.  S.  1149;  12 
W.  H.  98,  V.  C.  \V.  As  to  demurrers  on 
the  ground  of  res  judicata,  see  Waine  v. 
Crocker,  10  W.  H'.  204,  L.  J.J.;  3  De  U., 
F.  &  .1.  421. 

6  Story  Va\.  PI.  §§  528.  529,  and  notes; 
Lil.  Keil.  20(;.  A  demurrer  will  not  hold 
to  an  irregidarity  of  jiractice  in  reij;ard  to 
th(!  bringing  or  liliiig  of  a  bill,  suggesting 
matters  of  liict  which  do  nut  otherwi-e  ap- 
pear bv  the  bill.  Tullmadge  v-  Lovett,  3 
l':dw.  Ch.  503. 

0  Ante,  p.  367 ;  The  Winnipiseogee  Lake 


36 


562 


DEMURRERS. 


Ch.  XIV.  V2. 


Demurrer  to 
discovery : 


is  now  of  rare 
occurrence. 


Grounds  of 
demurrer 
to  the 
discovery ; 


'2.  InH-aiiso  tlio  lacts  t'ssi'uliiil  to  tlu'  jilainlilV's  rit;li(,  and  within 
his  own  knowk'iJLi^o,  are  not  alk'!j;od  ))o.sitivc'ly.'  3.  Because  the 
bill  is  cleticient  in  cortaint y."  4.  Jk'cause  tlie  phiintill"  does  not,  by 
liis  bill,  oiler  to  do  equity  where  the  rules  of  the  Court  require  that 
he  sluMdd  do  so;^  or  to  waive  penalties  or  forfeitures,  Avhere  the 
plaint ilf  is  in  a  situation  to  make  such  Avaiver,*  To  these  may  be 
added  :  5.  The  Avant  of  coxmsel's  signature  to  the  bill;^  and  6.  The 
absence  of  the  proper  affidavit,  in  those  cases  in  which  the  rules  of 
the  Court  require  that  the  plaintifl''s  bill  should  be  accomi)anied  by 
one." 

The  grounds  of  demurrer  before  pointed  out  a])ply  to  the  relief 
prayed  by  the  bill,  and  not  to  the  discovery,  further  than  as  it  is 
incidental  to  the  relief  "^  It  has,  however,  been  stated  *  that  there 
are  cases  in  which  a  defendant  may  demur  to  the  discovery  sought 
by  the  bill :  although  such  demurrer  Avill  not  extend  to  pi-eclude 
the  plaintiff  from  having  the  relief  prayed,  ])rovided  he  can  estab- 
lish his  right  to  it  by  other  means  than  a  discovery  from  the  de- 
fendant himself. 

In  consequence  of  the  changes  which  have  taken  place  in  the 
practice  of  the  Court  of  Chancery,  demm-rers  to  discovery  are  now 
of  rare  occurrence  (the  objection  being  almost  always  taken  by 
answer) ;  ^  but  in  determining  the  question  whether  a  party  is 
bound  to  give  the  discovery  sought  by  the  other  side,  the  Court  is 
guided  by  the  same  rules  as  it  formerly  acted  on  in  allowing  or 
overruling  demurrers  to  discovery.  These  rules  (which  we  shall 
now  proceed  to  consider),  therefore,  still  remain  of  importance. 

Demurrers  to  discovery  may  be  arranged  under  the  following 
heads : "  I.  That  the  discovery  may  sulyect  the  defendant  to 
pains  and  penalties,  or  to  some  forfeiture,  or  something  in  the 
nature  of  forfeiture.  II.  That,  in  conscience,  the  defendant's  right 
is  equal  to  the  plaintiff's.     III.  That  the  discovery  sought  is  im- 


Co.  V.  Young,  40  N.  H.  42  ;  see  Howe  v. 
Harvev,  8  I'aige,  73.  It  is  not  a  ground  of 
demurrer  that  the  phiintilf  omits  to  state 
his  occu[)ation,  or  iuidition.  Gove  v.  Pet- 
tis, 4  Sandf.  Ch.  403. 

i  Ante,  p.  360;  on  this  head,  see  Smith  ■». 
Kay,  7  H.  L.  (;a.  750,  whicli  decided  that 
the  point  must  be  raised  on  demurrer. 

2  Ante,  pp.  3(38,  371,  372. 

3  Ante,  p.  385. 

*  Ante,  pp.  386,  387. 

6  Aiile,  ]>.  312;  see  Graham  v.  Elmore, 
Barring.  Ch.  265.  But  in  (jove  v.  Pettis, 
4  Sandf.  Ch.  403,  it  was  held,  that  a  de- 
murrer could  not  be  taJien  for  an  omission 
of  the  signature  of  the  solicitor  or  counsel 
to  tlie  bdi,  but  thnt  it  is  a  fit  subject  for  a 
motion  to  take  the  bills  from  the  files  of 
the  Court. 

6  Jb.  p.  3C0;    Gove  V.  Pettis,  4  Sandf. 


Ch.  403.  The  defendant  is  not  bound  to 
look  beyond  the  copy  of  the  bill,  which  is 
served  on  his  solicitor;  and  if  that  does 
not  contain  the  requisite  affidavit  or  verifi- 
cation to  give  the  Court  jurisdiction  of  the 
case,  he  may  demur  to  the  bill  on  that 
ground.    Lansing  v.  Pine,  4  Paige,  364. 

''  A  demurrer  will  be  allowed  to  a  bill 
of  discovery  in  aid  of  the  defence  to  a  suit 
in  tifm-eUjn  Court.  Bent  v.  Young,  9  Sim. 
180;  but  .see  coiUi'u,  MhchcU  v.  Smith,  1 
Paige,  287;  sec  post,  Bills  of  Discovery. 

8  Ante.  p.  548;  see  Metier u.  Metier,  3  C. 
E.  Green  (N.  .J.),  270;  S.  C.  4C.E.  Green 
(N.J.),  457. 

0  Ord.  XV.  4;  see  post.  Chap.  XVIL, 
Answers,  and  see  15  &  16  Vic.  c.  86,  §§  10, 
12. 

1"  For  form  of  demurrer  to  discovery, 
sec  Vol.  111. 


DIFFERENT    GROUNDS    OF    DEMURRER. 


563 


forfeiture : 


material  to  the  relief  prayed.     IV.  That  the  discovery  would  be  Ch.  XIV.  §  2. 

a  breach  of  professional  confidence.    Y.  That  the  discovery  relates   ^ y ' 

only  to  the  defendant's  case.  VI.  That  a  third  party  has  an  in- 
terest in  the  discovery,  and  ought  not  to  be  prejudiced.  VII. 
That  the  discovery  might  be  injurious  to  public  interests. 

I.  We  have  before  seen,  that  in  cases  where  the  plaintiif  is  the  i.  That  it  will 
person  who  is  entitled  to  the  advantage  of  the  penalty,  or  of  the  f^'a^t'^to' 
foi-feiture,  to  which  the  defendant  would  render  himself  liable  by  pendty  or 
making  the  discovery  soiaght,  he  may  ob\iate  a  demurrer  by  ex- 
pressly waiving  his  right  to  the  penalty  or  forfeiture  in  his  bill :  ^ 
the  effect  of  which  waiver  is,  to  enable  the  defendant,  in  case  the 
plaintifi"  should  sue  him  for  the  penalty,  or  endeavor  to  take  ad- 
vantage of  the  forfeiture,  to  apply  to  the  Court  for  an  injunction 
to  restrain  him  from  proceeding.'^     But  where  the  forfeiture  or 
penalty  is  not  of  such  a  nature  that  the  plaintiff  can,  by  waiver, 
relieve  the  defendant  fi'ora  the  consequence  of  his  discovery,  a  de- 
murrer will  hold,^  for  it  is  a  general  rule,  that  no  one  is  bound  to  Rule,  that 
answer  so  as  to  subject  himself  to  punishment,  in  whatever  manner  "('j'^jp^iie^  to 
that  punishment  may  arise,  or  whatever  may  be  the  nature  of  that  subject  him- 
punishment :  whether  it  arises  by  the  Ecclesiastical  Law,  or  by  the  ^'^gut" 
law  of  the  land.**     This  rule  is  not  confined  to  cases  in  which  the 
discovery  must  necessarily  subject  the  defendant    to  pains    and 
j>enalties,  but  it  extends  to  cases  where  it  may  do  so.^    If,  therefore, 
a  bill  alleges  any  thing  which,  if  confessed  by  the  answer,  may  sub- 
ject the  defendant  to  a  criminal  prosecution,^  or  to  any  particular 
penalties,  as  maintenance,"  champerty,*  simony,^  or  subornation  of 
perjury,^''  the  defendant  may  object  to  the  discovery."    In  the  ap- 


where  it 
cannot  be 
waived. 


1  Jn<€,  pp.  386,387,  Endnote.  For  form  of 
demurrer,  where  the  penalty  or  forfeiture 
is  not  waived,  see  2  Van  Hey.  82. 

-  Ante,  p.  3b7. 

8  Stor)-  Kq.  PI.  §  575 ;  March  v.  Davison, 
9  Paige,  680;  Ld.  lied.  194,  l'J5;  2  Story 
Eq.  Jur.  §  1494. 

*  BrowiiKword  v.  Edwards,  2  Ves.  S. 
243,  245;  Harrison  v.  Soutlicote,  1  Atk. 
528,  539;  see  also  Parkhurst  f.  Lowten,  2 
Swanst.  214;  Hare  on  Discovery,  131,  132, 
where  the  cases  are  clas.sed  ;  Wij^ram, 
Discover)-  (1st  Am.  ed),  82,  S3, 193,  §  127, 
134,  270-272;  Bn.wnell  v.  Curtis,  10  Paige, 
213;  Livingston  v.  Harris,  3  Paige,  528; 
Patterson  t,-.  Pat'.cr-on,  1  Hiiyw.  107;  Wolf 
V.  Wolf,  2  liar.  &  (i.  382;  Lambert  v. 
I'eople,  9  Cdwon,  578;  Ni-rthuj)  v.  llatcli, 
6  Conn.  3<n  ;  Lcggftt  v.  Postley,  2  Piiigc, 
699;  Story  Kcj.  Pi.  §§  521-524,  579-59^; 
United  Stales  v.  Twenty-l'.i^iht  Packages, 
&c.,  (Jilpin,  300;  Jiutler  r.  ( 'allin,  1  Root, 
310;  Leigh  v.  Kverliiirt,  4  Monroe,  381; 
ftctaii  liis.  Co.  V  Field.  2  Story,  59;  Ad- 
ams r.  Porter,  1  (Jusii.  170. 

Hut  a  party  is  hound  to  mako  discovery, 
althriugh  liis  answer  tnay  sutiject  him  to 
the  loss  of  Uf^al  interest.  Taylor  t;.  Milch- 
ell,  1  How.  (Miss.)  596. 


5  Harrison  v.  Southcote,  1  Atk.  539; 
Story  Eq.  PI.  §  575. 

6  East  India  Company  v.  Campbel,  1 
Ves.  S.  24G ;  Chetwynd  v.  Liiidon,  2  Ves. 
S.  450;  Cartwright  u.  Green,  8  Ves.  405; 
Chiridgu  v.  Iloaie,  14  Ves.  59,  65;  Mac- 
callum  V.  Turtoii,  2  Y.  &  .J.  163;  Waters 
V.  Earl  of  Shaftesbury,  12  Jur.  N.  S.  3; 
14  \V.  R.  259,  V.  0.  S.  For  form  of  de- 
murrer in  such  case,  see  2  Van  Hey.  83. 

7  Pcnrice  i;.  Parker,  Rep.  t.  Finch,  75; 
Sharp  r.  Carter,  3  P.  Wms.  375;  W'aliis  v. 
Duke  of  Portland,  3  Ves.  494;  nthrmed 
by  H.  L.  iO.  761;  Mayor  of  London  v. 
Ainsiey,  1  Anst.  158;  Scott  v.  Miller. 
Joiins.  220,  328;  5  Jur.  N.  S.  858. 

8  Hartley  r.  Ku-sell,  2  S.  &  S.  244,  252. 

9  Attorney-General  v.  Sndcl,  Prec.  Ch. 
214  ;  Parkhurst  v.  Lowten,  1  Mer.  391,  401. 

10  Sclby  V.  Crew,  2  Anst.  504;  Haker  v. 
Pritchard,  2  Alk.  389;  as  to  discovering 
returns  made  to  Income  'lax  Commission- 
ers, see  Mitchell  v.  Koecker,  11  Heav.  380; 
13  .Jur.  797. 

u  III  Livingston  v.  Tompkins,  3  John. 
Ch.  452,  it  is  faid  thsit  "tliere  arc  numer- 
ous cases  establishing  the  rule  that  no  ono 
is  bound  to  answer  so  as  to  sulject  him- 
self, either  directly  or  eventually,  to  a  for- 


564 


DEMURRERS. 


I'M.  XIV.  §; 


o;xtoiids  to 
protect  dv- 
t'eiulaiit  from 
(lisoovorv  of 
(ill  i'in.-uiu- 
stancos 
tending  to 
criminate; 


and  to  cases 
of  moral 
turpitude, 
which  ex- 
j>ose  to 
punishment 
in  Ecclesia-s- 
tical  Court. 


jiHcatioii  of  this  juinciplo  it  li:is  Itct'ii  lu'ld,  tlint  ;i  iiiarned  woman 
will  not  bo  eoni]>elled  to  nnswiT  a  bill  Avliidi  would  subject  her 
husband  to  a  charge  of  felony.^ 

It  is  not  necessary  to  tlie  validity  of  an  objection  of  this  nature, 
tliat  the  facts  incjuiied  after  should  have  an  innnediate  tendency  to 
criminate  the  defendant;  he  may  equally  object  to  answering  the 
circumstances,  thougli  they  have  not  such  an  immediate  tendency.'^ 
This  was  very  clearly  laid  down  by  Lord  Eldon,  in  Paxton  \. 
Douglas^  in  which  his  Lordship  said,  "  In  no  stage  of  the  pro- 
ceedings in  tliis  Court  can  a  i)arty  be  compelled  to  answer  any 
question,  accusing  himself,  or  any  one  in  a  series  of  questions  that 
has  a  tendency  to  that  effect :  the  rule  in  these  cases  being,  that 
he  is  at  liberty  to  protect  himself  against  answering,  not  only  the 
direct  question,  whether  ho  did  what  was  illegal,  but  also  every 
question  fairly  ap])eariiig  to  be  jiut  with  the  view  of  drawing  from 
him  an  answer  containing  nothing  to  affect  him,  except  as  it  is  one 
link  in  a  chain  of  proof  that  is  to  affect  him." 

It  results  from  the  principle  above  laid  down,  that  a  defendant 
is  not  bound  to  make  any  discovery  wdiich  may  tend  to  show  him- 
self to  have  been  guilty  of  any  moral  turjiitude,  which  may  expose 
him  to  ecclesiastical  censure ;  thus,  it  has  been  held,  that  a  defend- 
ant is  not  bound  to  discover  whether  a  child  was  born  out  of 
lawful  wedlock ;  *  nor  is  an  unmarried  woman  bound  to  discover 
whether  she  and  the  plaintiff  cohabited  together.^     It  has  been 


feiture  or  penaltj',  or  any  thing  in  the  na- 
ture of  a  forfeiture  or  penalty."  See  the 
ea?es  there  cited;  Storj'  Eq.  PI.  §  583; 
Korthup  r.  Hatcli,  C  Conn.  361;  Skinner 
V.  Jud.son,  8  Conn.  528;  Wolf  w.  Wolf,  2 
Hrtrr.  &  G.  382;  Livingston  v.  Harris, 
3  P;iigc,  528;  United  States  v.  Twenty- 
Eight  Package?,  Gilpin,  30G.  The  oljjec- 
tion  by  the  defen(l;int.s,  who  were  officers 
of  a  CI  rpdraiion,  that  a  discovery  of  the 
matters  stated  in  the  bill  may  subject  the 
corporation  to  a  forfeiture  of  its  charter, 
is  not  sufWcier.'t  to  support  a  general  de- 
murrer to  the  relief  as  well  as  to  the  dis- 
covery sought  bv  the  bill.  Robinson  v. 
Smith,  3  Paige,  222. 

1  Cartwright  v.  Green,  8  Ves.  405,  410; 
anit,  p.  184,  Story  Eq.  PI.  §  519. 

2  East  India  Cunipany  v.  Campbel,  vbi 
tup.;  .«ee  also  Lee  v.  Read,  5  Peav.  381, 
386.  A  defendant  will  not  be  compelled 
to  discover  that,  which,  if  answered,  would 
tend  to  subjfct  him  to  a  penalty  or  pun- 
ishment, or  which  might  lead  to  a  criminal 
accusation,  or  to  ecclesiastical  censure. 
1  Greenl.  Ev.  §  451 ;  Thorpe  r.  JIacaulev, 

5  Mad.  229;  Aiaocallimi  v.  Turton,  2  Y. 

6  .1.  138;  Story  Eq.  PI.  §§  377,  524,  591- 
598,  824,  825;  Legpett  v.  Postley,  2  Paige, 
599;  Patterson  v.  Patteisan,  1  llayw.  168; 
Wolfv.  Wolf.  2  Harr.  &  G.  362;  LubeEq. 
PI.  tAm.  ed.)  246;  M'lntj-re  v.  Mancius, 


15  John.  502;  Sloman  v.  Kelley,  3  Y.  &C. 
573;  Ocean  Ins.  Co.  v.  Fields,  2  Story,  59; 
Bishop  of  London  v.  Fythche,  1  Pro.  C.  C. 
(Perkins's  ed.)  06  and  notes;  Adams  v. 
Porter,  1  Cush.  170;  Marsh  v.  Marsh,  1 
C.  E.  Green  (N.  J.),  391,397. 

In  case  of  witnesses,  it  is  said  that 
"  many  links  frequently  compose  that 
chain  of  testimony,  which  is  necessary  to 
convict  an  individual  of  ii  crime,  but  no 
witness  is  compellable  to  furnish  any  one 
of  them  against  himself."  Marshall  C. 
.].,  1  Purr's  Trial,  244;  The  People  v. 
Mather,  4  Wend.  229;  Southard  v.  Rex- 
ford,  6  Co  wen,  254;  Bellenger  v.  The 
People,  8  Wend.  595;  Story  Eq.  PI.  §  553; 
see  i)ost,  p.  579,  n.  5. 

3  19  Ves.  225,  227 ;  and  see  Maccallum 
V.  Turton,  and  Claridge  v.  Hoare,  ubi  sup.; 
Thorpe  v.  Macnuley,  5  Mad.  218,  229. 

^  Attorney-General  w.  Duplessis,  Parker, 
103.  As  to  proof  of  non-access  and  how 
far  parents  can  bastardize  their  issue,  see 
Anon.  «J.  Anon.,  22  Beav.  481;  23  Beav. 
273;  Lfgge  v.  Edmonds,  25  L.  J.  Ch.  125, 
V.  C.  \V.;  Plowes  V.  Bossey,  2  Dr.  &  Sm. 
145;  8  .Jur.  N.  S.  352;  and  other  cases 
collected  in  Taylor  on  Evid.  §  868. 

5  Franco  v.  Bolton,  3  Ves.  368,  371,  372; 
.see  on  this  subject  Benyon  v.  Nettleford, 
3  M'N.  &  G.  94,  and  the  cases  collected  in 
the  note,  ib.  100. 


DIFFEEENT    GROU]SrDS    OF    DEMURRER. 


565 


held,  however,  that  a  woman  is  bound  to  discoA'cr  where  her  child 
was  bom,  though  it  might  tend  to  show  the  child  to  be  an  alien.^ 
It  has  also  been  held,  that  though  parties  may  demur  to  any  thing 
which  may  expose  them  to  ecclesiastical  censure,  a  defendant  can- 
not protect  himself  from  discovery  whether  he  has  or  has  not  a 
legitimate  son ;  ^  and  it  is  to  be  observed,  that  the  objection  to 
answering  upon  the  ground  that  the  answer  might  show  a  defend- 
ant to  be  guilty  of  moral  turpitude,  appears  to  be  confined  to 
those  cases  where  the  moral  turpitude  is  of  such  a  nature  as  would 
lay  the  party  open  to  proceedings  in  the  Ecclesiastical  or  other 
Courts.  In  other  cases,  a  defendant  is  bound  to  answer  ftilly,  not- 
withstanding his  answer  may  cast  a  very  great  degree  of  reflection 
on  his  moral  character ;  ^  or  may  render  him  liable  for  fraudulent 
dealings ;  *  therefore,  where  a  defendant  demurred  to  such  part  of 
the  bill  as  sought  a  discovery  from  her,  as  to  a  conspiracy  or 
attempt  to  set  up  a  bastard  child,  wliich  she  pretended  to  have  by 
a  person  who  kept  her,  and  was  desirous  to  have  a  child  by  her, 
the  demurrer  was  oven-uled :  ^  because  the  conspiracy,  or  attempt 
to  set  up  the  bastard,  not  being  alleged  to  have  been  for  the  pur- 
pose of  defeating  the  heir,  was  not  of  itself  an  offence. 

Where  the  discovery  might  subject  a  defendant  to  penalties  to 
which  the  plaintiff  is  not  entitled,  and  which  he  consequently  can- 
not waive,  yet,  if  the  defendant  has  expressly  covenanted  not  to 
plead  or  demur  to  the  discovery  sought,  he  will  be  compelled  to 
answer."  And  where  a  person,  by  his  own  agreement,  subjects 
himself  to  a  pa\Tnent,  in  the  nature  of  a  penalty,  if  he  does  a  par- 
ticular act,  a  demurrer  to  a  discovery  of  that  act  will  not  hold ; '' 
thus,  where  a  lessee  covenanted  not  to  dig  loam,  Avith  a  proviso 
that,  if  he  did,  he  sh(juld  pay  to  the  lessor  "iO.s.  a  cart  load,  and  he 
afterwards  dug  gi-eat  quantities :  u])on  a  bill  being  filed  by  the 
lessor  for  a  discovci-y  of  the  quantities,  waiving  any  possible  for- 
feiture, a  demurrer  by  the  lessee,  because  the  discovery  might 
subject  him  to  a  payment  by  way  of  jjcnalty,  was  overruled.* 
Upon  the  same  priricij)le,  where  servants  to  a  company  bind 
themselves  to  pay  a  specified  sum,  in  case  of  a  breach  of  the  regu- 
lations   of  their    service,    they    cannot   i)rotect   themselves   from 


Ch.  XIV.  §  2. 


In  other 
cases,  de- 
fendant must 
answer, 
though  dis- 
covery may 
reflect  upon 
his  moral 
character. 


Rule  does  not 
extend  to 
cases  where 
defendant  has 
covenanted 
not  to  demur; 

nor  where 
defendant 
agrees  to  sub- 
ject himself  to 
a  payment  in 
the  nature  of 
a  penalty; 


1  Attorney-General  r.  Ilu|ile'*'<is,  ubi 
tup.;  .see  Storv  Ivj.  i'l.  §  ">8<;  and  note. 

2  Finch  V.  I'iiuli,  l  Ves.  S.  491.  4'J.'5. 

3  I'er  Lord  KMoii,  in  r!irkhur-t».  Low- 
ten,  1  Mer.  400.  A  jiarty  nviy  lie  com- 
pelleil  to  n)ake  discovery  of  any  act  of 
iriord  tiirpitu'le,  which  docs  not  amount 
to  a  [Mil)lic  olVence  nr  nn  indi'-taiile  crime. 
Storv  Hi|.  I'l.  §§  •'>;».",,  :,W;  Har<-  Discov. 
H2;"  Macaulev  r  Sliackweil,  1  IJiitrJi,  N. 
S.  121;  S  i).'2  Uuss.  (j.'.o.  ii(.ti.:  (.lynii  v. 
IIou«ton,  1  K^en,  229. 


*  fJartside  t'.  Outram,  3  .Jur.  N.  S.  39, 

V.  c.  \v. 

6  Chetwynd  i'.  Lindon,  2  Ve.s.  S.  450. 

"  South  Sea  Ci>nipany  n.  Humste'l,  1  Eq. 
Co..  Ab.  77,  pi.  16;  Kust  India  (lompiiny 
V.  Atkin.s,  cited  ibid.;  1  Stra.  lliS;  I'axton 
V.  Douglas,  10  Ves.  239;  Story  Eq.  I'l. 
§  589. 

'  Ld.  Red  Ui5;  Morse  v.  I'.uckworth,  2 
Vern.  443;  Ka>-t  India  Conipauv  i".  Neave, 
5  Ves.  173,  185;  Story  Eq.  I'l.  §  5:iU  and 
note. 

»  Ld.  lied.  195,  196. 


:)()G 


DEMURRERS. 


(II   XIV. 5: 


I'mtection 
i-annot  be 
waived,  if 
iliseoverv 
exposes 
ileteiuiant  to 
i-riminal 
charge. 

I'^xception  to 
general  rule 
in  certain 
cases  of  cou- 
spirac)' ; 

or  fraud,  or 
libel; 


or  where  the 
Icf^islature 
provides  that 
defendant 
shall  answer, 
notwith- 
standing 
penalties; 

as  in  the  case 
of  fraudulent 
trustees, 


iiiiswi'viuL!,',  ;is  \o  lirraclu's,  lnH'aiiso  llu'y  would  l)i*  siilyecit  to  a 
pt'ualty.' 

l'|M)n  tlu'  iniiiciplr  lliat  llii'  C\)urt  will  iu)l  allow  a  man  to  con- 
tratlK't  wliat  lio  has,  I'itlier  by  his  ut^tions  or  express  words,  asserted, 
it  has  been  heUl,  that  a  ])ersou  who  represents  himself  to  be  a 
broker  of  the  city  of  London,  and  is  employed  in  that  character, 
cannot  afterwards  ])rotect  liimself  from  discovery  on  the  yround 
that  he  was  not  licensed  to  act  as  broker,  and  that,  by  answering, 
he  may  expose  himself  to  penalties.^ 

It  would  appear,  that  where  a  defendant  is  entitled  to  the  pro- 
tectiiHi  of  the  Court  against  a  discovery,  tending  to  establish  a 
criminal  charge,  he  cannot  dej)rive  himself  of  the  benefit  of  it  by 
any  agreement  whatever.'^ 

The  rule  that  a  defendant  is  not  bound  to  answer,  in  cases 
which  may  subject  him  to  punishment  or  penalties,  appears  to  be 
liable  to  modification,  in  some  cases,  where  the  facts  charged  in 
the  bill  would  amount  to  conspiracy;^  and  also,  in  certain  cases 
where  the  defendants  would  apj)ear  to  be  guilty  of  fraud,  or  of 
])ublishing  a  libel  which  might  be  the  subject  of  indictment,^  as 
in  the  cases  mentioned  by  Lord  Eldon,  in  Macaulay  v.  /Shackell,^ 
as  having  frequently  occurred  in  the  Court  of  Exchequer,  in  which 
it  was  the  practice  with  underwriters,  where  policies  of  insurance 
were  found  to  be  affected  Avith  gross  frauds,  to  bring  the  parties 
into  Court,  and  compel  them  to  answer,  by  stating  in  their  bills 
frauds  which  would  have  been  indictable. 

It  may  be  mentioned  here,  that  the  Legislature  has,  in  some 
cases,  expressly  provided,  that  })arties  to  transactions  rendered 
illegal  by  statute,  shall  be  compelled  to  answer  bills  in  Equity  for 
the  discovery  of  such  transactions :  in  such  cases,  of  course,  the 
defendant  cannot  ])rotect  himself  from  the  discovery  I'equired,  on 
the  ground  that  it  will  render  him  lial)le  to  the  penalties  imposed 
by  the  statute  itself     Thus,  trustees  and  other  persons  who  are 


1  African  Company  v.  Parish,  2  Vern. 
244;  East  India  Company  v.  Neave,  wii 
sup. 

2  Green  v.  Weaver,  1  Sim.  404,  432  j 
Robinson  v.  Kitcliin,  21  Beav.  365;  2  .Jur. 
N.  S.  57;  ib.  294;  8  De  G.,  M.  &  G.  88; 
see  Story  En.  PI.  §  589. 

8  Lea  V.  Kecd,  5  Beav.  381,  385.  This 
appears  to  be  confined  to  criminal  cases; 
see  observation  of  Sir  J.  Romillv  M.  R. 
in  Hobinson  v.  Kitchin,  21  Beav.  365,  370. 

*  Dumnier  r.  Corporation  of  Chippen- 
ham, 14  Yes.  245,  251;  see  also  I^ord  El- 
don's  observation  in  Mayor  of  London  v. 
Lew,  8  Ves.  404;  and  lliire  on  Di.sc.  143. 

6  See  Wilmot  v.  Maccabe,  4  Sim.  263; 
Story  Eq.  I'l.  §  597.  In  March  v.  David- 
son, 9  Paige,  580,  Mr.  Chancellor  Wal- 
worth held,  that  in  the  case  of  a  libel,  the 
defendant  could  not  be  compelled  in  a  bill 


of  discovery  to  discover  any  thing  which 
would  make  him  liable  to  an  indictment 
crimiually;  but  he  was  compellable  to 
discover  other  facts  in  support  of  the  ac- 
tion, which  would  not  subject  him  to  a 
criminiti  prosecution,  or  to  a  penalty  or  for- 
feiture. 

6  1  Bligh,  N.  S.  96. 

■^  See  post,  p.  579,  n.  5.  The  New  York 
Revised  Statutes,  'and  a  statute  passed 
since,  have  provisions  which  compel  a 
defendant  to  miike  a  discovery  in  many 
cases  where  criminal  prosecutions  and 
pensilties  can  take  jilace  and  be  executed. 
Thus  the  defendant  must  answer  to  a 
gaming  transaction  at  the  suit  of  the  loser 
or  !iny  other  person.  1  Rev.  Stat.  664, 
§  19.  As  to  money  iilegalh'  received 
for  brokerage,  il*.  709,  §  4.  As  to  mon- 
ey and  things  taken  usuriously,  ib.  772, 


DIFFEREXT    GROUNDS    OF    DEMURRER. 


567 


liable  to  a  criniinal  prosecution  for  the  fraudulent  misapplication 
of  moneys  intrusted  to  them,  are,  nevertheless,  bound  to  give  dis- 
covery, in  answer  to  a  bill  in  Equity.^  So,  also  a  person  infi-ing- 
ing  a  trade-mark,  though  liable  to  prosecution,  must  give  discovery 
in  Equity.^ 

If  a  party  be  liable  to  a  penalty  or  forfeiture,  provided  he  is 
sued  witliin  a  limited  time,  and  the  suit  is  not  commenced  till 
after  the  limitation  has  expired,  the  defendant  will  be  bound  to 
answer  fully,  CA^en  though,  by  so  doing,  he  may  expose  his  charac- 
ter and  conduct  to  reflection ;  ^  and  it  seems,  that  the  plaintiff  is 
entitled  to  an  answer,  if  the  liability  ceases  after  the  defence  has 
been  put  in,  and  before  it  is  heard,  even  though  there  was  a  liabil- 
ity at  the  time  of  putting  in  his  defence.  This  has  been  decided 
upon  a  plea,*  and  upon  exceptions  to  an  answer ;  ^  and  there  is  no 
doubt  tliat  the  same  decision  Avould  be  come  to  upon  demurrer. 

It  has  been  before  stated,  that  if  the  executor  or  administrator 
of  a  parson  bring  a  bill  for  tithes,  he  need  not  offer  to  accept  the 
single  value :  ^  the  reason  of  wliich  rule  is,  that  the  treble  value 
is  not  given,  by  the  statute,  to  the  representatives ;  and  there  can 
be  no  doubt  that  the  same  reason  will  be  valid  against  allowing  a 
demurrer,  in  all  cases  where  the  penalty  is  personal,  and  does 
not  survive  to  the  representatives  of  the  person  entitled  to  sue  for 
it.^ 

A  defendant  capnot  refuse  to  give  discovery  on  the  ground  that 
it  will  expose  h'un  to  penalties  in  a  foreign  country.* 

Some  of  the  cases  in  which  a  demurrer  will  lie  to  a  bill,  on  the 
ground  that  the  discovery  required  will  expose  the  defendant  to  a 
forfeiture,  have  been  before  referred  to,®  for  the  purpose  of  illus- 
trating the  ])rinci])le,  that  where  it  is  in  the  power  of  a  plaintift" 
to  waive  such  forfeiture,  his  omission  to  do  so  may  be  taken 
advantage  of  by  demurrer.^"  The  bill,  however,  will  be  equally  liable 
to  this  species  of  objection,  in  cases  where  the  plaintift'  has  no 
power  to  waive  the  effects  of  the  discovery,  as  in  those  where  he 
has  such  ])f)wer,  and  omits  to  exercise  it ;  therefoi'e,  where  the 
discovery   sf)Uglit    by   an   infomiation   would   have   subjccti'd   the 


Ch.  XIV.  §  2. 


and  infring- 
ers of  trade- 
marks. 


Where  the 
time  within 
which  the 
penalty  may 
be  recovered, 
has  expired. 


Where  bill 
by  personal 
representa- 
tive of  person 
entitled  to  the 
penalties  the 
rij^ht  to 
which  docs 
not  survive. 


Where 
discovery 
will  expose 
defendant  to 
penalties  in 
foreign 
country. 

Where 
discovery 
subjects 
defendant  to 
forfeiture. 


§  6.  And  also  in  all  cases  where  the  defend- 
ant is  charf^ed  witli  lieinp  a  party  to  a  fraud- 
ulent cinveyance.  New  York  Lawsof  lh.'33, 
p  17.  In  all  tliese  cases,  however,  the  efl'ect 
of  the  discovery  is  specially  limited,  by 
statute,  to  the  nbject  of  tiie  civil  jtroceeil- 
inf;s,  in  rej^ard  to  which  it  is  BOUj^iit. 
(jraham  on  Jurisdiction,  4!i3. 

1  24  iSc  25  Vic.  c.  08,  §§  7r>-86. 

■^  25  &  26  Vic.  c.  88,  §  11. 

*  I'arklmrst  v.  Lowtcn,  1  Mer.  400; 
Story  K({.  I'i.  §  50^;  Skinner  v.  .Iiidson,  8 
Conn.  52H;  liut  see  Ni.itliup  v.  Match,  0 
Conn.  301 ;  Lambert  v.  I'cijple,  9  Cowen, 
02». 


*  Corporation  of  Trinity  House  v.  Burge, 
2  Sim.  411. 

''  Williams  v.  Farrington,  3  Bro.  C.  C. 
88. 

0  Ante,  p.  387. 

7  Sec  Hare  on  Disc.  148. 

^  Kinp  of  tlie  Two  Sicilies  v.  Wilcox,  1 
Sim.  N.S.301;  ID.iur.  214;  distinguished 
in  Uniteil  States  of  America  «.  M'liea,  L. 
H.  4  Kq,  327;  S.  C.  on  ajjpeai,  L.  K.  3  Ch. 
Ap  7!>. 

«  A?tte,  pp.  386,  387. 

1"  Story  Kq.  I'!.  §§  580,  581;  Lansing  v. 
I'ine,  4  Paige,  369;  a7ile,  387. 


568 


DEMURRERS. 


Ot"  fortViture, 
ufKni  ni;ir- 
riaf^i-  without 
cousciit. 


Ch.XIV.  §2.  (lotl'iul:ints  to  a  q^(0  iramnito,  a  ilcinuirtM-  was  allowed,^  In 
like  niannor,  Avhoio  a  loi;aov  was  liivi'ii  to  a  woman,  on  her  mar- 
riage, with  a  condition,  tliat  it'  she  married  witliout  the  consent  of 
the  trustees  under  the  will,  the  legacy  was  to  be  forfeited,  and  a 
bill  was  filed  against  tlu'  k'gatee  for  a  discovery  whether  any  mar- 
riao-e  had  taken  ])lace,  in  which  it  was  alleged  she  had  married- 
without  consent:  Lord  llardwicke  allowed  the  demurrer,  as  she 
could  not  answer  to  the  marriage  without  showing,  at  the  same 
time,  that  it  was  against  consent.'^  In  a  case  of  this  nature,  where 
the  husband  and  Avife  ])ut  in  separate  answers,  under  an  order  for 
that  purpose,  and  the  husband,  by  his  answer,  admitted  the  mar-" 
riage  without  consent,  but  the  wife  omitted  to  do  so,  Lord  Talbot, 
upon  exceptions  being  taken  to  her  answer,  said,  that  he  could 
not  reconcile  himself  to  compelling  a  wife  to  confess  that  by  which 
she  might  forfeit  all  she  had  in  the  world,  and  held  the  answer  to 
be  sufficient.^ 

The  principle,  that  a  defendant  is  not  bound  to  give  discovery 
which  will  expose  him  to  a  forfeiture,  applies  equally,  whether  the 
forfeiture  is  enforcible  in  Equity  or  at  Law.^ 

The  rule  applies  only  to  cases  Avhere  a  forfeiture,  or  something 
in  the  natui-e  of  a  forfeiture,  may  be  incurred :  Avhere  the  dis- 
covery sought  merely  extends  to  the  performance  of  a  condition 
upon  failure  in  which  a  limitation  over  is  to  take  effect,  the  defend- 
ant cannot  protect  himself  from  the  discovery.  Thus,  where  a 
husband,  by  will,  gave  an  estate  to  his  wife,  whilst  she  continued 
his  Avidow,  Avith  a  limitation  OA-er  in  case  of  her  second  marriage, 
and  the  remainder-man  brought  a  bill  against  her,  in  which  he 
sought  a  discovery  of  her  second  man-iage :  upon  the  defendant 
demurring  to  the  discovery,  as  sulyjecting  her  to  a  forfeiture,  Lord 
Talbot  overruled  the  demurrer.^  A  demurrer,  also,  Avill  not 
prevail  where  the  discovery  is  of  a  matter  which  shoAvs  the  defend- 
ant disqualified  from  having  any  interest  or  title:  as  whether  a 
person  claiming  a  real  estate,  under  a  devise,  be  an  alien,  and  con- 
sequently incapable  of  taking  by  purchase,'^  A  distinction, 
however,  appears  to  exist,  in  this  respect,  between  incapacities 
Avhich  are  the  result  of  general  j^rinciples  of  Law,  and  those  which 
are  imposed  by  the  Legislature,  by  way  of  penalty  or  forfeiture ; 
thus,  before  the  repeal  of  the  statutes  imposing  disabilities  upon 

1  Attornev-Gi-nernl  v.  Re3'nolds,  1  Eq. 
Ca.  Ab.  131",  pi.  10;  1  Smith  Ch.  Pr.  (2d 
Am.  ed.)20.3.  note  (/). 

2  Chancey  v.  Fenhoulet,  2  Ves.  S.  265; 
S.  C  nom.  Chauncey  v.  Tahnurrten,  2  Atk. 
392;  see  al>;o  Hainbrook  v.  Smith,  17  Sim. 
209 ;  16  .Jiir.  144 ;  Cooke  v.  Turner,  14  Sim. 
218;  8.Jur.  703. 

8  Wrotte«ley  v.  Bendish,  3  P.  Wms.  230, 
239;  ante,  p.  180. 


No  distinc- 
tion between 
legal  and 
equitable 
forfeiture. 

Rule  docs 
not  apply, 
where  dis- 
covery only 
occasions  the 
taking  effect 
of  a  limita- 
tion over. 


Where  per- 
sonal dis- 
qualification 
is  in  the 
nature  of  a 
forfeiture. 


*  Attorney-General  v.  Lucas,  2  Hare, 
566. 

6  Cited  Chauncey  v.  Tahourden,  2  Atk. 
393 ;  Chancey  v.  Fenhoulet,  2  Ves.  S.  265 ; 
Lucas  V.  KviiMs,  3  Atk.  200;  Ham  brook  v. 
Smith,  nbi  sup. ;  see,  cuntru,  Monnins  v. 
M<.iinins,  2  Ch.  Hep.  68;  Story  Eq.  PL 
§  r)79,  note. 

6  Attornev-Gcnenil  v.  Duplessis,  Parker, 
144. 


DIFFERENT    GROUNDS    OF    DEMURRER. 


569 


persons  professing  the  Popish  religion,^  it  was  held,  that  a  de- 
fendant was  not  obliged  to  discover  whether  he  was  a  Papist  or 
not.^  Upon  the  same  principle,  it  has  been  held,  that  where  a 
bill  sought  a  discovery,  whether  a  clergyman  had  been  presented 
to  a  second  living  which  avoided  the  first,  nnder  the  statute  21 
Hen.  YIII.,  a  demurrer  to  the  discovery  of  that  flict  would  lie : 
because  the  incapacity  of  holding  the  first  Uving,  incun-ed  by  the 
acceptance  of  the  second,  was  in  the  nature  of  a  penalty  imposed 
by  the  statute.^ 

A  defendant,  in  order  to  protect  himself  fi'om  answering,  on  the 
ground  that  the  discovery  of  the  matters  inqiiired  after  would 
expose,  or  tend  to  expose,  him  to  penalties,  must  state  upon  oath, 
his  belief  that  such  would  be  the  case :  a  submission  of  the  question 
to  the  Court  is  not  sufficient.* 

II.  If  a  defendant  has,  in  conscience,  a  right  equal  to  that 
claimed  by  a  person  filing  a  bill  against  him,  though  not  clothed 
with  a  perfect  legal  title,  a  Coui-t  of  Equity  will  not  compel  him 
to  make  any  discovery  which  may  hazard  his  title,^  and  if  the 
matter  appear  clearly  on  the  face  of  the  bill,  a  demurrer  will 
hold.®  The  most  obvious  case  is  that  of  a  purchaser  for  a 
valuable  consideration,  without   notice  of   the  plaintiif's  claim.' 


Cii.XIV.  §2. 


1  11  &  12  Will.  III.  c.  4,  §  4. 

2  Smifh  V.  Read,  1  Atk.  520;  Harrison 
V.  Southcote,  ib.  528;  2  Ves.  S.  3S9,  395. 

3  lioteler  v.  Allington,  3  Atk.  453,  458. 
*  Scott  V.  Miller  (No.  2),  Johns.  328;  5 

Jur.  N.  S.  858. 

5  Storv  Eq.  PI.  §§  603  604  a;  Howell  v. 
Ashmore,.l  Stockt.  (N.  J.)  82. 

6  Ld.  Ked.  199;  see  Glegg  v.  Legh,  4 
Mad.  193,  207. 

■^  Ld.  Red.  199;  Jerrard  v.  Saunders, 
2  Ves.  J.  458;  see  Sweet  v.  Suuthcote, 
2  Ur').  (J.  C.  66.  Tiie  protection  which 
Equity  throws  around  an  innocent  pur- 
chaser, applies  not  only  to  bills  of  relief, 
but  also  to  bills  of  discover}-.  2  Storj'  Eq. 
Jur.  §  1502.  Equity  will  not  take  the 
least  s*ep  agninst  him,  and  will  allow  him 
to  take  every  advimtiige  whicli  the  law 
gives  him;  for  then;  is  nothing  which  can 
attach  it-elf  upon  his  conscience,  in  such 
a  ca.se,  in  favor  of  an  adverse  claim.  Jb. 
§  1605;  1  id.  §  410;  W.,od  )'  Mann.  1  Sum- 
ner, 507;  Mc.Veil  v.  M,if;ee,  5  Mason,  269; 
Vattier  v.  Ilinde,  7  I'eterM,  252;  Kitzsim- 
mons  V.  Otrdeii,  7  rrniich,  2;  Hoi.ne  v. 
Chiles,  10  I'eters,  177 ;  I'avne  v.  (.'om[)ton. 
2  Y.  &  C  457;  Story  Eq.  f'l.  §  603;  Howell 
V.  Ashmore.  1  St'ckt.  (N.  J.)  82.  And  so 
a  purcha.ser,  with  notice!  from  an  innocent 

fiurchaMcr  withrmt  notici",  is  entitled  to  the 
ike  protfclii'n.  For  otherwise,  it  would 
hiipp<!n  that  tin;  title  of  such  a  Ixmt'i  Jiilc  jiur- 
chaser  would  lifi-onie  unm;irkcfiil)lc  in  his 
hands.  2  Story  Kq.  I'l.  .lur.  §  150:Ja;  1  id. 
410,  nnd  cases  cited;  Varick  v.  IJriggs, 
0  I'aige,  323;  Bennett  v.  Walker,  1  West, 


130 ;  Jackson  v.  McChesney,  7  Cowen,  360 ; 
Jackson  v.  Henry,  10  John.  185;  Jackson 
V.  Ewer,  8  John.  573;  Demarest  «.  \\'yn- 
coop,  3  John.  147.  But  where  a  bill  is 
brought  for  discovery  and  to  set  aside  a 
mortgage,  which  the  plaintiff'  alleges  was 
taken  by  the  defendant  with  intent  to  de- 
fraud the  plaintilf,  the  defendant  cannot 
by  demurring  to  the  bill,  avoid  answering 
and  disclosing  the  time  when  his  mortgage 
was  executed,  or  whether  he  claims  to 
hold  tile  land  i)y  virtue  of  it;  or  \\-<m\  dis- 
closing, and,  if  in  his  powiir,  jiroducing  tho 
note  which  the  mortgage  purports  to  se- 
cure; or  from  stating  wiien,  where,  and 
in  whose  presence,  and  for  what,  the  note 
was  given;  or  from  whom  the  considera- 
tion was  received,  and  to  whom  paid. 
Jkirns  V.  Mobbs,  29  Maine,  273;  see  jiost, 
pp.  579,  5h0 

In  Howell  v.  Ashmore.  1  Stockt.  (N.  J.) 
82,  it  was  held  that  when  the  defenMant  is 
charged  with  a  Iraud,  and  that  he  has  pro- 
cured a  title  fraudulently,  and  is  fraudu- 
lently setting  it  up  to  defeat  the  plaintiff, 
the  Court  of  (Ihanccry  may  compel  such 
fraud-doer  to  disclose  tiie  fact  alleged  as  a 
fraud,  and  all  the  circumstances  atti'n<ling 
it,  in  order  that  the  Court  may  dderniino 
whetlicr  those  circimistauces  establish  \\n-. 
fraud.  And  it  is  a  proivr  object  of  a  l)ill 
of  discovery  to  ascertain,  in  a  case  where 
the  defendant's  title  can  prevail  ordy  up  'U 
the  ground  of  his  being  a  hmiii  fidf  pur- 
chaser, without  notice  of  i\w  ])laiiilill''H 
title,  whether  he  had  siirli  notice,  and  to 
call  up  m  him  to  disclose  all  the  circuin- 


Defendant 
must  state 
on  oath  his 
belief  that 
discover}' 
would  expose 
him  to 
penalties. 

II.  That  de- 
fendant has, 
in  conscience, 
an  equal 
right  with 
plaintiff. 


570  DEMURRERS. 

('II.  XIV.  § -J.    T^poii  llio  s:uno  o-roiinil,  a  jointross  may,  in  many  (^ases,  domiir  to 

^ > a  bill  lili'tl  against  her  I'or  a  tliscovcry  ol'  lior  jointnre  deed,  if  the 

plaint itV  is  not  t-apabU'  of  oontirmino;,  or  the  bill  does  not  otl'er  to 
conlirm,  Iut  joinlui-e,  and  the  farts  aii]H';ir  sufficiently 'upon  the 
face  of  the  bill:  thouuh,  ordinarily,  advantage  is  taken  of  tliis 
defence  by  plea.^ 
III.  That  the  III.  A  defendant  is  not  compellable  to  discover  any  thing  im- 
ImXt  i'^  materi.d  to  the  relief  prayed  by  the  bill.-  Upon  this  ground, 
iinmateriai  upon  a  bill  tileil  by  a  mortgagor  against  a  mortgagee  to  redeem, 
praved.*^  ''  :>'>^^  seeking  a  discovery  whetlier  the  mortgagee  was  a  trustee,  a 
demurrer  to  tlie  discovery  was  allowed:  lor,  as  there  was  no  trust 
declared  upon  the  mortgage  deed,  it  was  inunaterial  to  the  plain- 
tiff" whether  there  was  any  trust  reposed  in  the  defendant  or 
not.'  So,  where  a  bill  was  filed  by  the  lord  of  a  borougli,  pray- 
ing a  discovery  whether  a  person  ai)])lying  to  be  admitted  a  tenant 
was  a  trustee  or  not,  a  demurrer  was  allowed:*  and  Avhere  a  bill 
was  brought  for  real  estate,  and  sought  discovery  of  proceed- 
ings in  the  Ecclesiastical  Court  upon  a  grant  of  administration, 
the  defendant  demurred,  successfully,  to  that  discovery.*^  In 
like  manner,  where  a  bill  was  filed  to  establish  an  agreement 
entered  into  before  marriage,  by  which  a  separate  estate  was 
secured  to  the  defendant's  wife,  and  praying  a  discovery  of  several 
unkindnesses  and  hardships  which  the  defendant,  as  it  was  pre- 
tended, had  used  towards  his  wife,  to  make  her  recede  fii-ora  the 
agreement,  and  the  defendant  demurred  to  the  discovery,  the 
demurrer  was  allowed.^  But  in  general,  if  it  can  be  supposed 
that  the  discovery  may  in  any  way  be  material  to  the  plaintiff^  for 

stances  which  may  go  to  probe  his  con-  mur  to  the  whole  bill,  if  it  do  not  aver  that 
science  upon  that  point.  Howell  v.  Ash-  a  suit  at  Law  is  pending,  or  is  about  to  be 
more,  1  Stockt.  (N.  J.)  82;  see pust,  p.  531,  brought,  in  which  a  discovery  maj'  be  ma- 
note  terial.      Jlitchell  v.  Green,  *10  Met.   101; 

1  Ld.  Ked.  199;  Chamberlains.  Knapp,  Pease  v.  Pe;i.se,  8  Met.  395. 

1  Atk.  52;  Senhuuse  v.  Karl,  2  Ves.   S.  But  when  the  bill  seeks  for  discovery 

450 ;    see  also  Leech  v.  Trollop,   ib.  662,  only,  and  not  for  relief  also,  the  defendant 

from  which  it  appears,  that  a  widow  is  not  will  be  corajiclled  to  make  discover}',  if  the 

bouml  to  discover  her  jointure  deed,  by  Court  can  suppose  that  it  can  be  in  any 

her  aiiswi^r  (even  where  the  bill  offers  to  way  material  to  the  plaintiff,  in  support  or 

confirm  it)  till  the  confirmation  has  been  defence  of  any  suit,  although  the  bill  doe.s 

effect!  d;  ^ee  post,  Chap.  XLll.,  Produclion  not  aver  tha'  the  right  which  the  plaintiff 

of  Documents.  seeks   to   enforce,   cannot   be   established 

2  Ld.  Ked.  191.     The  plaintiff  in  a  bill  without  the  aid  of  the  discovery  sought, 
must  show   the    materiality  of   the    dis-  Peck  ??.  Ashley,  12  Met.  478. 

coveiy   snu.:ht.     Lucas  v.  Bunk    of   Da-  This  objection  of  immateriality  may  be 

rien,  2  Stew.  280;    Leggctt  v.  Postley,  2  to  the  whole  lull,  or  to  a  part  of  the  "bill, 

Paige,  COl;   Ld.   He'l.    191,  192;  Graham  or  to  a  part  only  of  the  interrogatories,  or 

on  Jurisdiction,  488-400;   Hare,  Discov.  8;  to  a  particular  defendant  only.     Story  I'^q. 

Wigram,  Di-i.  (Am.  ed.)  IfjS  etseq.;  Story  I'l.  §568;  Hare  on  Discov.  159-161.     For 

Eq.    I'l.  §§  554-558;  1  Smith  Ch.  Pr.  (2(1  fnrm  of  a  demurrer  for  immateriality,  see 

Am.ed.)204;  Newkirkw.  Willett,  2  Caines  Story  Ivj.  PI.  §  567  ;  Willis,  475. 

Ca.  Kr.  290;  Seymour  t".  Seymour,  4  John.  ^  Harvey  v.  Jlorris,  Hep.  t.  Finch,  214. 

Ch.  409;    Mcln'ivre  v.  Mancius,  3  John.  ■*  Lord  Montague  «.  Dudman,  2  Ves.  S. 

Ch.  47;    see    Peck    v.  Ahhlev,    12    Met.  396,398. 

478.     Where  the  bill  seeks  relief  which  5  I};,ker  v.  Pritchard,  2  Atk.  388. 

the  Court  has  no  power  to  grant,  and  also  c  llincks  «.  Nelihorpe,  1  Vern.  204. 
geeks  a  dlst-overy,  the  defendant  may  de- 


DIFFERENT    GROUNDS    OF    DEMURRER. 


571 


the  purj^oses  of  the  suit,  the  defendant  will  be  compelled  to  make  Ch.  XIV.  §  2. 
it ;  ^  thus,  where  a  bill  called  for  a  discovery  of  cases  laid  before   "        y — -^ 
counsel,  and  their  opinion.  Lord  Eldon  held,  that  the  plaintiff  had 
no  right  f  o  a  discovery  of  the  opinions  of  counsel,  but  only  of  the 
cases.^    And  now,  the  cases,  if  prepared  subsequently  to,  or  in 
contemplation  of,  the  litigation,  are  also  protected.^ 

rV.  The  last  case  brings  us  to  the  consideration  of  those  causes  iv.  On  the 
of  demurrer  to  discovery,  which  are  the  consequence  of  the  privi-  |^ofSL"nal 
lege  resulting  fi'om  professional  confidence.''  The  jmA-ilege  con-  confidence, 
fen-ed  by  this  species  of  confidence  applies,  though  in  a  different 
degree,  to  both  the  adviser  and  the  client.^  The  application  of 
the  rule,  with  regard  to  professional  confidence,  to  discovery  re- 
quired from  the  client,  has  been  exemplified  in  the  case  already 
referred  to  of  Eichards  v.  Jackson,  in  which  Lord  Eldon,  as  Ave 
have  seen,  held,  that  if  the  demurrer  had  been  confined  to  the 
discovery  of  the  opinions,  it  would  have  been  good ;  and  the  rule 
has  since  been  extended  to  exempt  a  defendant  fi-om  the  discovery 
of  the  case  itself,  and  to  all  confidential  communications  which 
have  passed  in  the  progress  of  the  cause  itself,  and  with  reference 
to  it  before  it  was  instituted ;  ^  and  also  to  letters  Avritten  by  a 
defendant  to  his  solicitor,  after  a  dispute  between  him  and  the 
plaintiff  had  arisen,  with  the  view  to  taking  the  opinion  of  counsel 
upon  the  matter  in  question,  and  which  afterwards  became  the 
subject  of  the  suit.''  The  rule  also  extends  to  all  observations, 
notes,  and  remarks  made  by  counsel  upon  their  briefs,  but  the 
l)riefs  themselves,  so  far  as  they  are  copies  of  matter  otherwise 
jmblici  j uris,^  and  counsel's  indorsement,  or  note  of  any  order  made 
by  the  Court,'  are  not  pri\ileged. 

The  rule  has  been    adopted  out  of  regard  to  the  interests  of  Origin  of  the 
justice,  which  cannot  be  upholden,  and  to  the  administration  of  P^n^ple- 
justice,  which   cannot  go  on,  without  the  aid  of  men  skilled  in 
jurisprudence,  in  the  practice  of  the   Courts,  and   in  those  mat- 
ters affecting  riglits  and   obligations  which    form  the  subject  of 
all  judicial  proceedings.     If  the    privilege    did   not  exist  at  all. 


1  Lrt.  Rpd.  193. 

2  Riclinrdx  v.  .Jiickson,  18  Ves.  472. 
«  Pout,  p.  57.3. 

*  VVijrram,  Di.'^cov.  (1st  Am.  ed.)  83,  84, 
pi.  13R:  .Story  Kq.  I'l.  §§  6M-002;  1  Greeiil. 
Kv.  §  23;')  et  ser/.,  and  cases  in  notes;  Gres- 
Icy  Kij.  Rv.  27H-284;  lirown  v.  Piivson, 
«  N  11.  443:  Foster  r.  Hull.  12  Pick.  89; 
Wrii;lit  r.  Miiyn,  6  SiiuirK'r's  Ves.  280  a, 
and  notfs;  Aiken  r.  Killiurne,  27  Maine, 
a.ll;  lirazierr.  Fortunf,  10  Ala.  516;  Uee- 
son  t;   I'lecon,  'J  liarr,  279. 

''  Sec  ids'),  on  this  subject,  pogf,  f  lliap. 
XLI!.,  I'rmlncliiinof  I)ocuinen(s  ;  2  Sugd. 
V.  &  P.  (7fli  Am.ed.)  1001  f<  sf^.,  and 
notes.  .\nd  it  in  f|uito  possilile  that  the 
client  may  be  compelled  to  disclose  the 


facts  when  his  professional  adviser  would 
be  bound  to  withhold  them.  Storv  V.a. 
PI.  §  599,  ni)te;  Preston  v.  Carr.  1  Y".  &  J. 
175,  179;  Ibire,  Discov.  174,  175;  Green- 
law V.  Kin;r,  1  Heav.  137. 

«  Garland  v.  Scott,  3  Sim.  396;  Bolton 
1'.  Corporation  of  Liverpool,  jft.  407,  487; 
1  M.  &  K.  88,  9.3;  Mnches  v.  \\\i\<\u\y\\, 
4  Kuss.  190;  Woods  ii.  Woods,  4  Hare,  83, 
86;  .Jenkins  v.  IJushbv,  L.  H.  2  Kq.  547; 
12  Jur.  N.  S.  558,  V.  V.  K. 

7  Vent  V.  Pacey,  4  Kuss.  193;  Grccnough 
V.  Gaskell,  1  M-  &  K.  W,  101. 

«  Walsliam  v.  Stainton,  2  K.  &  M.  1. 

0  Nicholl  r.  .Tones,  13  W.  U.  451,  V.  G. 
W.;  2H.  &  M.  588. 


572 


DEMURREKS. 


On. XIV. §'2.    every  one   would   be   thrown    upon    his  own   legal   resources;    de- 
'        V  l>ii\  ed  of  m11  jtrotessional  nssistaneo,  a  man  would  not  venture  to 

consult   Muy  skilful  person,  or  would  only  dare  to  tell  his  coun- 
IIow  far  sellor  half  his   cast'.'     Unless,  however,  the  eomniunication   has   a 

profoct  "'         direct  reference  to  the  sul)iect  of  the  dis])ute,  the  party  himself  has 
himsoir  by       ,10  ])rivileoe:  lie   is,   in   other  resi)ects,  hound   to   disclose   all  he 

privili'ije.  ,  1    1     T  11-1  • 

knows  aiul  believes  and  thinks  respectuig  his  own  case;  and  he 

must  disclose  the  cases  he  has  laid  before  counsel  for  their  opinion, 

unconnected  Avith  the  suit  itself- 

Histon-  of  Sir  James  AVio-vam  V.  C.  has  stated  the  history  of  tlio  law  upon 

the  rule.  ,  .  ,  .  .       ^ ,         ^  ,,        .  .,,,        ,."'  .  -,•,-, 

this  sul)]ect,  m  tiie  following  terms:  "  Ihe  first  point  decided 
upon  this  suliject  Avas,  that  communications  between  solicitor  and 
client  ])ending  litigation,  and  with  reference  to  such  litigation, 
were  ]irivileged ;  upon  this  there  is  not  at  this  day  any  question. 
The  next  contest  Avas  upon  communications  made  before  litigation, 
but  in  contemplation  of,  and  with  x'eference  to,  litigation  Avhich 
Avas  expected  and  afterwards  arose;  and  it  was  held,  that  the 
privilege  extended  to  these  cases  also.  A  third  question  then 
arose,  Avith  regard  to  communications  after  the  dispute  betAveen 
the  parties,  followed  by  litigation,  but  not  in  contemplation  of, 
or  with  reference  to  that  litigation ;  and  these  communications 
were  also  protected.^  A  fourth  point  Avhich  appears  to  have 
called  for  decision,  Avas  the  title  of  a  defendant  to  protect  from 
disco A^ery  in  the  suit  of  one  party,  cases  or  statements  of  fact  made 
on  his  behalf  by  or  for  his  solicitor  or  legal  adviser,  on  the  subject- 
matter  in  question,  after  litigation  commenced  or  in  contemplation 
of  litigation,  on  the  same  subject,  with  other  persons,  Avith  the 
vicAv  of  asserting  the  same  right.  This  was  the  case  of  Combe  v. 
The  Corj)oratio?i  of  London!^  The  question  in  that  suit  was  the 
right  of  the  corporation  to  certain  metage  dues,  and  the  answer 
stated  that  other  persons  had  disputed  the  right  of  the  corjjoration 
to  metage,  and  that  they  had  in  their  possession  cases  Avhich  had 
been  prepared  Avith  a  view  to  the  assertion  of  their  rights  against 
such  other  parties,  in  contemplation  of  litigation,  or  after  it  had 
actually  commenced;  Sir  J.  L.  Knight  Bruce  held,  that  those 
cases,  relating  to  the  same  question,  l)ut  having  reference  to  dis- 
putes Avith  other  persons,  Avere  within  the  privilege;  and  I 
perfiictly  concur  with  that  decision."  ^ 

The  case  before  Sir  James  Wigrani  Avas  a  bill  for  specific  per- 

1  Per  Ivord  Hrougham  in  Greenough  r.  Story  Eq.  PI.  §  600,  Beltzhoover  t?.  Black- 
Gaskell,  1  M.  &  K.  103.  stock,  3  Watts,  20;  Fo.steiv.  Hall,  12  Pick. 

2  lb.  100,  101.  89,  92,  98.  99. 

3  Holti.n  V.  Corporation  of  Liverpool,  4  1  y.  &  C.  C.  C.  631,  650;  see  also 
3  Sim.  467,487;  1M.&  K.  88.93;  Hughes  Holmes  v.  Baddeley,  1  Pbil.  476,  480;  9 
V.  Biddulph,  4  liuss.  190;  Vent  f.  Paecy,  Jur.  289. 

ill.  193;  Clagett  v.  Pliillip.s,  2  Y.  &.  C  C  5  Lord    Walsingham    v.    Goodricke,    3 

C.  82,  86;  7  Jur.  31;   1  Greenl.  Ev.  §  240;       Hare,  124. 


DIFFERENT    GROUNDS    OF    DEMURRER,  573 

formance  by  a  purchaser,  and  during  the  treaty  for  the  sale  and   Ch.  XIV.  §  2. 

purcliase  of  the  estate,  but  before    any  dispute  had  arisen,  the   ' r ^ 

defendant,  the  vendor,  fi'oni  time  to  time  consulted  his  solicitor  on  Communi- 
the  sulyect,  and  written  communications  passed  between  them.  A  soiidtorebe- 
quest ion  arose,  upon  a  motion  for  the  production  of  documents,  fore  dispute, 
whether  these  conununications  were  privileged,  regard  being  had 
to  the  circumstance  that  they  took  place  before  any  dispute  arose, 
though  Avitli  reference  to  the  very  subject  in  respect  of  which  that 
dispute  had  since  arisen ;  and  his  Honor  decided,  chiefly  upon  the 
authority  of  Raddiffe  v.  Fursman^   that  such  communications  • 
were  privileged,  so  far  only  as  they  might  be  proved  to  contain 
legal  advice  or  opinions,  but  not  otherwise.- 

This  case  of  Raddiffe  v.  Fursman  is  commonly  referred  to  as  a  Cases  for 
leading  case,  upon  the  extent  to  which  the  privilege  applies,  in  pro-  °PJ^s°g1  °^ 
tecting  cases  laid  before  counsel  for  their  opinion.  The  defend- 
ant, in  that  cause,  denmrred  to  so  much  of  the  bill  as  required 
him  to  discover  an  alleged  case,  the  name  of  the  counsel,  and  the 
opinion  given  upon  it.  The  demurrer  was  overruled  as  to  the  first 
point,  but  allowed  as  to  the  second  and  third  by  Lord  Iving,  and 
the  decision  was  affirmed  in  the  House  of  Lords.  This  decision 
has  been  ti-equently  mentioned  with  disapprobation;  but  having 
been  made  by  the  House  of  Lords,  its  authority  is  recognized, 
though  only  to  the  extent  to  which  it  strictly  applies.  Lord 
Brougham,  in  commenting  upon  it,  observed:  "Even  by  the 
report,  and  certainly  by  the  printed  cases,  which  I  have  examined, 
together  with  my  noble  and  learned  predecessor,  it  appears  plain, 
that  the  record  did  not  show  any  suit  to  have  been  instituted,  or 
even  threatened,  at  the  time  the  case  Avas  stated  for  the  opinion  of 
counsel ;  and  the  decision  being  upon  the  demurrer,  the  Court  had 
no  right  to  know  any  thing  which  the  record  did  not  disclose." 
''  So  far  this  decision  rules,  that  a  case  laid  before  counsel  is  not 
protected ;  that  it  must  be  disclosed.  But  the  decision  does  not 
rule  that  disclosure  nmst  be  made  of  a  case  laid  before  counsel  in 
reference  to,  or  in  contemitlation  of,  or  pending  the  suit  or  action, 
for  the  purfioses  of  which  tlie  production  is  sought."  ^ 

The  privilege  arising  from  professional  coniidence,  as  it  respects   j^,,]^.  ^f,^ 
the  letral  advisers,  is  of  a  more  extended  nature:   "As  regards  quaiiiied  as 

*""  to  loL'al  .id- 

tliem,  it  does  not  appear  that  the  i)ro(ecli<»n  is  qualitied  by  any   visers,  byany 

reference  to  proceedings  pending  or  in  contemplation.^      If,  touch-  reference  to 

I  2  Hro.  V   C.  ed.  Toml.  614;  and  see  Railway  Company,  3  M.  &  C.  355;  2  Jur. 

Moriiirifcton  v.  Mornington,  2  J.  &  H.  007.  205. 

■i  Sfo  obs.Tvations  of  V.  C.  Wood  on  *  Foster?'.  Hall,  12  Pick.  89,93  et  seq.  ; 

Lord   WaMnpliam  v.  Ooodrickc,  in  Man-  1  Greenl   F-v.  §  240;  Story  Kq.  IM.  §  GOO; 

scr  t'.  Dix,  1  K.  &  J.  451,  453.  Wilson   v.  rroup,  7  .lolinl  Cli.  25,  3S,  39; 

8  I'.olton   f.  Corporation  of  Liverpool,  1  licltzlioovcr  r.    Ulackstock,   3    Watts,  20; 

M.  &   K.  95,  96;    G.  I'.  Coop.   t.  Brough.  March  v.  Ludliini,  3  Sand.  Ch.  35;  Moore 

24,26;   see  Nina  v.  Northern  and  Eastern  v.  Brav,  10  I'.arr,  519;    2  Siigd.  V.  &  1'- 

(7th  Am.  ed.)  1063. 


574  DEMURRERS. 

rn.XlV.§2.    iiiii;  niMttiTs  tliat   ctuiu'  within  tlu'  ordinni-y  scojic  of  ))rofossional 

'^- — Y ^    cmployinonl,  tlu'v   ivci'ive  :i  (•oiiiinimic.itioii    in    their  professional 

pnK-tv(liiii,'s  capacity,  from  a  cHcnt,  and  foi-  his  hcnt'tit,  in  tlie  transaction  of 
nri'on'tom-  ^''^  business,  or,  which  amounts  to  tiic  same  thing,  if  tlicy  commit 
platioii.  to  pnpi'i-,  in  tlie  course  of  tlicir  emph)yment  on  his  belialt^  matters 

which  they  know  only  through  their  ])rofessional  relation  to  the 
client,  they  are  not  only  justified  in  withholding  such  matters,  but 
bound  to  withhold  them;  and  will  not  be  compelled  to  disclose 
the  information,  or  produce  the  papers,  in  any  Court  of  Law  or 
Equity,  either  as  ])arty  or  as  witness.  If  this  jirotcction  were  con- 
iined  to  cases  where  proceedings  had  commenced,  the  rule  would 
exclude  the  most  confidential,  and,  it  may  be,  the  most  important, 
of  all  communications :  those  made  with  a  view  of  being  ])repared 
cither  for  instituting  or  defending  a  suit,  up  to  the  instant  that  the 
process  of  the  Court  issued."  "  The  protection  would  be  insufficient 
if  it  only  included  communications  more  or  less  connected  with 
judicial  proceedings :  for  a  j)erson  oftentimes  requires  the  aid  of 
professional  advice,  upon  the  subject  of  his  rights  and  liabilities, 
with  no  ref(3rence  to  any  ])articular  litigation,  and  without  any 
other  reference  to  litigation  generally  than  all  human  aftairs  have, 
in  so  far  as  every  transaction  may,  by  possibility,  become  the  sub- 
ject of  judicial  inquiry.  It  would  be  most  mischievous,  said  the 
learned  Judges  in  the  Common  Pleas,^  if  it  could  be  doubted 
whether  or  not  an  attorney,  consulted  u2:)on  a  man's  title  to  an 
estate,  was  at  liberty  to  divulge  a  flaw."  ^  In  Herring  v.  Clobery^^ 
in  which  a  solicitor  was  examined  as  a  witness.  Lord  Lyndhurst 
said :  "  Where  an  attorney  is  employed  by  a  client  professionally, 
to  transact  professional  business,  all  the  communications  that  pass 
between  the  client  and  the  attorney  in  the  cause,  and  for  the  pur- 
pose of  that  business,  are  privileged  communications:  and  the 
privilege  is  the  privilege  of  the  chent,  and  not  of  the  attorney." 
Does  not  Communications  to  a  solicitor  made,  not  by  his  client,  but  by 

apply  to  com-   third  parties,  and  information  acquired  ])y  such  solicitor  from  col- 
to  solicitor  by   lateral  sources,  are  not   privileged  from   disclosure,  even  though 
third  parties,    gudx  communications  are  made  to,  and  information  acquired  by, 
him  in  his  character  of  solicitor,  and  solely  by  reason  of  his  filling 
that  character.* 

1  Crimack   v.    Heatlicote,    2   Brod.    &  Greenl.  Ev.  §  241;    Wright  v.  Mayer,  6 
Bing.  6.  Sumner's  Ves.    280,   note   («);    Bank   of 

2  Lord  Brongham  in  Greenough  v.  Gas-  Utica  ».  iMerseroau,  3  Barb.  Ch.  628. 
kell,  1  .M.  &  K.  101,  102;  C.  P.  Coop.  t.  3  i  piiij.  yi;  «  j„r.  202;  see  also  Carp- 
Brough.  08;  Story  Kq.  I'l.  §  000,  and  note.  mael  v.  Powis,  1  Phil.  087,  092;  and  that 
The  attorney  is  not  liouiid  to  produce  title-  it  is  the  priviiej^e  of  the  clieut,  see  Re 
deeds,  or  other  documents,  left  -with  him  Cameron's  Coiilbrook,  «Sic.,  Railway  Com- 
by  his  client  for  professional  advice;  thoufrh  pany,  25  Bcav.  1,4. 

he  may  be  examined  to  the  fact  of  their  *  Pord  v.  'i'ennant,  32  Beav.  162;    and 

existence,  in  order  to  let  in  secondary  evi-  sec  Gore  v.  Bowser,  5  l)e  G.  &  S.  30,  83; 

dence  of  their  contents,  which  must  be  S.  C.  noni.  Gore  v.  Harris,  10  .Jur.  1168. 
from  some  other  source  thau  himself.     1 


DIFFERENT    GROUNDS    OF    DEMURRER. 


575 


Although  the  general  rule  is,  as  laid  down  in  the  above  case, 
that  a  counsel  or  solicitor  cannot  be  compelled,  at  the  instance  of 
a  thii'd  party,  to  disclose  matters  which  have  come  to  his  knowl- 
edge in  the  conduct  of  professional  business  for  a  client,  even 
though  such  business  had  no  reference  to  legal  proceedings,  either 
existing. or  in  contemplation:  there  is  no  doubt  that  the  privilege 
will  be  excluded,  where  the  communication  is  not  made  or  received 
professionally,  and  in  the  usual  course  of  business,^  and  during  the 
existence  of  the  professional  relation.  Thus,  a  communication 
made  to  an  attorney  or  solicitor,  in  the  character  of  steward,  cither 
before  the  attorney  or  solicitor  was  employed  as  such,-  or  after  his 
employment  has  ceased,  will  not  be  protected  from  disclosure ;  ^ 
and  so,  where  an  attorney  had  been  consulted  by  a  fi-iend,  because 
he  was  an  attorney,  yet  refused  to  act  as  such,*  and  was,  therefore, 
applied  to  only  as  friend,^  or  where  the  matter  communicated  was 
not  in  its  nature  private,  and  could  in  no  sense  be  ternietl  the  sub- 
ject of  a  confidential  disclosure.*'  In  all  such  cases,  the  niatters  to 
be  disclosed  cannot  be  said  to  be  matters  which  the  professional 
adviser  has  learnt  by  communication  with  his  client,  or  on  his 
client's  behalf,  or  as  matters  which  were  committed  to  him  in  his 
capacity  of  attorney,  or  which,  in  that  capacity  alone,  lie  came  to 
know.''  And  so,  where  an  attorney  is,  as  it  were,  a  party  to  the 
original  transaction,  as  if  he  be  the  attesting  witness  to  a  deed,  he 
may  be  called  upon  to  disclose  facts  relating  to  its  execution,  or  as 
to  an  erasure  made  by  himself  in  a  deed  or  will ;  ^  if,  also,  he  was 
present  when  his  client  was  sworn  to  an  answer  in  Chancery,  he 
may  be  called  upon  to  disclose  the  fact;**  and  if  he  has  been  em- 
jiloyed  as  the  agent  of  a  party,  and  does  not  gain  his  knowledge  of 
ihe  facts,  as  to  which  the  discovery  is  required,  merely  in  his  rela- 
tion of  attorney  to  his  client,  the  rule  will  not  apply :  for,  in  such 
cases,  tlierc  was  no  professional  confidence,  and  he  stands  in  the 
same  situation  as  any  other  person.^" 


Ch.  XIV.  §  2. 


Applies  only 
to  such  com- 
munications 
as  are  pro- 
fessional. 


Docs  not 
apply,  where 
the  legal 
adviser  is  a 
party  to  the 
transaction ; 

or  lias  not 
gained  his 
knowledge  in 
his  profes- 
sional charac- 
ter. 


1  Greenouiih  v.  Gaskell,  1  M.  &  K.  98, 
104;  Walker  v.  Wildiiiaii,  0  Mad.  47;  see 
also  Desborough  r.  Kawliiis,  15  M.  &  C. 
615;  2  Jiir.  12.0.  And  the  privilege  is  de- 
stroyed il' the  in  Corniat  ion  is  sul)se(iuently 
communiciitcd  to  the  f-olici tor  from  aiiotlier 
source.  Lewis  v.  reimiiigloii,  0  tlur.  N. 
S.  478;  8  W.  K.  40.^.,  M.  ll. 

2  Cutts  V   l'iik<ring,  1  Vcntrix,  197. 

3  \VilM)ii  V.  HasTall,  4  T.  K.  753;  Story 
Kq.  I'l.  §  (i02;  1  (;rt-eiil.  Kv.  §  244. 

••  If  a  party  has  been  retjuested  to  act 
as  soliciir)r,  and  the  coininunication  lias 
been  ninde,  under  the  iuipre^sinn  lh:it  tlie 
rc<|Uf!-t  hiis  been  neccd<-d  to,  it  is  privi- 
leged.    Smith  I'.  Yell,  2  Curtis,  CG7. 

6  JIM. 

6  Hex  V.  Watkinson,  2  Slra.  1122. 

">  Grecnough  v.  Gaskell,  1  M.  &  K.  98, 
104. 


8  Sandford  v.  Remington,  2  Ves.  J.  1S9; 
Taylor  on  Evid.  §§  857,  858;  1  I'hil.  ou 
Evid.  128. 

"  Doe  V.  Andrews,  2  Cowp.  84U ;  Tiiylor 
on  Evid.  §  857. 

1«  Morgan  v.  Shaw,  4  I\Iad.  64,  50,  57; 
see  also  i-esborough  v.  Hawlins,  3  M.  &  C. 
515;  2  Jiir.  125. 

The  person,  called  as  a  witness,  or  made 
defendant  to  a  bill,  must  liavc  learned  the 
matter  in  question  only  as  counsel,  or 
attorney,  or  solicitor,  and  not  in  any  oihcr 
way.  If,  therefore,  lie  were  a  party  to  the 
transaction,  and,  especially,  if  be  wc.vc  a 
parly  to  a  fraud  (and  the  ciise  may  be  put 
of  his  beci'niing  an  inlbrmer,  after  being 
engaged  in  a  conspiracy),  that  is,  if  lie 
were  acting  for  himself,  allbougb  he  might 
be  employedfbr  another,  he  woidd  not  bo 
protected" from  the  discovery;  for  in  such 


57() 


DEMUKRERS. 


Cn.  XIV.  §  ± 


nor  to  couvt'y- 
aiicors,  who 
are  ncitlior 
counsel  nor 
solicitors. 


PrivDege 
extends  to 
interpreters, 
or  agents, 
between 
solicitor  and 
client;  and  to 
representa- 
tives of  the 
party;  and  to 
agent  to  col- 
lect evidence ; 


Tlio  piiviU'Lfc'  w  ill  also  ho  oxi'ludod,  with  ro<T;ar(l  to  comnmnica- 
tions  to  nioinhers  of  otlior  ])rorossioiis  than  the  Law:  it  has,  there- 
fore, been  held  not  to  extend  to  clergymen;^  nor  to  physicians  or 
inedieal  advisers;-  nor  will  it  extend  to  mere  agents  or  stewards;'' 
it,  however,  ai)i)lies  to  scriveners;*  and  also  to  counsel.''  It  has, 
however,  heeu  held  that  it  (h)es  not  extend  to  communications 
made  to  persons  acting  as  conveyancers,  who  are  neither  counsel 
nor  solicitors ;  tlius,  in  tlie  /South  tSea  Company  v,  Dolliffe^  referred 
to  in  Vaillant  v,  Dodemead^  a  Mr.  Gambier,  wlio  had  settled  cer- 
tain articles,  is  reported  to  liave  demurred  to  the  discovery  sought 
from  him,  as  to  the  alterations  in  those  articles,  on  the  ground  that 
he  was  counsel  for  the  company ;  and  it  is  stated  that  the  demur- 
rer was  overruled :  "  for  that  Avhat  he  knew  was  as  the  conveyancer 
only."^  It  has  also  been  held,  that  the  privilege  will  not  apjdy  to 
one  who  has  been  consulted  confidentially  as  an  attorney,  wlien  in 
fact  he  was  not  one.^ 

A  person  who  acts  as  an  interpreter,*  or  agent,^"  between  an  at- 
torney and  his  client,  stands  in  the  same  situation  as  the  attorney ; 
and  the  rule  has  also  been  lield  to  apply  to  the  clerk  of  the  coun- 
sel or  solicitor  consulted ;  ^^  and  the  privilege  extends  to  the 
representatives  of  the  party  as  against  third  persons,  but  not  as 


case  his  knowledge  would  not  be  acquired 
solely  bv  his  being  employed  profession- 
ally. S'tory  Eq.  I'l.  §  601  i"  1  Greenl.  Ev. 
§§242,244. 

An  attorney  may  be  compelled  to  dis- 
close the  name  of  the  person  by  whom  he 
was  retained;  the  character  in  which  his 
client  employed  him;  the  time  when  an 
instrument  was  executed,  or  put  into  his 
hands,  but  not  its  condition  and  appear- 
ance at  that  time;  his  client's  handwriting; 
and  various  other  matters,  for  an  enumera- 
tion of  which,  see  2  Sugd.  V.  &  P.  (7th 
Am.  ed.)  1063,  and  notes;  1  Greenl.  Ev. 
§245. 

So  if  an  attorney  put  his  name  to  an  in- 
strunieiit  :.s  a  witness,  his  signature  binds 
him  to  disclose  all  thiit  pHssed  at  the  time, 
respecting  the  execution  of  the  instrument. 
Bank  of  Utica  v.  Mersereau,  3  Barl).  Ch. 
528;  2  Sugd.  V.  &  P.  (7th  Am.  ed.)  1003. 

1  Taylor  on  Evid.  §  83S;  1  Greenl.  Ev. 
§  247 ;  "Commonwealth  v.  Drake,  15  Mass. 
161. 

2  Duchess  of  Kingston's  case,  11  Ilarg. 
St.  Tr.  243;  S.  C.  20  How.  St.  Tr.  572; 
Greenougli  v.  Gaskell,  uhi  sup. ;  1  Greenl. 
§  248,  note;  Hewitt  v.  Prime,  21  Wend.  79. 

3  Vaillant  v.  Dodemead,  2  Atk.  524; 
Wilson  V.  Riistall,  4  T.  R.  753.  As  to 
bankers  and  clerks,  seeLoydv.  Freshfield, 
2  Car.  &  F.  325. 

4  Harvev  v.  Clayton,  2  Swanst.  221,  n. 
(a). 

5  Rothwell  V.  King,  2  Swanst.  221,  n. 
(«))  Spencer  «.  Luttrell,  and  Stanhope  v. 
Kott,  ibid. 


The  privilege  of  clients  to  have  their 
communications  to  counsel  kept  secret, 
extends  in  New  Hampshire,  not  only  to 
communications  made  to  professional  men, 
but  to  those  made  to  any  other  person  em- 
ployed to  manage  a  cause  as  counsel. 
Beim  V.  (iuiniby,  5  N.  H.  94. 

An  attorne}',  who,  in  his  professional 
character,  has  received  from  the  owner  of 
property  confidential  communications  on 
the  subject  of  a  transfer  of  it,  which  is 
subsequently  made,  cannot  be  examined, 
against  the  consent  of  the  grantee,  in  rela- 
tion to  such  communication.  Eoster  o. 
Hull,  12  Pick.  89. 

6  2  Atk.  525. 

T  J/iiil. ;  and  see  Turquand  v.  Knight,  2 
M.  &  W.  100,  as  to  certificated  convey- 
ancers. 

8  Fountain  v.  Young,  6  E«p  11.3;  but 
see  Ciilley  v.  Richards,  19  Beav.  401,  404. 

9  Du  Barr6  v.  Livette,  Peake,  N.  P.  C. 
77,  78,  explained  4  T.  R.  756;  see  Jackson 
V.  French,  3  Wend.  337;  Andrews  v.  Solo- 
mon, 1  Peters  C.  C.  326;  Parkers.  Carter, 
4  Munf.  273. 

w  I'arkins  v.  Hawkshaw,  2  Stark.  N.  P. 
239 ;  lieid  v.  Langlois,  1  M'N.  &  G.  627, 
638;  14  .Jur.  467,  470;  Rus.sell  v.  Jackson, 
9  Hare,  387;  15  Jur.  1117;  Goodall  v. 
Little,  1  Sim.  N.  S.  155;  15  Jur.  809; 
Hooper  V.  Gumm,  2  J.  &  H.  602. 

11  Taylor  v.  Foster,  2  Car.  &  P.  195; 
P"oote  V.  Haj'ne,  1  Car.  &  P.  545 ;  1  Ry.  & 
M.  165;  see  1  Greenl.  Ev.  §  239;  Foster  v. 
Hall,  12  Pick.  93;  Jackson  v.  French,  3 
Wend.  337. 


DIFFEEEXT    GROUNDS    OF    DEMURRER. 


577 


between  dLflerent  claimants  under  liim.^     The  privilege  extends  to  Ch.XIY.§2. 

communications  -with  an  unprofessional  agent,  employed  to  collect   "-^ y ' 

evidence;^   and  also  to  communications  with  a  Scotch  sohcitor 
and  law  agent,  resident  in  England.^ 

The  privilecre  does  not  cease  upon  the  solicitor  afterwards  becom-  and  does  not 

?  •        n  •  ^-         •      ^1  -^    4  cease  on 

mg  interested  m  the  matters  m  question  m  the  suit  ;^  nor  upon  golicitorbe- 
his  being  struck  off  the  rolls.^  tZStei. 

The  propriety  of  the  distinction  which  has  been  made  between  pj-op^ety  of 
the  extent  of  the  privilege,  as  it  affects  the  client  and  as  it  affects  the  distinc- 
the  solicitor,  has  been  doubted."     Upon  this  point,  Sir  J.  L.  Knight  thTextent  of 
Bruce  Y.  C.  said :   "  I  confess  myself  at  a  loss  to  perceive  any  the  privilege, 
substantial  reason,  in  point  of  difierence,  or  principle,  or  conven-  the  client, 
ience,  between  the  liabiUty  of  the  chent,  and  that  of  his  counsel,  ftoJ,  re'spS*"' 
or  solicitor,  to  disclose  the  client's  communications  made  in  confi-  tively. 
dence  professionally  to  either ; "  "^  and  upon  the  same  jwint,  Sir  R. 
T.   Kindersley  Y.   C.    observed:    "If  I    could,  upon   authority, 
determine  the  abstract  point  which  has  been  argued,  viz.,  whether 
the  privilege  of  the  client  is  as  extensive  as  that  of  the  solicitor,  I 
sliouM  bo  glad  to  remove  the  anomaly  l)y  which  it  seems,  that 
Avhere  the  solicitor  is  interrogated,  and  objects,  because  it  would 
be  calling  on  him  to  divulge  matters  which  passed  in  the  relation 
of  solicitor  and  cUent,  then  there  is  a  privilege  without  more : 
whetlier  such  matters  relate  to  an  actual  or  contemplated  litigation 
or  not ;  and  yet,  if  the  same  questions  are  put  to  the  client,  then 
when  his  privilege  is  in  question,  he  is  to  be  told  that  he  lias  a  less 
I»rivilege  than  he  would  have  through  his  sohcitor,  if  the  latter 
were  questioned.     So  great  an  anomaly,  so  inconsistent  and  absurd 
a  rule,  I  should  be  glad  to  take  on  myself  to  say  is  not  the  rule  of 
tliis  Court,  and  tliat  there  is  no  such  distinction.     When  Heid  v. 
Lanfjlois '  was  cited  to  me,  it  did  appear,  at  first  sight,  that  it 
establislicd  the  broad  proposition  contended  for ;  and  I  should  cer- 
tainly have  followed  tliat  case  if  it  did  so;  but,  on  further  exami- 
nation, th<jugli  tliat  case  does  not  establish  the  contrary,  yet  I  think 
it  was  not  tlie  intention  of  Lord  Cottenham  to  lay  down  the  gen- 
eral proposition  :  that  point  lie  did  not  decide ;  nor  do  the  cases  of 


1  WiKram  on  Disc  82 :  see  also  I'ark- 
liurst  r.  Lowten,  1  Mer.  .'i'Jl,40.J;  Hiissell 
V.  Jackson,  uhi  tup. ;  (Jrcsiey  v.  Mousley, 
2  K.  &  .1.  28S;  Tugwcll  v.  Hooper,  10 
Ikav.  348,  300;  see  1  Grtf-nl   Kv.  ^239. 

-  Steele  >•.  Stewart,  1  I'liil.  471.475;  9 
.liir.  121  :  Lafune  r.  I'alkl:iii(l  Islaii>l  Com- 
pany, 4  K.  ifc  .1.  34  ;  Walsiiani  r.  Stainton, 
2  II.  &  M.  1;  Pee  also  Kerr  v.  Gillespie,  7 
r.eav.  672;  Simpson  v.  Hrowii,  33  IJeav. 
482.  Ami  in  tlie  recent  decision  of  Hossr. 
(Jil.ljs,  aixl  (iiljl)s  V.  lioss,  L.  li.  H  Va\.  022, 
it  was  heid  peiierajly  that  communiciitions 
wilii  an  unprofessional  af^ent  in  aiitici[>a- 
tion  of  litigation,  and  with  a  view  to  tlie 


pro.«ecution  of,  or  defence  to,  a  claim  to  the 
matter  in  dispute,  are  privileged. 

**  Lawrence  r.  Camphell,  4  Drew.  485; 
see  also  I!iml)ury  r.  IJunljury,  2  15eav.  173, 
17G,  wlicre  the  question  was  as  to  an 
opinion  ijy  a  Diitcii  counsel.  And  see 
Cliurtoii  I',  l-'rewen,  2  Dr.  &  Sm.  390. 

••  (Jhant  V.  Hrown,  7  Hare,  79. 

^  Lord  Cholmondeley  v.  Lord  Clinton, 
19  Yes.  268. 

0  Ante,  571,  n.  5;  Story  Eq.  PI.  §  599, 
note. 

7  Pearse  v.  Pearse,  1  Dc  G.  &  S.  12,  26 ; 
11  Jur.  02. 

8  1  M'N.  &  G.  C27,  038;  14  Jur.  407, 
409. 


37 


578 


DEMURRERS. 


Cu.  XIV.  §  '2. 


Recent  cases 
on  the  privi- 
lo^o  as 
atlocting  the 
client. 


No  difFerence 
between 
cases  for 
opinion  and 
other  com- 
munications 
of  fact. 

Rule  confined 
to  communi- 
cations with 
legal  advisers. 


Privilege  does 
not  attach 
where  solic- 
itor is  party 
to  a  fraud. 


Pcarsc  V.  Pearsc  ^  ami  FoUctt  v.  Jcferi/cs "  so  lay  it  down  as  to 
enable  nie  to  say  I  can  follow  them.  If  that  ])oint  is  to  be  doeided, 
it  must  be  by  a  higher  authority  than  mine." 

The  more  recent  cases  tt])on  the  privilege,  as  it  affects  the  client, 
are  very  numerous ;  and  although  it  is  dillicult,  if  not  im})ossible, 
to  extract  any  clear  rules  from  them  as  to  the  extent  of  the  ])rivi- 
lege,  it  may  be  said  that  their  tendency  is  to  make  the  rules  the 
same,  whether  the  discovery  is  sought  from  the  solicitor  or  client ;  ^ 
and  in  matters  of  title,  this  seems  to  have  been  decided.'^ 

There  does  not  seem  to  be  any  difference,  in  i)rinci])le,  bet^\^een 
cases  stated  for  opinion,  and  other  communications  of  matters  of 
fact  between  a  client  and  his  professional  advisers.® 

The  privilege  is,  however,  confined  to  legal  advisers  :  for  it  has 
been  held,  that  although  a  defendant  in  a  suit  cannot  be  com])elled 
to  discover  or  produce  letters,  between  himself  and  his  solicitor, 
subsequently  to  the  institution  of  the  suit,  and  in  relation  thereto, 
yet,  where  there  arc  more  defendants  than  one,  they  are  bound  to 
discover  letters,  and  copies  of  letters,  which  have  i)assed  between 
them  with  reference  to  their  defences.'^ 

Where  a  solicitor  is  pai'ty  to  a  fraud,  the  j^rivilege  does  not 
attach  to  the  communications  with  him  upon  the  subject :  because 
the  contriving  of  a  fraud  is  not  part  of  his  duty  as  solicitor ;  ^  and 
it  seems,  that  it  is  the  same  where  the  communications  are  with  a 
view  to  effecting  any  illegal  purpose.®  In  order,  however,  to  pre- 
vent the  privilege  attaching,  the  bill  must  contain  allegations 
specifically  connecting  the  solicitor  with  the  fraud  or  illegal  act.^" 
Questions  concerning  privileged  communications  arise  more  fre- 
quently upon  apjDlications  for  the  j^roduction  of  documents,  than 
upon  demurrers  to  discovery ;  and  the  subject  is,  therefore,  more 
frilly  considered  under  that  title." 


1  1  De  G.  &  S.  12;  11  Jur.  52. 

2  1  Sim.  N.  S.  1;  15  Jur.  118. 

3  Thompson  v.  Falk,  1  Drew.  21,  25. 

*  The  following  are  some  of  the  more 
recent  decisions:  Nias  v.  Northern  and 
Eastern  Railway  Company,  3  M.  &  C.  355, 
357;  2  Jur.  295;  Bunburv  r.  Bunbuiy,  2 
Beav.  173 ;  Flight  v.  Robinson,  8  Beav.  22, 
33;  8  Jur.  888;  Maden  v.  Veevers,  7  Beav. 
489 ;  Woods  v.  Woods,  4  Hare,  83 ;  Reece 
I'.  Trye,  9  Beav.  316;  Pcarse  v.  Pearse, 
ufji  sup. ;  Tugwell  v.  Hooper,  10  Beav.  348 ; 
Penruddock  v.  Hammond,  11  Beav.  59; 
Beadon  i'.  King,  17  Sim.  34;  Reid?).  Lang- 
lois,  and  Follett  v.  Jefferves,  ithi  sup. ; 
Warde  v.  Warde,  3  M'N.  "&  G.  365;  15 
Jur.  759;  Balguy  v.  Broadhurst,  1  Sim.  N 
S.  Ill;  14  Jur.  1105;  Hawkins  «.  Gather- 
cole,  1  Sim.  X.  S.  150;  15  Jur.  186;  Goodall 
V.  Little,  1  Sim.  N.  S.  155;  15  Jur.  .309; 
Thompson  v.  Falk,  vJn  sup.  ;  Bluck  v. 
Galsworthy,  2  Gift'.  453;  Ford  v.  Tennant, 
32  Beav.  162;  ante,  pp.  570,  571,  notes. 


5  Manser  v.  Dix,  1  K.  &  J.  451 ;  1  Jur. 
N.  S.  466 ;  Pearse  v.  Pearse,  ttbi  sup. 

G  Lord  Walsingham  v-  Goodricke,  3 
Hare,  122,  129. 

"  Whitbread  v.  Gurney,  Younge,  541 ; 
Goodall  V.  Little,  ^tbi  sup. ;  Glvn  v.  Caul- 
field,  3  M'N.  &  G.  463,  474;  15  Jur.  807; 
P.eUs  V.  Jlenzies,  3  Jur.  N.  S.  885;  5  W. 
K.  767,  V.  C.  W. ;  see  also  Reynolds  v. 
Godlee,  4  K.  &  J.  88. 

8  Follett  r.  JeflFeryes,  1  Sim.  N.  S.  1 ;  15 
Jur.  118;  Russell  r.  Jackson,  9  Hare,  387; 
15  Jur.  1117;  Gilbert  v.  Lewis,  1  De  G., 
J.  &  S.  38,  49,  50;  9  Jur.  N.  S.  187;  Feaver 
V.  Williams,  11  Jur.  N.  S.  902,  V.  C.  S. 

9  Russell  V.  .Jackson,  uhi  sup. 

1"  Mornington  v.  Mornington,  2  J.  &  H. 
697;  Charlton  v.  Coombes,  4  Giif.  372, 
382;  9  Jur.  N.  S.  534. 

11  See  7»s<,  Chap.  XLH.  Production  of 
Documents. 


DIFFERENT    GROUNDS    OF    DEMURRER.  579 

V.  The  necessity  that  the  bill  should  sho^v,  that  a  certain  degree  Cn.  XIY.  §2. 

of  privity  exists  between  the  plaintiff  and  defendant,  in  order  to    ' y       ■' 

entitle  him  to  maintain  his  suit,  has  been  before  pointed  out ;  ^  and  V.  Because 

it  has  been  stated,  that  the  want  of  such  privity  will  afford  a  ground   rehites^'only^ 

for  demurrer  to  the  relief  prayed.     It  may  sometimes,  however,  to  the  defend- 

happen  that  a  plaintiff  may,  by  his  bill,  show  that,  supposing  the 

facts  he  states  are  true  (and  which,  as  we  have  seen,  are  admitted 

by  every  demurrer),  he  has  a  right  to  the  relief  he  prays,  and  yet 

may  not  show  such  a  privity  as  will  entitle  him  to  the  discovery 

which  he  asks  for :  for  it  is  a  rule  of  the  Court  that,  where  the 

title  of  the  defendant  is  not  in  privity,  but  inconsistent  with  the 

title  made  by  the  plaintiff,  the  defendant  is  not  bound  to  discover 

the  evidence  of  the  title  under  which  he  claims.^     Thus,  where  a 

bill  was  filed  by  a  person  claiming  to  be  lord  of  a  manor,  against 

another  person  also  claiming  to  be  lord  of  the  same  manor,  and 

praying,  amongst  other  things,  a  discovery  how  the   defendant 

derived  title  to  the  manor,  and  the  defendant  demurred,  because 

the  plaintiff  had  shown  no  right  to  the  discovery,  the  demurrer 

was  allowed ;  ^  and  so,  where  a  bill  was  filed  by  one  claiming  to 

be  the  heir,  ex  parte  maternd,  against  another  claiming  to  be  heir, 

ex  parte  paternCi^  and  the  bill  sought  a  discovery  in  what  manner 

the  claim  ex  parte  paternd  was  made  out,  and  the  particulars  of  the 

pedigree,  a  demurrer  to  that  discovery  was  allowed.* 

The  principle  upon  which  these  cases  proceed  is  :  that  the  right  RuIc,  that 
of  a  plaintiff  in  equity  to  the  benefit  of  a  defendant's  oath,  is  limited  '^',;'['j"^^f  .[jg. 
to  a  discovery  of  such  material  fiicts  as  relate  to  the  plaintiff's  covery  is 
case,  and  does  not  extend  to  a  discovery  of  the  manner  in  which,   fa'Jt's'^niaterial 
or  of  the  evidence  by  means  of  which,  the  defendant's  case  is  to  be  to  his  owu 
established.^     This  principle  is  recognized  by  Lord  Brougham,  in 


case; 


1  Anl(,  p.  322.  lejral  proceeding,  has  been  thnt  of  full  in- 

2  Ld.  He<l.  190;  Stroud  v.  Deacon,  1  quiry  as  to  any  and  all  faots,  (liat  niayim- 
Vet.  S.  37;  Hu'len  v.  Dore,  2  Ves.  S.  445;  peach  the  right  of  property  in  the  part}'  of 
Sampson  t\  Swettenham,  5  Afad.  16;  Tyler  whom  the  iiupiiry  is  made."  Instance» 
V.  Drayton,  2  S.  &  S.  .'509;  see  also  Stiiin-  are  adduced  of  interrogatories  to  supposed 
ton  V.  Chad  wick,  3  M'N.  &  G.  575,  582;  trustees  in  trustee  processes;  to  persons 
15  .lur.  1139;  Stnrj'  Kq.  PI.  §  571.  charged  with  embezzling  the  projjert}'  of 

<•  Ld.   Ked.   190;    and  notes  and  cases  deceased  persons;  and  to  persons  charged 

there  cited,  with    liaving    fraudulently    received    the 

<  Ivv  V.  Kekcwick,  2  Ves.  J.  079.  property  of  an  iTisolvent  debtor,     liut  see 

fi  VY'lgram    on    iJisc.    201;     Inpilby   v.  Wilson  r.  Webber,  2  (iray,  558,  in  which 

Shafto,  33   Heav.  31;    9  .lur.   N.  S.  1141;  the   I'jiglish  rule  is  distinctly  recognized; 

Daw  r.  Kiev,  2  IF.  &  M.  725;  Iloflinan  r.  and  the  case  of  Adams  v.  rorter  is  not  re- 

roMllI,  li.  ft.  4  Ch.  Ap.  073.  ferred  to;    see  also  Haskell  r.  Haskell,  3 

Tile  rule  of  the  Knglish  (jourtsof  Krpiitv,  Cush.  540,  542,  543;  Bellows  v.  Stone,  18 
that  the  rilaintilT  in  a  bill  of  discovery-  N.  II.  405,  4S3.  484;  Story  Eq.  I'l.  §§  572- 
"."liall  only  have  a  discovery  of  what  is  574,  c;  Siiaftslinry  r  Arrowsmith,  4  Sum- 
nocessnry  to  his  own  title,  and  shall  not  tier's  Ves.  72,  Mr.  Ilovenden's  iiolo(l); 
prv  into  the  title  of  the  defendant  "  (Coop.  Wigram,  Discov.  (  Am.  ed.)  p.  14,  §  23,  p. 
Eq.  I'l.  58),  is  held  not  to  be  ajiplicable  in  15,  §  27,  259  at  sc/.,  §  342,  el  seq. ;  Mitford 
Massachusetts.  Adams  r.  I'orter,  1  (■ii«h.  Eq.  I'l.  by  .leromv,  18!)-102;  Cullison  v. 
170,  175.  170.  "  Our  whole  system  of  in-  IJo^som,  I'M.!.  ('Ii."l)ec.  95;  Howell  i:  Ash- 
qniry,"  says  Mr.  .Iu«tico  Dewey  in  the  more,  1  .Sfockt.  (N.  .1.)  87,  8H.  'i'he  plain- 
above  case,  "  by  the  instrumentality  of  a  titf  must  state  the  facts  which  he  expects 


580 


DEMURRERS. 


(.11.  XIV.  § -J. 


will  not 
ap|ily.  when 
plaiiitirt' 
makes  a  case 
■which  -would 
disjirovo  the 
defendant's 
case; 


or  where  the 
discovery 
sought  is 
common  to 
both. 


.Bolton  V.  TJie  Corporatl(ni  of  J.in'r2'>ooI /^  and  by  Lord  ALiiigcr, 
in  JJelhcood  \.  Wctherdir  It  is  true  that  in  those  cases  tlie  qnes- 
tion  did  not  come  hel'ore  the  Court  n])on  demurrer,  but  tlie  rtile  is 
the  same  in  whatever  way  tlie  question  maybe  raised  :  on  demurrer, 
on  exce])tions  to  the  defendant's  answer,  or  on  a]>|)lication  to  pro- 
duce documents  in  the  defendant's  possession,'* 

Tliis  rule  will  not  extend  to  defeat  the  ]>laintiiV  of  his  right  to 
diseovery  from  the  defendant,  whei-e  he  makes  a  case  in  his  bill 
Avhich,  if  admitted,  would  disjirove  the  truth  of,  or  otherwise  in- 
validate the  defence  made,  to  the  bill ;  in  such  cases,  he  is  entitled 
to  discovery  from  the  defendant,  of  all  which  may  enable  him  to 
imi»each  the  defendant's  case  ;  tor  the  plaintiff  does  not  rest  on  a 
mere  negative  of  the  defendant's  case,  but  insists  uj)on  some  pos- 
itive ground,  entitling  him  to  the  assistance  of  the  Court,  such  as 
fraud,  or  other  circumstances  of  equitable  cognizance,  to  a  dis- 
covery of  which,  no  objection  of  this  kind  can  be  raised.* 

If  a  plaintiff  is  entitled  to  a  discovery  of  deeds  or  other  docu- 
ments for  the  purpose  of  establishing  his  own  case,  his  right  to 
such  discovery  will  not  be  affected  by  tlie  circumstance  tliat  the 
same  documents  are  evidence  of  the  defendant's  case  also  ;^  and  if 
a  defendant,  bound  to  keep  distinct  accounts  for  another  ])arty, 
imjiroperly  mixes  them  with  his  own,  so  that  they  cannot  be  sepa- 
rated, he  must  discover  the  whole.'' 


to  establish  by  the  defendant's  answer, 
otherwise  he  cannot  have  a  discovery, 
merely  to  enable  him  to  judge  whether  he 
can  prevail  in  a  .suit  at  Law.  Deas  v. 
Harvie,  2  Barb.  Ch.  448. 

1  1  M.  &  K.  88,  91;  see  also  Attorney- 
GeTieral  r.  Corporation  of  London  2  :M'N. 
&  G.  247,  250. 

2  1  Y.  &  C.  Ex.  211,  215. 

3  For  instances  in  Avhich  this  rule  has 
been  acted  upon  where  the  objection  lias 
been  taken  liy  <lemurrer,  see  Siroud  v. 
Deacon,  1  Yes.  S.  37;  Ivy  v.  Kekewick,  2 
Ves.  .1.  679;  Glegg  v.  Legh,  4  Mad.  193; 
Compton  V.  Earl  Grey,  1  Y.  &  J.  154; 
Wilson  V.  Forster,  Youiige,  280;  Tooth  v. 
Dean  and  (  haptir  of  Canterljury,  3  Sim. 
49,  01.  On  Ai)]ilication  to  Produce: 
Princess  of  Wales  v.  Karl  of  Liverpool,  1 
Swiinst.  114,  121;  IMicklethwait  v.  Moore, 
3  Mer.  292;  liligh  v.  15eiison,  7  I'ri.  205; 
Tvler  V.  llravton,  2  S.  &  S.  309;  Samiison 
f.'Swettenham,  5  ]\[ad.  IC;  2  M.  &  K.  754, 
n.  (i);  Firkins  r.  Low,  13  Pii.  198;  Wil- 
.son  V.  Forster,  M'Lel.  &  Y.  274;  Tonilinson 
V.  Lj-mer,  2  Sim.  489;  Shaftsiiury  t'.  Ar- 
row.smitli,  4  Ves.  60,  70;  Aston  r.  Lord 
Exeter,  0  A'es.  288;  Worsley  v.  Watson, 
cited  ih.  289;  Bolton  v.  The  Corporation  of 
Liverpool,  1  M.  <Sv:  K.  88;  Wasney  r.  Tem- 
pest, 9  Beav.  407;  Attorney-General  r. 
Thompson,  8  Hare,  106;  Manbv  v.  l'>ewicke 
(No.  3),  8  De  G  ,  M.  &  G.  476;  liumbold 
r.  Forteith,  No.  2,  3  K.  &  J.  748 ;  Hunt  v. 


Elmes,  27  Beav.  62;  5  Jur.  N.  S.  645; 
Ferrier  v.  Atwool,  12  Jur.  N.  S.  305;  14 
W.  R.  597,  L.  -JJ. ;  ib.  582.  V.  C.  W.  On 
Exceptions  to  Answers:  Buden  -v.  Dore,  2 
Ves.  S.  445;  Stainfon  v.  Ch;idwick,3  JM'N. 
&  G.  375;  15  .lur.  1139;  Iiigilby^.  Slialto, 
nhi  siij). ;  Bethel!  v-  Casson,  1  H.  &  M. 
806;  Bovill  v.  Smith,  L.  R.  2  Eq.  459,  V. 
C.  W. 

^  Hare  on  Disc.  201;  Bellows  v.  Stone, 
18  N.  H.  465,  483-485;  Daw  v.  Eley,  2  H. 
&  M.  725.  And  in  answering  interroga- 
tories tiled  by  a  defendant  for  the  exami- 
nation of  the  plaintiff,  under  the  English 
practice,  the  general  rule  applies,  that  he 
who  is  bound  to  answer  must  answer 
fully.  Such  interrogatories  are  on  a  dif- 
ferent footing  from  those  for  the  examina- 
tion of  a  defendant  in  this  res])ect,  that  a 
l)laiiitiff  is  not  entitled  to  a  discovery  of 
the  defendant's  case,  but  a  defendant  may 
ask  any  questions  tending  to  destroy  the 
plaintitt's  claim.  Iloflinan  v.  Postell,  L. 
R.  4  Ch.  Ap.  673. 

5  Burrell  v.  Nicholson,  1  M.  &  K.  680; 
Wigram  on  Disc.  244;  Smith  v.  The  Duke 
of  Beaufort,  1  Hare,  507,  618;  1  Phil.  209, 
218;  7  .Jur.  1096;  Combe  r.  The  Corpora- 
tion of  London,  1  Y.  &  C.  C.  C.  631,  660; 
Earp  V.  Lloyd,  3  K.  &  J.  549. 

6  Freeman  v.  Fairlie,  3  Mer.  43;  Earl  of 
Salisbury  v.  Cecil,  1  Cox,  277;  Wigram  on 
Disc.  244;  Hare  on  Disc.  245;  and  see 
post.  Chap.  XLH.  J'roduciimi  ofDocummts. 


DIFFERENT   GROUNDS    OF   DEMURRER. 


581 


VI.  The  circumstance  that  a  i^arty  not  before  the  Conrt  has  an 
interest  in  a  docvnuent  which  a  defendant,  so  far  as  his  own  inter- 
est is  concerned,  is  bound  to  produce,  Avill,  in  some  cases,  dei^rive 
the  phiintiif  of  his  right  to  call  for  its  production,  at  least  in  the 
absence  of  the  third  i>arty,  as  in  the  instance  of  a  person  being  a 
trustee  only  for  others.  Upon  this  principle,  a  mortgagee  cannot 
.  be  compelled  to  show  the  title  of  his  mortgagor,  unless  such  mort- 
gagor is  before  the  Court ;  ^  in  such  cases,  however,  a  demurrer, 
for  want  of  proper  parties,  would  be  the  proper  form  in  which 
to  raise  the  objection,  where  the  bill  is  for  relief  as  well  as  for  a 
discovery.- 

YII.  Communications  which  come  within  a  certain  class  of  offi- 
cial correspondence,  are  privileged,  upon  the  ground,  that  they 
could  not  be  made  the  subject  of  discovery  in  a  Court  of  Justice 
without  injury  to  the  public  interest.^  In  Smith  v.  The  East  India 
Company^  Lord  Lyndhurst  had  to  consider  whether  correspond- 
ence, between  the  Court  of  Dii-ectors  of  the  East  India  Company 
and  tlie  Board  of  Control,  came  within  the  limits  of  this  privilege ; 
and  he  decided  that  it  could  not  be  subject  to  be  communicated, 
witliout  infringing  the  policy  of  the  Act  of  Parliament,'^  and  with- 
out injury  to  the  public  interests. 

The  above  are  the  princijjal  grounds  upon  which  a  <lefendant 
may  demur  to  tlie  discovery  sought  l)y  a  bill ;  although  the  i)lain- 
tifFmay  be  entitled  to  the  relief  prayed,  in  case  he  could  estaldish 
his  right  to  it  by  other  means  than  discovery  from  the  defendant, 
on  those  points  as  to  which  the  defendant  is  entitled  to  defend 
himself  from  making  discovery.  In  all  other  cases,  a  plaintiff,  if 
entitled  to  relief,  is  entitled  to  call  uj)on  the  defendant  to  make 
a  full  discovery  of  all  matters  upon  Avhich  his  title  to  relief  is 
founded.  It  does  not,  however,  very  often  happen  that  tliese 
grounds  affect  the  whole  of  the  discovery  sought;  in  such  cases, 
the  defendant  must,  if  interrogated,  answer  all  tliose  parts  of  the 
bill,  the  answer  to  which  will  not  expose  him,  or  have  a  tendency 
to  expose  liim,  to  tlie  inconveniences  before  enumerated.  A  de- 
murrer, under  such  circumstances,  should  precisely  distinguish  each 
])art  of  the  bill  deiiiurred  to,  and  if  it  does  not  do  .so,  it  will  be 
overruled." 

If  a  defendant  objects  to  a  pai'ticular  part  of  the  discoveiy,  and 


Ch.  XIV.  §  -2. 


VI.  Because 
a  third  party 
has  an  inter- 
est in  the 
discovery. 


VII.  Because 
discovers^ 
against  pub- 
lic interest. 


Answer  fo 
matters  not 
covered  by 
demurrer. 


1  Lambert  v.  Rosers,  2  Mer.  489;  see, 
however,  KalU  r.  Mar^^rave,  3  Beav.  448, 
4  Beav.  110;  Few  i'.  Ouppy,  13  lieav.  457; 
Goiij,'h  iJ.  Oflley,  5  De  (J.  &  S.  653;  Hrrcy 
r.  Ferrers,  4  Beav.  !)7;  and  /»«<,  (Jiiai). 
XI, II.  Prixhicl'iitn  iif  ])(irMmvn(s. 

■i  .See  nnle,  pp.  278,  558. 

8  Sec  1  Greeiil.liv.§§  250-361;  Bellows 
V.  Stone,  18  N.  11.  405,  485. 


*  1  Piiil.  50,  .55;  6  Jur.  1;  see  also  Wad- 
eer  v.  Fast  Intliii  Company,  8  De  G.,  M. 
&  G.  1^2;  2!tHeav.  300. 

6  3  cK:  4  Will.  IV.  c.  85. 

•■>  (hctwynd  r.  Lindon,  2  Ves.  S.  460; 
Devonsher  r.  Neweuliain,  2  Sell.  &  Lef. 
l!»;i;  Kitiin^on  r.  Tlioiiipsun,  2  V.  &  IJ. 
]1>^;  Weatherhead  r.  Blackburn,  li.  121, 
124. 


582 


DEMURRERS. 


Cu.  XIV.  §2. 


Dcinurror  for 
inviiiilai'ity 
in  frame  of 
biU. 


Benefit  of 
objection  may 
be  claimed  by 
answer. 

Amended  bill 
may  be 
demurred  to, 
on  the  .same 
grounds  as 
original  bill; 


llu"  urouiuls  \\\)o\i  w  lik'li  he  may  ilcinuv  appear  cloarly  on  the  face 
of  the  bill,  and  the  defendant  does  not  demur  to  the  discovery,  hut, 
answerino-  to  the  rest  of  the  bill,  declines  answering  to  so  much,  the 
Court  will  not  conij)el  him  to  make  the  discovery;  but,  in  general, 
unless  it  elearly  apj»ears  by  the  bill  that  the  plaiiititf  is  not  entitled 
to  the  discovery  he  requires,  or  that  the  detendaut  ought  not  to  be 
compelled  to  make  it,  a  (h'nuurer  to  the  discovery  will  not  liold,  and 
the  defendant,  unless  he  can  ])rotect  himself  by  plea,  must  answer.^ 

Any  irregularity  in  the  frame  of  a  bill  may  be  taken  advantage 
of  by  demurrer.-  Thus,  if  a  bill  is  brought  contrary  to  the  usual 
course  of  the  Court,  a  demurrer  will  hold  ;  •''  as  where,  after  a  decree 
directing  incumbrances  to  be  paid  according  to  priority,  a  creditor 
obtained  an  assignment  of  an  old  mortgage,  and  filed  a  bill  to  have 
the  advantage  it  would  give  him,  by  way  of  priority,  over  the  de- 
mands of  some  of  the  defendants,  a  demurrer  was  allowed :  *  it 
being,  in  effect,  a  bill  to  vary  a  decree,  and  yet  neither  a  bill  of 
review,  nor  a  bill  in  the  nature  of  a  bill  of  review,  which  are 
the  only  kinds  of  bills  which  can  be  brought  to  affect  or  alter  a 
decree,  unless  the  decree  has  been  obtained  by  fraud.^  Where, 
however,  a  supplemental  bill  was  filed,  in  a  case  in  which,  accord- 
ing to  the  former  j^ractice  of  the  Court,  a  supplemental  bill  was 
the  proper  course,  but  by  more  recent  practice  the  same  object 
had  been  accomplished  by  petition :  Sir  John  Leach  V.  C.  held, 
that  the  supplemental  bill  was  not  rendered  irregidar,  although  the 
circumstances  would  be  taken  into  consideration  upon  the  question 
of  costs." 

If  the  plaintiff  neglects  to  take  advantage  of  the  irregularity  by 
demurrer,  he  will  be  held  to  have  waived  the  objection,'  unless  he 
has  claimed  the  benefit  of  it  by  answer.^ 

An  amended  bill  is  liable  to  have  the  same  objections  taken  to  it, 
by  demurrer,  as  an  original  bill;  and  even  where  a  demurrer  to  the 
original  bill  has  been  overruled,  a  demurrer  to  an  amended  bill  has 
been  allowed  ;  ^  and  the  circumstance  of  the  amendment  being  of 
the  most  trifling  extent  will  not,  it  seems,  make  any  difference ; 
and,  even  where  the  bill  was  amended  by  the  addition  of  a  party 
only,  the  demurrer  was  held  to  be  regular.^"  Where  the  defence 
first  put  in  is  a  plea,  and  the  bill  is  afterwards  amended,  the  amend- 


1  Ld.  Red.  200;  OrdXV.4;  })ost,p.b83. 

2  Ld.  Ked.20C;  I'.ainbrigRe  v.  Baddeley, 
9  Beav.  5.38;  Hanger  v  Great  Western 
Railway  Company,  1.3  Sim.  368;  7  Jur. 
935;  Ilenderson  v.  Cook,  4  Drew.  306. 

3  Ld.  Hed.  206;  .Storv  Kq.  I'l.  §  643. 
*  Wortley  v.  Biikhiad,  3  Atk.  809. 

5  Ld.  l{ed.  206 ;  Lady  Granville  v.  Rams- 
den,  Bunb.  56 ;  and  sQejiosl,  Chap.  XXXIV. 
§  5,  Bills  of  Revierc. 

6  Davies  v.  Williams,  1  Sim,  5. 


"^  Archbishop  of  York  v.  Stapleton,  2 
Atk.  136;  Ranger  v.  Great  Western  Rail- 
way Company,  ubi  svp. 

8  Milligan  v.  Mitchell,  1  M.  &  C.  433, 
442. 

9  Bancroft  v.  Wardour,  2  Bro.  C.  C.  06; 
2  Dick.  672;  1  liofi'.  Ch.  Pr.  216,  217;  1 
Smith  Ch.  I'r.  (2d  Am.  ed.)  214;  Moore  v. 
Armstrong,  9  I'l^rter,  607. 

w  Bosanquet  v.  Marsliam,  4  Sim.  573. 


DIFFEEENT   GROUNDS   OF   DEMURRER.  583 

ed  bill  may  still  be  demurred  to.^     A  defendant,  however,  cannot,  Ch.  XIV.  §  2. 
in  general,  after  he  has  answered  the  original  bill,  put  in  a  general  *""" — y — -^ 
dem,uiTer  to  the  amended  bill :  because  the  answer  to  the  original  But  after 
bill,  being  still  on  the  record,  Avill,  in  fact,  overrule  the  demurrei'.^  origTual^biU 
The  defendant  must,  in  such  case,  confine  his  demurrer  to  the  mat-  defendant 
ters  introduced  by  amendment.     But  where  a  substantially  new  to  the  whole 
case  is  made  by  the  amended  bill,  a  general  demun-er  will  lie.^  amended  bill; 

A  defendant  may  demur  to  part  only  of  the  reUef  or  discovery  :  case  madrby 
in  which  case  it  is  called  a  partial  demurrer.*  Under  the  former  amendment, 
practice,  a  defendant  demurring  to  j^ait  of  the  bill,  was  bound  to  fcmun-er 
answer  the  rest ;  and  when  interrogatories  have  been  served,  a  de- 
fendant may  still  answer  such  of  the  interrogatories  as  are  not 
covered  by  the  demuiTcr ;  but  where  no  interrogatories  have  been 
served,  he  may  file  the  partial  demurrer  without  couphng  any  an- 
swer Avith  it.^  It  is  not,  however,  necessary  that  the  defendant 
should  adopt  the  form  of  a  j^artial  demun-er,  for  the  pui-jiose  of 
protecting  himself  fi-om  giving  discovery  to  which  the  plaintifi"  is 
not  entitled :  for  a  defendant  may  dechne  answering  any  interroga- 
tory, or  part  of  one,  from  answering  which  he  might  have  protected 
himself  by  demurrer,  notwithstanding  he  answers  other  j^arts  of 
such  interrogatory  or  inteiTogatories  from  which  he  might  have 
protected  himself  by  demuiTcr,  or  other  part  of  the  bill  as  to  which 
he  was  not  interrogated.®  The  eflTect  of  this  rule  will  have  to  be 
considered  again  in  the  Chapter  on  Answers ;  "^  and  it  may,  there- 
fore, be  sufficient  here  to  observe,  that  in  cases  in  which  it  is  still 
thought  expedient  to  adopt  the  defence  of  a  partial  demuiTer 
against  discovery,  this  rule  does  not  seem  to  aifect  the  practice  ;  but 
the  rule  which  directs,  that  no  demurrer  or  plea  shall  be  held  bad, 
and  oveiTuled  upon  argument,  only  because  the  answer  of  the  de- 
fendant extends  to  some  part  of  the  same  matter  as  is  covered  by 
such  demurrer  or  plea,^  is  important.  And  we  have  before  seen, 
that  now,  no  demurrer  or  plea  will  be  held  bad,  and  overruled 
upon  argument,  only  because  such  demurrer  or  plea  does  not  cover 
so  niucli  oi'  the  l)ill  as  it  might  by  law  have  extended  to." 

A  <l(iiiuii(r  cannot  be  good  in  part  and  bad  in  part;^"  so  that, 

1  Robertson  v.  Lord  Londonderry,  5  Sim.  time  for  filing  interrogatories.      Rowo  v. 

226.  Touiiin,  L.  H.  1  Eq.  9;  11  Jiir.  N.  S.  849, 

^  Atkinson  v.  Ilanwav,  1  Co.x,  3C0;  see  M.  R. 

Kllic<;  17.  tJoodson,  3  M'  &  C.   653,  658;  2  0  Ord.  XV.  4. 

Jur.'24'J;  Salkeld  v.  l'liillip.'j,2  Y.  &  C.  Ex.  7  Post^  Chap.  XVIL  §  1. 

580;  and  see  fiH^f,  p.  409.  8  Ord.    XIV.    9;    Attornej'-General    v. 

'  fJrcsyr.  Hevan,  13  Sim.  354;  see  also  Cooper,   nbi  sup.      This  order   has    been 

Powell   V.   Cockerell,   4   Hare,   56.">,   569;  adopted  in  the  Kiiuitv  Rules  of  the  United 

Wylhe  V.  KlJice,  0  Hare,  505,  510;    Attor-  States  Courts,  IJule  37. 

ncy-iJencral  i'.  Cooper,  8  Hare,  160;  ante,  »  Ante,  p.  546,  u.  C,  jwst,  n.  617;  Ord. 

P-  409.  XIV.  8.                                       ' 

*  See  Emans  v.  Emans,  1  McCartcr  (N.  !•>  In  this  respect,  there  is  a  diflerenco 

•'•'•'I*-  between  a  plea  and  a  demurrer.    Mavor, 

6  Burton  v.  Kobertson,  1  J.  &  II.  38;  6  &c.,  of  London  r.  Levy,  8  Ven.  403;  Baker 

.lur.    N.   S.   1014.     The   defendant   muit,  v.  Jlellish,  11  Vcs.  70. 
however,   wait    till  the   e.xpiratiou  of  tho 


584 


DEMURRERS. 


Cii.  XIV.  §•_' 


In  what  case 
leave  will  he 
givou  to  put 
in  less 
extended 
demurrer. 


Separate  de- 
murrers to 
distinet  parts 
of  the  bill. 


Demurrer 
may  Ije  good 
as  to  one  de- 
fendant and 
bad  as  to 
another. 


if  a  tloiunrivr  is  ixoneral  to  tlio  wliole  bill,  and  tlioro  is  any  ]>art, 
eitliev  as  to  the  reliof  ov  tlio  discovery, ■:to  wliich  the  defeiKhmt 
oiiyht  to  ]nit  in  an  answer,  the  demurrer,  being  entire,  must  be 
overruled.^ 

Instani-es  are,  certainly,  mentioned  by  Lord  Kedcsdale,^  in  wliich 
demurrers  have  been  allowed  in  part ;  but  whatever  may  have 
formerly  been  done,  the  practice  appears  to  be  now  more  strict : 
tliough  sometimes  the  Court  has,  upon  overruling  a  demurrer, 
given  tlie  defendant  leave  to  put  in  a  less  extended  demurrer,  or 
to  amend  and  narrow  the  dennirrer  already  filed.''  In  the  latter 
case,  Itowever,  tlie  a])plication  to  amend  ought  to  be  made  before 
the  judgment  ttpon  the  demurrer,  as  it  stands,  has  been  pro- 
nounced :  though,  even  where  that  has  been  omitted,  the  Court 
has,  after  tlie  demurrer  has  been  overruled,  ujion  a  pro])er  case 
bping  shown,  given  the  doi'endant  leave,  tipon  motion,  to  put  in  a 
less  extended  demurrer  and  answer.* 

A  defendant  may  also  j^ut  in  separate  demurrers  to  separate  and 
distinct  parts  of  a  bill,  for  separate  and  distinct  causes:®  for  the 
same  grounds  of  demurrer,  frequently,  w\\\  not  apply  to  different 
parts  of  a  bill,  though  the  whole  may  be  liable  to  demurrer ;  and 
in  this  case,  one  demvtrrer  may  be  overruled  ui^on  argument,  and 
another  allowed.^ 

Although  a  demurrer  cannot  be  good  in  part  and  bad  in  j^art,  it 
may  be  good  as  to  one  of  the  defendants  demurring,  and  bad  as  to 
others.'' 


^ 


1  Per  Lord  Hardwicke  in  Metcalf  v. 
Hcrvey,  1  Ves.  S.  248;  Earl  of  Suffolk  v. 
Green,  1  Atk.  450;  To<id  v.  Gee.  17  Ves. 
273,  277;  Attornej^-General  v.  Brown,  1 
Swanst.  304.  A  demurrer  bad  in  part  is 
void  in  Mo.  Verplanck  v.  Caines,  1  .John. 
Ch.  57 ;  Kuypers  r.  Reformed  Duteh Church, 
6  Paige,  570;  Forbes  v.  Whitlock,  3  Edw. 
Ch.  446;  l-"av  v.  Jones,  1  Head  (Tenn.), 
442;  Shed  i-. 'Garfield,  6  Vt.  39;  Lube  Eq. 
PI.  (Am.  ed.)  255;  Castleman  «.  VVeitch, 
3  Hand.  508;  Kimberley  r.  Sells,  3  .John. 
Ch.  467 ;  Graves  v.  Downey,  3  Monroe, 
356;  Chase's  case,  1  IJland,  217;  Blount  v. 
Garen,  3  Ilayw.  88;  1  Smith  Ch.  Pr.  (2d 
Am.  ed.)  206;  Tread  well  v.  Brown,  44  N. 
H.  551;  Metier  v.  Metier,  3  C.  E.  Green 
(N.  J.),  273;  S.  C.  4  C.  E.  Green  (N.  J.), 
457;  Banta  v.  Moore,  2  McCarter  (N.  J.), 
07;  Mitchell  V.  Green,  10  Met.  101;  nnte, 
647,  note;  but  see  Pope  v.  Stansbury,  2 
Bibb,  484,  contra.  It  is  a  general  rule  that 
a  demurrer  cannot  be  good  as  to  a  part, 
which  it  covers,  and  bad  as  to  the  rest; 
and  therefore  it  must  stand  or  fall  alto- 
gether. Story  I'-q.  PI.  §  443;  Iligginljot- 
ham  V.  Bui  net,  5  .Jfhn.  Ch.  184;  Burns  r. 
Hobdt,  29  Maine,  272,  277. 

A  demurrer  to  the  whole  of  a  bill,  con- 
taining some  matters  relievable  and  others 
not,  is  bad,  unless  the  bill  is  multifarious. 
Dinimock  v.  Bi.xby,  20  Pick.  368 ;  McLaren 


V.  Steapp,  1  Kelly,  376;  Beach  v.  Beach, 
11  Paige,  161;  Stuyvesant  v.  Mayor,  &c., 
of  New  York,  11  Paige,  414;  Robinson  v. 
Guild,  12  Met.  323.  Where  a  demurrer  to 
a  bill  is  overruled,  because  it  covers  too 
much,  the  defendant  maj',  on  exception  to 
his  answer,  raise  the  question  of  the  ma- 
terialitv  of  the  discoverv.  Kuvpers  v. 
Ref  Dutch  Church,  6  Pa'ige,  570"  If  the 
ground  of  demurrer  assigned  as  to  all  of 
the  plaintiffs  be  bad  as  to  one,  the  demurrer 
must  be  overruled.  Gibson  v.  Jayne,  37 
Miss.  (8  George)  164. 

2  L(i,  Red.  214;  RolttJ.  Lorri  Snmerville, 
2  Eq.  Ca.  Ab.  759,  pi.  8;  Radcliffe  v.  Furs- 
man,  2  Bro.  P.  C.  ed.  Toml.  514. 

8  Baker  w.  Mellish,  11  Ves.  68;  Gleggv. 
Legh,  4  Mad.  193,  207 ;  Thorpe  v.  Macau- 
lay,  5  Mad.  218. 

4  Bilker  ».  Mellish,  11  Ves.  72,  70;  Story 
Eq.  PI.  §  459. 

6  Ld.  Red.  214;  North  v.  Earl  of  Straf- 
ford, 3  P.  Wms.  148;  Roberdeau  v.  Rous, 
1  Atk.  544. 

0  Ld.  Red.  214;  North  v.  Earl  of  Straf- 
ford, vbi  sup. ;  Little  v.  Archer,  1  Hogan, 
55. 

T  JIaj'or,  &c.,  of  London  v.  Levy,  ithi 
sup.;  Harstow  v.  Smith,  Walk.  Ch.  394; 
Story  Eq.  PI.  §  445;  1  Smith  Ch.  Pr.  (2d 
Am.  ed.)  206;  but  not  unless  it  is  in  form 
a  "joint  and  several  demurrer;"  per  Sir 


FORM    OF    DEMURRERS. 


585 


Section  III.  —  Tlie  Form  of  Deyyiurrers. 


Cii.XIV.  §3. 


A  demurrer  must  be  entitled  in  the  cause,  and  is  headed  "  The 
demurrer  of  A.  B.  (or,  of  A.  B.  and  C.  D.),  one,  etc.,  of  tlie  above- 
named  defendants,  to  the  bill  of  complaint  of  the  above-named 
plaintiff."  If  it  be  accompanied  by  a  ])lea,  or  by  an  answer,  it 
shoidd  be  called  in  the  title  "the  demurrer  and  plea,""  or  "  demurrer 
and  answer."  Where  it  is  to  an  amended  bill,  it  need  not  be  ex- 
pressed, in  the  title,  to  be  a  demurrer  to  the  original  and  amended 
bill ;  but  a  demurrer  to  the  amended  bill  will  be  sufficient.^ 

As  a  demurrer  confesses  the  matters  of  fact  to  be  true,  as  stated 
by  the  op])osite  party,  it  is  always  preceded  by  a  general  protesta- 
tion against  the  truth  of  the  matters  contained  in  the  bill ;  -  a  prac- 
tice borrowed  from  the  Common  Law,  and  probably  intended  to 
avoid  conclusion  in  another  suit,^  or  in  the  suit  in  which  the  de- 
murrer is  put  in,  in  case  the  demurrer  should  be  overruled. 

After  the  protestation,  the  demiirrer,  if  it  is  a  partial  demurrer 
and  not  to  the  whole  bill,  must  proceed  distinctly  to  point  out  the 
parts  of  the  bill  to  which  it  is  intended  to  apply.*  The  rule,  as  to 
this,  is  laid  down  by  Lord  Redesdale  in  Devonsher  v.  Newenham^ 
"that  where  a  defendant  demurs  to  part,  and  answers  to  pai-t  of  a 
bill,  the  Court  is  not  to  be  put  to  the  trouble  of  looking  into  the 
bill  or  answer,  to  see  what  is  covered  by  the  demurrer;  but  it 
ought  to  be  expressed,  in  clear  and  precise  terms,  what  it  is  the 
party  refuses  to  answer ;  ®  and  I  cannot  agree  that  it  is  a  proper 
way  of  demurring  to  say,  that  the  defendant  answers  to  such  a 
])articular  fact,  and  demurs  to  all  the  rest  of  a  bill:  the  defendant 
ought  to  demur  to  a  particular  part  of  the  bill,  si^ecifying  it  pre- 
cisely."'' 

Although  a  demuiTer,  in  the  form  above  stated,  namely,  "to  all 
the  rest  of  the  bill  which  is  not  answered,"  Avould,  for  the  reasons 
stated  by  Lord  Redesdale,  be  a  ba<l  forni  of  demurrer :  a  demurrer 

L.  Sliadwell  V.  C.  in  Olaspntt  v.  Copper 
.Miners"  Company.  11  Sim.  306,310;  .O.lur. 
264.  If  too  many  persons  are  joine'i  iis 
iliifcndjints  in  a  ijill  in  Ivjuity,  tliere  being 
no  misjoin'ier  of  dulijects,  one,  acainst 
whom  II  ffood  cau'e  of  action  is  stated,  can- 
not on  tijis  fjround,  demur.     N.  Y.  &  N. 

II.  IM{.  Co.  V.  Schuvkr.  17  N.  Y.  592. 

1  Smith,  f.  Hryon"3  .Miul.  42H;  Osborn 
I'.  .Tullion,  3  Drew.  UU'1\  and  see  (irMnviile 
r.  Hetts,  17  .Sim.  58.  For  forms  of  demur- 
rer, Bee  2  Van  Hey.  74-92;  and  poti.  Vol. 

III.  ^  -  i      . 

2  Story  E(i.  PI.  §§  452,  457;  1  Smith 
Ch.  I'r.  (2d  Am.  ed")  209.  Trote'-tations 
in  rh-niurrers  are  required,  in  New  Hamp- 
shire, to  he  omitted  l)y  I!ule6  of  the  Rules 
of  Chancery  rractice",  3«  N.  II.  GOO. 


Title  of  a 
demun-er. 


3  Ld.  Hed.  212. 

■*  In  New  Hampshire,  the  form  of  a  de- 
murrer is  required  in  substance  to  be, — 
"  The  defendant  says  tiio  plaintid'  is  not 
entitled  upon  siuh  l)ill  to  the  relief  [or  dis- 
covery] ])rayed  for,  because,"  iJirc.  Kulo 
10  of  the  Rules  for  (jhancerj-  Practice,  38 
N.  II.  10. 

C  2  Sch.  i<t  Lef.  199,205. 

0  See  Atwill  v.  I'V-rrett,  2  Blatch.  C.  C. 
39. 

T  Chctwynd  v.  I/iiulon,  2  Ves.  S.  450; 
Salkeld  r.  Science,  ih.  107;  Barnes  r  Tay- 
lor, 4  W.  H.  577,  V.  C.  K.;  .lohnston  V. 
.lohnston,  2  ."Moll.  414;  Story  Hrp  I'l.  §§  157, 
45H,  and  notes;  Xiish  v.  Smith,  0  f'onu. 
421;  Claney  v.  Crainc,  2  Dev.  Ch.  303. 


Commences 
■with  a  prot- 
estation. 


When  to  part 

ofthebiU 

only. 


Answer  to  a 
particular 
part  of  a  bill, 
and  demurrer 
as  to  the  rest, 
is  bad. 


Hut  demurrer 
to  all  the  bill, 
except  a  ])ar- 
tieular  part 
speeilied, 
is  good. 


586 


DEMURRERS. 


Cn.XIV.  §3. 


Where  two 
or  more 
doimirrors, 
they  must 
point  out  tlio 
part  covered 
by  each. 

Demurrer  to 
ameudmcnts. 


Must  express 
some  cause 
of  demurrer, 
either  fjeneral 
or  specific. 


General 
demurrers 
sometimes 
cover  matters 
of  tbrm : 


to  all  tlie  l)ill,  except  as  to  a  particular  specified  part,  would  not 
be  open  to  the  same  olyectiou  ;  and  where  the  excei)tion  a])plies 
to  a  very  small  i)art  only  of  the  bill,  it  has  been  held  to  be  the 
proper  way  of  demurring.^  In  framing  such  a  demurrer,  however, 
care  must  be  taken  that  it  should  a|)i)car  distinctly,  by  the  demurrer 
itself,  what  i)art  of  the  bill  is  to  be  included  in  the  exception : 
otherwise,  the  demurrer  Avill  be  bad.^ 

The  above  rule  also  a]>plies  to  cases  where  there  are  two  or  more 
distinct  demurrers  to  different  portions  of  the  bill;  in  such  cases, 
the  dirtercnt  i)ortions  of  the  bill  to  be  covered  by  each  demm-rer 
must  be  distinctly  pointed  out.  And  where  a  demurrer  is  put  in 
to  such  parts  of  an  amended  bill  as  have  been  introduced  by  the 
amendments,  it  will  not  be  sufficient  to  say  it  is  a  demurrer  to  the 
amendments,  but  the  parts  must  be  specifically  pointed  out,  and 
a. demurrer  to  so  much  of  the  amended  bill,  as  has  not  been  an- 
SAvered  by  the  answer  to  the  original  bill,  will  be  bad.*^ 

A  demurrer  will  not  be  good  if  it  merely  says,  generally,  that 
the  defendant  demurs  to  the  bill ;  ^  it  must  express  some  cause  of 
demurrer,  either  general  or  specific.^  A  defendant  is  said  to  de- 
mur generally,  when  he  demurs  to  the  jurisdiction,  or  to  the  sub- 
stance of  the  bill ;  or  specially,  when  he  demurs  on  the  ground  of 
a  defect  in  form.  He  may,  however,  in  cases  Avhere  he  demurs 
either  to  the  jurisdiction  or  to  the  substance,  state  specially  the 
particular  grounds  upon  which  he  founds  his  objection;  and,  in- 
deed, some  of  the  grounds  of  demurrer,  which  go  to  the  substance 
of  the  bill,  require  rather  a  particular  statement ;  thus,  a  demurrer 
for  want  of  parties,  must,  as  has  been  before  stated,  show  who  are 
the  necessary  parties,  in  such  a  manner  as  to  point  out  to  the 
plaintiff"  the  objection  to  his  bill,  so  as  to  enable  him  to  amend  by 
adding  proper  parties;^  and  in  the  case  of  a  demurrer  for  mul- 
tifariousness, a  mere  allegation,  "that  the  bill  is  multifarious," 
Avill  be  infonnal;  it  should  state,  as  the  ground  of  demurrer,  that 
the  bill  unites  distinct  matters  upon  one  record,  and  show  the 
inconA-enieuce  of  so  doing.'' 

Some  objections,  wliich  appear  to  be  merely  upon  matters  of 
form,  may  be  taken  advantage  of  under  general  demurrers,  for 


1  Hicks  t'.  Eaincock,  1  Cox,  40;  Howe 
V.  Duppa,  1  V.  &  B.  511. 

"  Hohinson  v.  Thompson,  2  V.  &  B.  118 ; 
Weatherhead  v.  Blackburn,  ih.  121;  Burch 
V.  Concv,  14  .Tur.  1009,  V.  C  K.  15.;  Os- 
born  r."  .Jullion,  3  Drew.  5.52;  Barnes  v. 
Tavlor,  4  W.  R.  577,  V.  C.  K.;  Story  Eq. 
Pl."§§  457,  458;  and  =ee  Burton  v.  Uobert- 
son.  1  .J.  &n.  38;  6  .Jur.  N.  S.  1014,  for 
ca?c  where  no  answer  had  been  required. 

S  Mvnd  V.  Franci-,  1   Anst.  5. 

4  DulUeld  V.  Graves,  Cary,  87;  Ofteley 


V.  Morgan,  ib.  107 ;  Peachie  v.  Twyecrosse, 
ib.  113. 

6  Nash  «.  Smith,  6  Conn.  422 ;  see  John- 
ston V.  Johnston,  2  JIoll.  414;  Rowland  v. 
Kenosha  County,  19  Wis.  247.  A  general  de- 
murrer, without  any  special  cause  assigned, 
has  the  effect  only  to  turn  the  inquiry 
upon  the  equities  of  the  bill.  Wellborn  v. 
Tiller,  10  Ala.  305. 

6  Ante,  p.  278. 

7  Kavner?).  Julian,  2  Dick.  677;  5  Mad. 
144,  n.  (b) ;  Barber  /;.  Barber,  4  Drew.  606 ; 
5  Jur.  N.  S.  1197. 


FOEM    OF   DEMURRERS. 


587 


want  of  equity;^  thus,  it  has  been  before  stated-  that  some  bills 
may  be  demm-red  to  ou  the  gromid  that  they  are  not  accompanied 
by  an  affidayit;  that  objection,  howeyer,  is  in  fact  an  objection 
to  the  equity,  because  the  cases  in  which  an  affidavit  is  required 
are  those  in  which  the  Court  has  no  jurisdiction,  unless  upon  the 
supposition  that  the  fact  stated  in  the  affidayit  is  true;  and  the 
Court  requires  the  annexation  of  the  affidayit  to  the  bill,  for 
the  i:)uii)ose  of  yerifying  that  fact.  In  these  cases,  the  objection 
may  be  made  either  in  the  form  of  a  special  demurrer,  or  of  gen- 
eral demurrer  for  want  of  equity :  because  the  plaiutiif,  by  his  bill, 
does  not  bring  his  case  within  the  description  of  cases  oyer  which 
the  Court  exercises  jurisdiction.  Upon  the  same  principle,  a  de- 
fendant may  take  adyantage  by  general  demurrer,  of  the  omis- 
sion to  ofier  to  do  equity,  in  cases  where  such  an  offer  ought  to  be 
made.^  The  olyection  for  want  of  sufficient  positiyeness  in  the 
plaintiff's  statement  of  facts  within  his  own  knowledge,  may  also 
be  taken  by  general  demurrer ;  *  but  where  a  defendant  to  a  bill 
pra}ang  relief,  demurs  to  the  discoyery  only,  he  cannot  do  so  under 
a  general  demm-rer  for  want  of  equity :  he  must  make  it  the  sub- 
ject of  sjjccial  demun-er;^  and  so,  a  general  demurrer  does  not 
include  a  demurrer  on  the  ground  that  the  bill  (being  a  bill  of 
reyiew)  does  not  state  on  the  face  of  it  that  it  is  by  leaye  of  the 
Court ;  but  that  ground  may  be  taken  ore  te^ms.^ 

Care  must  be  taken,  in  fi-aming  a  demurrer,  that  it  is  made  to 
rely  only  ui)on  the  facts  stated  in  the  bill ;  otherwise  it  will  be 
what  is  termed  a  speaking  demurrer,  and  will  be  oyerruled.'' 
Thus,  where  a  bill  was  filed  to  redeem  a  mortgage,  alleging  that 
the  ])laintiff's  ancestor  had  died  in  1770,  and  that,  soon  after,  the 
defendant  took  ])ossession,  &c.;  and  the  defendant  demurred,  and 
for  cause  of  demurrer  showed,  that  it  appeared  upon  the  face  of 
the  bill,  that  from  the  year  1770,  Avhich  is  upAvards  of  twenty  years 
before  tlie  filing  of  the  bill,  the  defendant  has  been  in  possession, 
tfcc.  Lord  Ko.s.slyn  overruled  the  demurrer,  because  the  language 
of  the  bill  did  not  show  that  the  defendant  took  possession  in  tlie 
year  1770,  but,  that  he  did  so,  could  only  be  collected  from  the 
averment  in  the  demurrer.^     But  a  demurrer,  for  that  it  appeared 


Ch.  XIV.  §  3. 


as  -want  of 
affidavit. 


Omission  of 
ofter  to  do 
equity. 

"Want  of 
sufKcient 
positiveness. 

Demurrer  to 
discover  only- 
must  be 
special. 


Speaking 
demurrers. 


1  In  Marsh  v.  Marsh,  1  C.  E.  Green  (X. 
J.),  391,  397,  it  is  said  tliat,  unfiern  gener- 
al (letniirrer  for  want  of  equity,  no  ol>jec- 
tioii  for  wnnt  f)f  funn  can  properly  be  raised. 

2  Aiile,  p.  394.  A  demurrer  for  want  of 
pquitv  need  not  refer  to  llie  allegations  of 
the  bill.  Mid.llebrook  v.  I5r.mUrv,  9  .hir. 
N.  S.  014,  Cir,;  11  w.  It.  712,  V.<'.  K. 

3  Anle.  p.  .'585;  Innian  v.  Weariiitr,  3  I)e 
G.  &  S.  729. 

*  Anle,  pp.  300,  .'iOO. 

5  Whi!tiM(;liatn  v.  I'urgovnc,  3  An.st. 
000.  004;  Mursli  v.  Marsh,  i  G.  K.  Green 
(N.  .1.),  801,  397. 

•  HeDdcrsoQ  v.  Cook,  4  Drew.  30C. 


7  Brownsword  v.  F.dwards,  2  Ves.  S. 
24.5;  Ilenilerson  v.  Cook,  4  Drew,  300,  315. 

8  Edscll  I'.  Bufhanaii,  4  Br.<.  C.  C.  254; 
2  Ves.  .1.  f'S.  It  is  .«aid  in  Brooks  v.  Gii)- 
bons,  4  raige,  375,  that  "  the  case  of  Ed<ell 
V.  nuchnnan,  2  Ves.  ,1.  63,  lia.s  1)  en  fre- 
quetifly  miMinderstood.  The  demurrer  in 
that  ease  was  not  overruled  as  a  speaking 
dfuiurrer,  inerel}'  on  account  of  a  modest 
su;.'gestion,  that  the  time,  stated  by  the 
complainant,  'about  tlio  year  1770,'  was 
uiiwards  of  twenty  years  before  the  filing 
ol  the  bill.  Hut  it  was  because  that  sng- 
gesti'in,  from  the  manner  in  which  it  was 
introduced  into  the  demurrer,  was  in  tlia 


588 


DEMUmiEUS. 


Ch.  XIV.§;i. 


Several 
causes  of 
demurrer 
mav  be 
assigned. 


Demurrer 
ore  tenus: 
Is  contined  to 
cases  where 
there  is  a 
demurrer  on 
the  record ; 

but  cannot  be 
upon  the 
same  in-ound. 


(H1  \]\v  l)ill  tli.it  tlio  M^•nH'nuMlt,  tlicirin  .-ilU'u.i'd  to  liave  Iti'i'ii  riittTcd 
into,  is  not  in  w  ritini;'  siL!;M(.'(l  liy  tlic  (Icli'ndnnt,  is  not  a  s)K'aking 
(lonuinvr.^  It  is  material  to  notice  that,  in  order  to  cuiistitutu  ii 
spoakinL!,'  ilenmrri'r,  the  tiu-t  or  a\erment  introduced  must  be  one 
Avliieli  is  necessary  to  su]t})ort  the  demurrer,  ami  is  not  found  in 
the  hill :  -  the  introduction  of  immaterial  iiiots,  or  aAorments,  or  of 
aroumonts,  is  hnpvoper;  but  it  is  mere  surplusage,  and  will  not 
vitiate  the  demurrer.^ 

A  defendant  is  not  limitiMl  to  show  one  cause  of  demui'rei-  only; 
he  may  assign  as  nuiny  causes  of  demun-er  as  he  ])leases,  eitlu-r  to 
the  whole  bill,  or  to  each  ])art  of  the  bill  demurred  to,  but  tliey 
must  be  stated  as  distinct  and  separate  causes  of  demurrer;^  and 
if  any  one  of  the  causes  of  demurrer  assigned  hold  good,  the  de- 
murrer will  be  allowxHl.'"'  Where,  hoAvever,  two  or  more  causes 
of  demurrer  are  shown  to  the  whole  bill,  the  Court  will  treat  it  as 
one  demurrer;  and  if  one  of  the  causes  be  considered  suthcient, 
the  order  will  be  di-awn  u]),  as  u])()n  a  com])lete  allowance  of  the 
dennirrer."  A  defendant  may  also,  at  the  hearing  of  his  demurrer, 
orally  assign  another  cause  of  demuri'er,  different  or  in  addition  to 
those  assigned  upon  the  record:  which,  if  valid,  will  su])port  the 
demurrer,  although  the  causes  of  demurrer  stated  in  the  demurrer 
itself  are  held  to  be  invalid.  This  oral  statement  of  a  cause  of 
demurrer,  is  called  demurring  "  ore  tenus.''''''  A  defendant  cannot 
demur  ore  tenus,  unless  there  is  a  demurrer  on  the  record ;  and 
u])on  this  ground,  where  a  defendant  had  pleaded,  and,  upon  the 
plea  being  overruled,  offered  to  demur  ore  tenus,  for  want  of  par- 
ties, he  Was  not  permitted  to  do  so ;  ^  neither  can  a  defendant 
demur  ore  tenus  for  tlie  same  cause  that  has  been  expressed  in  the 


nature  of  an  averment,  that  the  defendant 
hail  I)een  in  possession  of  the  inortguKed 
premises  for  more  than  twenty  years.  And 
the  fact  of  such  possession  was  nec^ssaiy 
to  sustain  tlie  defence  set  up  on  the  argu- 
ment of  the  demurrer;  whicli  defence  was, 
tliat  tlie  plaint itfs  riglit  to  redeem  was 
barred  by  the  lapse  of  time.  The  precise 
time,  at  which  the  defendant's  possession 
commenced,  not  appearing  from  the  bill 
itself,  the  averment  that  the  heir  of  the 
mortgap;pe  had  been  in  possesion  '  up- 
wards of  twenty  years  before  the  bill  tiled,' 
should  have  been  brought  forwnrd  by  plea, 
or  answer,  and  not  by  demurrer." 

1  Wood  V.  Midgley,  5  De  G.,  M.  &  G. 
41 ;  see  also  .Jones  e.  Charlemont,  12  Jur. 
632,  V.  C.  E. 

-  Brooks  V.  Gibbons,  4  Paige,  374 ;  see 
Kuvpers  V.  Ref.  Dutch  Church,  6  Paige, 
570";  M'Comb  v.  Armstrong,  2  Moll.  29-'); 
Storv  Eq.  PI.  §  448;  Pendleliurv  t".  Walker, 
4  Y."&  (J.  424;  1  Smith  Ch.  Pr.  (2d  Am. 
ed.)  20G;  Tallmadsre?;.  Lovett,3  Kdw.  (Jh. 
554;  Saxon   v.  Hark^dale,  4   Desaus.  522. 

3  Cawthorn  v.  Chalie,  2  S.  &  S.  127; 
Davies  v.  Williams,  1  Sim.  5,  8. 


4  Bnrber  v.  Barber,  4  Drew.  666;  5  Jur. 
N.  S.  1197. 

5  Harrison  v.  Hog^g,  2  Ves.  .1.  323 ;  Jones 
V.  Fro~t,  3  Mad.  1,  9;  Jiic.  466;  Cooper  v. 
E-irlPnwis,  3  De  G.  &  S.  688. 

e  Welloley  v.  Wellesley,  4  M.  &  C.  554, 
558;  4  Jur.  2;  see  also  Watts  v.  Lord  Eg- 
linton,  1  C.  P.  Coop.  t.  Cott.  25,  27. 

''  Brinkerhoff  y.  Brown,  6  John.  Ch.  149; 
Storv  Va\.  pi.  §  464;  Wright  v.  Dame,  1 
Met.'237;  JPDcrmot  v.  Hlois,  I{.  M.  Cliarlt. 
281;  Daly  r.  Kirwan.  1  Irisii  Eq.  157;  see 
(iiirlick  V.  Strong,  3  I'aige,  440;  Chase  v. 
Seaile,  45  N.  H.  512. 

Under  a  general  demurrer  for  want  of 
equity,  a  demurrer  for  want  of  parties  may 
be  made  ore  temis.  Robinson  v.  Smith,  3 
Paige,  231;  Garlick  v.  Strong,  3  Paige, 
452;  Still  well  v.  M'Neely,  1  Green  Ch. 
305;  see  Pvle  v.  Price,  6  Sumner's  Ves. 
781;  Mr.  Ilovenden's  note  (2);  Ld.  Red. 
217. 

»  Durdant  r.  Redman,  1  Vern.  78;  Hof>k 
V.  Dorman,  1  S.  &  S.  227,  231;  Story  Eq. 
PI.  §  464. 


FORM    OF    DEMURKERS. 


589 


demuiTer  on  record,  and  overruled;-^  nor  can  he,  after  a  demurrer 
to  tlie  whole  hill,  demur  ore  temis  as  to  part.-  It  seems,  however, 
that  after  a  demurrer  to  part  of  the  bill  has  been  overruled,  the 
defendant  may  demur  ore  tenus  to  the  same  part.^ 

It  is  to  be  noticed  that,  although  a  defendant  may,  either  upon 
the  record,  or  ore  tenus,  assign  as  many  causes  of  demurrer  as  he 
pleases,  such  causes  of  demurrer  must  be  co-extensive  with  the 
demurrer  upon  the  record;  therefore,  causes  of  demurrer,  Avhich 
apply  to  part  of  the  bill  only,  cannot  be  joined  with  causes  of  de- 
murrer which  go  to  the  whole  bill :  ■*  for,  as  we  have  seen  before, 
a  demurrer  cannot  be  good  in  part  and  bad  in  part ;  which  would 
be  the  case  if  a  demurrer,  professing  to  go  to  the  whole  bill,  could 
be  supported  by  the  allegation  of  a  ground  of  demurrer  Avhich 
applies  to  part  only. 

The  consequence  of  demurring  o?'e  tenus,  as  regards  costs,  will 
be  discussed  in  a  future  section.^ 

The  demurrer,  having  assigned  the  cause  or  causes  of  demurrer, 
tlien  proceeds  to  demand  judgment  of  the  Court,  whether  the 
defendant  ought  to  be  compelled  to  put  in  any  further  or  other 
answer  to  the  bill,  or  to  such  part  thereof  as  is  si^ecified  as  being 
the  subject  of  demurrer;  and  concludes  Avith  a  jirayer,  that  the 
<lefendant  may  be  dismissed  with  his  reasonable  costs  in  that  be- 
half sustained.^ 

If  a  demurrer  is  to  jiart  of  the  bill  only,  tlie  answer  (if  any)  to 
the  remainder  usually  follows  the  statement  of  the  causes  of  de- 
mui-rer,  and  the  submission  to  the  judgment  of  the  Court  of  the 
]daintiff's  right  to  call  upon  the  defendant  to  make  further  or 
otlier  answer." 

It  was  formerly  an  invariable  rule,  that  an  answer  to  any  i)ai't 
of  a  bill  demurred  to  avouM  overrule  the  demurrer,^  even  though 

Weston.  1  Vern.  463;  Roberts  v.  Clayton, 
3  Anst.  715;  see  Varick  v.  Sinitli,  5  I'aipe, 
137.  A  demurrer  may  Ije  to  tlie  whole 
bill  or  to  a  part  only  of  the  bill;  and  the 
defendant  may  therefore  demur  as  to  one 
part,  plead  as  to  iinotlier  i>art,  and  answer 
to  the  rest  of  the  bill.  St..iv  K(|.  l'l.§  442; 
Newton  r-.  Thiiyer,  17  I'lck.  132,"  133; 
I'ierpont  v.  Kowfe.  2  Wood.  &  iM.  23.  ]{ut 
a  defendant  cainiot  jilead  or  answer,  and 
demur  both,  to  tlie  whole  bill  or  to  the 
same  part  of  a  bill  Clark  r.  I'liclps,  0 
John.  Ch.  214;  Iieiiinhnnip  r.  (iibbs,  1 
liibb,  4H1;  {{obiiiMiii  i:  UiiiKi'T,  1  M'Cord 
Ch.  302.  If  th<'  (li'feiidnnt  diiiiur  to  the 
whole  bill,  an  answer  to  a  p;ir(  thereof  is 
inconsistent;  and  the  demurrer  will  be 
overruled.  Story  V.<\.  \'\.  §  442.  For  the 
came  reason,  if  th(;re  be  a  demurrer  to  a 
part  of  the  bill,  there  cannul  be  a  plea  or 
answer  to  the  same  part,  witlmut  overrul- 
iiij;  the  demurrer.  Story  I'.i).  I'l.  §  442; 
Clark  V.  I'helps,  0  John.  Ch.  214;  Souzer 


Ch.  XIV.  §  3. 


Must  be  co- 
extensive 
■with  demur- 
rer on  record. 


1  Howman  r.  Lvgron,  1  .Vnst.  1;  but  see 
Pratt  V.  Keith,  10"Jur.  X.  .S.  305,  V.  C.  K., 
12  \V.  ]{.  3'J4,  where  a  demurrer  on  the 
record,  that  there  were  not  jiroper  parties, 
hiiviuff  been  overruled,  a  demurrer  ore 
tenus,  describing  the  necessary  parties,  was 
allowed. 

•i  Shepherd  r.  IJovd,  2  Y.  &  J.  490; 
Ilarr.  Ch   227. 

•■'  (.'rouch  r.  Ilickin,  1  Keen,  38.5,389; 
see  ointrn,  .Shi'plierd  r.  I.lovd,  tihi  mp. 

*  I'itfs  ».  Short,  17  \'es."213,  21ti;  Met- 
calfe V.  Brown,  5  I'ri.  5i'.0;  Kunif)  v.  fJrei'ii- 
Inll,  20  Heiiv.  512;  1  Jur.  X.  S.  123; 
lli'iifbTson  r.  Cook,  4  l)rew.  SOU;  (iilbert 
r.  I,ewi^,  1  De  G.,  J.  iS:  .S.  Z*';  'J  Jur.  N. 
S.  187;  TJKimpsont'.  Universitvof  London, 
10  Jur.  X.  S.  WJ,  071;  33  L. 'j.  Ch.  625, 
V.  C.  K. 

6  .See  jxisl,  p.  549. 

«  See  form  in  Vol.  \\\. 

1  See  (intt,  pp.  581,  584,  585. 

8  Tidd  r.  Clare,  2  Dick.  712;  Hester  v. 


Costs. 


Demand  of 
judgment. 


Form  of 
demurrer  and 
answer. 


AVhere 
answer  will 
overrule 
demurrer. 


590 


DEMURRERS. 


Cn.  \IV.  5.-!. 


Nature  of 
answer; 

■when  it  may 
be  excepted 
to. 


Demurrer  is 
put  in 
without  oath. 


Ilu'  i>:trt  itnswored  wns  iniin:itori;il.'  And  lliis  nilt>  was  carricMl  so 
far,  tliat  wIutc  tlic  ilciiiurror  did  not  in  tbrm  extend  to  tlie  part 
answeivd,  yet,  il'  the  juineiple  tij)oii  whieli  the  demuiTer  de])ended 
was  sueh  tliat  it  ought  to  liave  extended  to  the  wliole  hill,  then 
the  answer  to  sueh  ])art  overniled  the  denuirl-er.^  This  is  still  the 
nde  of  the  Court,  hut  it  has  heen  inoditied  to  tliis  extent:  that  the 
Court  will  not  overrule  a  detntirrer,  merely  on  the  ground  that,  by 
soitie  sliji  or  mistake,  a  small  or  immaterial  part  of  the  hill  is 
covered  by  the  answer  or  plea,  as  well  as  the  demurrer.^ 

For  information  as  to  the  nature  of  the  answer  (if  any)  to  be 
put  in  to  those  ])arts  of  the  bill  to  which  the  defendant  does  not 
demur,  the  reader  is  referred  to  the  chapter  on.  Answers.*  If  the 
])laintiff  conceives  such  answer  to  be  insufficient,  he  may  except  to 
it,  Ijut  he  must  not  do  so  before  the  demurrer  has  been  argued :  ^ 
otherwise,  he  will  adniit  the  demurrer  to  be  good.®  It  is  said, 
however,  that  if  the  defendant  demurs  to  the  relief  only,  and 
answei's  the  rest  of  the  bill,  the  plaintiff  may  take  exceptions  to 
the  answer  before  the  demitrrer  is  argued.'' 

A  demurrer  is  pre])ared,  and  must  be  signed,  by  counsel ;  ^  but 
it  is  ptit  in  without  oath,  as  it  asserts  no  fact,  and  relies  merely 
upon  matter  apparent  upon  the  face  of  tlie  bill ;  ®  and  it  need  not 
be  signed  by  the  defendant. 

V.  De  Meyer,  2  Paige,  574 ;  IMitfonJ  Eq.  PI. 
by  .Jeremy,  209,  210;  H.  K.  Chase's  case, 
1  Bland,  217 ;  Leacraft  v.  Dempsev,  4  Paige, 
124;  Spiifford  v.  Manning,  6  Paige,  383; 
Miller  v.  Fasse,  1  Bailey  Eq.  187;  Jarvis  v. 
Palmer,  11  Paige,  650;  Kuypcrs  v.  Re- 
formed Dutch  Church,  6  Paige,  570; 
Chiise's  case,  1  Bland,  206;  Saxon  v. 
Barksdale,  4  Desaus.  522;  Bull  v  Bell,  4 
Wis.  54;  see  ante,  p.  547,  n.  2. 

In  Massachusetts,  "  the  defendant,  in- 
stead of  tiling  a  formal  plea  or  demurrer, 
may  insist  on  an}-  special  matter  in  his 
answer,  and  have  the  same  benefit  there- 
from as  if  he  had  pleaded  the  same  or  de- 
murred to  the  bill."  Kule  14  of  the  Rules 
of  Practice  in  Chancery;  see  Lovett  v. 
Longmire,  14  Ark.  (1  Barb.)  339.  The 
same  rule  exists  in  New  Hampshire,  Rule 
10  of  Chancery  Practice.     38  N.  H.  607. 

By  the  rules  in  Chancery  cases  in  Maine, 
defendants  ma}'  severally  demur  and  an- 
swer to  the  merits  of  the  bill  at  the  same 
time.  Rule  6,  37  Maine,  582;  Hartshorn 
f.  Eames,  31  Maine,  97;  Smith  v.  Kelle}-, 
50  M  line,  64,  65. 

1  Kuspini  ?•.  Vickery,  cited  Ld.  Red.  211 ; 
Savage  v.  Smalebroke.  1  Vern.  90. 

2  Dawson  r.  Sadler,  1  S.  &  S.  542;  Sher- 
wood V.  Clark,  9  Pri.  259 ;  Hester  v.  Wes- 
ton, 1  Vern.  463. 

3  Ord.  XIV.  9;  nnle,  p.  683;  Lowndes 
ti.  Garnett  and  Moselfy  Gold  Mining  Com- 
pany. 2  .1.  &  H.  282;"  Maiisell  )'.  Feenev, 
lb.  313;  Gilbert  v.  Lewis,  1  De  G.,  .1.  &  S. 


38;  9  Jur.  N.  S.  187;    see  also  Jones  v. 
Earl  of  Stratford,  3  P.  Wms.  81. 

4  Post,  Chap.  XVII. 

5  Lo'nlon  Assurance  v.  East  India  Com- 
pany, 3  P.  Wms.  326. 

G'Ld.  Red.  317;  Boyd  r.  Mills,  13  Ves. 
85,  86.  If  necessary  the  plaintiff  may  ob- 
tain an  extension  of  the  time  to  lile  excep- 
tions ;  see  post,  Chap.  XVII.  §  4,  Exceptions 
to  Anstmrs. 

7  Ld.  Hed.  317;  3  P.  Wms.  327,  n.  (c). 

8  Ord.  VIII.  1 ;  1  Smith  Ch.  Pr.  (2d  Am. 
ed.)  209;  Story  Fq.  PI.  §  461.  Where  a 
solicitor  has  appeared  in  a  cause,  and  a 
demurrer  is  filed,  signed  by  solicitors  who 
have  not  appeared,  the  demurrer  may  be 
treated  as  without  signature,  and  as  a  nul- 
lit}-.  Graham  )'.  Elmore,  Ilarring.  Ch.265. 
In  Ernest  v.  Partridge,  11  W.  K.  715,  V. 
C.  \V.,  the  costs  of  advising  with  counsel 
as  to  demurring  were  allowed,  on  a  party 
and  party  taxation. 

»  Ld.  Red.  208.  By  the  31st  Equity  Rule 
of  the  United  States  Courts,  no  demurrer 
or  plea  shall  be  allowed  to  be  filed  to  any 
bill,  unless  upon  a  certificate  of  counsel, 
that  in  his  opinion  it  is  well  founded  in 
point  of  law,  and  supported  by  the  aifiilavit 
of  the  defendant  that  it  is  not  interposed  for 
delay;  and  if  a  plea,  that  it  i^  true  in  point 
of  fact.  Story  Eq.  PI.  {3d  ed.)  §  441, 
note  (2). 

In  Jlassachusetts,  "  A  demurrer  shall  be 
accompanied  with  a  certificate  that  it  is  not 
intended  for  delay."  Genl.  Sts.  of  Mass. 
c.  113,  §  6.    But  this  provision  does  not 


FILING,    SETTING   DOWN,    AND    HEARING   DEMURRERS. 


591 


A  mere  clerical  error  in  a  demurrer  may  be  amended  on  an  Cn.XlV.  §4. 
ex  parte  order,  before  the  twelve  days  have  expu-ed,^  or  at  the   ' y ^ 

hearino"."  Amendment 

°  of  clerical 

error. 

Section  IV.  —  Filing,  Setting  Doicn,  and  Searing  Demurrers. 


■  After  the  draft  of  the  demurrer  has  been  settled  and  signed,  it  How  filed. 
is  copied  on  paper  of  the  same  description  and  size  as  that  on 
which  bills  are  jn-inted,^  and  comisel's  signature  is  copied  at  the 
foot ;  the  demurrer  is  then  filed  at  the  Record  and  Writ  Clerks' 
Office.*  The  name  and  place  of  business  of  the  plaintiff's  solicitor, 
and  of  his  agent,  if  any,  or  the  name  and  place  of  residence  of  the 
plaintiff,  where  he  acts  in  person,  and,  in  either  case,  the  address 
for  service,  if  any,  must  be  indorsed,  as  upon  other  pleadings,^ 

A  separate  demurrer,  by  a  married  woman,  must  have  an  order  Separate 
to  warrant  it ;  such  a  demurrer  ought  not,  therefore,  to  be  filed  till  ^^^ ^'J^'^'jg^ 
an  order  to  that  effect  has  been  procured.^      A  demun-er  cannot  woman. 
be  filed  on  behalf  of  an  infant,  or  a  person  of  unsound  mind  not  Demurrer  on 
so  found  by  inquisition,  until  a  guardian  ad  litem  has  been  ap- 
pointed ;  and  it  is  the  same  in  the  case  of  a  lunatic,  when  his  com- 
mittee has  an  adverse  interest.    The  order  appointing  the  guardian 
must  be  produced  when  the  demurrer  is  jiresented  for  filing.'' 

A  defendant,  demurring  alone  to  any  bill,*  may  do  so  Avithin 
twelve  days  after  his  appearance,  but  not  afterwards;^  the  day 
of  his  appearance  does  not  count."  When  he  does  not  demur 
alone,  he  has  the  same  time  as  he  has  for  answering."  Time  for 
demurring  runs  in  vacation.^^ 

Where,  after  appearance   to  the   original   bill,  a  defendant  is 


intant  or 
hmatic. 


Time  allowed 
to  demur: 


apply  to  a  statement  in  the  nature  ofa  de- 
murrer for  want  of  equity,  contained  in  an 
answer  to  a  bill  in  K(|Ultv.  Mill  liiver 
Loan  Fund  As^.  i-.  Clafliii,  9  Allrn,  101. 
I'or  forms  ot  demurrer,  ^vv.  Vol.  III. 

1  Kicliardson  r.  Hastinjis,  7  Benv.  58. 

2  f)>born  V.  .Jullion,  -3  Drew.  552,  553. 

3  Ord.  6  Mnrcli,  lfi«0,  r.  10;  and  Ord. 
IX.  .3,  ante,  p.  301.  A  joint  demurrer  and 
iinswer  must  be  printed  in  the  same  man- 
ner as  an  answer,  see  /w«<,  (,'hap.  XVII. 
§  3,  J'liiitiiif/  Angwers. 

*  ()T<\.  I.  35.    No  fee  is  pavable  on  filing. 
6  Ord.  ill.  2,  5;  ante,  pp."  453,  454. 

6  IJarr.in  v.  (irillard,  3  V.  &  R.  1C5; 
Braith'.vaite'»  I'r.  58;  except,  it  is  prc- 
samed,  in  those  cases  where  a  married 
woman  is  entitled  to  defend  as  a/eme  sole ; 
8Ce  nn<<',  op.  178,  179. 

7  Hrnithwaite's  I'r.  58. 

"  Whether  orif^inal,  amended,  orsupple- 
mciital.     Itraithwiiite's  Manual,  175. 

»  Ord.  X.XXVII.  3;  15  &  10  Vic.  c.  80. 
§  18.    In  the  case  of  a  defendant  served 


abroad,  this  rule  so  far  overrules  Ord.  X. 
7  (2),  as  to  limit  its  provisions  to  pleading, 
answering,  or  demurrinj;,  not  demurring 
alone.  Griiuing  v.  Prioleau,  10  ,hir.  N. 
S.  00;  12  W.  R.  141,  M.  K. ;  33  Beav.  221. 
Demurrer  to  part  of  the  bill,  without  an- 
swering or  pleading  to  the  rest,  cannot  be 
filed  before  cxtiiration  of  time  for  filing  in- 
terrogatories. Howe  V.  Tonkin,  L.  U.  1  Eq. 
9;  11  .lur.  N.  S.  849,  M.  K. 

1"  Ord.  XXXVII.  9. 

11  Post,  Chap.  XVII.  §  3;  Ord.  XXXVII. 
4,  6.  As  the  time  for  demurring  aloue  runs 
from  appearance,  and  that  for  answering, 
pleading,  or  demurring,  not  demurring 
alone,  from  the  service  of  the  interroga- 
tories, it  se(!ms  that,  by  delaying  apjiear- 
ance,  the  defendant  may  obtain  a  longer 
time  ior  demurring  aloue  than  for  answer- 
ing, ]ileading,  or  demurring,  not  demur- 
ring alone.  See  Griining  v.  Prioleau,  uln 
sup. 

1^  Ord.  XXXVII.  13. 


592 


DEMURRERS. 


Cii.  XIV.§4. 


to  anuMuUil 
bill,  wlioiv 
doteiulant 
not  ri'unircd 
to  answer. 


Further  time 
to  demur 
alone. 


Demurrer 
cannot  be 
filed  after 
prescribed 
time. 


Demurrer 
and  answer. 


Demurrer 
and  answer 
filed  after 
attachment, 
or  after  a 
traversing 
note,  will  be 
irregular. 


Difference 
between 
taking  off"  the 
file  and 
overruling. 


served  witli,  but  is  not  rc(iiiiiv(l  to  auswei',  an  amended  bill,  a 
further  appearance  by  liini  is  nnneccssary  ;  and  no  time  is  fixed 
tor  his  demurring  alone  by  the  General  Orders ;  but  it  is  custom- 
ary, in  such  case,  to  file  the  demurrer  within  twelve  days  from  the 
service  of  the  co]>y  of  the  ainended  bill.^  It  would  seem,  how- 
ever, that  he  is  entitled  to  demur  within  twelve  days  after  the 
ex])iratiou  of  the  time  within  which  lie  might  have  a])peared,  if 
required  to  do  so  :  that  is,  within  twenty  days  from  the  service  of 
the  amended  bill.- 

The  Court,  under  the  former  ])ractice,  would,  on  a  special  case 
being  made,  have  allowed  a  defendant  to  put  in  a  demurrer  to  the 
Avhole  bill,  after  the  time  for  demurring  alone  had  expired ;  *  and 
it  is  presumed  that  this  would  be  allowed  under  the  present 
practice,"*  upon  the  delay  being  satisfictorily  accounted  for,  and 
u])on  a  special  application  being  made.^ 

A  demurrer  will  not  be  received  at  the  Record  and  Writ  Clerks' 
Office,  after  twelve  days  fi'om  the  entry  of  the  appearance,®  with- 
out a  special  order  enlarging  the  time,  or  giving  leave  to  file  it ; 
and  if,  by  inadvertance,  it  should  be  received,  it  will,  on  the  appli- 
cation of  the  plaintiff,  be  taken  off  the  file.^ 

A  demurrer,  to  Avhich  is  annexed  an  answer  to  any  material 
part  of  the  bill,  is  considered  an  answer  and  demurrer,  and  may 
be  filed  Avithin  the  time  limited  for  jileading,  answering,  or  de- 
murring, not  demurring  alone. ^ 

If  an  attachment  for  want  of  an  answer  has  been  issued  against 
a  defendant,  a  demurrer,  even  though  coupled  with  an  answer,  will 
be  irregular ;  and  in  such  case,  the  proper  course  is  to  move  that 
tlie  demurrer  and  answer  be  taken  off  the  file,  and  not  that  the 
demurrer  be  overruled;  and  taking  an  office  copy  does  not  waive 
the  right.^  And  so,  where  a  traversing  note  has  been  filed  and 
served,  a  defendant  cannot  denuir  without  special  leave.^° 

It  is  right  here  to  advert  to  the  distinction  in  2)ractice  between 
taking  a  deniurrer  and  answer  off  the  file,  and  simj)ly  overruling 

6  Braithwaite's  Pr.  59. 

"•  Dyson  v.  Benson,  G.  Coop.  110;  Cust 
1'.  Boodp,  1  S.  &  S.  21;  Burrall  v.  Kaine- 
teanx.  2  Paige,  .331. 

8  Osl)orn  V.  .lullion,  3  Drew.  552;  see 
also  L(l.  Red.  208,210;  Steplienton  v.  Gar- 
diner, 2  1'.  Wms.  286;  Tomkin  v.  Leth- 
bridge,  9  Ves.  178;  Taylor  ?'.  Milner,  10 
Ves.  444,440;  Baker  v.  Mellish,  11  Ves. 
73;  White  r.  Howard,  2  De  G.  &  S.  223; 
Read  r.  Barton,  3  K.  &  .).  106. 

9  Meilor  r.  Hall,  2  S.  &  S.  321;  Curzon 
V.  Lord  De  la  Zouch,  1  Swanst.  185,  193; 
Attorney-General  v.  Shield,  11  Beav.  441; 
Vigers  r.  Lord  Audley,  2  M.  &  C.  49,  52; 
15raiihwaire's  I'r.  59. 

10  Ord.  XIll.  7;  see  (mte,  p.  516. 


1  BraitbwRife's  Manual,  175. 

2  Clieesb(.roui,'li  v.  Wright,  28  Beav.  173; 
Braithwaite's  Manual,  175. 

3  Bruce  v.  Allen,  1  Mud.  556;  see  also 
Tavl'ir  r.  .Mihu-r,  10  Ves.  444;  Dolder  v. 
Lord  Huntingfield,  11  Ves.  283,293;  see 
Davenport  r.  Sniffen,  1  Barb.  Ch.  223; 
Lakens  v.  Fieldeii,  11  Paige,  644:  Bedell 
V.  Bedell,  2  Barb.  Ch.  99;  1  Smith  Ch.  Pr. 
(2d  Am.  ed.)  207,208;  Burrall  v.  Kaine- 
teaux,  2  Paige,  331 ;  2  Madd.  Ch.  Pr.  {4th 
Am.  ed.)  264,  265;  Kenrick  v.  Clayton,  2 
Bro.  C.  C.  (Perkins's  ed.)  214,  note  (1), 
and  cases  citi-d. 

■*  Ord.  XXXVII.  17;  see,  however,  Ord. 
XXX VI I.  3. 

5  For  forms  of  summons  in  such  case,  see 
Vol.  III. 


FILING,    SETTING   DOWN,    AND    HEARING   DEMURRERS. 


593 


the  demurrer,  thereby  leaA'ing  the  answer  on  the  file.     The  former  Cn.  XlY.  §  4. 

course  appears  to  be  the  one  adopted,  in  all  eases  where  there  has   "■ y ' 

been  an  irregularity  in  the  formal  parts  or  the  fiUng  of  the  de- 
muiTer,  whether  it  be  accompanied  by  an  answer  or  uot.^  The 
latter  course  is  adopted,  wherever  the  demurrer  has  been  properly 
filed,  but  the  Court  is  of  opinion  that  it  is  insufficient,  or  that  it 
has  been  oveiTuled  by  the  answer, 

Wiiere  a  demun-er  has  been  taken  off  the  file  for  irregvilarity,  it  in  what  man- 
ceases  to  be  a  record  of  the  Court,  and  the  defendant  may,  there-  "^'^g  g'Jg^ 
fore,  put  in  a  plea,  or  another  demurrer  (if  his  time  for  demurring 
has  not  expired),  as  if  no  demurrer  had  been  filed ;  but  the  de- 
murrer is  not  taken  ofi"  the  file  by  the  mere  pronouncing  of  the 
order:  it  must  actually  be  i^dthdrawn  from  the  file.^  To  effect 
this,  the  order,  when  drawn  up,  should  be  carried  to  the  Recoi-d 
and  "Writ  Clerk  :  wlio  will  withdraw  the  demurrer,  annexing  the 
order  to  it.^ 

Notice  of  filing  the  demurrer  must  be  served  on  the  plaintiff,  or  Notice  of 
liis  solicitor,  on  the  day  on  which  it  is  filed,  before  seven  o'clock  filmg. 
in  the  evening,  or,  if  on  a  Saturday,  before  two  o'clock  in  the 
afternoon.*    Xeglect  to  do  so  will  not,  however,  render  the  de-  Consequences 
murrer  inoperative;  but  the  time  allowed  to  the  opposite  party  to^'f^^gn'oS. 
for  taking  the  next  step  in  the  cause  will  be  extended,  so  as  to 
give  him  the  benefit  of  the  time  he  would  otherwise  lose  by  the 
delay  in  the  service.^ 

Upon  the  demurrer  being  filed,  the  plaintiff  should  take  an  riaintiflf's 
office  copy ; "  and  if  he  apprehends  that  the  demurrer  will  hold  ^i^;,;:;^'^^;^^''^ 
good,  he  should  either  obtain  an  order  to  dismiss  his  bill  with   aied. 
costs,"  or,  if  he  thinks  the  defect  can  be  remedied  by  amendment, 
he  may  obtain  an  order  of  course,  on  motion  or  petition,  to  amend  in  what  cases, 
his  bill,  in  the  usual  way,  upon  payment  of  20s.  costs.*     This,   p,!|i,Jt^fl''',„ay 
however,  can  only  be   done  before   the  demurrer  has   been   set  anund  after 
down :    afterwards,  tlie  plaintiff  must  pay  the  defendant's  taxed  gi^ll"^'^'^'^ 
costs  of  amending,  and  of  the  demurrer;''  and  must  make  a  special 
ajtplication,  by  summons,  for  leave  to  amend.^^     The  206-.  cover 

1  Leave  to  amend  the  title  of  a  joint  de-       Hare,  207,  overruled  on  appeal,  ib.  210;  11 
murrer  and  answer  hiis  been  given,  on  the       Jur.  49. 

hcannj;  ot  a  motion  to  take  it  oil' the  file  <>  liruitlnvaite's  Pr.  4'.il. 

forirrej?ul>irity.  Osborn  c.  Jullion,3  Drew.  '  Skc  post,  Chap.  XIX.  ^  1,  Dismissing 

biyi,  bbi.  Hills 

2  Cost  I'.  Boode,  1  S.  &  S.  21.  »  See  an(,e,  p.  411.     For  forms  of  motion 

3  //jiil.  paper  and  petition,  see  Vol.  IK. 

^  Ord.  III.  9;  f)rd.  XX.WII.  2;  ante,  '■>  WMrburton  v.  London  and  15!ackwall 

pp.  4')},  450.     I'(ir  torm  of  notice,  sec  Vol.  I!ailw:iy  Compiiiy,  2  Ui-av.'l'ui;  1  learn  t'. 

III.  Way,  U  IJeav.  368;  Hodick  r.  Kevnolds,  9 

<■'  Wright  '•.  Angle,  6  Hare,  107;  Lowe  W."K.  31)8,  V.  (J.   K.     If  he  neglects  to 

1).  WillianiH,  12  I'.eav.  4^2;  .Fones »'.  .Tones,  nmind  within  the  proper  time,  the  hill  is 

1  Jnr.  N.  S.  My.i,  V.  C.S.;  Llnyd  r  Solici-  gone.     / b.  431. 

tors  and  (ictieral  Life  Assurance  (,'onipiinv,  '"   lloflick  «.  Revnohh,  ithi  tup.    Forform 

3  W.  K.  «40;  24  L.  .1.  <;ii.  704,  V.  0.  W'. ;  of  summons,  see  Vol.  III. 
see,  however,   Matthews  v.  Chichester,  6 
VOL.  I.                                                      38 


594 


DEMURRERS. 


Cii.  XIV.54. 


Eitlipr  party 
may  sset 
down  t lu- 
ll euuinvr. 


Tiino  allowed 
to  sot  down 
deimirror, 
aud  conse- 
quence of 
ueslect. 


When  plain- 
titt'  may  set 
down,  or 
amend,  after 
period  lixed. 

Costs  of 
demurrer  not 
set  do\vn. 


Vacations. 


Plaintiff 
should  set 
down. 


Order  to  set 
down  de- 
murrer: how 
obtained, 
and  demurrer 
how  set 
down. 


:ill  the  costs  of  1I10  (loinunvr ;  hut  -wlion  the  doinurrcr  Ims  been 
projiarod,  tlioug-h  not  actually  on  the  lile,  before  the  amcudnient, 
the  costs  M'ill  be  costs  in  the  cause.' 

It  was  formerly  necessary,  aftiT  lilin!;-  a  demurrer,  to  enter  it 
Avith  the  Registrar.  This  need  not  now  be  done  ;  but  u])ou  the 
tiling  thereof  by  the  defendant,  eitlier  party  may  set  the  demurrer 
down  for  argument  immediately." 

"\^'here  a  demurrer  to  the  wliolc  bill  is  not  set  down  for  argu- 
ment within  twelve  days  after  the  filing  thereof,  and  where  a  de- 
murrer to  i)art  of  a  bill  is  not  set  down  Avitliin  three  weeks  after 
the  tiling  thereof,  and  the  plaintitf  does  not  Avithin  such  tAvelve 
days  or  three  weeks,  as  the  case  may  be,  serve  an  order  for  leave 
to  amend  the  bill,  the  demurrer  will  be  held  sufficient  to  the  same 
extent,  and  for  the  same  purposes,  and  the  plaintiff  is  to  pay  to 
the  demurring  party  the  same  costs,  as  in  the  case  of  a  demurrer 
to  the  whole,  or  part  of  a  bill,  as  the  case  may  be,  allowed  upon 
argument.^ 

In  order  to  entitle  a  plaintiff  to  be  relieved  against  the  conse- 
quences of  not  setting  down  the  demurrer,  or  obtaining  an  order 
to  amend,  Avithin  the  periods  fixed  l)y  the  General  Orders,  he  must 
make  out  a  clear  case  of  accident,  mistake,  or  surprise.* 

The  order  for  payment  of  the  costs  of  a  demurrer,  neglected  to 
be  set  down,  is  an  order  of  course,  and  may  be  obtained  on  petition 
at  the  Rolls,  or  on  motion.^ 

The. times  of  vacation  are  not  reckoned  in  the  computation  of 
time  for  setting  doAvn  demurrers,® 

As,  in  the  event  of  a  demurrer  not  being  set  down  fiDr  argument 
within  the  limited  period,  the  defendant  derives  the  same  benefit 
as  by  its  allowance,  the  duty  is  cast  upon  the  plaintiff,  if  he  is  de- 
sirous that  it  should  be  submitted  to  the  judgment  of  the  Court, 
of  having  it  set  down.'' 

The  party  wishing  to  set  down  a  demurrer  for  argument  must 
obtain  an  order  for  that  purpose.  Unless  si)ecially  directed  by  an 
order  of  the  Lord  Chanc;ellor  or  Lords  Justices,  the  demurrer  must 
be  set  down  to  be  heard  before  the  Judge  to  whose  Court  the  cause 


1  Bainbri<,'Ke  v.  Moss,  3  K.  &  J.  62;  3 
Jur.  N.  S.  1117. 

•■i  Ord.  XIV.  n. 

8  Ord.  XIV.  14,  15;  Matthews  v.  Chi- 
chester, 5  Hare,  207;  on  appqal,  i6.  210; 
11  Jur.  48;  Keg.  Itegul.,  15  March,  1860, 
r.  4. 

•*  Knight  V.  Marjoribanks,  14  Sim.  198; 
decided,  however,  on  the  34tli  Ord.  of 
Aug.,  1841;  Sand.  Ord.  884;  3  Beav. 
xxii.;  Matthews  v.  Chichester,  11  .Jur.  49, 
L.  C;  decided  on  the  4Gth  Ord.  of  Maj', 
1845;  Sand.  Ord.  1000;  7  Beav.  xli.;  1 
Phil.  Ixxxvi.,  which  was  similar;  over- 
ruling S.  C.  5  Hare,  207. 


''  Jacobs  V.  Hooper,  1  W.  R.  0.  For 
form  of  order,  see  Seton,  1257,  No.  11; 
and  for  forms  of  petition  aud  motion  pa- 
per, see  Vol  HI. 

6  Ord.  XXXVH.  13  (3). 

7  By  the  33d  Equity  Rule  of  tlie  United 
States  Courts,  the  i)hiintitt"may  set  down 
the  demurrer  or  (ilea  to  be  argued,  or  he 
may  take  issue  on  tlie  plea.  If,  upon  an 
issue,  the  facts  stated  in  the  plea  be  deter- 
mined for  the  defendant,  they  shitll  avail 
him,  as  f:ir  as  in  Law  and  Equity  they 
ought  to  avail  him. 


FILING,    SETTING    DOWN,    AND    HEARING   DEMURRERS. 


595 


is  attached.^  If  the  cause  is  attached  to  the  Court  of  one  of  the  Cii.  XIV.  §  4. 
Yice-Chancellors,  this  order  is  obtained  on  a  petition  of  course,  to 
the  Lord  Chancellor,  being  left  at  the  order  of  coui-se  seat  in  the 
Eegistrars'  Office,  and  is  dated  the  day  the  petition  is  left ;  and 
the  demurrer  is  set  doym  by  the  order  of  course  Clerk  the  same 
day.  If  the  cause  is  attached  to  the  Rolls  Court,  the  order  is  ob- 
tained on  a  petition  of  course  to  the  Master  of  the  Rolls  being  left 
with  his  under-secretary ;  the  order  is  then  taken  by  the  solicitor 
to  the  order  of  course  seat  in  the  Registrars'  Office,  and  the  de- 
murrer will  be  set  down  by  the  order  of  course  Clerk  on  the  day 
the  order  is  left.^ 

The  petition  must  state  to  what  Court  the  cause  is  attached,'^ 
the  day  when  the  demuiTcr  was  filed,  and  whether  it  be  to  the 
whole,  or  part  of  the  bill ;  and  be  subscribed  by  the  solicitor ;  and, 
if  presented  to  the  Lord  Chancellor,  it  does  not  require  any  fiat  or 
stamp.'* 

If  by  inadvertence  the  demurrer  is  not  actually  set  down  on  the 
day  the  petition  or  order  is  left  at  the  Registrars'  Office,  it  will 
nevertheless  be  considered  to  have  been  set  down  on  that  day.^ 

The  order  directs  the  demurrer  to  be  set  down  next  after  the 
pleas,  demun-ers,  and  exceptions  to  answers  already  appointed  for 
hearing ;  and  it  must  be  served  upon  the  solicitor  for  the  oppo- 
site party,  at  least  two  clear  days  before  the  day  appointed  for 
hearing. 

If  the  defendant  is  desirous  of  withdrawing  his  demurrer,  he 
may  do  so,  even  after  it  has  been  set  down,  on  payment  of  costs.*' 

A  demun-er  is  not  usually  put  in  the  paper  for  hearing,  in  Vice- 
Chancellors'  causes,  until  six  clear  days,  and  in  Rolls'  causes,  until 
two  clear  days  have  elapsed  since  it  was  set  down. 

Before  the  demurrer  is  heard,  two  printed  copies  of  the  bill,  and 
a  copy  of  the  demun-er  must  be  left  with  the  train-bearer  of  the 
Vicc-CIiancellor,  or,  in  a  Rolls'  cause,  with  either  the  under-secre- 
tary or  train-ljearer,  for  the  use  of  the  Court.'' 

In  general,  the  Court  will  not  advance  a  demurrer ;  ^  in  cases, 
however,  of  bills  for  injunction,  as  an  injunction  will  not  usually 
be  granted  pending  a  demurrer,  the  Court  will,  upon  apiilicatioii, 


Contents  of 
petition  to 
set  down. 


Where 
demurrer 
inadvertentl}- 
oniitted  to  be 
set  down. 

Service  of 
order  to  set 

dOWTl. 


Withdrawal 
of  demurrer. 

Demurrer: 
wlien  phiced 
in  Court 
paper. 

I*a])er8  ff>r 
Judge. 


Advancing 
the  hearing. 


1  Ord.  VI.  4. 

2  Ord.  XXI.  9;  Reg.  Regul.  15  March, 
18G0,  rr.  1,  '2,  3.  For  form  of  order,  see 
Seton,  l".irj7,  Xo.  10;  and  for  forms  of  pe- 
tition, see  X'A.  III. 

8  Ord.  XIV.  10. 

*  Keg.  Hegul.  15  March,  1800,  r.  3. 

<>  Kgrcmont  v.  Cowell,  5  Beav.  G17;  7 
Jur.  52. 

"  Downes  V.  East  India  Compan)-,  6  Ves. 
68C.  In  lIolU'  causes,  the  onler  may,  by 
consent,  be  obtained  on  petition  of  course; 
for  form  of  j)etition,  see  Vol.  III.      For 


order,  by  consent,  directing  demurrer  to 
be  witiidriiwn,  and  extending  time  to  an- 
swer, see  Setoii,  1251),  No.  15. 

7  If  this  is  neglected,  the  solicitor  may 
be  ordered  to  pay  costs  Ord.  XXI.  12. 
Counsel's  brief  consists  of  copii's  of  tlio 
bill  and  demurrer.  In  Ernest  r.  I'arln.l  'fl, 
11  W.  li.  715,  V.  C.  W.,  the  charge  for  ob- 
servations was  disallowed,  on  a  parly  and 
party  taxation;  see  Morgan  iSc  Davey, 
354. 

8  Auon.,  1.  Mad.  557. 


596 


DEMURRERS. 


Cn.  XIV,  M. 


Iloarinj;  of 
tU'imin'or: 


whore  ilefoiul- 
aiit  omits  to 
appear; 


where  plain- 
tiff omits  to 
appear. 


Where 
demurrer 
struck  out. 


Manner  ot 
hearing. 


wliore  llie  luaKor  is  pressini!;,  t)r(]or  the  (U'liuirror  to  be  nvguod  im- 
inoiliately.^ 

When  n  ileinurriT  i.s  called  en  lor  liearing,  and  tlic  defendant 
omits  to  apjtear,  the  deinuner  will  he  stniek  out  of  the  paper, 
unless  tlie  ])laintitK  if  he  has  set  down  the  demurrer,  can  produce 
an  aliidavit  of  serviee  upon  the  defendant  or  his  solicitor  of  the 
order  to  set  it  doAvn  ;  or,  if  the  defendant  set  down  the  demurrer, 
unless  the  plaintift'  can  produce  an  affidavit  of  service  upon  him- 
self of  the  order  for  setting  down  tlic  demurrer.'^  If  the  ])laintiff 
can  ])roduce  such  an  affidavit,  it  is  conceived  that  the  demurrer 
would  be  OAcrruled,  as  in  the  case  of  a  jolea.*  It  has  been  held, 
liowever,  that  in  such  a  case  the  demurrer  is  not  necessarily  over- 
ruled, but  the  plaintiff  must  be  heard  in  support  of  the  bill.*  When 
the  defendant  ai)i)ears,  and  the  plaintiff  does  not,  the  demurrer 
will  also  be  struck  out  of  the  paper,  unless  the  defendant  can  ])ro- 
duce  an  affidavit  of  service  u])on  himself  of  the  order  for  setting 
down  the  demurrer ;  or  unless,  in  the  event  of  the  defendant  hav- 
ing himself  set  down  the  demurrer,  he  can  produce  an  affidavit  of 
sei-\ice  by  him,  upon  the  plaintiff  or  his  solicitor.^  On  the  produc- 
tion of  such  an  affida\dt,  in  either  case,  the  defendant  may  have  the 
demurrer  allowed  with  costs.® 

Whei*e  a  demuiTer  has  been  struck  out  of  the  paper,  a  fresh 
order  must  be  obtained  for  setting  it  down,  which  may  be  had  upon 
jietition  of  course  as  before  explained,  provided  the  ap])lication  is 
made  within  the  time  allowed  to  set  down  the  demuri-er."'  If 
otheiT\"ise,  a  special  api:>lication  for  leave  to  set  it  down  must  be 
made. 

The  usual  course  of  proceeding,  when  the  demurrer  comes  on 
for  hearing,  and  all  parties  appear,  is  for  the  counsel  in  support  of 
the  demurrer  to  be  first  heard,  next  the  plaintiff's  counsel,  and  then 
the  leading  counsel  for  the  demurring  party  replies.  In  hearing  a 
demurrer,  the  argument  is  strictly  confined  to  the  case  appearing 
upon  the  record  ;  and  for  the  jourposes  of  the  argument  the  matters 
of  fact  stated  in  the  bill  are  admitted  to  be  true.^ 

Where  it  has  appeared,  upon  the  hearing  of  a  demurrer  to  the 


1  Cousins  t':  Smith,  13  Ves.  164,  167; 
Jones  V.  Tavlor,  2  Mad.  181;  Const  v. 
Harris,  T.  Ik.  li.  510,  n.;  London,  Chat- 
ham, and  Dover  Railway  Co.  i).  Imperial 
Mercantile  Credit  Association,  L.  K.  3  Ch. 
Ap.  231;  and  see  post,  Chap.  XXXVI. 
§  2,  Jrijuncliims.  Where  Justice  requires 
it,  an  injunction  will  be  granted  pending 
a  demurrer.  Wardle  v.  Ciaxton,  9  Sim. 
412. 

2  For  form  of  afiidavit  of  service,  see 
Vol.  III. 

8  MazaiTcdo  v.  Maitland,  2  Mad.  38. 
For  form  of  order  overruling  demurrer,  on 


non-appearance  of  defendant,  see  Seton, 
1258,  No.  13. 

*  Tenfold  V.  Ramsbottom,  1  Swanst. 
552. 

6  On  an  appeal  from  an  order  allowing 
a  demurrer  to  tiie  whole  bill,  the  plaintiff 
is  entitled  to  begin.  Attornej'  (General  v. 
Aspinall,  2  M.  &  C.  G13. 

o  Jennings  v.  I'carce,  1  Ves.  J.  447. 

7  Ante,  p.  694;  Ord.  XIV.  14,  15. 

8  Ante,  p.  543.  For  form  of  order  on  the 
hearing  of  a  demurrer,  sec  Seton,  1258, 
No.  12. 


EFFECT    OF    ALLOWING    DEMURRERS. 


597 


whole  bill,  that  the  defendant  is  entitled  to  demur  to  some  part  C""-  X^IV.  §  5 
only,  the  Court  has  permitted  the  demurrer  to  be  amended,  so  as 
to  confine  it  to  the  parts  to  which  the  defendant  has  a  right  to 
demur :  ^  in  such  cases,  however,  the  most  usual  course  is  to  over- 
rule the  demurrer,  and  to  give  the  defendant  leave  to  put  in  a 
new  demurrer  to  such  part  of  the  bill  as  he  may  be  advised.^ 

Where  a  demurrer  is  ordered  to  stand  over,  it  must  be  for  a 
definite  period.^ 


Ameudmeut 
of  demurrer 
permitted  at 
the  hearing. 


Where 
ordered  to 
stand  over. 


Section  V. —  The  Effect  of  allowing  Demurrers. 


Strictly  speaking,  upon  a  demuiTer  to  the  whole  bill  being 
alloAved,  the  bill  is  out  of  Court,  and  no  subsequent  proceeding 
can  be  taken  in  the  cause.'*  The  Court  often,  however,  on  hearing 
the  demurrer,  gives  leave  to  amend,  and  there  are  cases  in  which 
it  has  afterwards  permitted  an  amendment  to  be  made;^  and  it 
seems  that,  even  after  a  bill  has  been  dismissed  by  ordei-,  it  has 
been  considered  in  the  discretion  of  the  Court  to  set  the  cause  on 
foot  again.^ 

Where  the  plaintiff,  after  a  demurrer  had  been  alloAvcd,  improp- 
erly obtained  an  order  to  amend  his  bill,  and  the  defendant  de- 
murred, it  was  held,  that  by  demurring  the  defendant  had  waived 
the  iiTcgularity,  and  that  the  course  he  ought  to  have  taken  Avas, 
to  a])ply  to  discharge  the  order  to  amend  for  irregularity.'' 

Although  the  effect  of  allowing  a  demurrer  to  the  whole  bill  is 
to  put  the  cause  out  of  Court,  the  allowance  of  a  partial  demurrer 


Amendment 
of  bill,  after 
allowance  of 
demurrer. 


Order  to     . 
amend,  after 
demurrer  to 
wliole  bill 
allowed,  is 
irregular. 


Where  a  par- 
tial demuiTer 
allowed, 


1  Glegg  V.  Legh,  4  Mad.  193,  207; 
Marsh  V.  Marsh,  1  C.  E.  Green  (N.  J.), 
391,  397,  398. 

2  Thorpe  r.  Macauley,  5  Mad.  218,  231. 
In  Marsh  r.  Marsii,  1  C  K.  Green  (N.  .J.), 
391,  398,  the  demurrer  was  overruled,  with 
leave  to  luiiend  by  stating  the  grounds  of 
demurrer. 

«  Ord.  XXr.  13. 

*  Smilli  r.  Barnes,  1  Dick.  67;  Watkins 
r.  Bush,  2  Dick.  701 ;  see  Chuvete  i'.  Ma- 
80P,  4  (;re-n  (Iowa),  231. 

'>  Lord  Coniii^rsby  r.  Sir  ,1.  Jekvll,  2  P. 
Wins.  30(1 ;  I.loyd  v.  Loaring,  C  Ves.  773, 
779.  It  is  not  necessary  in  Massnchusetts, 
even  where  a  demurrer  poes  to  the  e(|uity 
of  the  whole  bill,  that  the  plaintiff  should 
make  a  motion  to  amend,  in  anticipiition 
of  an  adverse  decision.  According  to  the 
practice  in  this  State,  after  a  demurrer  is 
sustained,  the  case  is  not  regarded  as  out 
of  Court  so  that  it  cannot  be  reinstated  by 
amendment  in  mutters  of  substance,  be- 
cause iippliration  therefor  was  not  made 
before  the  clecision  on  the  demurrer  was 
pronf>unccd.  The  usual  mode  is  to  allow 
the  plaintifl*  a  reasonable  time  after  a  de- 


murrer has  been  sustained,  either  on  the 
ground  of  a  defect  in  form  or  for  want  of 
equity,  to  move  for  leave  to  aniend  his  bill 
for  the  purpose  of  supplying  the  defect,  or 
alleging  new  or  ad(lition:il  grounds  tor 
the  equitable  relief  whicli  he  seeks.  And 
such  amendments  are  always  allowed, 
unless  sufficient  cause  is  shown  to  the  con- 
trary. In  this  respect  the  |)ractice  of  the 
Court  is  verj'  liberal.  But  a  motion  to 
amend  is  not  allowed  as  a  matter  of  right. 
Merchants'  IJauk  of  Ncwburvport  v.  Ste- 
venson, 7  Allen,  489,  491.  "j{y  the  35th 
Rule  of  the  United  States  Courts,  if  a  de- 
murrer shall  be  allowed  upon  the  hearinjr, 
the  Court  may,  in  its  discretion,  upon  mo- 
tion of  the  f)laiMtill',  allow  him  to  amend 
Ills  itill  uiion  such  terms  as  it  shall  deem 
reasonal)le.  See  Alexander  v-  Moye,  38 
Miss.  040. 

"  I'er  r.ord  Eldon  in  Baker  v.  Mellisli, 
11  Ves.  08,  72.  It  is  conceived  that  this 
dictum  would  not  be  followed,  unless  in  a 
verv  special  case. 

7"  Watkins  v.  liush,  2  Uick.  701;  but 
see  ib.  702,  n. 


5i)8 


DEMURRERS. 


(■H.X1V.5' 


plniniilVinii 
pn)coeil  in 
tiio  cause. 


Lilicrty  to 

lUlUMul  tlic 
hill:  wlioii 
trivon. 


Whore 
demurrer 
allowed,  with 
leave  to 
amend,  costs 
are  iu  tlisere- 
tion  of  Court. 

Leave  to 
ameud  does 
not  preclude 
appeal  l)y 
plaintifl'; 
but  defend- 
ant, desirous 
to  appeal, 
should  apply 
to  stay 
amendment. 

Effect  of 
order  to 
amend  upon 
second 
amendment 
of  bill. 

When  demur- 
rer is  or  is 
not  a  bar  to 
a  new  bill. 


is  not  nttoitdoJ  willi  siu-li  :i  oonsoqueiu-o.  The  l)ill,  or  that  part  of 
it  \vhi(.'h  \N  as  not  covered  by  the  demurrer,  still  remains  in  Court, 
and  the  jdaintiff  may  obtain  an  order  to  amend,  or  adopt  any  other 
proceedings  in  tlie  cause,  in  the  same  manner  that  he  might  have 
done  had  there  i)een  no  demurrer.^ 

On  hearing  the  demurrer,  the  Court  Avill,  Avliere  it  sees  that  the 
detec-t  pointed  out  by  the  demurrer  can  be  remedied  by  amend- 
ment, and  substantial  justice  requires  it,  make  a  special  order  at 
the  hearing  of  the  demurrer,  adtipted  to  the  circumstances  of  the 
case;'^  and  where  an  order  was  made  allowing  the  deiinirrer,  and 
giving  leave  to  amend,  and  no  amendment  was  made  within  the 
proper  time,  it  was  held,  that  the  bill  was  not  out  of  Court.^ 

"When  the  demurrer  is  allowed,  and  leave  is  given  to  amend, 
there  is  no  rule  that  the  defendant  is  to  have  his  costs ;  but  they 
are  in  the  discretion  of  the  Court.^ 

Where,  upon  allowing  the  denmrrer,  leave  is  given  to  the  plain- 
tiff to  amend  his  bill,  he  is  not  thereby  prevented  fi-om  appealing 
against  the  order ;  ^  but  if  the  defendant  is  desirous  of  a])pealing 
from  such  order,  he  ought  to  apply  to  stay  the  amendment,  until 
the  appeal  has  been  disposed  of;  ^  or,  at  any  rate,  he  ought  not  to 
act  upon  the  order  giving  the  plaintiff  leave  to  amend :  as,  for 
instance,  by  demurring  to  the  amended  bill. 

It  may  be  observed,  that  the  amendment  of  a  bill,  in  pursuance 
of  an  order  made  upon  the  hearing  of  a  demurrer,  if  made  before 
the  defendant  answers,  will  not  preclude  a  plaintiff  fl'om  making 
one  amendment  after  answer,  upon  motion  of  course.'' 

A  demuiTcr,  being  frequently  on  matter  of  form,  is  not,  in  gen- 
eral, a  bar  to  a  new  bill ;  but  if  the  Court,  on  demurrer,  has  clearly 
decided  upon  the  merits  of  the  question  between  the  parties,  the 
decision  may  be  pleaded  in  another  suit.^ 

Where  a  demurrer  to  the  whole  or  part  of  a  bill  is  allowed  upon 


i  Ld.  Red.  215;  Emans  v.  Emans,  1  Mc- 
Carter(N.  .J.).  114,120. 

2  Ibid. ;  Wellesley  v.  VVellesley,  4  M.  & 
C.  554,  558;  4Jur.  2';  Schneider  r.  Lizardi, 
9  Beav.  461,  468;  Kawlings  v.  Lambert,  1 
J.  &  H.  458;  leave  to  amend  is  not  piven 
as  a  matter  of  course.  Osborne  v.  Julliou, 
3  Drew.  596;  and  see  Watts  v.  Lord  Kg- 
liiiton,  1  C.  P.  Coop.  t.  Cott,  29,  and  the 
cases  there  collected;  and  as  to  leave  to 
amend  given  after  demurrer  for  want  of 
parties,  see  Tyler  v.  Bell.  2  AL  &  C.  89, 
104,  110,  and  the  cases  there  cited;  1  Jur. 
20. 

«  Deeks  v.  Stanhope,  1  .Jur.  N.  S.  41.3, 
V.  C-  K. ;  see,  however,  Hoflick  v  Rey- 
nolds, 9  W.  K.  431,  V.  C.  K.;  and  Armi- 
stead  V.  Durham,  11  Beav.  428;  13  Jur. 
330. 

■*  Schneider  f.  Lizardi,  «&!««/?. ;  Botliom- 
ley  V.  Squires,  1  Jur.  N.  S.  694,  V.  C.  K. ; 


and  see  Harding  v.  Tiiigey,  12  W.  R.  703, 
V.  C.  K.  In  New  Jersey,  the  Court  has 
no  discretionary  power  in  such  a  case. 
The  costs  are  fixed  bv  the  Chancery  Act. 
Hicks  V.  Campbell,  4'C.  E.  Green  (N.  J.), 
183,  187. 

6  Lidbetter  v.  Long,  4  M.  &  C.  286; 
Davis  V.  Chanter,  2  Phil.  545,  547.  For 
form  of  order  on  appeal,  see  Seton,  1152, 
No.  3;  and  for  form  of  notice  of  appeal, 
see  V'^ol.  in. 

6  Wellesley  v.  Wellesley,  4  M.  &  C.  554, 
556  ;  4  Jur.  2. 

"!  Pesheller  v.  Hammett,  3  Sim.  389; 
Bainbrigge  v.  Badilcley,  12  Beav.  152;  13 
Jur.  997  ;  and  see  Ord.'lX.  13. 

8  Ld  Red.  210;  and  see  Londonderry 
(Ladv)v.  Baker,  3  (Jilf.  128;  affirmed,  7 
Jur.  "N.  S.  811,  L.J. L;  (Oriental  Steam 
Company  v.  Briggs,  8  Jur.  N.  S.  201,  204; 
10  W.  R.  125,  L.  C. 


EFFECT    OF   ALLOWING   DEMURRERS. 


599 


argument,  the  plaintiff,  unless  the  Court  otherwise  directs,  is  to  pay 
to  the  demm-ring  party  the  costs  of  the  demurrer ;  and  if  the  de- 
murrer be  to  the  whole  hill,  the  costs  of  the  suit  also,^  including 
the  costs  of  a  motion  for  an  injunction,  or  other  motion  pending 
in  the  suit.'^ 

AVliere  any  grounds  of  demurrer  are  urged,  on  arguing  a  de- 
murrer, beyond  the  grounds  therein  expressed,  and  those  grounds 
which  are  so  expressed  are  disallowed,  the  defendant  will  have  to 
pay  the  same  costs  as  if  the  demun-er  were  overruled,*  although 
the  grounds  of  demuiTcr  so  newly  urged  may  be  allowed.* 

In  general,  however,  where  the  demurrer,  ore  tenus,  has  been 
allowed,  and  the  Court  has  given  the  plaintiff  leave  to  amend  his 
bill,  the  course  of  the  Court  appears  to  be  to  make  him  liable  to 
the  costs  of  the  demurrer.^  The  rule,  however,  with  respect  to 
costs  upon  such  occasions,  is  not  imperative,  and  the  Court  has  a 
discretionary  power ;  ®  and  therefore,  where  Sir  Lancelot  ShadweU 
V.  C.  upon  alloAving  a  demun-er  ore  tenus,  for  want  of  parties, 
ordered  the  defendant  to  pay  the  costs  of  the  demurrer  on  the 
record,  although  he  had  given  the  plaintiff  leave  to  amend  his  bill 
generally,  Lord  Cottenham  refused  to  interfere.' 

Where  a  demun-er  is  put  in  on  two  grounds  as  to  one  of  which 
it  succeeds,  but  fails  as  to  the  other,  no  costs  Avill  in  general  be 
given.® 

Where  a  demun-er  to  a  bill  is  allowed,  and  afterwards  the  order 
allowing  it  is,  upon  re-argument,  reversed,  tlie  defendant,  if  he  has 
received  the  costs  fi-om  the  plamtiff,  will  be  ordered  to  refund  them, 
upon  application  by  the  plaintiff;^  and  so,  if  a  demurrer  has  been 
oven-uled,  and  the  order  is  reversed  u]ion  re-hearing,  the  plaintiff, 
if  he  lias  received  costs  from  the  defendant,  must  refund  them. 

One  of  several  defendants  who  has  demiirred  successfully,  is 
entitled,  as  of  right,  to  have  his  name  struck  out  of  the  record ; 
and  may  apjjly  to  the  Court  by  motion  for  this  puri^ose.^" 


Ch.  xiy.  §  5. 


1  Ord.  XIV.  13;  see  Rule  35  of  the 
United  States  Courts.  For  cases  where 
the  Court  (Urected  otlierwise,  see  Schneider 
r.  Lizardi,  'J  IJeav.  401,408;  liotiiomlcj' 
V.  Squires,  1  .Jur.  N.  S.  6U4,  V.  C.  K. ; 
Morii^iin  &  Oiivey,  21.  For  precedent  of  a 
bill  of  costs  for  preparing  and  setting  down 
a  demurrcfr,  sec  i/j.  403. 

2  (Jliidstone  V.  Ottoman  Bank,  1  H.  & 
M.  fjOo;  0  Jur.  N.  S.  246;  Morgan  & 
Diivey.  22. 

8  That  is  to  Bay,  the  costs  occasioned  by 
the  demurrer,  unless  the  Court  otherwise 
directs;  sc;  Ord.  XIV.  12. 

*  (»rd.  -XIV  1;  Tr.urton  v.  Flower,  3  I'. 
Wms.  371;  Wood  »'.  Th<.ni[ison,  2  Dick. 
510;  Attorncv-fJeneral  r.  firown,  1  Swiinst. 
205,  2(58;  MoVtimer  v.  Fraser,  2  M.  &  C 


■where 
demuiTer 
we  tenus 
is  allowed ; 


where  leave 
to  amend  is 
given ; 


where 
demm-rer 
succeeds  in 
part,  and  fails 
in  part; 

where  order 
on  demurrer 
reversed. 


Name  of 
defendant, 
successfully 
demurring 
struck  out. 


173,174;  M'lntyrev.  Connell,  1  Sim.  N. 
S.  257,  258;  see  also  Lund  r.  Blansliard,  4 
Hare,  23;  Brown  v.  Douglas,  11  Sim. 
283;  Thompson  v.  University  of  London, 
10  Jnr.  N.  S.  CG9,  671;  33  L.  J.  Ch.  025, 
630,  V.  C.  K. 

''  Newton  v.  Lord  Egmont,  4  Sim.  574, 
585. 

0  Ord.  XIV.  1,  12. 

T  Mortimer  v.  Fraser,  2  M.  &  C.  173. 

8  Benson  r.  Iladfudd,  6  Beav.  546,  554; 
and  see  Allan  v.  Ilouldcn,  6  Beav.  148, 
150;  Morgan  &  Davey,  18. 

9  Oats  V.  Cliapniau,  1  Ves.  S.  542;  S.  C. 
2  Ves.  S.  100;   1  Dick.  14H. 

1"  B:irrv  I',  frnskey,  2  .1.  &  H.  136;  8 
Jur.  N.  ^.  10  Seton,  1268.  For  form  of 
notice  of  motion,  sec  Vol.  HI. 


DEMURRERS. 


Section  YT. —  77h'  Effect  of  overruling  Demurrers. 


DomiiiTor 
cnniiot  .-trtiul 
lor  answer. 
Arter  (lonnir- 
nr  to  tlie 
wliolo  l.ill 
ovorruU'il, 
no  second 
di-nuiiTor 
alloweil.  un- 
less it  be  less 
extended ; 


but  no  second 
demurrer 
without 
leave. 


After  demur- 
rer overruled, 
defendant 
may  plead ; 


but  not  with- 
out leave. 


If  no  leave, 
defendant 
must  answer, 


A  (li'inurrov,  being  n  iinito  thing,  cniuiot  be  ordevod  to  stand  for 
nn  ansMer.^ 

At'tiT  a  (loniunvr  to  Uu-  wliolo  hill  has  ))oen  ovorrulotl,  a  second 
dcniuvrer  to  the  same  extent  cannot  be  allowed,  for  it  would  be  in 
effect  to  re-hear  the  case  on  the  first  demurrer:  as,  on  argument 
of  a  demurrer,  any  cause  of  demun-er,  though  not  shown  in  the 
demurrer  as  filed,  may  be  alleged  at  the  bar,  and  if  good  will  sup- 
]iort  the  demurrer."  A  demurrer,  however,  of  a  less  extensive 
nature,  may,  in  some  cases,  be  put  in  ;  and  where  the  substance 
of  a  demurrer  was  good,  but  informally  pleaded,  liberty  was  given 
to  take  it  oft"  the  file,  and  to  demur  again,  on  payment  of  costs ;  ^ 
and  a  defendant  has  been  allowed  to  amend  his  demurrer,  so  as  to 
make  it  less  extensive.* 

A  second  demurrer,  however,  though  less  extended  than  the 
first,  cannot,  after  the  first  demurrer  has  been  overruled,  be  put  in 
without  leave  of  the  Com-t ;  but  the  case  is  different  where  the 
first  has  been  taken  oft"  the  file  for  irregularity.  This  leave  is  gen- 
erally granted,  upon  hearing  the  first  demurrer ;  but  it  has  been 
permitted  upon  a  subsequent  application  by  motion. 

Although  a  defendant  cannot,  after  the  Court  has  overruled  his 
demurrer  to  the  whole  bill,  again  avail  himself  of  the  same  method 
of  defence,  yet,  as  it  sometimes  happens  that  a  bill  which,  if  all  the 
parts  of  the  case  were  disclosed,  would  be  open  to  a  demurrer,  is 
so  artfully  drawn  as  to  avoid  showing  upon  the  face  of  it  any 
ground  for  demurring,  the  defendant  may,  in  such  case,  make  the 
same  defence  by  plea :  stating  the  fiicts  which  are  necessary  to 
bring  the  case  truly  before  Court.^  As  it  is,  however,  the  rule  of 
the  Court  not  to  allow  two  dilatories  without  leave,  or,  in  other 
Avords,  as  the  defendant  is  only  permitted  once  to  delay  his  answer 
by  plea  or  demurrer,  without  leave  of  the  Court,  he  must,  previ- 
ously to  filing  his  plea,  obtain  the  leave  of  the  Court  to  do  so : 
otherwise,  his  plea  may  be  taken  oflf  the  file.® 

From  what  has  been  said  it  results  that,  after  a  demurrer  to  the 
whole  bill  has  been  overruled,  the  defendant,  unless  he  obtains 
leave  to  put  in  a  demurrer  of  a  less  extended  nature,  or  a  ])lea 
either  to  the  whole  bill  or  to  some  part  of  it,  must,  if  required, 
put  in  a  full  answer ;  and  the  Com-t,  on  overruling  the  demurrer. 


1  Anon.,  3  Atk.  530. 

2  Ld.  Red.  217. 

8  Devonsher  v.  Newenham,  2  Sch.  & 
Lef.  199. 

*  GlefTg  V.  Legh,  4  Mad.  193.  207; 
Thorpe  v.  Macauley,  5  Mad.  218,  231.    A 


clerical  error  may  be  amended,  on  an  ex 
parte  orfler,  before  the  twelve  days  have 
expired.  Kicliardson  v.  Hastings,  7  Beav. 
58. 

c  \A.  Red.  216. 

8  Rowley  v.  Eccles,  1  S.  &  S.  511,  512. 


EFFECT  OF  OVERRULING  DEMURRERS. 


601 


will,  on  the  application  of  the  defendant,  fix  a  time  for  his  so  do- 
ing ;  if  no  time  is  fixed,  the  defendant  must  put  in  his  answer 
Avithin  the  usual  time  (if  it  has  not  expired),  or  make  a  special 
application,  by  summons,  for  further  time.^ 

Where  the  demurrer  is  not  to  the  whole  bill,  and  is  accompanied 
by  an  answer,  the  plaintifi",  after  the  demurrer  is  overruled,  if  he 
wishes  for  a  further  answei-,  must  excejit  to  the  answer  for  insufii- 
ciency ;  and,  therefore,  the  defendant  need  not  put  in  any  further 
answer  until  after  the  plaintiff  has  taken  exceptions  to  the  answer 
already  put  in,  and  such  exceptions  have  been  either  allowed  or 
submitted  to.^  Generally,  the  plaintiff  should  not  excej)t  to  the 
answer  until  the  demurrer  has  been  decided  upon  :  otherwise  he 
admits  the  demurrer  to  be  good.^  Where,  however,  the  defendant 
demurs  to  the  relief  only,  and  answers  as  to  the  discovery,  the 
plaintiff  may,  it  seems,  except  to  the  answer  before  the  demurrer 
is  heard.* 

Although,  generally,  where  the  plaintiff  amends  otherwise  than 
by  adding  parties,  he  loses  his  right  to  except  to  the  answer  for 
insufficiency,  yet,  where  a  demurrer  has  been  overruled,  he  is  not, 
by  amending  generally,  precluded  from  calling  for  an  answer  to 
that  part  of  the  interrogatories  covered  by  the  demurrer.® 

Where  a  demurrer  is  overruled,  and  the  plaintiff  amends  his 
bill,  the  defendant  is  not  precluded  fi-om  appealing  against  the 
order  overruling  the  demurrer;*'  but  after  the  defendant  has  served 
the  plaintiff  with  notice  of  the  appeal,  an  order  of  course  to  amend 
the  bill  is  iiTcgular,  and  will  be  discharged  with  costs,  and  the 
amendments  expunged.'' 

don,  12  Beav.  217;  see  Kuvpeis  v.  Ref. 
Dutch  Church,  6  Paige,  570." 

'  I-d.  Had.  317;  London  Assurance  v. 
East  Indhi  Company,  3  P.  Wms.  325; 
Bovd  V.  Mills,  13  Ves.  85. 

4  I.d.  Red.  317;  3  P.  Wms.  327,  n.  (S). 

s  Tavlor  v.  Bailey,  3  M.  &  C.  677,  681; 
3  .lur.  308. 

«  Jackson  v.  North  Wales  Railway 
Company,  13  .Tur.  69,  L.  C.  Alter  de- 
murrer to  a  bill  was  overruled,  and  time 
given  to  iinswer,  tlie  defendant  was  allowed 
to  demur  again  without  le:ive  first  obtained, 
on  the  plaintiff's  amendiuff  his  bill  by 
joining  a  new  party  plaintifF.  Moore  v. 
Armstrong,  9  I'ortcr,  097.  So  where  an 
atnenilment  is  made  to  a  bill  before  an- 
swer tiled,  even  if  it  be  imnniterial  and 
trivial,  a  ilefcndant  may  demur,  de  novo, 
to  the  wlmle  bill;  the  defendiint  may 
demur  to  the  amendment  at  any  time. 
Booth  V.  Stumper,  10  CiiO.  10!i.  But 
when  an  answer  has  been  filed,  the  ildVnd- 
ant  cannol,  after  demurrer  made  anil  ilc- 
cided,  demur  again  to  the  whole  bill, 
unless  the  amendment  is  material.     Ibid. 

">  Aiuslie  v.  Sims,  17  Beav.  174. 


Cii.  XIV.  §  6. 


Where  par- 
tial demurrer 
overruled, 
defendant 
need 

not  answer 
further  till 
plaintiff  ha3 
excepted. 

Time  for 
excepting. 


1  Trim.  v.  Baker,  1  S.  &  S.  469;  T.  & 
R.  253;  Waterton  v.  Croft,  6  Sim.  431, 
438;  see  Atlantic  Ins.  Co.  v.  Lemar,  10 
Paige,  385;  Henderson  v.  Dennison,  1 
Carter  (Ind.),  152;  Fleece  v.  Russell,  13 
111.  31;  Xorth  Western  Bank  v.  Nelson,  1 
Crattan,  108;  Sutton  v.  Gatewood,6  Munf. 
398;  Lafavour  v.  .Justice,  5  Blackf.  336; 
Puterbaugh  v.  Elliott,  22  III.  157.  Where 
a  demurrer  to  a  bill,  for  want  of  ef|uity  is 
overrulerj,  a  final  decree,  without  giving 
the  defendant  an  opportunity  to  denv  the 
allegations  in  the  bill,  is  erroneous,  ijmith 
r.  Ballantyne,  10  Paige,  101;  Forrest  v. 
Kobin^on,  4  Porter,  44;  Holtorf  i'.  Conner, 
1  Blackf.  2H7;  Uole  County  v.  Augney, 
12  Miss    132. 

In  Maine,  Walton  J.  in  Lambert  v.  Lam- 
bert, 52  Maine,  544,  545,  remarked  that 
the  overruling  of  a  demurrer  in  Kipiity  is 
never  followed  by  a  decree  making  a  final 
disjio'^ilion  of  the  case;  the  order  is  that 
the  party  demurring  answer  furtlier.  And 
he  added:  "The  entry  in  this  case  should 
he.,  '  demurrer  to  rrosi^jiU  overruled — fur- 
ther tiii.twer  vi-fiuired.'  " 

2  Cotes  1).  'lurner,  Bunb.  123;  and  see 
Attorney-General  r.  Corporation  of  Lon- 


General 
amendment, 
after  demur- 
rer overruled, 
does  not  pre- 
clude right  to 
an  answer  to 
interrogato- 
ries covered 
by  demurrer; 
nor  an 
appeal ; 
but  order  of 
course  to 
amend,  after 
notice  of 
appeal,  is 
irregular; 


602 


DEMURRERS. 


Cn.XlV.§(V 


Rosorvation, 
till  hoariiii;, 
of  questiou 
raisoil  liy 
di'umrri'r. 


Costs. 


T\Ticrc  gen- 
eral (leinurrcr 
overrulod, 
plaint  irt'  may 
tile  traversing 
note  imme- 
diately, or 
after  time 
given  to 
plead,  6ze. 


.\tU'r  a  (lemurror  has  hoou  ovovruled,  and  notice  of  appeal  given, 
the  plaintifV  cannot  obtain  an  order  of  conrse  to  dismiss  his  hill, 
with  costs.^ 

The  Court  will  often,  altliough  it  ovcrrnli's  the  demnrrer,  reserve 
to  the  defendant  the  right  of  raising  the  same  question  at  the 
hearing  of  the  cause  ; "  and  Avhere  there  is  a  doubtful  question  on 
a  title,  the  Court  will  sometimes  overrule  the  demurrer,  without 
prejudice  to  any  defence  the  defendant  may  make  by  way  of  an- 
SAver.^ 

"Where  any  demuirer  is  overruled,  the  defendant  is  to  pay  to  the 
jtlaintitl'  the  taxed  costs  occasioned  thereby:  unless  the  Court 
otherwise  directs.* 

"Where  a  demurrer  to  the  whole  bill  is  overruled,  the  plaintiif, 
if  he  does  not  require  an  answer,  and  proposes  to  file  a  traversing 
note,  may  file  such  note  immediately :  unless  the  Court,  upon  over- 
ruling such  demurrer,  gives  time  to. plead,  answer,  or  demur;  and 
in  such  case,  if  the  defendant  files  no  plea,  answer,  or  demurrer 
within  the  time  so  allowed  by  the  Court,  the  plaintiflT,  if  he  does 
not  then  require  an  answer,  may,  on  the  expiration  of  such  time, 
file  such  note.^ 


1  Lewis  V.  Cooper,  10  Beav.  32 ;  S.  C. 
1107)1.  Cooper  v.  Lewis,  2  Phil.  178,  181. 

2  Wilson  V.  Stanhope,  2  Coll.  629;  Jones 
V.  Skipworth,  9  Beav.  237;  Norman  v. 
Stihy,  ib.  560,  566 ;  Earl  of  Shrewsbury  v. 
North  Staftbrdshire  Hailwav  Company,  9 
Jm-.  N.  S.  787;  11  W.  R.  742,  V.  C.  K.; 
Baxendale  v.  West  Midland  Railway  Com- 
pany, 8,Iur.  N.  S.  1163,  L.  C. 

3  'Urownsword  v.  Edwards,  2  Ves.  S. 
243,  247;  Mortimer  v.  Hartley,  3  De  G. 
&  S.  316;  Evans  v.  Evans,  18  Jur.  666, 
L.  JJ.;  Cochrane!'.  Willis,  10  Jur.  N.  S. 
162,  L.  JJ. ;  Collingwood  v.  Russell,  10  Jur. 
N.  S.  1062;  13  W.  R,  63,  L.JJ.;  ante,  p. 
542. 


4  Ord.  XIV.  12;  see  Schneider  v.  Li- 
zardi,  9  Beav.  461,  468;  Bothomlev  v. 
Squires,  1  Jur.  N.  S.  694,  V.  C  K. ;  Mor- 
gan &  Davey,  21.  As  to  the  costs:  where 
a  demurrer  ore  tmus  is  allowed,  see  Ord. 
XIV.  1,  ante,  p.  599 ;  and  where  a  defendant 
succeeds  on  one  ground,  and  fails  on  an- 
other, see  ante,  p.  599.  Costs  were  refused 
■whore  the  bill  did  not  show  that  relief 
must  be  granted  at  the  hearing.  Barber 
V.  Barber,  4  Drew.  666;  5  Jur.  N.  S.  1197. 
For  precedent  of  a  bill  of  costs  where  de- 
murrer overruled,  see  Morgan  &  Uavey, 
448.  '' 

6  Ord.  XIIL  4;  aw^e,  p.  516. 


CHAPTER    XV. 

PLEAS. 

Section  I.  —  The  General  Nature  of  Pleas. 

A  DEMURRER  has  been  mentioned  to  be  the  proper  mode  of  Distinction 
defence  to  a  bill,  when  any  objection  is  aj^parent  ujion  the  bill  Ijemun-er* 
itself:  either  fi-om  matter  contained  in  it,  or  from  defect  in  its  and  a  plea, 
frame,  or  in  the  case  made  by  it.^     When  an  objection  to  the  bill 
is  not  apparent  on  the  bill  itself,  if  the  defendant  means  to  take 
advantage  of  it,  he  ought  to  shoAV  to  the  Court  the  matter  which 
creates  the  objection  :  either  by  answer,  or  by  plea,  which  has  been 
described  as  a  special  answer,  showing  or  relying  upon  one  or  more 
things  as  a  cause  why  the  suit  should  be  either  dismissed,  delayed, 
or  barred.'^     The  object  of  a  j^lea  is  to  save  to  the  parties  the  Object  of 
expense  of  going  into  evidence  at  large ;  and,  therefore,  where  a  ^  P^'^'^- 
defendant  neglected  to  raise  his  defence  by  plea,  the  bill  has  been 
dismissed  without  costs.* 

The  defence  proper  for  a  plea  is  such  as  reduces  the  cause,  or  pjea:  when 
some  part  of  it,  to  a  single  point,  and  from  thence  creates  a  bar  to  V^*;  proper 

(Icfciicc. 

the  suit,  or  to  the  part  of  it  to  which  the  plea  applies.*     It  is  not,   -v.    , 
however,  necessary  that  it  should  consist  of  a  single  fact:   for  consist  of  a 
tliough  a  defence  offered  by  way  of  plea  consists  of  a  great  variety  ^'°^  ^  ^'^'^ 

1  Jn<e,  p.  542.  heda  j;.  Malone,  Finlav's  Dig- 449.     If  the 

2  L'l.  Red.  219;  Story  Kq.  PI.  §  049;  plea  is  the  only  defence,  it  must  allege 
Lnl)*'-  K(|.  l'l.  238;  Carroll  <\  Warinj;,  .3  some  fact,  which  is  an  entire  bar  to  the 
Gill  &:  .J.  491 ;  Heartt  v.  ( 'orninf;,  3  I'aifje,  suit  or  some  substantive  part  of  it;  and,  if 
otjO;  Ta[ipan  i'.  Evans,  11  N.  H.  311.  If  a  defective  in  this  respect,  whether  true  or 
previous  demurrer  !)}•  the  defendant  has  false,  the  plaintiff  should  move  to  set  it 
been  overrule<l,  he  ciinnot  plead  without  aside  for  insulliciency.  Newton  v.  Thayer, 
the  lcaT(!  of  the  Court.  Rowley  u.  liccles,  17  I'ick.  12!i;  I'iatt  w.  Oliver,  1  McLean, 
1  S.  &  S.  .Oll.r/H^r,  p.  GOO.  303;      Union    Hranch    U.K.    Co.    v.    Kast 

3  Sanders  r.  Renson,  4  Reav.  360,  357;  Tenn.  and  Ueor},'ia  R.R.  Co.,  14  Geo.  327. 
Jackson  v.  Op^i  -'ohn.  397,  402.  A  demurrer  is  never  resorted  to  for  the 

••  Ld.   Red.   219,  295;  1   Smith  Ch.  Pr.  purpose  of  settling  the  validity  of  a  i)lea. 

(2(1  Am.  ed.)  217;  (ioodrich  v.  Pendleton,  I'ravers  v.  ]{oss,  1  iMc(;nrter  (N.  .1.),  2r)4. 
3  .John.  Ch.  3^4;  St<iry  l'>|.  PI.  §  052;  Sims  A   plea  simply  den^'ing  a   fact  allcf^^ed 

r.    I.yle,  4   Wash.  C.   C.  302,   304.     The  in  the  bill,  and  setting  up  no  new  matter, 

[Ilea  must  be  ]i(;rfect   in   its(;lf,  so  that  if  is   bud.     Railey  v.   I,e   RoV,   2  Kdw.   Ch. 

Inu!  in  fu-t.itwdj  put  an  end  to  the  cause.  514;  Milligiin  V.  Miliege,  3   Crauch.  220; 

Allen  V.  Randolj)h,  4  John.  Ch.  G93;  Drog-  Black  v.  lihick,  16  Geo.  445. 


G04  PLEAS. 

(.'11. XV.  §  1.    of  (.'irouinstnncos,  yet,  if  llioy  all  tciul  to  one  jjoint,  the  plea  may 
be  good ;  ^  tliey  must,  however,  be  material.'^ 

In  general,  a  jilea  relies  upon  matters  not  apparent  on  the  bill, 
and,  in  efteet,  suggests  that  the  plaintiff  has  omitted  a  fact  which, 
if  stated,  would  have  rendered  the  bill  demurrable ; "  and  in  most 
cases,  Mhere  a  defendant  insists  upon  matter  by  plea  which  is  ap- 
parent u]>on  the  face  of  the  bill,  and  might  be  taken  advantage  of 
by  demurrer,  the  .plea  will  not  hold.*  This  rule,  however,  as  Avill 
be  seen  presently,  is  in  some  cases  liable  to  exception. 
Aflimiativo  "Where  a  plea  merely  states  matter  not  apparent  upon  the  liill, 

^^*^'^^'  and  relies  upon  the  effect  of  such  matter  as  a  bar  to  the  plaintiff's 

claim,  it  is  called  an  affirmative  plea.  Such  pleas  usually  ])roceed 
upon  the  ground  that,  admitting  the  case  stated  by  the  bill  to  be 
true,  the  matter  suggested  by  the  plea  affords  a  sufficient  reason 
why  the  i)laintiff  should  not  have  the  relief  he  prays,  or  the  dis- 
covery which  he  seeks ;  and  when  they  are  put  in,  the  Court,  in 
order  to  save  expense  to  the  parties,  or  to  protect  the  defendant 
fi-om  a  discovery  which  he  ought  not  to  make,  instantly  decides 
upon  the  validity  of  the  defence :  taking  the  plea,  and  the  bill  so 
far  as  it  is  not  contradicted  by  the  plea,  to  be  true.^ 
Negative  Although  pleas,  generally,  consist  of  the  averment  of  some  new 

^^^^-  fact,  or  chain  of  facts,  not  apparent  upon  the  face  of  the  bill,  the 

effect  of  which  is,  not  to  deny  the  flicts  of  the  bill,  but,  admitting 
them  2)ro  hac  vice  to  be  true,  to  destroy  their  effect,  there  are  cases 
in  which  the  plea,  instead  of  introducing  new  facts,  merely  relies 
upon  a  denial* of  the  truth  of  some  matter  stated  in  the  bill,  upon 
which  the  plaintiff's  right  depends.  A  plea  of  this  sort  is  called 
a  negative  2yl(^ci.^  It  seems,  formerly,  to  have  been  made  a  question, 
hoAV  far  a  negative  plea  could  be  good ;  "^  and  where  a  bill  was  filed 
by  an  individual  claiming  as  heir  to  a  person  deceased,  and  the 
defendant  pleaded  that  another  person  was  heir,  and  that  the 
plaintiff  was  not  heir  to  the  deceased,  Lord  Thurlow  voverruled 

1  lb.  296;  Fox  ».  Yates,  24  Beav.  271;  Phelps  v.  Gnrrow,  3  Edw.  Ch.  139;  Story- 
Campbell  V.  Beaufoy,  Johns.  320;  Saun-  Eq.  PI.  §  647,  660;  Varick  v.  Dodge,   9 
ders  V.   Druce,  3  Drew.  140,  156;  and  for  Page,  149. 
the  plea  in  that  case,  see  Drew.  Eq.  PI.  6  Ld.  Ked.  295. 

146,  and  ih.  147,  n  ;  Story  Eq.  PI.  §  652 ;  0  Story  Eq.  PI.  §  551,  note,  §  657  et  seq.  ; 

Rhode  Ishmd  v.  Massachusetts,  14  Peters,  Wigram,  Discov.  (2dcd.)pp.  110-118.  This 

211.  Hut  it  is  otherwi.se  where  the  defence  class  of  pleas  has  two  pecidiarities:  in  the 

consists  of  a  great  variety  of  facts  and  cir-  first  place   it  relies  wimliy  upon  matters 

cumstances,  rendering  it  necessary  to  go  stated  in  the  bill,  negativing  such  foct.s  as 

into  the  examination  of  witnesses  at  large.  are  material  to  the  rights  of  tlie  plnintiff; 

Laud  V.  Sergeant,  1  Edw.  Ch.  164;  Story  and  in  the  next  place  it  requires  an  answer 

Eq.  PI.  §§  653,  654.  to  be  filed,  which  is  subsidiarj'  to  the  pur- 

^  Andrews  V.  Lockwood,  2  Phil.  398;  11  poses  of  the  plea.      Story  E(i.   PI.  §670; 

Jur.  956;    Bowver  v.  Beamish,  2  Jo.  &  see  also  Cosines.  Graham,  2  Paige,  177; 

Lat.  228.             '  Robinson  ».  Smitli,  3  I'aige,  222;  Mitchell 

3'wigram  on  Disc.  22,  n.  (e);  see  An-  v.  Lenox,  2    Paige,  280;  Smets  v.   Wil- 

drews  t).  Lockwood,  uhi  sup.  liams,  4  Paige,  364. 

*  Billing  V.   Flight,    1   Mad.   230,  236;  ^  Ld.  Red.  230. 


GENERAL   NATURE    OF    PLEAS.  605 

llie  plea,  on  the  ground  that  it  •was  a  negative  plea ;  ^  but  this  Ch.  XV.  §  i. 

decision  was  afterwards  doubted,  by  the  learned  Judge  himself,-  '•—    y ' 

when  pressed  by  the  necessary  consequence,  that  any  person  false- 
ly alleging  a  title  in  himself,  might  compel  any  other  jjerson  to 
make  a  discoveiy,  which  that  title,  if  true,  would  enable  hun  to 
require,  however  injurious  to  the  person  thus  imj^roperly  brought 
into  Court :  so  that  any  person  might,  by  alleging  a  title,  however 
false,  sustain  a  bill  in  Equity  against  any  person  for  any  thing,  so 
far  as  to  compel  an  answer.^  Since  that  time,  frequent  instances 
have  occun-ed  in  which  negative  j^leas  have  been  allowed.  Thus, 
where  to  a  bill  praying  that  the  defendant  might  redeem  a  mort- 
gage or  be  foreclosed,  the  defendant  pleaded  that  there  was  no 
mortgage,  Lord  Eldon  allowed  the  plea ;  ^  and  so,  where  a  bill 
prayed  that  the  defendant  might  be  restrained  fi-om  setting  up 
outstanding  tenns  of  years  in  defence  to  an  action  of  ejectment, 
and  the  defendant  2:)leaded  that  there  were  no  outstanding  terms, 
the  i)lea  was  held  good ;  ^  and  where  a  bill  j^rayed  an  account  of 
partnership  transactions,  a  negative  plea  that  there  was  no  part- 
nership was  allowed.®  It  has  also  been  held,  that  negative  matter 
ought  to  be  pleaded  negatively.'' 

It  is  proper  here  to  mention  another  species  of  plea  which  often  pi^^g  ^f 
occurs  in  the  books,  and  is  not,  strictly  speaking,  either  a  plea  matters 
affinuing  new  matter,  or  negativing  the  plaintifl''s  title  as  alleged  by^the  bill. 
in  the  bill,  but  one  which  re-asserts  some  fact  stated  in  the  bill, 
and  which  the  bill  seeks  to  impeach,  and  denies  all  the  circum- 
stances which  the  jjlaintiff  relics  upon  as  the  ground  upon  which 
he  seeks  to  impeach  the  fact  so  set  up.  Thus,  where  a  bill  is 
brought  to  impeach  a  decree,  on  the  ground  of  fi-aud  used  in  ob- 
taining it,  the  decree  may  be  pleaded  in  bar  of  the  suit,  with  aver- 
ments negativing  the  charges  of  fraud.*  Of  the  same  nature  are 
pleas  setting  u}»  the  award  itself,  to  a  bill  filed  for  the  purpose  of 
impeaching  it  on  the  ground  of  partiality  or  fraud  in  the  arbitra- 
tors;' or  setting  up  stated  accounts  or  releases,  where  bills  have 
licen  filed  for  the  purpose  of  setting  them  aside.  Pleas  of  this 
nature  have  been  objected  to,  because  they  are  in  fact  excejytiones 
cjuH(h:in  rei  cvjus  pet'dnr  dlssohitio ;'^^  but  tlie  frame  of  a  bill  in 
Equity,  in  such  cases,  necessarily  produces  this  mode  of  ])lcading: 
for,  in  the  instance  above  alluded  to  of  a  plea  setting  up  tlic  decree 

•  Newman  r.  Wallis,  2  Bro.  C.  C.  143,  Sanders  v.  King,  G  Mad.  Gl;  2  S.  &  S.  277; 
14C;  Guiin  V.  I'rior,  2  Dick.  657;  1  (ox,  Yorker.  Fry,  GM:id  G.O;  Thnnj:  r.  Edgar, 
1!<7.  2  S.  &  S.  274,  281;  Arnold  i'.   Heaford,  1 

-  Jlall  V.  Noyes,  3  Bro.  C.  C.  483,  489.  M'F.ei.  &  Y.  330.  • 

"  L'l.  lied.  231;  Jones  V.  Davis,  10  Ves.  "^  Roberts  v.  Madoeks,  10  Sim.  50,  57; 

20J,  204.  11  Jur.  938. 

*  Hitehcns  v.  Lander,  G.  Coop.  34,  38.  s  Ld.  li..rt.  239. 

^  Arinitage  v.  WarLswrth,  1   Mad.  l^O,  0  il,_  200;    Tittenson    v.    Peat,    3  Atk. 

195;  Dnwxon  v.  Tiiling,  10  Sim   203,209;  529. 

12  .lur.  388.  10  I'usey  v  Desbourric,  3  P.  Wms.  317. 

6  Drew  ».  Drew,  2  V.  &  B.  159,  161; 


606  PLEAS. 

rn.  XV.  §  1.    to  :i  l)ill  socking  to  iini>o:u'l\    it,  it  is  obvious  tlint,  if  tlio  bill  Imd 

"■ Y ^    st.-ited  the  titlo  under  wliicli  the  ])l:iintilV  elainuHl,  williout  stating 

tlie  docive  tnuler  Miiich  the  del"en(hint  ehiiined,  the  det'cndant 
niiglit  have  ]>h'a(U'd  the  decree  alone  in  bar.  If  the  bill  had  stated 
the  ]daintiH"s  title,  and  also  stated  the  decree,  and  alleged  no  fact 
to  impeach  it,  and  had  yet  sought  relief  on  the  title  concluded  by 
it,  the  defendant  might  have  demurred :  because,  upon  the  face  of 
the  bill,  the  title  of  the  plaintift'  would  have  appeared  to  be  so 
concluded.  But  as,  by  the  forms  of  pleading  in  Equity,  the  bill 
may  set  out  the  title  of  the  plaintiff,  and,  at  the  same  time,  state 
the  decree  by  Avhich,  if  not  impeached,  that  title  would  be  con- 
cluded, and  then  avoid  the  o[)eration  of  the  decree,  by  alleging 
that  it  has  been  obtained  by  fraud :  if  the  defendant  could  not 
take  the  judgment  of  the  Court,  upon  the  conclusiveness  of  the 
decree,  by  j)lea,  upon  whicb  the  matter  by  which  that  decree  Avas 
impeached  would  alone  be  in  issue,  he  must  enter  into  the  same 
defence  (by  evidence  as  well  as  by  answer),  as  if  no  decree  had 
been  made,  and  Avould  be  involved  in  all  the  expense  and  vexation 
of  a  second  litigation  on  the  subject  of  a  former  suit,  which  the 
decree,  if  unimpeached,  had  concluded.  It  is  therefore,  permitted 
to  him  to  avoid  entering  into  the  general  question  of  the  plaintiff's 
title,  as  if  it  had  not  been  affected  by  the  decree,  by  meeting  the 
case  made  by  the  jilaintiff,  which  can  alone  give  him  a  right  to  call 
for  that  defence,  namely,  the  fact  of  fraud  in  obtaining  the  decree : 
which  he  does,  by  negative  averments  in  his  ])lea.-^  It  seems  to 
have  been  the  oi)inion  of  Sir  James  Wigram  that,  in  these  cases, 
a  negative  plea,  meeting  the  matter  suggested  in  the  bill,  to  avoid 
the  effect  of  the  bar  set  up,  would  alone  be  sufficient.^ 

Any  matter  arising  between  the  bill  and  the  plea,  may  be  plead- 
Pleas  of  ^^^'^     ^^  ^^^^  been  before  stated,  that  this  can  be  done  where  the 

matters  bankru))tcy  of  a  plaintiff  or  of  a  defendant  occurs  after  the  bill 

SUuSGOllGIlt  1.         V  X 

to  the  bill.  has  been  filed;*  and  so,  where  a  bill  was  filed  for  a  discovery  and 
relief,  by  injunction  to  restrain  the  defendant  from  setting  up  out- 
standing terms  to  defeat  a  writ  of  right,  and  since  the  filing  of 
the  bill,  the  writ  of  right  had  been  tried  and  determined  against 
the  plaintiff,  a  plea  that  it  had  been  so  tried  and  determined  was 
allowed  to  be  a  good  plea.^  This  rule  has  been  adopted  from 
analogy  to  proceedings  at  Common  Law,  where  any  matter  which 
arises  between  the  declaration  and  the  plea  may  be  pleaded  in 
bar.®     But  the  analogy,  in  this  resj^ect,  between  Couzts  of  Law 

1  Ld.  Red.  240,  242;  Bailey  v.  Adams,  *  Ante,  p.  63;  Turner  v.  Robinson,  1  S. 
6  Ves.  .5&G,  597;  Llovd  v.  Smith,  1  Anst.  &  S.  3;  see  Tarleton  v.  Hornby,  1  Y.  & 
258;  Kreeland  r.  .Johnson,  ib.  276.  C.  Ex.  333,  336;  Lane  v.  Smith,  14  Beav. 

2  Wigram  on  Disc.  pp.  lK)-lh<J.  49;  15  .Jur.  735. 

3  Sergrove  r.  Ma3-he\v,  2  M'N.  «Sc  G.  97,  ^  Karl  of  Leicester  v.  Perry,  1  Bro.  C 
99;  14  Jur.  158;  De  Minckwitz  v.  Udney,  C.  305;  see  Ld.  lied.  254. 

16  Ves.  466,  468,  6  Turner  v.  Kobinson,  ubi  sup. 


GENERAL  NATURE  OF  PLEAS. 


607 


and  Equity,  will  not  extend  furtlier :  for  at  Lavr,  any  matter  which 
would  abate  the  suit,  or  operate  as  a  bar,  may,  until  the  verdict 
has  been  given,  be  offered  to  the  Court  by  a  plea,  termed  a  plea 
2ntis  darrein  continuance}  In  Courts  of  Equity,  however,  such  a 
plea  does  not  seem  admissible,  but  the  effect  of  it  may  be  obtained 
by  means  of  a  cross-bill.- 

It  is  essential  to  observe  that,  whatever  the  nature  of  the  plea 
may  be,  whether  affirmative,  or  negative,  or  of  the  anomalous 
nature  above  alluded  to,  the  matter  pleaded  must  reduce  the  issue 
between  the  plaintiff  and  defendant  to  a  single  point."  If  a  plea 
is  double,  i.  e.,  tenders  more  than  one  defence  as  the  results  of  the 
focts  stated,  it  will  be  bad.'*  Thus,  a  plea  which  stated  that  the 
plaintiffs,  who  claimed  as  citizens  of  London,  never  were  resident 
there,  or  paid  scot  and  lot,  and  that  they  were  admitted  fi-eemen 
by  fraud  for  the  purpose  of  enjoj-ing  the  exemption  claimed,  Avas 
held  bad :  because  the  facts  that  the  plaintiffs  were  not  citizens  of 
London,  and  that  they  were  admitted  by  fi-aud,  were  totally  incon- 
sistent with  each  other.^  .  And  so,  where  a  defendant  to  a  bill  for 
the  specific  performance  of  an  agreement,  put  in  a  j^lea,  insisting 
upon  the  Statute  of  Frauds,  and  another  defence.  Lord  Rosslyn 
would  not  allow  it,  as  it  was  a  double  defence,  and  directed  it  to 
stand  over  till  the  hearing.®  Upon  the  same  principle,  where  a 
bill  was  filed,  praying  a  reconveyance  of  four  estates,  and  the  de- 
fendant jmt  in  a  plea  whereby  he  insisted  upon  a  fine  as  to  one, 
and  averred  that  the  estate  comprised  in  that  fine,  was  the  only 
part  of  the  premises  in  the  bill  in  which  he  claimed  an  interest, 
Sir  Lancelot  Shadwell  V.  C.  held  it  to  be  bad,  as  a  double  plea.'' 

The  rule,  that  a  plea  must  reduce  the  defence  to  a  single  ground, 
must  be  understood  as  not  interfering  with  the  proposition  before 
laid  doA\Ti,'  that  a  plea  may  consist  of  a  variety  of  facts  and  cir- 
cumstances: all  that  it  requires  is,  that  those  facts  and  circum- 
stances should  give,  as  their  result,  one  clear  ground  upon  which 
the  whole  equity  of  the  bill  may  be  disposed  of"     The  rule  upon 


1  15  &  16  Vic.  c.  76,  §  69;  Chitty's 
Arch.  007. 

2  1,(1.  Refl.  82;  see  Rowe  v.  Wood,  1  .J. 
&  VV.  310,  337;  Wood  v.  Kowe,  '2  IJlipli, 
b^h;  Hayne  v.  Ilavne,  3  Clia.  Kep.  19; 
Nels.  10.1;   Wrif,'>iti'.  iMeek,3  Iowa,  472. 

8  Saltiis  V.  Tobias,  1  John.  Ch.  214; 
Storv  K(|.  ri.  §  6.'i4  el  mq. 

*  N'obkissen  v.  Haxtiiif^s,  2  Ves.  .T.  H4, 
86;  .lories  v.  Fmst,  3  Ma'l.  1,H:  Van  Hook 
t>.  Whitlock,  3  I'aiRc,  409.  Duplicity  in 
one  and  the  same  pica  isarice  in  pleading 
in  Kquity,  as  well  as  at  Law.  Moreton  v. 
Harriscin.  1  lUiind,  496;  see  Saltus  r.  To- 
hhis,  7  John.  Ch.  214;  Rhode  Island  v. 
Massachusetts,  14  I'et'TS,  211;  Goodrich 
»'.  iVndleton,  3  John.  Ch.  380;  Kidgelev'. 
WarBeid,  1   bland,  494;    Story  Eq.  "I'l. 


Ch.  XV.  §  1. 


Plea,  puis 
darrein 
continuance, 
at  Law ; 
effect  ob- 
tained by 
cross-bill  in 
Equity. 

Of  double 
pleading: 


Rule,  that  a 
plea  must 
reduce  the 
dct'ence  to 
a  sinj.;le 
groiuid. 


§  6.53.  A  plea  is  not  rendered  double  by  the 
mere  insertion  therein  of  several  aver- 
ments, that  are  necessary  to  exclude  con- 
clusions arising  from  al]eg;itions  which 
are  made  in  the  bill,  to  anticipate  and  de- 
feat the  bar  which  might  be  set  up  in  the 
pica.  IJopardus  v.  Trinity  Church,  4 
I'liige,  178. 

'J  <'orporation  of  London  v.  Corporntion 
of  Liverpool,  3  Anst.  738,  742;  Story  Kq. 
PI.  §  652. 

«  (Jooth  V.  Jackson,  6  Ves.  12,  17; 
Whitbread  v.  lirockhurst,  1  Bro.  C.  C. 
404,  418. 

7  Watkins  v.  Stone,  2  Sim.  49,  52. 
Aiili',  p.  603. 

9  Ritchie  n.  Aylwin,  16  Ves.  79,  82; 
Rowe    V.    Teed,   ib.    372;    Strickland   v. 


608 


PLEAS. 


Cii.  W.  §  1. 


When 

various  facts 
tciul  to  one 
point,  they 
may  bo 
plwulod  in 
one  plea. 


Double  plea : 
in  what  cases 
allowed. 


tills  subject,  aiul  the  reasons  iiiioii  wliieh  it,  has  been  established, 
ni-e  stated  -w-ith  great  elearness  by  Lord  Thurlow,  in  his  jtidgnient 
in  Whit(>n\(d  \.  Jirock/iurst.  Ilis  Lordship  there  said:  "I  eunnot 
agree  with  the  defendant's  counsel,  that  any  two  facts  which  are 
not  inconsistent  may  be  i)leaded  in  one  ])lea.  I  think  that  various 
I'acts  can  never  be  pleaded  in  one  plea,  unless  they  are  all  con- 
ducive to  a  single  point,  on  wiiicli  the  defendant  rests  his  defence. 
Thus,  many  deeds  may  be  stated  in  a  plea,  if  they  all  tend  to  es- 
tablish the  single  point  of  title;  so  in  the  case  of  papacy.^  In  the 
present  case,  the  different  matters  joleaded  do  not  conduce  to  one 
object.  The  plea  of  the  statute  is  of  itself  a  bar;  but  the  plea, 
that  the  agreement  w^as  not  jierformed,  is  quite  distinct :  because, 
whether  a  j)art-performance  take  the  agreement  out  of  the  statute, 
or  l)e  considered  merely  as  a  fraud,  the  point  of  equity  is  quite 
distinct  from  the  agreement.  It  is  a  plea  of  tAvo  matters,  perfectly 
and  clearly  distinct :  of  two  things  which  furnish  two  different 
pleas  to  the  points  made  in  the  bill.  The  reason  why  a  defendant 
is  not  permitted  to  jjlead  two  different  pleas  in  Equity,  though  he 
is  permitted  to  plead  them  at  Law,  is  2:)l;nn:  it  is  because  at  law  .a 
defendant  has  no  opportunity,  as  he  has  here,  of  answering  every 
different  matter  stated  in  the  bill.  The  reason  of  pleading  in 
Equity  is,  that  it  tends  to  the  forwarding  of  justice,  and  saves 
great  expense,  that  the  matter  should  be  taken  np  shortly  upon  a 
single  point ;  but  that  end  is  so  far  from  being  attained,  if  the  plea 
puts  as  much  in  issue  as  the  answer  could  do,  that  on  the  contrary 
it  increases  the  delay  and  expense.  But  why,  it  may  be  asked, 
should  not  the  defendant  be  permitted  to  bring  two  points,  on 
which  the  cause  depends,  to  issue  by  his  j)lea  ?  The  answer  is :  be- 
cause, if  two,  he  may  as  well  bring  three  points  to  issue ;  and  so 
on,  till  all  the  matters  in  the  bill  are  brought  to  issue  upon  the 
plea:  which  would  be  ])roductive  of  all  the  delay  and  inconven- 
ience which  pleading  was  intended  to  remedy."  ^ 

Although  the  general  rule  of  the  Court  is  not  to  allow  of  double 
pleading,  there  are  cases  in  which  the  rule  will  be  relaxed :  as, 
where  great  inconvenience  would  be  sustained  by  the  necessity  of 
setting  out  long  accounts,  wdiich  could  be  obviated,  if  the  defend- 
ant were  to  be  allowed  to  plead  several  matters.  Cases  'of  this 
nature  may  occur  where  a  bill  is  so  framed  that,  if  the  principal 
case  made  hy  it  cannot  be  supjjorted,  it  may  be  sustained  by  some 


Ktricklnnd,  12  Sim.  2.53,  2.59;  Fox  v. 
Yates,  24  lieav.  271 ;  Campbell  v.  IJeau- 
fov,  .Johns.  320;  Saunders  i'.  Druce,  3 
Drew.  140,  1-50;  Drew.  Eq.  PI.  146;  ib. 
147,  n.;  Story  Eq.  PI.  §  6.52.  Where  the 
allegations  of  a  jjlea,  lu^inj^  taken  as  true, 
do  not  make  out  a  lull  detlnce,  or  where 
the  necessary  facts  are  to  be  gathered  by 


inference  alone,  the  plea  cannot  be  sus- 
tained. Meeker  J'.  Marsli,  Saxton  (N.  .1.), 
108.  See  Davison  v.  Johnson,  i  C.  E. 
Green  (N.  J.),  112,  113,  114. 

1  Harrison  v.  Sonthcote,  1  Atk.  528,  588. 

2  See  Sir  S.  Roniilly's  note  of  this  judg- 
ment, 1  Bro.  C.  C.  415,  Belt's  ed.,  cited  2 
V.  &  B.  153  n. 


GENERAL  NATURE  OF  PLEAS. 


609 


subsidiary  matter,  whi<;h  lias  been  introduced  for  the  puii-)Ose  of  Cn.  XV.  §  i. 
maintaining  the  suit.^     Thus,  in  Gibson  v.  Whitehead,^  where  a 
bill  was  filed,  by  simple  contract  creditors,   to  charge  the  real 
estates  of  a  deceased  debtor :  alleging,  first,  that  the  testator,  by 
his  will,  subjected  the  real  estates  to  the  pajTnent  of  his  debts ; 
and,  secondly,  that  if  it  was  not  the  true  construction  of  his  will, 
then  his  real  estates  were  liable  under  the  47  Geo.  III.  sess.  2, 
c.  74,*  he  ha-^-ing  been  a  trader  at  the  time  of  his  death,  Sh-  John 
Leach  V.  C.  made  an  order,  upon  motion,  that  the  defendant 
might  be  at  liberty  to  plead :  first,  the  will  of  the  testator,  for  the 
.pui-pose  of  showing  that  he  did  not  thereby  charge  his  real  estates 
with  the  paj-ment  of  his  debts ;  and,  secondly,  that  he  was  not,  at 
the  time  of  his  death,  a  trader  within  the  meaning  of  the  Act.* 
Although,  in  the  above  case,  the  necessity  for  a  double  plea  arose 
from  the  circumstance  of  there  being  a  sort  of  double  or  alterna- 
tive claim  in  the  bill,  this  is  not  the  only  ground  upon  which  the 
Court  acts  in  alloAving  double  pleas.     The  principle  upon  which 
the  Court  proceeds,  depends  very  much  upon  the  extraordinary 
inconvenience  that  might  arise,  if  the  defendant  were  not  allowed 
to  take  this  course ;  and  upon  this  principle,  where  a  bill  was  filed 
to  restrain  the  infringement  of  a  patent,  and  for  an  account,  and 
the  defendants  were  desirous   of  disputing    the  validity  of  the 
patent,  on  the  grounds  that,  so  far  as  the  invention  was  new,  it 
was  useless,  and  that,  so  fiir  as  it  was  useful,  it  was  not  new,  Lord 
Langdale  M.  R.  gave  the  defendant  leave  to  plead :  first,  that  the 
invention  was  not  useful ;  secondly,  that  it  was  not  new ;  ^  and  in 
Bompton  v.  Birchall^  the  same  Judge  permitted  the  defendant, 
in  an  ejectment  suit,  to  plead:  first,  that  the. person  under  whom 
the  ])laintiff  claimed  was  not  the  heir;  and,  secondly,  that  even  if 
he  were  such  heir,  the  plaiiitifi"'s  right  was  barred  by  the  Statute 
of  Limitations. 

Befijre  a  defendant  puts  in  a  double  plea,  he  must  obtain  an  Must  have 
order,  on  motion,  with  notice,  of  which  he  will  have  to  pay  the  ""  ovder  to 

•  r-  f •      T       •  1  1  ■warrant  It. 

costs,  for  leave  to  do  so;^  and  such  a  ])lea,  if  filed  without  such  an 
order,  is  irregular,  and  lialile  to  be  ovenniled.* 

1  Storv  Kq.  PI.  §  C.57,  and   note;  Van  ■*  Soc  also  Ilanlman  r.  Kllanics,  5  Siin. 

Hook  r.'WIiitlnck,  3  I'aigo,  400;  Millonl  640,  G4r.;  2  M.  cSt  K.  732;  C.  P.  Coop.  t. 

Ivj.  ri.  liv  .(cremv,  2'j5,  note;    Diiiii-r  \).  l!rout,'h.  351. 

l)uviM)ii, 'lO  I'iiif,'!;',  .^1'..  Twoili.Htiiurt  ])lea3  <»  Kay  v.  Marshall,  1   Keen,  190,  192, 

in  b;ir,  (lill'Tcnt  in  their  naiiire,  as  a  plea  197. 

of  the  statute  of  limitations,  and  a  (lis-  «  4  Bcav.  56P;   and  see  observations  of 

charge  under  the  insolvent  act,  cannot  lie  Sir   .lolni  '  Knmilly   M.    U.    in    Young   «. 

jileailed    together,    without   tlie   (jn-vious  While,  17  IJiav.  M2,  r.40;  18  Jur.  277. 

leave  f«f  tlif  Court.     Sail  us  u.  T'^liia^,  7  "  ['"or  form  of  notice  of  motion,  see  Vol. 

.loliii.  Ch.  214.  HI- 

•^  4  Mild.  241,  240;  Kay  «.  Marshall,  1  "^   Kay  ».  Marshidl,  uU  mp. ;  Gibson  v. 

Keen,  190.  Wliiieii'ead,    4    Mad.    241,  2ir.;    Ilanlinan 

«   Repealed   by  1 1   Geo.    IV.    vSi   1    Will.  r.  Kllaincs  »/«' .i"/;.  ,•   I'-ainplon  r.  Itinlicll, 

IV.  c.  47.  xtbi  suj). ;  tsaltus  v.  Tobias,  7  John.  Ch.  214. 

VOL.  I.  39 


010 


PLEAS. 


Cm.  XV.  ?  1. 


Defendant 
may  put  in 
separate  ])lca3 
to  diderent 
parts  of  the 
same  bill. 


Plea  may  be 
good  as  to 
part,  and  bad 
as  to  other 
part. 


With  rofcMviioo  to  the  suLjoct  of  inultif'irious  or  (loul)lo  jilcad- 
ing,  it  is  {o  bo  notii'od  that,  whore  tlio  incts  stated  in  tlio  ])k'a  are 
suthcient  to  oonstitiito  a  good  plea,  the  introduction  into  tlie  plea 
of  a  faot  which,  altln)ngh  it  puts  in  issue  a  distinct  matter,  is  not- 
important  to  the  valiility  of  tlio  i)loa  itself,  will  not  vitiate  the 
])lea.^  Thus,  if  a  defondant  j)leads  a  release,  and  then  avers  that 
it  has  been  acted  ui)ou:  the  release  being  of  itself  a  bar,  whether 
it  has  been  acted  upon  or  not,  the  further  allegation  tliat  it  has 
been  acted  ixpon  is  unimportant,  and  will  be  rejected  as  surplusage.^ 
Upon  this  ground,  where  a  ])lea  stated  facts  which,  connected  Avith 
the  statement  in  the  bill,  Avould  have  amounted  to  a  conspiracy  to 
prevent  a  prosecution  for  felony,  and  then  averred  that  the  trans- 
actions stated  in  the  bill,  related  to  a  fraudulent  embezzlement  by 
a  banker's  clerk,  and  suggested  that  the  discovery  sought  might 
subject  the  defendant  to  pains  and  penalties,  it  was  objected  that 
the  plea  was  multifarious,  because,  in  addition  to  the  statement  of 
facts  amounting  to  a  conspiracy,  it  averred  that  the  transactions 
related  to  a  fraudulent  embezzlement;  Lord  Eldon,  however,  over- 
ruled the  objection :  saying,  that  he  should  2:)ress  a  harder  rule  in 
Equity  than  prevails^it  Law  by  holding,  that  such  an  averment 
made  a  plea  bad,  whi"ch  in  other  respects  was  good.^ 

The  rule  that  a  defendant  cannot  plead  several  matters,  must 
not  be  understood  as  precluding  a  defendant  from  putting  in 
several  })leas  to  different  parts  of  the  same  bill :  it  merely  pro- 
hibits his  pleading,  without  previous  leave,  a  double  defence  to 
the  Avhole  bill,  or  to  the  same  i)ortion  of  it,  A  defendant  may  plead 
different  matters  to  separate  parts  of  the  same  bill,  in  the  same 
manner  that,  as  we  have  seen,  a  defendant  may  put  in  different 
demurrers  to  different  portions  of  the  bill.*  A  defendant  may,  in 
like  manner,  plead  and  demvtr,  or  plead  and  answer,  to  different 
parts  of  the  same  bill,  provided  he  points  out,  distinctly,  the  dif- 
ferent portions  of  the  bill  which  are 'intended  to  be  covered  by  the 
plea,  the  demurrer,  and  the  answer ;  ^  he  must,  likcAvise,  whei'e  he 
puts  in  several  i)leas  to  the  same  bill,  point  out  to  Avhat  particular 
part  of  the  bill  each  plea  is  applicable.  But,  although  the  general 
rule  is,  that  in  the  case  of  a  partial  j^lea,  a  defendant  must  specify 
distinctly  Avluit  part  of  the  bill  ho  pleads  to,  the  rule  Avhich  has 
been  stated,  as  apj)lical)le  to  a  demurrer,  namely,  that  it  cannot  be 
good  in  part  and  bad  in  part,  is  not  api3licable  with  the  same 
strictness  to  a  plea :  for  it  has  been  repeatedly  decided,  that  a 
plea  in  Equity  may  be  bad  in  part  and  not  in  the  whole,  and  the 


1  Story  Eq.  PI.  §  66-3. 

2  Claridge  v.  Hoare,  14  Ves.  59,  65. 
8  Ibid. 

*  Emmott  V.  Mitchell,  14  Sim.  432,  4-34; 
9  Jur.  170;  ante,  p.  584. 


5  He  maj'  not,  therefore,  simultaneously 
plea'i  nnd  demur  to  the  whole  bill; 
I^jwndes  v.  Ganiett  &  Moselej'  Gold  Min- 
ing Company,  2  J.  &  H.  2b2;  8  Jur.  N.  S. 
694. 


GENERAL  NATURE  OF  PLEAS.  Oil 

Court  will  allow  it  to  so  much  of  the  bill  as  it  is  properly  appli-   Cn.  XV.  §  i. 
cable  to.^  ""^       y       ■' 

The  rule  that  a  plea  may  be  allowed  in  part  only,  is  to  be  un-  Rule  refers 
derstood  Avith  reference  to  its  extent,  that  is,  to  the  quantity  of  extlnrocfhe 
the  bill  covered  by  it,  and  not  to  the  ground  of  defence  offered  by  piea. 
it ;  and  if  any  part  of  the  defence  made  by  the  plea  is  bad,  the 
whole  must  be  ovei'ruled.^     Thus,  if  a  defendant  pleads  a  fine  and 
non-claim,  which  is  a  legal  bar,  and  a  purchase  for  a  Valuable 
consideration  without  notice  of  the  plaintiff's  claim,  which  is  an 
equitable  bar :  if  either  should  appear  not  to  be  a  bar,-  as  if  the 
defendant  by  answer  should  admit  focts  amounting  to  notice,  or  if 
the  plea,  with  respect  to  either  part,  should  be  informal,  the  wljple 
must  be  overruled.     There  seems  to  be  no  case  in  whicli  the  Court 
has  separated  the  two  matters  pleaded,  and  allowed  one  as  a  bar, 
and  disallowed  the  other.^ 

But,  although  it  is  the  office  of  a  plea  to  reduce  the  defence  to  Of  avirment* 
a  single  point,  it  is  necessary,  in  order  to  its  validity,  that  all  mat-  '"  P'*'''®*  . 
ters  which  are  essential  to  bring  it  to  that  point,  should  be  stated 
on  the  face  of  the  plea,  so  that  the  Court  may  at  once  decide 
whether  the  case  which  the  plea  presents  to  the  Court  is  a  bar  to 
the  case  made  by  the  bill,  or  to  tliat  part  of  it  which  tlie  plea  seeks 
to  cover.  Thus,  if  a  bill  is  brought  to  recover  the  possession  of 
an  estate,  a  defendant  may,  in  certain  cases,  protect  himself  by  a 
plea :  stating  that  he  was  the  purchaser  of  the  estate,  and  that  he 
paid  a  valuable  consideration  for  it,  and  that  he  had  not,  at  the 
time  of  the  purchase,  any  notice  of  the  title  or  claim  of  the  plain- 
tiff to  the  property.  This  is  called  "  a  plea  of  purchase  for  val- 
uable consideration,  wdthout  notice,"  and  is,  if  true,  a  good  bar  to 
the  suit.  It  will  not,  however,  be  sufficient  merely  to  state,  by 
way  of  plea,  that  the  defendant  is  a  purchaser  for  a  valuable  con- 
sideration, witliout  notice ;  he  must  state  upon  the  plea,  that  the 
person  from  wliom  he  purchased  had,  or  pretended  to  have,  such 
an  interest  in  the  propei-ty  as  entitled  him  to  convey  it  to  the 
defendant ;  tliat  it  was  conveyed  to  the  defendant  by  the  projier 
mode  of  conveyance;  that  a  valuable  consideratiim  Avas  paid  for 
it  by  tlie  <lefendant ;  and,  that  the  defendant  had  no  notice  of  the 
claim  of  the  plaintiff:   for  tlie  coincidence  of  all  these  facts  is 

1  L'l.    lied.   295;    Coop.   Eq.   PI.   230;  United  States  of  America  j;.  McRiic,  L.  R. 

DcanieH  on  I'Icas,  45;  Kurl  of   Sutlolk   v.  3  Cli.  Ap. 'Jl,  U2;  Story  K(|.  I'l.  §§  G'J2,  C'.iS; 

Green,  1  Atk.  450;  Uuiicidf  j\  IMiiUe,  ih.  ImcikIi   v.   Sliotwoll,  20  .loliii.  608;  S   0. 

62;  Ilii(^j;ins  i'.  York  Buildings  Company,  5  .Joiiii.  Cli.  555;    Kirkjjiitrick  u.    While, 

2  Atk.  44;   Dormer  r.  Korte^cue,  ih.  2X4;  4  Wash.  C.  C.  505. 

Turner  r.  Mitchell,  1   Dick.  240;  U.ciie  v.  '^  Ld.  Hed.  297;  Sahnon  v.  Dean,  3  WN. 

MorK.dl,  2  Sen.  &  I.ef.  721,  725;  Mayor  of  &  (i.  .'344,34^;  H.Inr.  235;  and  sec  Hewitt 

London  r.   [-evy,  8  Ves.  403;  Harrison  v.  v.   lic'witt,    11    \V.   H.   840,  V.  ('.  K  ;   see 

Soutiicote,  1  Aik.  528,  530;  2  Vcs.  S.  389,  Mad.  I'lank  Road  Co.  v.  Wat.  I'lank  Road 

897  ;  Karl  of  Derby  v.  Duke  of  Athol,  1  Ves.  Co.,  5  Wis.  173. 
S.  203,  205;   2  Vcs.  S.  337;   I'.ell  r.  Wood-  »  Ld.  Red.  295. 

ward,  42  N.   II.   193;   Ld.  Chelmsford  in 


012  ^  PLEAS. 

t  II.  w  .  §  1.    lu'ci'ssnry  to  constitute  n  good  bar  iiiEcjuity  to  a  suit  of  the  nature 

^•^ > '    alhuk'd  to ;  ^  and  the  omission  of  any  of  thoni  wouhl  render  the 

defenee  invalid:  because,  the  plainliti"  has  a  riglit,  by  rei)!ying  to 
the  plea,  to  jiut  all  the  luatters  contained  in  it  in  issue,  and  by  that 
means  to  compel  the  defendant  to  support  them,  or  at  least  such 
oi'  them  as  are  affirmatively  stated,  by  evidence.  The  statements 
of  these  necessary  facts,  in  a  plea,  are  called' "  averments " ;  and 
the  necessity  for  their  introduction,  points  out  the  general  distinc- 
tion between  demurx-ers  and  pleas  :  for,  if  the  fact  necessary  to 
constitute  a  good  plea,  appears  sufficiently  upon  the  bill,  so  as  to 
exclude  the  necessity  of  averments,  the  bill  might,  in  most  cases, 
be. objected  to  by  demurrer.'^ 
In  iR-jrativins  Another  office  of  averments  in  a  plea  is,  to  exclude  intendments, 
t'h^ b^iT"*  "'  ^^"hich  would  otherwise  be  made  against  the  pleader :  for,  if  there; 
calcuiat'od  to  in  any  chaige  in  the  bill  which  is  an  equitable  circumstance  in 
deZ^"'^*"^  favor  of  the  plaintiff's  case  against  the  matter  pleaded,  such  as 
fraud  or  notice  of  title,  the  Court  will  intend  the  matters  so 
charged  against  the  pleader,  unless  they  are  met  by  averments  in 
the  plea.^  Thus,  where  a  bill  was  filed  by  a  remainder-man 
against  a  tenant  for  life,  for  an  account  of  timber  cut  upon  the 
estate,  embracing  a  ])eriod  of  many  more  than  six  years  previous 
to  the  filing  of  the  bill,  which  was  in  1824,  and  alleging  that,  in 
answ^er  to  certain  inquiries  which  the  plaintiff  had  made  as  to  the 
timber,  the  defendant  had  furnished  certain  accounts,  from  which 
it  a])i»eared  that,  since  the  year  1794  down  to  the  year  1821,  cer- 
tain quantities  of  timber  had  been  cut  in  each  year,  amounting  to 
sums  mentioned  in  the  bill,  and  the  defendant  2:>leaded  the  Statute 
of  Limitations  in  bar,  confining  his  averments'  only  to  the  date  of 
tlie  filing  of  the  bill :  the  Court  overruled  the  plea,  because  it 
held,  that  the  alleged  render  of  the  accounts  in  the  bill,  bringing 
the  accounts  down  to  the  period  within  six  years  before  the  filing 
of  the  bill  (which  was  not  negatived  by  any  averment  in  the  plea), 
defeated  the  ojjeration  of  the  statute/  To  have  constituted  a 
good  plea  in  that  case,  there  should  have  been  an  averment,  that 
no  such  accounts  as  those  alleged  in  the  bill  had  been  rendered. 

1  Jb.   275;   Jackson  v.  Rowe,  4  Russ.  2  Bickiiullw.  Gough,  3  Atk.  558;  Roberts 

514,  523;   High  v.  IJiitte,  10  YergiT,  335 ;  v.    Ihirtlfv,    1    Bro.    C.   C.   5G;   Hilling  v. 

Doiii;fll    I'.   King,   7  Leigh,   3U3;   Grifiith  Flight,  r  Mad  230,236;  Stefl' ?;.  Andrews, 

V.   Giiffitli,   1    llotf.  Ch.   153;    Malohy  v.  2  Mad.  G,  10.     It  is  unnecessary  to  ncga- 

Keruan,  2  Dm.  &,  War.  31 ;  Craig  v.  Lei-  live  facts  wiiich,  if  stated  in  tiie  bill,  would 

per,  2   Verger,   VjS;   Jewett  v.  Palmer,  7  have   defea'ed   the    plea.     Ld.   Red.  29^; 

Juhn.  Ch.  Go;  Gidiatian  v.  Cuuningliam,  Forbes  v.  Skelton,  8  Sim.  335,  345;  1  Jur. 

8   Cowcn,   3G1;    Simzer  v.   L)e  Me3-er,  2  117;  see  Story  Eq.  Pi.  §  679  et  seq.  and 

I'ai^e,  574;  Drogiiedi  v.  Maloue,  Finlay's  notes. 

Dig.  44'J.     A  p'.ca,  .setting  up  a  forfeiture,  3  Ld.  Red.  298;  Saunders  v.   Druce,  3 

by  breach  of  a  condition  subserjuent  for  Drew.   140,   161;   Drew.  Eq.  I'l.  146;  ib. 

tlie  payment  of  tnoney,  in  bar  of  a  suit  in  147,  n. 

Lquity    for   relief,    must    di-tinctly    aver  ^  Iluny  v.  Huny,  1  S.  &  S.  568,  580. 
laches  on  the  part  of  the  phiiutiif.  Hancock 
V.  Carlton,  6  Cray,  3'J. 


GENERAL  NATURE  OF  PLEAS.  613 

The  necessity  for  the  introduction  of  such  averments  into  a  plea  is  <^n-  ^^'-  §  '■ 

ob%'ious,  when  we  consider  that  a  plea,  for  the  purpose  of  deciding   "^ > — — ' 

on  the  validity  of  it,  like  a  demurrer,  admits  all  the  ficts  stated  in 
the  hill  to  be  true,  so  far  as  they  are  not  controverted  by  the 
plea :  ^  so  that,  whenever  matters  of  foct  are  introduced  in  the 
bill,  which,  if  true,  would  destroy  the  effect  of  the  matter  pleaded, 
the  plea  Avill  be  overruled,  unless  such  matters  are  controverted  by 
the  averments. 

From  what  has  been  said  above  it  will  be  seen,  that  averments  Affirmative 
in  pleas  may  naturally  be  divided  into  affirmative  and  negative  ^^'^'"'oents. 
averments.  Affirmative  averments  are  those  which  are  not  sug- 
gested by  any  matter  upon  the  face  of  the  bill  which  is  inconsist- 
ent with  the  matter  pleaded,  but  are  necessary  in  order  to  render 
.the  matter  pleaded  a  complete  bar.  Thus,  if  a  stated  account  is 
set  up  by  the  j)lea,  the  defendant  must  aver  that  the  accoimt  is 
just  and  true,  to  the  best  of  his  knowledge  and  belief;  and  so,  in 
the  instance  above  referred  to,  of  a  plea  of  purchase  for  A'aluable 
consideration  without  notice,  it  has  been  stated  that  the  defendant 
must  aver,  in  his  plea,  that  the  person  fi'om  whom  he  purchased 
had,  or  pretended  to  have,  such  an  interest  as  entitled  him  to  con- 
vey the  estate  to  tlie  defendant ;  and  that  it  was  conveyed  to  the 
defendant  in  a  j^ropcr  manner ;  and  that  a  valuable  cons'idei-ation 
was  paid  for  it:  and  that  the  defendant  had  no  notice  of  the  plain- 
tiff's title  :  the  concurrence  of  all  these  matters  being  requisite  to 
constitute  a  good  equitable  bar  to  the  plaintiff's  claiin.'^  It 
may  be  objected,  that  the  last  matter  averred,  namely,  the  Avant  of 
notice,  being  negative  matter,  cannot  properly  be  called  an  affirm- 
ative averment;  but  it  is  not  the  mere  fact  of  averring  affirma- 
tively or  negatively  which  constitutes  the  distinction;  but  whether 
tlie  matter  be  introduced  by  way  of  affirmation  of  the  defendant's 
plea,  or  of  negation  of  such  of  the  plaintiffs  statements  as  are  in- 
consistent witli  tlie  ])lea.  Tims,  the  very  fact  of  want  of  notice,  in 
a  j)lea  of  j)Ui(liase  for  a  valuable  consideration,  may  be  both  affirm-  '"' 

atively  and  negatively  averred:  for,  if  the  bill  merely  sets  out 
the  ])l!iiiitiff's  title,  and  does  not  charge  the  defendant  Avitli  liMAJng 
any  notice  of  it,  the  want  of  notice  being  one  of  the  circumstances 
necessary  to  constitute  the  equitable  bar,  must  be  averred  in  the 
l)l('a:  in  wliicli  case,  according  to  the  distinction  above  j)ointed 
out,  tlie  averment  is  affirmative.  And  so,  if  the  bill  actually 
charges  tlu?  defendant  with  notice,  the  notice  must  be  equally 
denied  ])y  avcniient;  in  wliidi  case;  tlie  averment  will  be  a  negatixc 
averment. 

'  riimkot  r    IVnson,  2  Atk.  51 ;  Horlio        «on  v.  .Tolin!*on,  1  C.  E.  Green  (N.  .1.),  H^, 
f.M  ir;r'-ll,2S.li.&  Lrf.  721,727:  McKwcn        IH. 
V.  iJroadliead,  3  iStockt.  (N.  J  )  131 ;  Dnvi-  a  Ante,  p.  611 ;  Ld.  Red.  276. 


614  PLEAS. 

Cn.  W.  §  1.        A  m\u:i(ivo   nvi'rim'ut,   tlieroforc,  is   that   s])OC'ics    of   avcM-incnt 

Y ■    whiili  is  made  iiso  of  (o  contradict  any  statoniont  or  charge  in  the 

N\-i;;uiv.-  I'ilK  which,  if  uncontradicted,  wouUl  be  to  do  away  Avith  the  effect 

»voriuoiits.  of  the  matter  pleaded.  The  most  common  case  in  wliicli  this  form 
of  averment  is  used  is,  where  notice  or  fraud  are  alleged  in  the  bill, 
for  the  i)urpose  of  obviating  some  anticipated  defence  Avhich  may 
be  set  uj)  by  the  defendant.^  It  is  to  be  observed,  that  in  Meadows 
V.  T/u>  Dac/iess  of  Kingston^'^  Lord  Bathurst  seemed  to  be  of 
opinion,  that  notice  and  fraud  were  to  be  denied,  by  way  of  aver- 
ment in  the  plea,  in  cases  only  where  the  denial  made  part  of  the 
equitable  defence,  as  in  the  cases  of  purchase  for  valuable  consider- 
ation, where  the  want  of  notice  creates  the  equitable  bar :  but  in 
Devie  v.  Chester,^  a  decree  establishing  a  modus  having  been 
pleaded  to  a  bill  for  tithes,  in  which  the  plaintiff  stated  that  the 
defendant  set  up  the  deci-ee  as  a  bar  to  his  claim,  and,  to  avoid  the 
effect  of  the  decree,  charged  that  it  had  been  obtained  by  collusion, 
and  stating  facts  tending  to  show  collusion,  the  Lord  Chancellor 
was  of  opinion  that  the  defendants,  not  having  denied  the  collu- 
sion by  averments  in  the  plea,  although  they  had  done  so  by 
answer  in  suj^port  of  the  plea,  the  plea  was  bad  in  form,  and  he 
overruled  it  accordingly. 
In  what  cases  This  brings  us  to  tlie  consideration  of  the  cases,  in  which  it  is 
plea  must  be  necessary  that  a  plea  should  be  supported  by  an  answ^er.*  We 
aaswer:  have  before  seen,^  that  wherever  a  bill,  or  part  of  a  bill,  the  sub- 

stantive case  made  by  which  may  be  met  by  a  plea,  brings  forward 
facts  which,  if  true,  would  destroy  the  effect  of  the  plea,  those  facts 
must  be  negatived  by  proper  averaients  in  the  plea:  otherwise, 
they  will  be  considered  as  admitted,  and  so  deprive  the  defendant 
of  the  benefit  of  his  defence.  A  plea,  however,  cannot  be  excepted 
to :  and,  as  it  is  not  necessary  that  an  averment  in  a  plea  should 
do  more  tlian  generally  deny  the  facts  charged  in  the  bill,*^  the 
plaintiff  might,  if  it  were  not  possible  to  require  an  answer  from 
the  defendant,  in  addition  to  his  plea,  be  de])rived  of  the  inde- 
feasible right  which  he  has  to  examine  the  defendant  upon  oath, 
as  to  all  the  matters  of  fact  stated  in  the  bill  which  are  necessary 
to  support  his  case.''     To  obviate  this  result,  the  rule  under  the 

1  See  Fish  v.  Miller,  5  Paige,  26.  which  the  cliarpe  is  foundefl."     So  under 

2  L'l.  Hed   277,  n.;  Amb.  756,  761.  32d   Equity   llul'e  of    the    United    States 
8  I.d.  ll>(\.  277,  n.;    see  nlso  Hoare  v.       Courts,  where  a  f)lea  is  sucli,  th:it  an  ;in- 

Parker,  ziic/. ;  1  Bro.  C  C.  578,  580;  1  Cox,  swer  is  required  to  support  it,  it  will   be 

224,  228.  overruled  unless   mch  answer  is  put  in. 

,           -i'See  Storv  Eq.  PI   §  681  et  seq.,  and  Hagfhorp  v.  Hook,  1  Gill  &  J.  270. 

notes;  Sims  v.  Lvle.  4  WaMi.  C  C.  303,  5  Ante,  p.  612. 

304.     In  .Ma-achusetts,  under  Rule  10,  of  «  l.d.  Ked.  275,  297. 

tlie  liules  of  Practice  iti  Cl:ani-ery,  "in  any  V  Wifrram    on    Disc.    50.     Where    the 

case,  in  which  the  Itill  cluirges  fraud  or  plaintitt' waives  the  necessity  of  an  answer 

conibinaiion,  a  plea  to  ^uch  part  must  be  beinj;;  put  in   on   oath,   if  the   defendant 

accompanied  with  an   answer  supporting  puts  in  a  plea  to  the  bill,  he  need  not  sup- 

the    plea,    iind    explicitiv    denying     the  port   it   by   answer.     Ileartt  v.    Corning, 

f.aud   or  combination,  and  the    fact   on  3  Paige,  566. 


GENERAL   NATURE    OF   PLEAS.  615 

old  practice  (where  an  answer  was  always  necessary),  was,  that  any  Cn.  XV.  §  1. 

statement  or  charge  in  the  bill  aftbrding  an  equitable  circumstance    "" > ' 

in  favor  of  the  plaintiif' s  case  against  the  matter  pleaded  (snch  as  Under  former 

fraud  or  notice  of  title),  must  be  denied  by  way  of  answer.^     In  amwer'^' 

general,  an  answer  in  supijort  of  a  plea  could  not  be  required  in  reqii'red, 

°'  .  ,,  T    where  eqm- 

those  cases  where  such  negative  averments  as  those  above  stated  table  circum- 
were  not  necessary ;  where  the  defence  was  by  a  pure  plea,  that  is,  charged^'^'^^ 
a  plea  merely  suggesting  matter  in   avoidance  of  the  plaintiff's  but  not  in 
right  to  sue,  as  stated  in  the  bill,  an  answer  in  support  of  the  plea  cases  of  pure 
was  not  required.^     In  such  a  case,  the  defendant,  by  his  plea, 
admitted  the  plaintiff's  case,  and  so  full  and  complete  was  the  ad- 
mission, that  if,  after  argument,  issue  was  joined  upon  the  truth  of 
the  plea,  and  the  plea  found  false,  there  was  an  end  of  the  dispute, 
and  the  plaintiff  was  entitled  to  a  decree  upon  the  implied  admission 
of  his  case.^     Where,  however,  a  plea  was  in  substance  negative.  Required,  in 
though  in  fonn  affirmative,  it  was  held,  that  it  must  be  accompanied  piea 'in  sub- 
by  an  answer  as  to  the  allegations,  which,  if  true,  would  have  dis-  stance  nega- 

•'  '='  '  tive,  in  form 

proved  the  plea.  affirmative; 

The  same  ])rinciple  also  required,  that  a  negative  plea  should  be  or  where  bill 
supported  by  an  answer  in  those  cases  only  in  which  the  bill  stated  by"^v;[v  of'^' 
or  charged  facts  by  way  of  evidence  of  the  plaintiff's  right.     It  evideiice  of 
was  required  in  those  cases,  because  the  plaintiff,  having  a  clear  ri.rht,' 
right  in  equity  to  a  discovery  of  all  matters  within  the  knowledge 
of  a  defendant  which  would  enable  him  to  sup])ort  his  case,^  it 
would  have  l)een  against  that  principle  if  a  defendant  could,  by 
merely  denying  the  existence  of  the  claim,  have  deprived  the  plain- 
tiff of  the  means  of  proving  its  validity." 

Under  tlie  ])resent  practice,  if  no  interrogatories  are  filed,  the  Under  pres- 
defendant  need  only  aver  the  facts  necessary  to  render  the  i)lea  a  ["no  inter-'' ' 
complete  equitable  bar  to  the  case  made  by  the  bill,  and  need  not  rogatories, 
put  in  any  answer  in  support  of  the  plea.     If  interrogatories  are  support  not 
filed,  the  princiides  of  the  old  cases,  with  respect  to  an  answer  n«w^^->rv; 

.  ,  ,  .,,  .      .       „  it  interniga- 

.supportiiig  the  ])lea,  still  remain  in  force.  tories,  former 

The  cases  in   which  it  is  necessary  that  a  i)lea  should  be  sui)-   ''"k'*!'' 

<i  I  1       applies. 

1  Lil.  Red.  298;  see,  as  to  answering  wards,  2  Ves.  S.  243;  Wehsterr.  Webster, 
the  stHtement  or  charpe,  Denvs  V.  Locock,  lSm.&G.489;  17Jur.315;  4  De  G.,  M. 
3  M.  &  <;.  20.-,,  234;   1  .lur.  COO;  CliMdwick        &  G.  437. 

V.  HrMadwood,  3   Hcav.  rj30,  53'J;    5  .Jiir.  *  Ilarland  i>.  Emerson,  8  Bligh.  N.  S.  62. 

3.-,y;  I'iiitt  r.  Oliver,  1   McLean,  295;  liel-  G  Sand'-rs  v.  King.  G  Mad  61;  2  S&S. 

1..W8  V.  St(>n'-,  H  N.  II.  280.     If  u  iiiil  sets  277;  Yorlce  r    Vry,  0  Mad.  65;  Thring  v. 

forth  matter  wli'cli  may  avoid  a  bar  lo  the  Ivlgar,  2  S.  &  S.   274,  2.S1;    Il'inlman  v. 

suit,  it  must  l,e  particulMrly  and '[ireciscly  Kllnines,  5  Sim.  640,  649;  2  M.  &  K.  732; 

denied  in  the  an--wcr.     New  Kiig.  lJ:ink  i\  C.  I*.  Coop.  t.  Hrougli.  351.                              , 

Lewi",  H    I'i(k.   113,  117;   sec    Story  Va\.  «  Story  Ivj.  IM.  §§  670,  671,  681.   Annked 

ri.  §§  670.  674,  675  et  se'/.,  and  notes;  Ho-  negative  plea  denying  a  piirtnersliip  is  not 

)!iir<lus  »,'.  'I'riiiiiy  Cliurcli,  4   I'aige,   178;  snfliel(!nt.     It   must    be  supported    by   »n 

Soiizir  r.  De  Meyer,  2  I'aijie.  674.  an-wer.     limes  r.  Kvans,  3  Ivlw.  Cli.  454; 

2  See  Wheeler  v.  I'iper,  3  Jones  Eq.  see  Kveritt  v.  Wiifls,  3  Kilw  Cli.  4.'*6; 
(N.  (;.)  249.  Hall  V.  Nnycs,  3  IJro.  C.  C.  (I'erkins's  ed.) 

•"•  Wigram  on  Pise.  56;  Wood  v.  Strick-        483,  488,  note, 
land,  2  V.  &  B.  158;  Brownsword  v.   Ed- 


010 


PLEAS. 


Cii.  XV.  ^  1. 


Ill  \vh;\t  c;l<0:i 

ail  aiiswiT  ill 
siipiHirt  ol' 
a  I'lia  is 
iiocos^^aiv : 


1.  Whore 
eiiuitaMo  cir- 
cunistaiKi's 
alloirod.  to 
defeat  a  legal 
bar. 


Where  bar 
stated  sub- 
stantively, 
and  where 
by  -way  of 
pretence. 


Where  bill 
contains 
simple  denial 
of  legal  bar. 


2.  Where  no 
legal  bar  is 
alleged  in 
the  bill. 


iMM-tinl  by  an  ansswor,  mny  bo  very  conveniently  divideil  into: 
1.  Those  where  the  i»hnntitt'  admits  the  existence  of  a  looal  bar, 
and  alleges  some  cqnitable  cironmstances  to  avoid  its  efteet,  and 
interropitos  as  to  these  circmnstances;  and,  2.  Those  where  the 
])laintitK  does  not  admit  the  existence  of  any  legal  bar,  btit  states 
some  circumstances  Avhich  may  be  true,  and  to  Avhich  there  may  be 
a  valid  ground  of  plea,  together  with  other  circumstances  which 
are  inconsistent  with  the  substantial  validity  of  a  ])lea,  and  inter- 
rogates as  to  such  circumstances.^ 

1.  "With  respect  to  the  first  class  of  cases,  tlio  limits,  to  wliicli 
the  plea  and  answer  respectively  extend  are  j)lainly  marked,  and 
create  no  difficulty.  The  most  simple  cases  of  this  class  are  those 
in  ■which  pleas  are  put  in  to  bills  brought  to  im2)each  a  decree,  on 
the  ground  of  fraud  used  in  obtaining  it;'^  to  avoid  the  effect 
of  a  judgment  by  a  Court  of  ordinary  jurisdiction;^  to  set  aside 
*a  release;*  or  an  award ;^  or  to  open  a  stated  account.®  In 
all  these  cases,  and  others  which  fall  under  a  similar  principle,  the 
bill  admits  the  existence  of  a  fact  Avhich,  taken  alone,  Avould  be 
conclusive  against  the  j)laintiff,  an<l  then  proceeds  to  state  specific 
grounds  why  it  should  not  have  that  effect ;  and  the  defendant,  if 
interrogated,  must  answer  the  interrogatories  as  to  these  sj^ecific 
grounds.'' 

If  the  defendant  be  interrogated  as  to  the  equital)le  circum- 
stances stated  as  the  ground  for  relief,  it  makes  no  difference 
whether  the  bill  be  so  framed  that  the  bar  be  introduced  by  way 
of  substantive  statement,  and  the  equitable  circumstances  averred 
for  the  ])urpose  of  affording  ground  for  relief,  in  setting  aside  the 
bar  ;  or  -svhether  the  bar  be  merely  suggested  as  a  pretence  set  uj) 
by  the  defendant,  and  the  equitable  matter  be  introduced  to  avoid 
its  effect.*  It  sometimes,  however,  happens,  that  the  plaintiff 
introduces  the  fact  which  would  constitute  the  bar,  in  the  form  of 
a  pretence,  and  meets  it  by  naked  denial,  without  intei-rogating  as 
to  any  circumstances  which  might  dis})rove  it:  in  such  cases,  it- 
seems  that  the  defendant  should  merely  plead  the  fact,  and  that 
there  is  no  need  of  any  other  ansAver  than  the  averments  in  the 
plea.° 

2.  With  respect  to  the  second  class  of  cases  before  referred  to, 
as  those  in  which  it  is  necessary  that  a  plea  should  be  accoinpanied 
by  an  answer,  the  limits  to  which  the  ple.a  and  answer  are  to  ex- 
tend are  not  so  easily  defined.  It  may,  however,  be  laid  down,  as 
a  general  rule,  that  where  no  ostensible  bar  is,  by  the  bill,  admitted 


1  Hare  on  Disc.  30. 

2  Lrl.  Red.  243. 
«  Ih.  Ihh. 

4  Ih.  202. 
6  76.  260. 


e  Ih.  259. 

7  Hare  on  Disc.  33. 

8  lioche  V.  Morgell,  2  Sch.  &  Lef.  721. 
s  Hare  on  Disc.  30. 


GENERAL  NATURE  OF  PLEAS. 


617 


to  exist,  and  yet  the  defendant  vrishes  to  plead  in  bar  to  the  bill,  Ch.  XY.  §  i. 
he  must  distinguish  those  facts  which,  if  true,  would  not  invalidate  "'^  y  ■' 
or  disprove  his  plea,  and  plead  to  the  relief  and  discovery  sought 
as  to  them  ;  and  then,  if  interrogated  as  to  the  facts,  which,  if  true, 
Avould  disprove  or  invalidate  his  plea,  or  to  matters  which  are 
specially  alleged  as  evidence  of  such  facts,  he  must  answer  as  to 
such  facts  and  matters.^ 

In  fonner  times,  the  application  of  these  rides  was  a  matter  of  Former  prac- 
very  considerable  difficulty,  in  consequence  of  the  Court  requiring  jJj'j^'joint^JJJea 
of  a  defendant  the  greatest  accuracy  in  the  form  of  a  joint  plea  and  answer. 
and  answer,  and  treating  any  deviation  from  the  strict  practice  as 
a  fatal  objection  to  the  validity  of  such  a  defence.  In  the  first 
place,  the  defendant  had  to  make  it  distinctly  appear  to  Avhat  part 
of  the  bill  he  pleaded,  and  to  what  part  he  answered.  Then,  if  it 
appeared  to  the  Court  that  the  plea  covered  more  of  the  bill  than 
the  defendant  was  entitled  to  cover  by  it,  it  was  overruled ;  or,  on 
the  other  hand,  if  the  answer  extended  to  any  portion  of  the  bill 
proi)erly  covered  by  the  plea,  it  was  equally  liable  to  be  overruled.^ 
The  result  of  this  extreme  strictness  was,  that  sometimes  in  cases 
to  which  a  defence  by  plea  and  answer  was  strictly  applicable,  the 
bill  might  have  been  so  fi-amed  as  to  render  it  practically  im- 
possible for  the  defendant  to  avail  himself  of  such  a  form  of 
pleading.^ 

This  strict  operation  of  the  rules  of  pleading  has,  however,  been   Tresent 
njaterially  modified:  for  now,  it  is  provided  no  plea  is  to  be  held  Practice: 
bad  and  overruled  u])on  argument,  only  because  such  plea  does 
not  cover  so  much  of  the  bill  as  it  might  have  extended  to,  or  be- 
cause the  answer  of  the  defendant  extends  to  some  part  of  the 
same  matter  as  is  covered  by  the  j)lea.* 

These  provisions  were  intended  to  meet  the  case  of  some  j)art  of 

1  Hare  on  Disc  34;  and  see  Hunt  v.  2  Rich.  Eq.  259;  Bogardus  v.  Trinity 
IVnrii-e,  17  Reav.  52'>;  18  ,Iur.  4  ;  Young  Church,  4  Paige,  178.  If  an  answer  com- 
V.  White,  17  Ueav.  532;  18  .Jur.  277.  mences  as  an  answer  to  ttic  whole   bill,  it 

2  Story  Kq.  ri.  §  W^,  and  notes.  If  the  overrules  the  plea  or  ilemurrer  to  any  par- 
defendant  answers  to  any  matters  covered  ticular  p:irt  of  the  bill,  although  such  part 
by  his  plea,  he  overrules  the  plea.  I$olton  is  not  in  fact  answered.  I.eacraft  v.  Dem- 
r.  Garlner,  :j  I'aige,  27.3;  (Phase's  Ca«e,  1  prev,  4  I'aige,  124;  Summers  r.  Murray, 
l{land,217;  Fercuson  r.  O' I larra,  1  Peters  2  ICdw.  Cii.  205.  An  answer  which  is 
C.  (J.  493;  Cliirk  f.  Saginaw  City  B  ink,  broader  th^in  the  plea,  in  that  it  denies 
HarririR.  Cli.  240;  Bangs  v.  Strong,  10  allegations  not  denied  by  the  plea,  over- 
Paige,  11;  The  B;mk  t.  Dugan,  2  Hlanl,  rules  tlip  nlea.  Lewis?-.  Baird,  3  Mcl-ean, 
254.  VVIieji  an  an^^wiT  contains  more  than  50.  So  wlien  there  is  a  plea  and  no  answer 
is  Rtrictlv  applicable  to  the  support  of  the  is  required  to  support  it  from  any  charges 
plea,  it' overrules  the  plea.  Sfearns  r.  in  the  bill  requiring  a  discovery;  in  such 
Page,  1  Story,  204  If  the  defendant  ca-'e  iin  answer  is  impertinent  and  over-  • 
answprs  as  to  "those  matters,  which  by  his  rules  the  plea.     Story  Eq.  PI.  §  688. 

pl'"a  he  iiMs  declined  to  answer,  be  over-  »  Denysi'.  Locock,  3  M.  &  C.  238;  1  Jur. 

rules  the   plea.     Souzer  v.   De  Mever,  2  605. 

I'aige,   374;   see    Bolton    v.    (Jardner,   3  ••  Ord.  XIV.  8,  9.     A  defendant  cnnnot, 

I'aige,  263;    fUiase's  Case,  1  Bland,  217;  under  these    rules,   simultaneously    plead 

Sims  V.  Lvle.  4  Wash.  0.  C  303;  Piatt  r.  and  demur  to  the  whole  bill.     I.owndes  r. 

Oliver,  1  McLean, 2!»5;  Robcrlston f.  Hing-  (iarnett  &  Mo^elv  <;old  Mining  (Jompany, 

ley,  1  M'Cord  Cli.  352;  Joyce  v.  Gunnels,  2  J.  &  II.  282;  8  Jur.  N,  S.  094. 


018 


TLEAS. 


Cii.  XV.  §  1. 


by  ploa  aiul 
answor.  not 
allowed. 
Kulo  that  a 
jilca  must  not 
III'  too  exten- 
sive, still 
continues. 

Affirmative 
plea  and 
answer:  to 
what  the 
answer  ought 
to  extend ; 
where  the  hill 
taeitly  admits 
a  legal  bar, 

as  Statute  of 
Limitations ; 


purchase  for 
value ; 


other  cases ; 


Statute  of 
Frauds. 


llio  sMino  gfound  being  ac«'i(loiit:illy  covered  by  each  defence  ;  and 
ih)  not  jiistity  two  distinct  defences,  by  pica  and  answH'i- ;  ^  nor  do 
tliey,  in  any  way,  interfere  Avitli  the  ride  •wliich  renders  it  neces- 
sary, tliat  the  plea  slioidd  not  cover  a  greater  portion  of  the  bill 
than  tliat  to  whicli  tlie  defendant  is  strictly  entitled  to  apply  it.^ 
Consequently,  it  is  still  incinubent  ui)on  the  j>leader  to  distinguish 
ticcurately  between  the  parts  to  which  he  intends  to  plead,  and 
those  to  which  he  intends  to  answer. 

AVith  resj)ect  to  affirmative  pleas,  the  difficulty  of  ascertaining 
the  part  of  the  bill  to  be  answered  is  not,  in  general,  very  great. 
The  most  simple  cases  of  this  sort  are  those  in  which  the  bill, 
Avitliout  expressly  admitting  or  suggesting  the  existence  of  a  legal 
or  ecpiitable  bar,  either  by  direct  statement  or  by  way  of  pretence, 
introduces  and  interrogates  as  to  facts  which  are  inconsistent  with 
it,  ob\iously  for  the  purpose  of  anticijiating  and  avoiding  such  a 
defence,  if  set  up.  As,  where  a  plaintiff,  for  the  purpose  of  avoid- 
ing the  effect  of  a  plea  of  the  Statute  of  Limitations,  without 
intimating  such  purpose,  states  and  interrogates  as  to  circum- 
stances which  have  arisen  within  the  time  of  limitation,  by  which 
his  claim  has  been  admitted  or  revived:  in  such  cases,  a  plea  of 
the  Statute  of  Limitations  must  be  accompanied  by  an  answer  as 
to  all  such  circumstances :  ^  otherwise,  such  circumstances  will  be 
considered  as  admitted,  and  Avill  have  the  effect  of  overruling  the 
plea.  And  so,  where  a  plaintiff,  in  order  to  avoid  the  effect  of  a 
plea  of  purchase  for  valuable  consideration,  without  notice,  states 
and  interrogates  as  to  matters,  the  effect  of  which  would  be  to 
show  that  the  defendant  had  notice  of  the  plaintiff's  title,  the  de- 
fendant must  accomp.any  his  plea  by  an  ansAver  as  to  such  facts, 
and  such  facts  shoidd  be  excepted  from  the  plea.* 

The  same  rule  applies  to  all  cases  of  a  similar  description ;  and 
no  distinction  appears  to  exist  betAveen  cases  in  which  the  matter 
in  avoidance  of  the  anticipated  plea  is  stated  in  the  bill  by  Avay  of 
pretence,  and  those  in  Avhich  it  occurs  in  the  statement. .  Thus,  if 
a  bill  be  filed  for  the  specific  pex-formance  of  an  agreement,  to 
wliich,  if  not  in  wi'iting,  the  Statute  of  Frauds  would  be  a  bar,  it 


1  See  Mansell  v.  Feeney,  2  J.  &  H.  313, 
■where,  to  a  bill  for  the  accounts  of  an  al- 
leged partnership,  a  plea  of  no  partnership, 
accompanied  by  an  answer,  raising  the 
defences  of  laches  and  the  Statute  of 
Limitations,  was  held  had  for  duplicity. 
See  aho  Lowndes  v.  Garnett  &  Mosely 
Gold  Mining  Company,  n/n  sup. 

2  Salmon  v.  Dean,'  3  M'N.  &  G.  344, 
348;  14  .Jur.  235;  Hewitt  v.  Hewitt,  11  W. 
R.  849,  V.  C.  K. 

3  Bay  ley  v.  Adams,  6  Ves.  586,  598. 
A  plea  of  the  Statute  of  Limitations  is 
bad,  unless  accompanied  by  an  answer 
supporting  it,  by  a  particular  and  precise 


denial  of  all  the  facts  and  civctimstances 
charged  in  the  bill,  and  which  in  Equity 
may  avoid  the  statute.  Goodrich  v.  Pen- 
dleton, 3  .John.  Ch.  384;  BlooiJKOod  v. 
Kane,  8  Cowen,  360;  Lingan  v.  Mender- 
son,  1  Bland,  2^2;  Moreton  v.  Harrison, 
1  Bland,  303;  Bolton  v.  Gardner,  8  Paige, 
273. 

So  the  answer  must  deny  all  the  charges 
in  the  bill,  which  may  avoid  the  bar  by 
showing  a  new  promise.  Chapin  v.  Cole- 
man, 11  I'ick.  331. 

*  Lord  Portarlington  v.  Soulby,  6  Sim. 
356. 


GENERAL   NATURE    OF   PLEAS. 


619 


is  usual,  in  order  to  avoid  a  demurrer,  to  state  the  agreement  to  be 
in  writing,^  and  to  found  an  inten-ogatory  on  such  statement,  and 
then  it  is  necessary  that  a  plea  of  the  statute  should  be  supported 
by  an  answer,  denjdng  the  agreement  to  have  been  in  writing.- 
And  where  several  collateral  facts  are  stated  and  interrogated  to, 
as  evidence  of  the  agreement  having  been  in  wiiting,  those  col- 
lateral facts  must  also  be  answered.^ 

It  is  true,  that,  in  all  the  above  cases,  the  bar  afforded  by  the 
plea  appears,  to  a  certain  extent,  to  have  been  anticij^ated  by  the 
person  who  framed  the  bill,  and  who,  therefore,  so  framed  it  as  to 
avoid  the  bar,  if  set  up ;  but  the  rule  applies  to  all  cases  where 
the  interrogatories  are  founded  on  matter  stated  in  the  bill,  which, 
if  true,  would  negative  the  plea,  and  whether  such  matter  is  stated 
incidentally,  or  in  anticipation  of  any  exjjected  defence,* 

The  rule  that  allegations  which,  if  true,  would  disprove  the  plea, 
must,  if  interrogated  to,  be  answered,  applies  to  pleas  which  are 
negative  in  substance,  if  they  are  atfirniative  in  form.^ 

In  the  case  of  negative  pleas  the  rule  is,  that  when  a  defendant 
puts  in  a  plea  which  has  the  effect  of  negativing  the  plaintiff's 
title,  he  need  not  accompany  It  by  an  answer,  as  to  any  of  the 
facts  upon  which  that  title  depends,  u^nless  discovery  is  specially 
sought  by  the  bill,  and  he  is  required  to  answer  interrogatories  as 
to  such  focts.^  If,  however,  this  is  done,  the  defendant  is  bound  to 
accompany  liis  plea  by  an  answer  as  to  such  facts.''  The  correct- 
ness of  this  rule  has  been  questioned ;  *  but  it  seems  to  be  now 
established. 

Although  a  defendant,  pleading  a  negative  plea,  exonerates 
himself  from  answering  to  any  fact  to  which  the  plea  extends,  yet 
as  the  plaintiff  is  entitled  to  discovery  from  the  defendant  of  all 
matters  necessary  to  support  his  case,  he  has,  consequently,  a  right 
to  compel  the  defendant  to  answer  specifically  to  all  the  facts 
stated  in  his  bill,  to  which  he  considers  it  necessary  to  require  an 
answer,  m  order  to  enable  him  to  make  out  his  claim  by  means  of 
the  evidence  which  may  be  afforded  by  the  defendant's  admission.® 
Thus,  if  a  bill  were  to  be  filed,  alleging  a  partnershij),  and  insist- 

1  Whitchurch  v.  Bcvi*,  2  Bro.  C.  C. 
559,  6«G;  see  Walker  v.  Locke,  5  Cusb. 
90;  ante,  p.  501,  n.  2.    . 

2  //t.  aW  ;  Pce  also  Morison  v.  Tur- 
noiir,  18  Ves.  176,  182;  Spurrier  v.  Fitz- 
geralii,  6  Ves.  548,  555.  Where  the  de- 
lenilant  in  a  suit  for  sppcific  performance, 
pl'-ailst  flie  Statute  of  Frauds,  and  answers, 
adniittiiif;  the  contract,  the  answer  over- 
rules tli'^  plea.  Kpiscopal  Church  v.  I,eroy, 
Riley  Cli.  158,  |ier  .Fohiison  Ch. ;  but  see 
Aoh  V.  Dapfiv,  f)  In<l.  25tt. 

»  Evan.  )•.■  Harris  2  V.  &  R.  361,  364. 
<  Trow  r.   Tyrrell,   2   Mad.    397,    409; 
Bailie  v.  Sibbiild,  15  Ves.  IbO;  Uoche  v. 


Ch.  XV.  §  1. 


Extent  of 
the  rule. 


In  the  case  of 
a  negative 
plea, 

if  plea  nega- 
tives plain- 
tiff's title, 
answer  not 
necessary  as 
to  tacts  on 
which  that 
title  depends ; 

unless  dis- 
covery 
sought,  and 
defendant 
interrogated.- 

But  plaintiff 
has  a  right  to 
discovery  of 
all  facts 
necessary  to 
rebut  nega- 
tive plea. 


I^Iorgell,  2  Sch.  &  Lef.  721 ;  Jones  v.  Davis, 

16  Ves.  262,  265;    Hunt   v.    Penrice,   17 
Boav.  525;  18  .Iin'.  4;   Young  v.    White, 

17  B.av.  532;   IS  Jur.  277. 

6  Harland  v.  Fmerson,  8  Bligh  N.  S.  62. 
0  Thring  v.  Edgar,  2  S.  i*t  S.  274,  281. 

7  Sanders  v.  King,  6  Mad.  61;  2  S.  & 
S.  277;  Yorke  v.  Fry.  6  Mud.  65. 

3  See  cases  cited,  Wigram  on  Disc.  142. 

"  ]''or  a  case  where  it  was  heM,  that  de- 
fendant need  not,  under  the  new  practice, 
answer  as  to  certain  facts,  because  they 
could  not  b(!  made  use  of  as  evidence,  see 
Young  V.  White,  17  Beav.  632;  18  Jur. 
277. 


620 


PLEAS. 


Cii.  XV.  §  1. 


"Ulicrc 
admission  of 
plaintiff's 
title  is 
alleged,  de- 
feiKlant,  if 
interrojiated, 
must  answer 
as  to  such 
admission, 
though  dis- 
coven-  is  not 
sought  as 
evidence. 

Answer  must 
not  extend 
to  facts  not 
charged  as 
evidence  to 
rebut  plea. 

Plea  must  not 
except  from 
the  bill  the 
allegation 
which  it  is 
the  object  of 
the  plea  to 
traverse. 


iiig  tliat  the  existence  of  siuh  paitnefshij)  was  made  out  by  certain 
docnnients,  or  by  settlements  of  accounts  and  admissions,  it  would 
not  be  suiticient  to  ])lead  to  such  a  bill  a  mere  denial  of  the  exist- 
ence of  the  partnershij) ;  ^  the  defendant  must  go  further,  and 
answer  as  to  all  the  circumstances  insisted  upon  as  evidence  of  the 
partnershi)>.'^  This  was  the  principle  acted  upon  by  Sir  John 
Leach  Y.  C  in  Sanders  v,  A'iny,' where  his  Honor  laid  down  the 
rule,  that  a  ])lea  Avhich  negatived  the  jilaintilf's  title,  though  it 
protected  a  defendant  generally  from  answer  and  discovery  as  to 
the  subject  of  the  suit,  did  not  protect  him  from  answer  and  dis^ 
covery  as  to  such  matters  as  were  si)ecially  charged  as  evidence  of 
the  })laintift''s  title.  He  afterwards  repeated  the  same  rule,  in  the 
case  of  Tliring  y.  JiJdgar;*  and  it  was  acted  upon  both  by 
Lord  Brougham  and  Su-  Lancelot  Shadwell  V.  C,  in  Ilardman  v. 
EllaniesJ' 

In  cases  where  the  bill  alleges  that  the  defendant  has  admitted 
the  plaintiff's  title,  the  defendant,  if  he  puts  in  what  is  in  effect  a 
plea  of  no  title,  must,  if  interrogated,  answer  as  to  the  admission, 
although  the  plaintiff  does  not  require  discovery  of  it  "  as  evi- 
dence "  of  his  title.^ 

In  the  case  of  Tliring  v.  Edgar,  the  plea  was  overruled  solely 
upon  the  ground  that  the  accompanying  answer  extended  to  facts 
not  charged  as  evidence  to  rebut  the  matter  of  the  plea  ; ''  but  it 
appears  that  it  was  also  objectionable,  in  that  the  plea  excepted 
from  the  bill  the  only  allegation  which  constituted  the  title  itself, 
and  which  it  was  the  object  of  the  plea  to  traverse.  This  olyec- 
tion  was  not  adverted  to  by  Sir  John  Leach  V.  C.  in  his  judgment 
on  the  case,  but  has  since  been  made  the  subject  of  comment  by 
Lord  Cottenham,  in  the  case  of  Denys  v.  Eocock^  where  he  held, 
that  a  similar  objection  was  fatal  to  the  validity  of  a  negative 
plea.  The  equity  of  the  bill, .  in  that  case,  depended  upon  an 
alleged  jiromise  :  the  object  of  the  negative  plea  was  to  deny  the 
fact  that  this  alleged  promise  was  ever  made.  Upon  this  Lord 
Cottenham  said :  "  The  plea  negatives  the  allegation  of  the  j)romise. 
What  I  particularly  observe  upon  is,  that,  first  it  takes  out  of  the 
bill  the  allegation  of  the  promise,  and  then  denies  it.  Now  I  ap- 
prehend that  is  not  correct,  and  that  no  such  j^lea  can  be  supported. 
A  negative  plea  is  a  mere  traverse ;  it  differs  from  an  ordinary 
plea,  inasmuch  as  the  ordinary  plea  admits  the  trutli  of  the  bill, 
but  states  some  matter  dehors,  which  destroys  the  effect  of  the 


1  Evans  «.  Harris,  2  V.  &  B.  361,  364; 
Harris  v.  Harris,  3  Hare,  450,  453;  8  Jur. 
978;  Mansell  v.  Feeney,  2  J.  &  H.  313. 

2  See  Innes  v.  Evans,  3  Edw.  Ch.  454; 
Everett  »•.  M'atts,  3  Edw.  Ch.  4S6. 

3  6  Mad  01;  2  S.  &  S.  277;  see  also 
Yorke  v.  Erj',  uhi  sup. 


4  2  S.  &  S.  281. 

6  5  Sim.  G40,  650;  2  M.  &  K.  732,  744; 
C.  P.  Coop.  t.  Brou2h,  351,  .360. 
6  Harland  v.  Emerson,  8  IMighN.  S.  62. 
T  S^e  2  S.  &  S.  281. 
8  3  M.  &  C.  205, 233,  235;  1  Jur.  605. 


GENERAL  NATUEE  OF  PLEAS. 


621 


allegation,  and  which,  assuming  the  allegation  to  be  true,  would  Ch.  XV.  §  i. 

be  a  defence."     "  A  negative  plea,  however,  is  a  mere  traverse  of  '— — y •' 

that  which  constitutes  the  plaintiff's  title.  Xoav,  to  traverse  that 
which  is  not  alleged  on  the  foce  of  the  bill,  —  to  take  out  of  the  bill 
an  allegation,  and  then  by  jjlea  to  negative  the  allegation, — is  a 
mode  of  proceeding  which  leaves  the  record  in  a  state  which 
renders  it  impossible  for  the  Court  afterwards  to  deal  with  it." 
"  Now,  in  point  of  fact,  the  bill  to  which  the  plea  pleads,  contains 
no  allegation  of  promise  at  all ;  and  the  only  way  of  trying  how 
that  would  operate,  is  to  siippose  issue  to  be  taken  on  the  plea ; 
how  would  it  be  to  be  tried  ?  It  would  be  an  issue  taken  on 
the  traverse  only;  on  the  negative  of  that  which  nobody  has 
affirmed." 

Tlie  rule  in  Thring  v.  Edgar  is  applicable  only  to  those  facts  Defendant,  if 
which  are  covered  by  the  plea  ;  and  with  respect  to  collateral  facts,  j^[|g7aSJ 
or  facts  which  are  stated  in  the  bill,  as  occurring  since  the  title  of  to  collateral 
the  plaintiff  is  alleged  to  have  arisen,  the  defendant  is  bound  to 
answer,  if  interrogated,  as  to  them.     In  this  respect,  there  is  no 
distinction  between  negative  pleas,  and  pleas  of  any  other  de- 
scription. 

We  now  come  to  the  consideration  of  the  cases  in  which  it  is  Rule,  with 
necessary  that  a  plea  should  be  accompanied  by  an  answer,  as  to  g^^l^jlj^ag^o 
deeds,  papers,  and  other  documents  in  the  defendant's  possession,  documents: 
custody,  or  power.^     This  question  is  not  of  so  much  importance 
as  it  formerly  was :  because  it  is  no  longer  necessary  to  file  interrog- 
atories, in  order  to  obtain  a  discovery  of  such  documents ;  ^  and 
the  Court  has  expressed  its  determination  to  discourage,  as  much 
as  possible,  exceptions  for  insufficiency  in  answering  tliem.^     The 
necessity  for  such  an  answer  must,  generally,  depend  upon  the 
nature  of  the  individual  case ;  so  far,  however,  as  the  subject  is 
susceptible  of  a  reduction  into  rules,  the  following  are  those  by 
which  it  is  regulated. 

Where  a  bill  states  a  case  for  the  plaintiff,  and  interrogatories  wiiere  no  fact 
are  filed,  asking  whether  tlie  defendant  has  in  his  possession  docu-  l^^p'j'l^i'^  t° 
ments,  wliereby  the  matters  stated  in  the  bill  would  aj>pcar,  and  avoid  tiie 
the  defiiidnnt  pleads  a  ])ure  affirmative  plea,  not  denying  any  part  pj^a.'^" 
of  the  plaiiitiir's  case,  he  will  not  be  required,  indeed  ought  not, 
to  answer,  as  to  the  ]»oHsession  of  the  documents :  because  the 
documents,  being  only  charged  in  tlic  bill  to  be  of  imj)ortancc,'as 
I)njving  the  plaintiff's  case,  which  the  defendant  by  his  jdea  docs 
not  controvert,  the  jiroductioii  oft  lie  (locuiiu-iits  would  W  uimeces- 

1  See  Stnry  Kq.  I'l.  §  083.  3  KilKcr  r.  Worswick,  5  Jur.  N.  S.  37, 

2  Such  discovery  may  be  obtained  on  V.  C.  W.;  HariKird  i'.  Iliinur,  ]  .liir.  N. 
summons  at  ('hamberr;  see  15  &  Ki  Vic.  S.  H)(ir>,  V.  C.  W'.;  Law  c.  Looiloti  In<iis- 
c.  *>'>,  §  1^^;  ai.d  sec  /w»(,  Chap.  XLll.  putable  Society,  lo  Hare.  Ap. '-20;  bcc  also 
ProduclUm  irf  Ducumeiils.  iiead  v.  \\  oodrootl'e,  2i  Beav.  421. 


(.2: 


PLEAS. 


Cm.  W.  J  1 


"Where  facts 
are  stated  or 
charged  in 
the  hill,  to 
avoid  the 
plea. 


Rule  as  to 
documents, 
where  the  bill 


sai'v.  Tims,  ^vhere  (U'fond.iiits  ])leni]ctl  tlio  Stattitc  of  Limitations, 
but  did  not  answer  an  allegation  in  the  bill,  "that  they  had  in 
tlieir  possession  books  and  doennients  relating  to  the  matters 
aforesaid,  or  some  of  them,"  Sir  Laneelot  Shadwell  V.  C  held, 
that  an  t)bjeetion  to  the  plea,  on  the  gronnd  of  the  omission  of 
sneh  an  answer,  eould  not  be  sustained  ;  he  thought,  that  unless 
the  allegation  in  the  bill  had  gone  further,  and  had  averred  that 
by  the  doeuments,  or  some  of  them,  it  would  appear  that  a  promise 
had  been  given  within  six  years,  the  mere  allegation  that  the  de- 
fendants had  in  their  possession  papers  relating  to  the  matters 
aforesaid,  and  from  which,  if  produced,  the  matters  aforesaid  would 
appear,  was  immaterial :  there  not  being  any  allegation  in  the  l)ill 
of  any  promise  having  been  made  within  six  years ;  and  that,  con- 
sequently, it  was  not  necessary  for  the  defendants  to  negative  such 
an  allegation,  either.'  by  avennents  in  their  plea,  or  by  answer  in 
sn2)])ort  of  it.-^ 

It  is  evident,  from  the  above  case,  that  if  the  bill  had  contained 
any  allegation  of  a  promise  within  six  years,  the  Vice-Chancellor 
"would  have  held,  that  the  chai-ge  as  to  the  documents  ought  to 
have  been  answered ;  and  it  may  be  laid  down  as  a  rnle,  that 
wherever  the  bill  states  any  facts  which  are  inconsistent  with  the 
defendant's  2)lea,  or  which  would  take  the  plaintiff's  case  out  of  the 
operation  of  it,  and  interrogatories  are  filed,  asking  whether 
the  defendant  has  in  his  possession  documents  relating  to  the  sub- 
ject-matter of  the  suit,  it  will  then  be  necessary  to  accompany  the 
plea  by  a  discovery  of  the  documents  in  the  defendant's  possession  : 
for,  as  the  introduction  of  such  matter  in  the  bill  renders  it  impera- 
tive on  the  defendant  to  accompany  his  plea  by  an  answer  as  to  those 
facts,  that  answer,  to  be  complete,  must  extend  to  the  documents 
inquired  after  :  because,  as  they  are  alleged  to  relate  to  the  matters 
before  mentioned,  and  the  facts  which  go  to  negative  the  defend- 
ant's plea  are  amongst  those  matters,  it  may  happen  that  the  doc- 
uments in  the  possession  of  the  defendant  will  afford  important 
evidence,  to  enable  the  plaintiff  to  avoid  the  effect  of  the  ])lea. 
Thus,  where  a  bill  was  filed  by  j>ersons  claiming  an  estate,  as  heirs 
of  A.,  ex  parte  materna,  and  the  defendant  pleaded  that  another 
person  was  the  heir  of  A.,  ex  parte  paterna^  the  Court  overruled 
the  plea :  because  it  did  not  answer  as  to  a  correspondence,  by 
which  it  was  charged  in  the  bill  that  tlie  defendant  had  admitted 
the  pbiintiff's  title.^ 

Although    the   general   rule   is,   that   an   interrogatory   asking 
whether  the  defendant   has   documents   in   his   possession,  from 


1  MacGregor  v.  Ea.st  India   Companj', 
2  Sim.  402,  4-05. 

2  Emerson  v.  Harland,  3  Sim.  490,  492 ; 


see  also  Hardmiin  v.  Elhimes,  5  Sim.  C40, 
650;  2  M.  &:  K.  732,  741;  Harris  v.  Harris, 
3  Hare,  450,  455;  8  Jur.  978. 


GENERAL   NATURE    OF    PLEAS.  623 

which   the   matters   in   the   bill   stated   would   appear,   must   be    Cn.XY.  §i. 

answered,  whenever  there  are  focts  stated  in  the  bill  which  are  in-  .'^ y ' 

consistent  with  the  plea,  yet,  it  does  not  apply  to  those  cases  where  misstates  the 
the  bill  misstates  the  effect  of  deeds  which  form  the  substance  of  \^^i^^^ 
the  plea,  and  are  stated  in  it.  Thus,  where  a  plaintiff  claimed  as 
heiress-at-law  of  a  person  who  had  devised  real  estates  t^o  various 
persons  in  tail,  with  ultimate  remainder  to  his  own  right  heirs,  and 
alleged,  by  her  bill,  that  the  several  estates  tail  had  been  determined 
by  failure  of  issue,  and  that  no  valid  recovery  had  been  suflered, 
or,  if  it  had,  that  the  property  had  been  so  settled  that  she,  the 
plaintiff,  was  still  entitled  as  right  heir  of  the  original  testator,  and 
that  it  would  so  appear  if  the  defendant  would  produce  the  deeds 
creating  the  tenant  to  the  prcBcipe^  and  leading  or  declaring  the 
uses  of  the  recovery  ;  and  the  defendant  pleaded  the  recovery,  and 
set  forth  the  substance  of  the  deeds  making  the  tenant  to  the 
prcecvpe,  and  leading  the  uses  of  the  recovery,  un<ler  which  it  was 
apparent  that  the  plaintiff  had  no  title  :  the  plea  was  held,  by  Sir 
John  Leach  V.  C.  to  be  good,  although  not  supported  by  an  an- 
swer as  to  the  deeds,  which  his  Honor  held  to  be  unnecessary,  as  the 
plea  was,  in  fact,  -a  direct  denial  of  the  avenuent,  that  the  estate 
was  so  settled  that  the  plaintiff  was  entitled  to  it.^ 

Perhaps  the  best  course  which  a  pleader  can  pm-sue  in  cases  of  Course  to 
this  description  is,  in  general,  to  consider  how  far  any  part  of  the  P^^^"*^^ggs_ 
matter  alleged  in  the  Inll  partakes  of  the  nature  of  a  special  repli- 
cation. If  the  matter  charged  amounts  only  to  a  general  denial 
of  the  facts  pleaded,  the  discovery  is  not  necessary  :  because,  then, 
the  documents  sought  fomi  part  of  the  defendant's  case  only,  and 
when  the  cause  comes  to  be  heard  on  the  truth  of  the  case,  as  put 
in  issue  by  the  ]jlea,  the  plaintiff  (his  case  being  admitted  by  the 
plea)  will  not  require  the  assistance  of  the  documents  in  the  de- 
fendant's possession  to  establish  his  right ;  and  the  defendant  will 
derive  no  benefit  from  his  plea,  unless  he  can  prove  it  to  be  true. 
If,  on  the  contrary,  the  charge  amounts  to  a  special  replication, 
that  is,  to  a  statement  of  facts,  Avhich,  admitting  the  plea  to  be 
true,  goes  to  do  away  with  its  effect,  there  the  documents  required 
may  be  important  to  assist  the  plaintiff  in  inaking  out  his  own 
case,  namely,  the  facts  alleged  in  derogation  of  the  i)lea :  in  such 
cases,  therefore,  there  must  be  a  discovery  as  to  those  documents, 
if  rcijiiired  by  the  plaintiff. 

With  res[tect  to  negative  jjleas,  the  rule  may  be  state<l  to  I>c  in    KuIc  as  to 
conformity  with  the  principles  before  adverted  to  :  namely,  tliat  f,|"ijl'"ra!ic  of 
if  a  jdaintiff  indicates,  by  liis  iiiterrogntories,  that  he  requires  an   np^jutive 
answer  as  to  documents  alleged  to  be  in  the  defendant's  possession,   I"'"^' 

1  riunkctt  V.  Cavendish,  1  H.  &  M.  713,  718. 


024  PLEAS. 

1 11.  XV.  §  1.    in  proof  of  Ills  title,  the  ilefeiulant  must  make  the  tliscovcry  ;  thus, 

"•^ Y if  the  interrojji^atories  ask  whether  tlio  defendant  lias  in  his  ])Osses- 

sion  doeumeuts  from  which  the  truth  of  the  matters  stated  in  the 
bill  would  appear,  he  must,  if  he  negatives  the  }»laintilf's  title  by 
his  pK'a,  aeeompany  his  plea  by  an  answer  as  to  those  documents.-^ 
The  i)laintitf  is  entitled  to  a  discovery  of  them,  in  order  to  enable 
him,  in  the  language  of  Lord  Brougham,  "to  negative  the  negative 
.Viii^wir  in  plea."*  AVheu,  on  the  other  hand,  the  interrogatories  ask  whether 
<iiiilH>rt  ot  a  ^]  doeumeuts  are  in  the  possession  of  the  defendant,  but  do  not 
ask  w  hether  from  such  documents  the  truth  of  the  matters  in  the 
bill  would  appear,  then  it  is  presumed  that,  according  to  the  rule 
in  ThruKj  v.  Ethjar^  they  ought  not  to  be  answered/ 
is  no  part  of  It  may  be  collected  from  the  preceding  observations,  that  an 
the  ckitiKc.  ang-^^er  in  support  of  a  plea  is  no  part  of  the  defence.'^  The  de- 
fence is  the  matter  set  up  by  the  plea ;  the  answer  is  that  evidence 
which  the  plaintiff  has  a  right  to  recpiire  and  to  use,  to  invalidate 
the  defence  made  by  the  i)lea;  and  the  plaintiff  is  entitled  to  make 
use  of  it,  not  only  upon  the  hearing  of  the  cause,  upon  the  issue 
raised  by  the  plea,  after  the  plea  shall  have  been  decided  to  be  a 
good  bar  uj^on  argument,  but  upon  the  argument* of  the  plea  itself, 
before  any  evidence  can  be  given,®  for  the  pur])ose  of  counterprov- 
ing  the  plea,  by  reading  fi-om  it  any  flicts  or  admissions  which  may 
Answer  must  negative  the  matters  pleaded  or  averred  in  the  plea.''  The  answer, 
be  full  aud  then,  being  no  part  of  the  defence,  but  only  what  the  plaintiff  has 
a  right  to  require  to  enable  him  to  avoid  .that  defence,  it  follows, 
that  it  must  be  full  and  clear,  otherwise  it  will  not  support  the 
plea :  for  the  Court  will  intend  all  matters  alleged  in  the  bill,  to 
which  the  plaintiff  is  entitled  to  require  an  answer,  to  be  against 
the  pleader,  unless  they  are  fully  and  clearly  denied.*  Thus,  if  a 
bill  is  filed  to  set  aside  a  decree,  or  other  instrument,  on  the  ground 
of  fraud,  and  the  defendant  pleads  the  decree  or  instrument  sought 
to  be  set  aside,  in  bar,  the  defendant  must  answer  the  facts  of  fraud 
alh  ged,  so  fully  as  to  leave  no  doubt  on  the  mind  of  the  Court 
that,  upon  that  answer,  if  not  controverted  by  evidence  on  the 
part  of  the  plaintiff,  the  fact  of  fraud  cannot  be  established.  If  the 
answer  should  not  be  full  in  all  material  points,  the  Court  will  pre- 
sume that  the  fact  of  fraud  may  be  capable  of  \)\-ooi  in  the  point 
not  fully  answered,  and  will,  therefore,  not  deem  the  answer  sufficient 
to  supi)ort  the  plea,  and  upon  that  ground  will  overrule  the  plea.® 
Although  an  answer  in  support  of  a  plea  is  required  to  be  full 

1  Maiisell  V.  Feeiiev,  2  J.  &  H.  313.  "  Ld.  Red.  244,  n. 

2  llardnian  i\  Elhimes,  2  M.  &  K.  744;  '  Hildviird  v.  Ciessy,  3  Atk.  303;  Ilony 
C.  V.  Coop.  t.  Brougli.  300.                                  v.  IIoiiv,  1  S.  &  S.  509,  580. 

3  2  8.  &  S.  274,  281.  8  L,r..i;c-d.  2U8;  Ilildyard  v.  Cressy,  «6» 
<  See,  however,  Kigby  u.  Rigby,  loSim.        ivp.;  Gordim  v.  Shaw,  14  Sim.  393. 

90;  10  Jur.  126.  'J  Ld.  Red.  244. 

6  Ld.  Red.  244,  n. 


DIFFERENT    GROUNDS    OF    PLEAS. 


625 


and  clear,  yet,  if  the  equitable  matters  charged  are  fully  and  clearly 
denied,  it  may  be  sufficient  to  support  the  plea,  although  all  the 
circumstances  charged  in  the  bill  may  not  be  precisely  answered.^ 
In  such  cases,  however,  the  plaintiff  is  not  precluded,  by  the  cir- 
cumstance of  the  Court  having  held,  upon  the  argument  of  the 
plea,  that  the  charges  in  the  bill  are  sufficiently  denied  to  exclude 
intendment  against  the  pleader,  from  afterwards  excepting  to  the 
sufficiency  of  the  answer,  in  any  point  in  which  he  may  think  it 
defective.'^  He  may  also  obtain  leave  to  amend  his  bill,  and  there- 
by obtain  an  answer  to  any  matter  Avhich  may  not  have  been  so 
extensively  stated  or  interrogated  to  as  the  case  would  warrant, 
or  to  which  he  may  apprehend  that  the  answei-,  though  full  in 
tenms,  may  have  been,  in  effect,  evasive.' 

The  cases  above  referred  to,  as  those  in  which  the  jjlea  must  be 
accompanied  by  an  answer,  are  those  only  in  which  some  fact  or 
matter  is  stated  or  charged  by  the  bill,  which,  if  true,  would  have 
the  effect  of  overruling  the  plea.  There  are  cases,  however,  in 
which,  even  though  no  equitable  circumstances  are  alleged  in  the 
bill,  to  defeat  the  bar  offered  by  the  plea,  when,  in  fact,  a  pure  plea 
may  be  pleaded,'  yet  the  defendant  may  support  his  plea  by  an 
answer,  touching  matters  not  charged  in  the  bill.*  Thus,  in  the 
case  of  a  plea  of  purchase  for  valuable  consideration,  a  defendant 
may  deny  notice  in  his  answer,  as  well  as  in  his  plea :  because,  by 
so  doing,  he  does  not  put  any  thing  in  issue  which  he  would  cover 
by  his  plea  from  being  put  in  issue.^  A  defendant  may  also,  by 
this  means,  put  upon  the  record  any  fact  which  tends  to  corrob- 
orate his  plea,  so  as  to  enable  him  afterwards  to  prove  it.  An  an- 
swer of  this  sort  is  termed  an  answer  in  aid  or  in  subsidium  of  the 
])lea;®  and  differs  fi-om  what  is  usually  termed  an  answer  in  sup- 
port of  a  plea,  in  being  an  answer  which  the  defendant  is  not 
obliged  to  ]tut  in,  for  the  purpose  of  avoiding  the  effect  of  any 
equitable  ground  which  may  be  alleged  in  the  bill,  fur  avoiding  the 
bar  offeretl  by  the  plea. 


Ch.  XV.  5  2. 


After  plea 
allowed, 
plaintiff"  may 
except  to 
answer ; 


or  amend  his 
biU. 


Of  answering 
in  siibsidium. 


If 


Section  II.  —  The  different  Grounds  of  Pleas. 

A  plea  may  be  eitlier  to  the  relief^  or  to  (he  discovery,  or  to  l)0th.   Plea  i 
it  is  a  good  plea  to  the  relief,  it  will  be  also  good  to  the  discov-  lodil 


1  M.  2»9;  Walter  r.  Glanvilip,  5  Bro. 
P.  C.  ed.  Tiitiil.  505;  S.  C.  mw«.  \V;itersj,'. 
Glanville,  (Jill).  K'-p.  1^4.  TIkj  only  way 
of  tfRiiii^  the  suflicieuey  of  nil  answer  in 
support  of  a  [»leu  is,  to  consider  every  alle- 
f;^iti<>n  in  tiiu  l^ill  which  in  not  siitlieieiitly 
otnied  by  the  tmswer,  an  true;  and  then 
to  impiire,  whether  tliesc  facts  hein;;  iid- 
mitte<l,  the  plea  is  a  sufficient  bar  to  the 
voi^  I. 


claim  of  the  plaintiff  for  relief.     I?ogar<iu9 
r.  Trinity  Church,  4  I'aige,  178,  I'Jl. 

2  Ld.  Ked.  2!)y. 

3  Ld.  Ked.  245. 

*  II).  2uit:  Ueameson  Piens,  37;  [•"orbes 
V.  Skeltoii,  a  Sim.  335,  346;  1  Jur.  117. 

5  For.  Kom.  6B. 

6  Ibid. 


good  to 
is  goc  d 
jscovery. 


40 


(i26  PLEAS.  " 

Cm.  XV.  §  3.   cry,^  in  tlio  same  mniinor  tliat  a  dcinurrcr  wliicli  is  valid  as  to  the 

' Y '    relief  jn-ayetl,  is,  as  has  been  alreuily  mentioned,  good  to  the  dis- 

DetVuilautl       coveiy  sought  by  the  bill.-     In  Junies  v.  tSadgrove^^  the  question 
urivHet'aiul    "^^''"^^  raised  whether  a  defendant,  pleading  to  the  relief,  could  never- 
ai.swor  as  to     theless  give  the  discovery  sought  by  the  bill,  Avithout  overruling 
K?ely!       1^^*  P^^^-';  =^"'^  '^"^  '^''^"^  Leach V.  C.  said:  "Admitting  that  a  de- 
fendant may,  at  his  pleasure,  answer  the  whole  bill,  though  he 
pleads  to  the  relief,  it  does  not  follow  fi"om  thence  that  he  may 
plead  to  the  relief  and  part  of  the  discovery  only,  and  at  his  pleas- 
ure, answer  the  rest  of  the  bill :  such  a  partial  answer  can  serve  no 
useful  ])ur])ose,  and  the  rule  ajiplies  here,  that  he  Avho  submits  to 
answer  at  all,  must  answer  fully ;  "  unless  in  those  cases  in  which, 
as  will  be  hei-eafter  shown,  he  may  protect  himself  from  such  dis- 
covery by  i)lea  to  the  discovery. 
Division  of  Pleas  in  Equity,  to  the  relief  prayed  by  the  bill,  have  usually 

pleas  to  relief:  -^^^^^  ranged  xmder  the  heads  of  pleas:  To  the  jurisdiction ;  To  the 
person  of  the  plaintifl*  or  defendant ;  and.  In  bar  of  the  suit.  This 
arrangement  is  the  one  recognized  by  Lord  Redesdale,  and  Sir 
George  Cooper :  ^  but  the  learned  author  of  the  "  Treatise  on  the 
Elements  of  Pleas  in  Equity  "  has  added  another  head  of  plea  to 
those  before  enumerated ;  namely,  pleas  to  the  bill.  It  ap})ears  to 
be  the  opinion  of  Mr.  Beames,  that  pleas  in  Equity  are  primarily 
divisible  into :  pleas  in  abatement,  and  pleas  in  bar.  He  observes, 
that,  "  in  a  work  on  pleading  at  Law,  pleas  are  thus  described  : 
'Pleas  are  of  two  sorts  —  in  abatement  and  in  bar:  the  former 
question  the  propriety  of  the  remedy,  or  legal  sufficiency  of  the 
process,  rather  than  deny  the  cause  of  action  ;  the  latter  dispute 
the  very  cause  of  action  itself;'  and  that  it  is  impossible  to  read 
this  jjassage  without  perceiving  how  })eifectly  applicable  it  is  to 
pleas  in  Equity,  and  how  strongly  appropriate,  as  marking  the  dis- 
tinction between  pleas  to  the  jurisdiction,  to  the  person,  and  the 
bill,  and  pleas  in  bar  :  the  three  former  classes,  while  they  question 
the  propriety  of  the  particular  remedy  or  of  the  suit,  tacitly  con- 
cede the  existence  of  a  cause  of  suit;  but  the  latter  disjjute  the 
very  cause  of  suit  itself."  ^  It  is,  however,  to  be  observed,  that  it 
nowhere  appears  that  any  practical  consequence  results,  in  Equity, 
from  the  distinction  between  pleas  in  abatement  and  pleas  in  bar.^ 

1  See  Story  Eq.  PI.  §  312;    Chapin  v.       be  in  terms  confined  to  the  relief.  King  ti. 
Coleman,   11   Pick.  337.     A  plea  maybe        Heming,  9  Sim.  59. 

bad  as  to  tlie  relief,  but  good  as  to  the  8  i  g.  &  S.  4,  6. 

discovery.     United  States  of  America  v.  4  Ld.  Ked.  219;  Coop.  Eq.  PI.  236. 

McKae,  L.  li.  3  Ch.  Ap.  79.     Where  the  5  Beames  on  Pleas,  58. 

defendant  wishes  to  avoid  a  full  discovery,  0  It  is  stated,  in  Merrewether  t).  Mellish, 

on  tlie  ground  that  there  is  a  fact  which  13  Ves.  435,  437.  that  Lord  Thurlow  said 

defeats  the  plaintiff's  equity,  he  must  allege  he  did  not  know  what  a  plea  in  abatement 

such  fact    by   plea.     Weisman   v.    Heron  in  Equity  was.     This  observation,  how- 

Slining  Co.,  4  .Jones  Eq.  (N.  C.)  112.  ever,  must  have  been  made  by  his  Lord- 

2  Ante,  p.  548;  but  in  order  that  a  plea  ship  with  reference  to  the  practical  results 
may  be  good  to  the  discovery,  it  must  not  of  such  a  dibtincfion;  for  the  use  of  the 


DIFFEREXT    GROUNDS    OF    PLEAS.  627 

In  the  following  observations,  therefore,  the  distinction  of  pleas  Ch.  XV.  §  2. 
into  pleas  in  abatement  and  pleas  in  bar  Avill  not  be  further  noticed,  '— — y — "-^ 
but  the  different  grounds  of  pleas  will  be  offered  to  the  considera- 
tion of  the  reader  according  to  the  above-mentioned  arrangement.^ 
Before  we  proceed,  however,  to  a  more  minute  discussioji  of  pleas, 
according  to  the  above  distribution,  it  will  assist  the  reader  to 
point  out  in  what  respect  pleas  of  each  class  differ  fi-om  those  of 
the  other  classes,  and  this  will  be  done  as  briefly  as  possible,  in  the 
words  of  the  learned  writer  himself: — 

I.  Those  pleas  which  are  commonly  termed  pleas  to  the  juris-  rieas  to  the 
diction,  do  not  jiroceed  the  length  of  disputing  the  right  of  the  jurisdiction. 
plaintiff  in  the  subject  of  the  suit,  nor  allege  any  disability  on  the 

part  of  the  plaintiff  to  prosecute  the  suit ;  but  simply  assert  that 
the  Court  of  Chancery  is  not  the  i>roper  Court  to  take  cognizance 
of  those  rights.^ 

II.  Pleas  to  the  person  do  not  dispute  the  validity  of  the  rights  pieas  to  the 
which  are  made  the  subject  of  the  suit,  or  deny  that  the  Court  has  P^^^^^^- 
jurisdiction  over  them  ;^  but  they  assert  that  the  j^laintiff  is  inca- 
pacitated to  sue,  or  that  the  defendant  is  not  the  person  Avho  ought 

to  be  sued. 

III.  Those  pleas  in  Equity,  also,  which  Mr.  Beames  distinguishes  pieas  to  the 
as  pleas  to  the  bill,  "  do  not  dispute  the  validity  of  the  right  made  ^'^'' 

the  suT)ject  of  the  suit,"  nor  contend  that  generally  tlie  Court  has 
not  jurisdiction  over  it,  nor  do  they  allege  that  the  plaintiff  is 
under  any  disability  to  sue,  or  that  the  defendant  ought  not  to  be 
sued ;  but  they  assert  that  the  suit,  as  it  appears  on  the  record,  is 
defective  to  answer  the  purpose  of  complete  justice,  or  ought  not, 
for  some  other  reason,  to  proceed.* 

IV.  Pleas  in  bar  may  be  distinguished  from  all  other  pleas,  as  pieas  in  bar. 
they  admit  the  jurisdiction  of  the  Court,  and  do  not  dispute  the 

al/ility  of  the  plaintiff'  to  sue,  and  the  liability  of  the  defendant 
to  be  sued,  and  tacitly  concede  that  tliere  are  none  of  tliosc  objec- 
tions to  tlie  suit  whicli  constitute  the  grounds  of  pleas  to  the  bill ; 
but  yet  they  allege  matter,  which,  if  true,  destroys  the  claim  made 
by  the  suit,  and,  by  showing  that  the  right  made  the  subject  of  the 
suit  lias  no  existence,  or  that  it  is  vested  in  the  defendant,  they 
put  an  end  to  all  litigation  respecting  it."* 

Having  thus  state<l  the  leading  distinctions  between  the  dilferent 
classes  of  pleas  aliove  pointed  out,  we  shall  proceed  to  consider 
the  particular  pleas  to  relief  under  each  head. 

term  "plra  in  abatement,"  nsfiistin^fuished  l  And  see  Story  Eq.  PI.  §  705. 

from  a  |)1l'h  in  lj;ir,  occurs  in  the  rnictical  2  Huames  on  Pleas,  56;  Story,  Eq.  PI. 

Kej^iHter,  '.i'iC,,  ed.  Wyatt,  and  many  ofiier       §  700. 

books, and  ban  been  repcatcllv  used  in  tlie  •*  Jieamcs,  56;  Story,  E(|.  I'l.  §  700. 

panie  manner  by  Lonl    I'burlow  hiniselt';  *•  Beames,  5'J,  CO;  Storv,  Ivi.  I'l.  §  700.] 

pee  Newni.in  r.  Wnilis,  2  Bro.  C.  C.   143;  6  Beames,  62;  Story,  Imj.  I'l.  §  700. 

Gun  r.  Trior,  1  Cox,  ia«;  2  Dick.  657;  aee 

also  lieames  on  Pleas,  58,  notis. 


G28 


PLEAS. 


Cu.  \V.  §  2. 


I.  rioastotlio 
jurisilu'tion. 


1.  That  the 
sulijpct  (if  suit 
is  not  within 
the  jurisdic- 
tion of  a 
Court  of 
Equity. 


2.  That  the 
( 'ourt  of 
("hancen'  is 
not  the  proper 
tribunal : 


I.  Pious  to  the  jurisdiction,  :is  avc  ImA'C  seen,  do  not  dispiTte  the 
viiihts  of  the  ])huntiil"  in  the  subject  of  the  suit,  but  simply  :issert, 
eitlier:  1.  Th:it  they  ai-e  not  tit  objects  of  cogniz:ince  in  a  Court 
of  Eijuity ;  or,  2.  That  the  Court  of  Chancery  is  not  the  proper 
Court  to  take  cognizance  of  those  rights.  That  these  are  the  only 
grounds  of  i)lea  which  can  be  put  in  to  the  jurisdiction  seems  to  be 
generally  admitted  :  for  it  is  clear,  that  a  i)lea  that  the  subject  of 
the  suit  is  not  cognizable  in  any  municipal  Court  of  justice  what- 
ever, could  not  prevail ;  because  such  a  })lea  would  amount  to 
nothing  more  than  that  the  subject  of  the  suit  is  one  upon  which 
no  action  or  suit  can  be  maintained,  which  is,  in  effect,  a  plea  in 
bar ;  not  a  plea  to  the  jurisdiction  of  a  ]»articular  Court,  but  of  all 
Courts :  which  would  be  absurd,  and  repugnant  in  terms,^ 

1.  The  generality  of  cases  in  which  a  Court  of  Equity  has  no 
jurisdiction,  cannot  easily  be  so  disguised  in  a  bill  as  to  avoid  a 
demurrer ;  but  there  may  be  instances  to  the  contrary ;  and  in 
such  cases,  a  plea  of  the  matter  necessary  to  show  that  a  Court  of 
Equity  has  no  jurisdiction,  will  hold.^  Thus,  where  a  bill  was 
filed  to  restrain  the  setting  up  outstanding  terras  in  bar  to  an 
action  of  ejectment,  a  ])lea  that  tltere  were  no  outstanding  terms 
was  allowed;^  and  so,  it  is  presumed,  if  the  jiu-isdiction  were 
attempted  to  be  founded  on  the  loss  of  an  instrument,  a  plea 
showing  the  existence  of  the  instrument,  and  that  it  is  in  the 
power  of  the  plaintiff  to  obtain  the  production  of  it,  would  be 
admissible.* 

2,  A  plea  that  the  Court  of  Chancery  is  not  the  proper  Court 
to  have  cognizance  of  the  plaintiff's  case,  arises  principally  where 
the  suit  is  for  land  within  a  county  palatine;*^  or  where  the 
defendant  claims  the  privileges  of  an  university;"  or  other  par- 
ticular jurisdiction,  such  as  that  of  the  Benchers  of  the  Inns  of 
Court."     Of  this  description,  also,  is  a  plea  that  the  defendant 


1  Nabob  of  Arcot  v.  East  India  Com- 
pany, 3  Bro.  C.  C.  292,  301;  S.  C.  nom. 
Nabob  of  the  Carnatic  v.  East  India  Com- 
pany, 1  Vos.  J.  371,  388;  Story,  Eq.  PI. 
§  711.  In  c;ise  of  a  bill  brought  in  a  Court 
of  Equity  of  a  limited  jurisdiction,  as  to 
per-oiis,  or  as  to  subject-matter,  if  the 
b  11  should  allege  all  tlie  nece>^sary  facts 
to  establi-h  and  -upport  that  jurisdiction, 
the  defciidant  may  also  negative  the  exist- 
ence of  tliose  facts  by  a  plea  to  the  juris- 
diction. Story  Eq.  PI.  §  720.  If,  in  the 
Courts  of  the  United  States,  there  are  dis- 
tinct avermi-nts  of  the  citizenship  of  the 
plaiiitilT,  and  of  that  of  the  deieiidant, 
upon  the  record,  so  that  up'>n  the  face  of 
the  bill  the  juri'^dictioii  attaches,  the  de- 
fendant, if  he  means  to  contest  the  adeged 
citizenship,  must  do  it  by  a  plea  to  the 
jurisdiction;  for  he  is  not  at  liberty  to  put 
the  citizenship  in  issue  by  a  general  an- 
swer; as  such  an  answer  admits  the  juris- 


diction of  the  Court  to  inquire  into  the 
gcnenil  merits  of  the  suit,  and  put  them 
in  issue.  Story  Eq.  PI.  §  721;  Livingston 
V.  Story,  11  Peters,  351,  393;  Dodge  v. 
Perkins,  4  Mason,  43.5;  see  Bank  ot  IJel- 
lows  Falls  V.  Kut.  &  IJur.  R.R.  Co.,  28  Vt. 
470. 

2  Ld.  Red.  222. 

8  Armitage  I'.  Wadsworth,  1  Mad.  189, 
195;  Dawson  v.  Pilling,  16  Sim.  203,  209; 
13  Jur.  388. 

4  Ld.  Kcd.  222. 

6  Jb.  223 ;  see  ante,  p.  554. 

0  Ld.  Red.  224;  see  Temple  v.  Foster, 
Gary,  65;  Cotton  v.  Manering,  ih.  73; 
Draperr.  Crowther,  2  Vent.  362;  Stephens 
V.  Herrv,  1  Vern.  212;  Pratt  r.  Taylor,  1 
Cha.  Ca.  237;  Anon.,  ih.  2.08. 

7  Cunningham  v.  Wegg,  2  Bro.  C.  C. 
241.  For  the  plea  in  that  case,  see  Beames 
on  Pleas,  324. 


DIFFERENT   GROUNDS   OF  PLEAS.  629 

is  an  officer  of  another  Court  of  competent  jurisdiction,  and,  there-  Ch.  xv.  §  2. 
fore  not  to  be  drawn  from  his  duties  in  that  Court  for  the  purpose  "^  >  -^ 
of  defending  a  suit  in  another.^ 

It  is  a  rule,  that  the  Court  of  Chancery  being  a  superior  Court  Must  show 
of  general  jurisdiction,  nothing  shall  be  intended  to  be  out  of  its  QJ^^^  \^^^  ^^j 
jurisdiction  which  is  not  shown  to  be  so.^     It  is  requisite,  there-  jurisdiction, 
fore,  in  a  plea  to  the  jurisdiction  of  the  Court,  both  to  allege  that 
the  Court  has  not  jurisdiction,  and  to  show  by  what  means  it  is 
deprived  of  it.^      It  is  likewise  necessary  to  show  what  Court  and  what 
has  jurisdiction ;  *   and  if  the  plea  omits  to  set  forth  these  par-  has^juris-"^ 
ticulars,  it  is  bad  in  point  of  form.^  diction, 

It  is  also  a  rule,  that  a  plea  to  the  jurisdiction  must  show  that  and  that  it 
the  particular  juiisdiction,  alleged  to  be  entitled  to  the  exclusive  ^o",^ie\e. 
cognizance  of  the  suit,  is  able  to  give  a  complete  remedy.®  A  remedy. 
plea,  therefore,  of  privilege  of  the  University  of  Oxford,  to  a  bill 
for  specific  performance  of  an  agreement,  touching  lands  in 
Middlesex,  Avas  overruled :  because  the  University  could  not  give 
complete  relief'  It  is  to  be  observed  also,  that  if  a  suit  be  insti- 
tuted against  different  persons,  some  of  whom  are  privileged, 
and  some  not,®  or  if  one  or  more  of  the  defendants  are  not  amena- 
ble to  the  particular  jurisdictiou,'*  a  plea  will  not  hold;^°  and  so, 
if  there  is  a  particular  jurisdiction,  and  yet  the  parties  to  litigate 
any  question  are  both  i-esident  within  the  jurisdiction  of  the  Court 
of  Chancery :  as  upon  a  bill  concerning  a  mortgage  of  the  Isle  of 
Sark,  both  mortgagee  and  mortgagor  residing  in  England:  the 
Court  of  Chancery  Avill  hold  jurisdiction  of  the  cause:  for  a  Court 
of  Equity  a</U  in  2^&rso}iam,  and  may  give  effect  to  its  decree  by 
constraining  the  person  or  property  of  the  defendant  till  he  per- 
form it." 

It  is  said,  that  one  plea  only  will  be  admitted  to  the  jurisdic-   Only  one 
tion,  and  that,  therefore,  if  the  defendant  plead  such  a  plea  as  is  [drlviiil.timi 
not  sufficient  in  its  nature,  or  plead  the  matter  insufficiently,  he  admitted. 
will  be  put  to  answer.^^ 

1  See  Gibson  r.  Wliitacrp,  2  Vem.  8.3.  7  Draper  v.   Crowther,    2   Vent.    302; 

2  1,(1.  Hed.  224;  Earl  of  Derliv  v.  Duke       Stophcns  ?•.  Heny,  1  Vern.  212. 

of  Athol,  1  Ves.  S.  204;  2  Ves.  fj.  3.57.  »  White  r.  I.owglier,  Cary,  .'i.'):  22  Yin. 

3  Lil.  Kcd.  224;  Nabob  of  A  root  r.  Kast  Ab.  'J;  Tanshaw  v.  Kanslmw,  1  Vern  246. 
India  Company,  3  Hro.  C.  C.  21*2,  301;  S.  »  <;riKj.,''s  cii-'o,  Ilntton,  5:j;  4  Inst.  213; 
C.  vom.   .Naboij   of  the   Carnatic  v.   East  Hilton  v.  f^awson,  Car}',  48. 

India  Compim}',  1  Ves.  .1.  371,  388.  1"  r>d.  Hcd.  225;  Ilendrick  ?'.   Wood,  9 

*  I.d.  Iif<l.2J4;  Strode  !•.  Little,  1  Vern.  W.  R.  588,  V.  C.   VV.;  ('cntral  (Jenr^i.in 

fj'J;  Karlof  Derby  I'.  Dukeof  Atlii.l.  1  Ves.  liaMroad  Company  )'.   Mitclicli,   l.'i  W    \\. 

5.  2t'.'i;    1    Dick".   12'.i;   atid   see   Moor  v.  428.  V.  C.  W.;  2"ll.   &  iM.  4iV2;   11   .lur. 
Somerset,  Nel-.  51.  N.  S.  258. 

6  I,.l.    li.d.  224;   Foster  v.  Vassal],   3  H  Ld.   Red.  225;    Toller  v.  Carteret,  2 

Atk.  587;  Naliob  of  Arcot  v.   Kast  India  Vern.  494;  see  aNo  Knrl  of  Derby  1?.  Duke 

Coni|PHMv,  j/Ai  «///>.  of  Atliol,   «/>t  sup.;     Lord    Cranslown    v. 

«  Ld.  Ued.  224;  Xewdigate  v.  .Iohn»on,2  Johnston.  3  Ves.  170,  IH-i;  and  -ee  Norris 

Chn.   Ca.    170;    VVilkinH  »,-.  Shalrroft.  22  r.  (.'hiimbres,  20  lieiv.  240;  7  .Tiir.  N.  S. 

Vin.  Ah.  10;  Green  v.  Uutherforth,  1  Ves.  59;  iff-  W-K  L.  C;  3  De  G  ,  F.  &  J-  583. 

6.  403,  471.  12  Wyatt's  P.  R.  325. 


(\oO  PLEAS. 

Oil.  XV.  §-2.  W'l'  \vA\v  bi'tore  soon,  lliat  an  objoclion  on  tlio  gnnuul  of  juris- 

^ Y '  tlirtntn  must  bo  taken  either  by  demurror  or  plea,  before  answer: 

Objection  to  Otherwise,  the  Court  will  entertain  the  suit,  although  the  defend- 

jurbdiotion  ^  ^      .  ^y^^,^,^^  ^^  it  .^t  ^]^^.  hoaring,  unless  it  is  in  a  case  in  which 

must  lu>  tiikeii  .J  _   f^'  .      .    ^.     .        , 

litliir  l>y  no  ciroumstanoe  whatever  can  give  the  Court  junsibction/ 

pk'a""''^'"^         II.  I'leas  to  the  person,  like  pleas  to  the  jurisdiction,  do  not 
II.  Picas  to     necessarily  dispute  the  validity  of  the  rights  which  are  made  the 
the  person:      subject  of  the  suit,  but  object  to  tlie  plaintiff's  ability  to  sue,  or 
the  defenihuU's  liability  to  be  sued,  respecting  theni.''^     Tliey  are 
generally  divided  into  such  as  regard  the  i)erson  of  the  plaintiff, 
and  such  as  regard  the  person  of  the  defendant. 
1.  Of  the  1.  Of  the  former  kind  are   pleas  of:    Alienage;^    Outlawry; 

plaintitt.  xVttainder ;  Infancy;  Coverture  ;  Idiotcy  or  lunacy  ;  Bankruptcy;  * 

to  which  may  be  added.  Fleas  that  the  plaintiff  does  not  sustain 
the  character  he  assumes.^  All  the  above  grounds  of  objection  to 
the  person  of  the  plaintiff,  except  the  last,  have  been  before  dis- 
cussed.^ With  respect  to  the  last,  it  is  to  be  observed,  that  the 
plea  may  either  deny  the  existence  of  the  person  in  whose  behalf 
the  bill  has  been  exhibited,  or  of  the  character  in  which  the  plain- 
tiff affects  to  sue ;  or  it  may  show  that,  for  some  reason  not  dis- 
closed in  the  bill,  the  title  under  which  the  plaintiff  claims  never 
vested  in  him.''  Thus,  a  plea  may  show,  that  the  alleged  plaintiff, 
or  one  of  several  plaintiffs,  is  a  fictitious  person  ;  ^  or  was  dead  at 
the  time  of  commencing  the  suit.''  So,  if  a  plaintiff  files  a  bill 
stating  himself  to  sue  as  administrator  or  executor,  a  plea  that  he 
is  not  administrator  or  executor  will  be  good."  Where  a  plaintiff 
entitled  himself  as  administrator,  and  the  defendant  pleaded  that 
the  supposed  intestate  was  living,  the  plea  was  allowed."  A  plea 
that  the  i)laintLff  is  not  heir  to  the  person  under  whom  he  claims 
as  heir,  has  also,  as  we  have  seen,  been  considered  a  good  plea.^^ 

1  Ante,  p.  555.  8  Coop.  Eq.  PI.  249;  Com.  Dig.  Abate- 

2  Beames  on  Pleas,  99;  Story  Eq.  PI.  nieiit.  E.  16;  Bac.  Ab.  Abatement,  F. ;  1 
§  722.     •  Wils.  302;  Gilb.  C.  P.  248;  Chitty  on  PI. 

3  A  plea  of  "  alien  enemy  "  is  sufficient-  464. 

ly  answered  by  a  treatj'  of  peace  made  ^  Coop.  Eq.  PI.  249;  Bac.  Ab.  Abate- 
after  it  ivas  filed;  and  there  is  no  need  for  ment,  L. ;  Com.  Dig.  Abatement,  E.  17; 
the  plaintiff  to  reply  that  fact ;  the  Courtis  1  Chitty  on  PI.  464. 
bound  to  notice  it  ex  officio.  Johnson  v.  i"  Winn  «.  Fletcher,  IVern.  473;  Simons 
Harrison,  Litt.  Sel.  Cas.  226.  v.  Milman,  2  Sim.  241.  Such  a  plea,  how- 
*  Theohjpction  that  the  plaintiff  is  bank-  ever,  is  untenable,  if  the  plaintiff  take  out 
TTipt,  and  his  assitrnee  not  a  party,  should  letters  of  administration  before  the  hearing; 
be  taken  in  limine  hy  way  of  plea,  and  Horner  ?;.  Horner,  23  L.  J.  Ch.  10,  V.  0. 
cannot  be  insisted  on  to  avoid  exceptions  K. ;  see  also  ante,  p.  318. 
taken  by  the  plaintiff  to  the  answer.  Kit-  n  Ord  v  Huddleston,  2  Dick.  510,  512; 
tredpe  v.  Claremont  Bank,  3  Story,  591.  cited  1  Cox,  198. 

6  Stnn,^  Eq.  PI.  §  722  et  seq.  i-^  Aiife,  pp.  604,  609;  see  Bonrke  v.  Kelly, 
5  Ante,  Cha\i.  \U.,  Suilshij  Persons  under  1  Hof;;in,172;  Gleason  v  Cook,  1   Hogan, 

Lisut/ititij.      For   fonns   of  pleas  of   alien  297;    Story  F:q.   PI.  §  727.     Formerly,  it 

enemy,  see  Beames  on  Pleas,  329 ;  2  Van  was  doulited  whether  it  was  not  necessary, 

Hey.  94;  and  of  outlawrj-,  and  bankruptcy,  in  such  ca'^es,  to  state  in  the  plea  who  was 

and  of  plaintiff  not  sustaining  his  assumed  the  heir-at-law;    but   now  it  seems  that 

character,  ih.  96,  104,  106.  such  a  statement  is  unnecessary.    Jones  v. 

7  Story  Eq.  Pi.  §  727.  Davis,  16  Yes.  262,  264,  266. 


DITTEEENT    GROUNDS    OF    PLEAS.  631 

In  like  manner,  a  plea  that  the  plaintiff  is  not  a  partner,  has  been  Ch.  XV.  §  2. 

allowed  to  a  bill  filed  by  a   person  claiming  in  that  character.^    "- — i ' 

Upon  the  same  principle,  if,  fi-om  any  circumstance  not  stated  in 
the  bill,  it  can  be  shown  that  nothing  ever  vested  in  the  plaintiff, 
or  that  the  title  which  the  plaintiff  had  has  been  transferred  to 
another,  the  defendant  may  show  the  circumstance  by  way  of 
plea. 

2.  Pleas  to  the  person  of  the  defendant  are  more  limited  than  2.  Of  the 
those  to  the  person  of  the  plaintiff:  for  it  is  a  rule  at  Law,  that  defendant: 
persons  who  are  disabled  to  sue,  cannot  plead  their  own  disabili-  cannot  plead 
ties,  when  they  are  themselves  sued.^     This  rule  is  equally  appli-  (lisabilit}^ 
cable  to  proceedings  in  Courts  of  Equity,  in  all  cases  where  the 
suit  seeks  to  compel  the  performance  of  a  duty  by  the  defendant. 

It  will  not,  however,  apply  to  cases  where  the  proceeding  is  in   Secus,  where 
rem,  and  the  disability  is  of  such  a  nature  that,  besides  the  per-  P™-,f,!g,"'? 
sonal  disqualification  which  it  imposes,  the  interest  in  the  defend- 
ant's property  wliich  is  the  subject  of  the  suit  has  become  vested 
in  another.^     Upon  this  principle,  it  is  presumed  that  persons  out-  as  outla^Tv 
lawed  or  attainted  of  treason  or  felony  may  state  their  outlawry    ^     *'"^  *^'' 
or  attainder  to  the  Court  by  way  of  plea,  for  the  purpose  of  show- 
ing that  whatever  interest  they  had  in  the  property  is  vested  in  the 
Crown  ;  *  in  the  same  manner  tliat  bankrupts  may,  if  sued  respect-  or  bank- 
ing 2>roperty  wliich  has  become  vested  in  their  assignees,  plead  '■"P'-^' 
their  bankruptcy,  whether  it  happened  before  or  after  the  bill  was 
filed,  in  abatement  of  the  suit.^    In  fact,  such  a  plea  amounts  to 
no  mol-e  than  a  plea  of  want  of  interest  m  the  subject-matter  of 
the  bill. 

The  rule,  that  a  person  who  is  under  disability  cannot  plead  his  Coverture. 
own  disqualification,  will  not  extend  to  cases  where  the  disquali- 
fication is  only  partial ;  thus,  it  seems  that  a  woman,  sued  as  a 
feme  sole,  may  ]>lead  tliat  she  is  covert.^ 

A  defendant  may  also  plead  that  he  is  not  the  person  he  is  Thatdcfcnd- 
alleged  to  be,  or  does  not  sustain  the  character  he  is  stated  to  ^"^tJlJI'^jIg"* 
bear :  such  as  heir,  executor,  or  administrator.''  He  may  likewise  aiief^cd 
show,  that  he  is  not  sole  heir,  executor,  or  administrator,  and  that 
others  are  joined  witli  him  in  those  capacities;^  such  a  ])lea,  how-  heir,  exccu 
ever,  jjartakes  more  of  tlie  nature  of  a  jilea  for  want  of  i)arties  than   „"[,', jstrn't or; 


cliaractcr; 
or  is  not  sole 


or  tiiat  t'd- 
defendant  is 
under 


1  Antp,  pp.  r,f).-,.  620.  "  nenines  on  Pleas,  130;  Storj'  Eq.  PI 

2  I'M'nmes  on  Pleas,  122;  Story  Eq    PI.  §  732.                                                                     ,ii«„l,IHfv 
§§722,727.  7  //,,■,/.;  Ld.  Ped.  234;    Cooke  V.  Git-    •l'S'^"'"^y' 

8  Turner  v.  Robinson,  1  S.  &  S.  3.  tiuKS  21  Iteav.  4!t7;  and  see  .loncs  v.  Wil- 

*  yinlf,  p.  l&fi.  lianis,  10  .(ur.  X.  S.  lOOK;   13  \V.   K.  1,  V. 

''  Turner  »'.  Kobinson,  w/«' sh/?.  ;  sec  also  (;.  .S. ;  llin<le  v.  Skulton,  2  II.  &  M.  MO; 

Turner  r.  Nlcholl-i,  10   Siui.   fjOo;  13  .lur.  Tcnipost  v.  Lord  Cainoys,  1  W.  N.  10;  14 

21(3;  Lane  r.  Srnitli,  14  Heav.  49;  15  .lur.  W.   K.  327,   M.  P.;    Story  K.j.   I'l.  §  732. 

736;  finle,  p.  ]W.     A  similar  rule  appliod,  For  forms  of  siitii  plea,  sec  2  V  an  lley.  U&. 

in  the  cas--  of  insolvent  debtors;  see  Story  •*  Peames  on  Pleas,  130. 

Eq.  PI.  §  732. 


1)32 


PLEAS. 


(11.  XV 


tciiilaiit  lias 
no  interest. 


Not  proper, 
where  de- 
fendant may 
disclaim. 

HI.  Pleas  to 
thebiU: 


1.  Plea  of 
another  suit 
dejiending, 
for  same 
matter: 


Whole  effect 
of  second  suit 
must  be 
attainable 
in  tirst. 


ol"  a  plo.i  to  tho  person.     Ho  iu:ty  :ilso  plead  the  disability  of  a  co- 
defendant. * 

If  a  defendant  has  not  that  interest  in  the  sidyect  of  a  suit 
M  liieli  ean  make  him  liahlo  to  the  demands  of  the  plaintiff,  and 
the  bill,  alleging  that  he  has  or  claims  an  interest,  a\'oids  a  de- 
murrer, he  may  i)lead  the  matter  necessary  to  show  tluit  he  has  no 
interest.'-  Thus,  where  a  witness  to  a  will  was  made  a  defendant 
to  a  bill,  brought  by  an  heir-at-law  to  discover  the  circumstances 
attending  the  execution,  and  the  bill  contained  a  charge  of  pre- 
tence of  interest  by  the  defendant:  though  a  demurrer  for  want  of 
interest  was  overruled,  because  it  admitted  the  truth  of  the  charge 
to  the  contrary  in  the  bill,  yet  the  Court  expressed  an  opinion 
that  the  defence  might  have  been  made  by  plea.^ 

It  is  to  be  observed,  that  a  jjlea  of  want  of  interest  in  the  de- 
fendant is  proper  only  where  the  case  is  such  that  he  cannot  satisfy 
the  suit  by  general  disclaimer.* 

III.  It  has  been   already  stated,"^  that   the  object  of  j)leas  to 
the  bill  is  to  show  that,  although  the  plaintiff  may  be  entitled  to 
the  rehef  he  asks  against  the  defendant,  he  is  not  entitled  to  have' 
it  in  that  suit ;  or  that  the  bill,  as  framed,  is  insufficient  to  answer 
the  object.® 

1.  Where  a  bill  seeks  relief,  a  defendant  may  plead  that 
there  is  another  suit  already  dei)ending,  in  this  or  in  another 
Court  of  Equity,  for  the  same  matter.'^  This  plea  corresponds 
with  the  exceptio  litis  pendentis  of  the  civilians,  and  is  analo- 
gous to  the  plea,  at  Common  Law,  that  there  is  another  action 
depending.^ 

But,  although  it  is  necessary  that  the  fii-st  suit  should  be  for  the 
same  matter  as  the  second,  the  second  suit  need  not  be  for  the 
whole  matter  embraced  by  the  first ;  ^    it  is,  however,  requisite 


1  Serf^rove  r.  Mayhew,  2  M'N.  &  G.  97, 
99;  14  Jiir.  l^S. 

2  Ld.  Ked.  235. 

8  Plunimer  r.  Mav,  1  Ves.  S.  426;  see 
also  Cartwri^ht  v.  rfatelv,  3  Hro.  C.  C.  238 ; 
1  Ves.  J.  292;  Story  Eq.  PI.  §  734. 

*  Ld.  Red.  235;  see  yjos/,  Chap.  XVI., 
Dischnmers. 

6  Antt.  p.  627. 

8  See  Storv  Eq.  PI.  §  735. 

7  Ld.  He.f.  246;  Coop.  Eq.  PI.  272; 
Beames  on  Pleas,  134;  Ord.  XIV.  6,  7;  see 
also  Lon<f  v.  Storie,  9  Hare,  542;  16  Jur. 
349;  Way  v.  Hragaw,  1  C.  E.  Green  (N. 
.J.),  213;"see  Johnson  v.  Bower,  4  Hen.  & 
M.  4fe7;  Curd  I'.  Lewis,  1  Diina,  352;  Cum- 
mins V.  Pennet,  8  Paige,  70;  Slory  Kq.  PL 
§  737 ;  Matthews  v.  Roberts,  1  Green  Ch. 
338;  Cleveland,  &c..  U.K.  Co.  v.  City  of 
Erie,  27  Perm.  St.  3S0;  Simjison  ?'.  Hrew- 
ster,  9  Paige.  245 ;  Price  v.  Mallett,  2  Ilayw. 
244.     The  defendant  may  content  himself 


with  stating  the  pendency  and  object  of 
tlie  former  snif,  aiul  averring  that  the  pres- 
ent suit  was  brought  for  the  same  matters; 
Peames  on  Plesis,  330;  Eq.  Drafts.  658; 
post.  Vol.  III. ;  or  he  may  omit  the  averment 
that  the  suits  are  for  the  same  subject- 
matter,  provided  he  states  facts  suflicient 
to  sliow  that  they  are  so.     Flapg  v.  Pi^nnel, 

2  Stockt.  (N.  .i.)  82;  Davison  v.  John- 
son, 1  C.  E.  Green  (N.  J.),  114.  A  plea 
of  anotlier  suit  pemlim;  should  be  taken 
before  the  hesiring,  and  it  can  only  be  a 
good  objection,  when  the  first  suit  is  be- 
tween all  the  same  parties,  sind  a  full  decree 
can  be  therein  had.     Hartell  v.  Van  Buren, 

3  Edw.  Ch.  20 ;  see  post,  p.  635.  For  f'orni 
of  such  pleas,  see  2  Van  Hey.  117 ;  Beames 
on  Pleas,  330. 

8  Beames  on  Pleas,  134;  Coop.  Eq.  PL 
272 ;  Story  Kq.  PL  §  7.36. 

9  Moor  V.  Welsh  Copper  Company,  1  Eq. 
Ca.  Ab.  30,  pi.  14.     The  plaintiii  iu"a  bill  in 


DIFFERENT    GROUNDS    OF    PLEAS. 


633 


that  the  whole  effect  of  the  second  suit  should  be  attainable  in  the 
first ;  ^  and  if  it  appears  upon  the  face  of  the  plea  that  this  is 
not  the  case,  the  Court  ^ill  at  once  overrule  it.-  It  sometimes, 
however,  happens,  that  the  second  bill  embraces  the  whole  subject 
in  dispute  more  comj^letely  than  the  first:  in  such ^ cases,  the 
practice  app'ears  to  be  to  dismiss  the  first  bill  with  costs,  and  to 
direct  the  defendants  in  the  second  cause  to  answer,  upon  being 
paid  the  costs  of  a  plea  allowed,  which  puts  the  case  upon  the 
second  bill  in  the  same  situation  that  it  would  have  been  in  if  the 
first  bill  had  been  dismissed  before  the  fihng  of  the  second.^ 

A  plea  of  another  suit  depending  will  be  good,  whether  the 
other  suit  be  in  this  or  any  other  Court  of  Equity  in  England.'* 
It  will  not  however,  be  a  good  plea,  if  it  is  depending  in  a  Court 
in  another  country ;  ^  therefore,  such  a  plea  will  not  prevail  where 
the  suit  already  pending  is  in  Ireland,®  or  in  the  colonies.'' 
"Where  the  original  suit  has  been  commenced  in  a  Court  of  in- 
ferior jurisdiction,  the  plea  will  not  be  good  if  the  defendant  has 
avoided  the  effect  of  the  suit,  by  going  out  of  the  jurisdiction  of 
that  Court.* 

A  suit  depending  must,  to  afford  a  good  ground  for  a  plea  in 
Equity,  be  a  suit  in  a  Court  of  Equity;^  and  therefore,  where  an 
infant  legatee  sued  an  executor  in  the  Ecclesiastical  Court,  and 
afterwards  in  Chancery,  it  was  held  that  the  suit  depending  in  the 
Ecclesiastical  Court  could  not  be  pleaded  to  the  suit  in  Chancery : 
because  there  was  not  the  same  security  for  an  infant's  advantage 
in  the  Ecclesiastical  Court,  as  in  Chancery." 


Ch.  XY.  §  2. 


Not  good, 
if  suit  in 
another 
country ; 


or  defendant 
out  of  the 
jurisdiction 
of  inferior 
Court. 

Must  be  a  suit 
in  Equity ; 


not  in  an 

Ecclesiastical 

Court; 


Equity  to  redeem,  set  out  the  mort£raf;e,  an 
entry  by  tlie  defendant  :ifter  part  of  the 
sum  secured  liad  become  due,  and  a  ten- 
der, and  prayed  to  be  restored  to  his  title 
and  possession,  and  pending  the  suit,  he 
brouglit  nnotiier  siinihjr  bdl,  but  statiiigan 
additior)ai  t^nrler  made  alter  tiie  whole 
sum  had  become  duo.  'J'o  this  bill  the 
defendant  pleaded  the  pendency  of  a  for- 
mer suit  for  the  same  matter,  and  the  plea 
was  RU'-tiiineil  with  costs  for  the  defendant, 
on  the  LTound  that  the  two  bills  were  sub- 
stMutially  louinled  on  the  8:ime  matter. 
Suunders  r.  Frost, 5  I'ick.  276,  27>').  \\  ilde 
J.  in  this  <'ase  said,  "  It  is  a  sullicient  ol>- 
jection  to  the  present  bill,  that  it  is  founded 
on  mattern  set  forth  in  the  former  hill,  to 
which  the  deli-ndaMt  would  beagMin  bouiul 
to  answer,  if  the  jihiintilf  were  jn'i  niitli'd 
to  proceerl."  It  was  aNo  hcM  In  tlii-'  ca-e, 
that  the  new  right  ae«|iiired  I'V  the  jilain- 
tiff  while  the  lirst  suit  was  pending,  was 
proper  matter  for  a  supjli'mental  bid,  but 
not  foriin  original  bill.  / bUl. ;  see  Mann  v. 
KiehardHon,  2\   Tick.  259. 

J  l.aw  r.  IJigbv.  4  Uro.  ('..  C.  60,  6.3; 
Piiklonl  V.  IliintfT.  r,  Sim.  122.  120;  Way 
V.  Hrjigaw,  I  C.  K.  (irrcn  (N.  .1.),  213,  21«. 

*  I'ickford  i'.  lluuter,  uOi  sup. 


8  Crofts  V.  Wortlev,  1  Cha.  Ca.  241 ;  Ld. 
Red.  248. 

i  Ord.  XIV.  6,  7;  Ld.  Red.  246:  Beh- 
rens  v.  Sieveking,  2  M.  &  C.  602.  Where 
two  Courts  have  concurrent  jurisdiction, 
the  fact  that  an  ai>[)eal  lies  from  one  to  the 
other,  will  not  authorize  a  proceeding  in 
the  appellate  Court,  pending  an  action  fur 
the  same  cause  in  the  Court  below.  Cleve- 
land, &c.,  K.R.  Co.  V.  Citv  of  Erie,  27  Penn. 
St.  .3S0. 

^  The  mere  pendency  of  a  suit  in  a 
foreign  Court,  or  in  a  Court  of  the  United 
States,  cannot  be  pleaded  in  abatement  or 
in  bar  to  a  suit  for  the  same  cause  in  a 
State  Court.  Mitchell  v.  Hunce,  2  Paige, 
606;  Salmon  v.  Wooton,  9  Dana,  42.3;  but 
see  Jlart  ('.  (irnnger,  1  ( 'onn.  104;  see  Low 
V.  Mnssev.  41  Vt.  :i'J3;  lirown  v.  Lexing- 
ton &  Danville  U.K.  Co.,  1  McCarter  (N. 
J.),  191. 

«  Lord  Dillon  v.  Alvares.  4  Ves.  S."".?,  .359. 

7  Foster  V.  Vassall,  .3  Alk.  5S7,  5^i9;  .see 
also  IJayley  v.  Edwards,  3  Swanst.  703, 
710. 

»  Ld.  IJed.  246. 

f  See  Way  v.  Bragaw,  1  C.  E.  Greon 
(X.  .1  ),  213. 

10  Howell  V.  Wuldron,  2  Cha.  Ca,  86. 


634 


PLEAS. 


Cii.  XV.  §  2. 


Objection  of 
another  suit 
depending, 
not  generally 
taken  by 
niotiou ; 


except  in  bills 
on  behalf  of 
infants. 


It  apponvs  to  liavo  hcon  licltl  iunnorly,  that  if  after  a  suit  com- 
nienccil  at  Common  Law,  a  bill  sliould  be  exhibited  in  tins  Court, 
to  be  relieved  for  tlie  same  matter,  the  dependency  of  the  action 
at  Law  might  be  admitted  as  a  good  plea,  and  the  defendant 
would  not  be  jmt  to  a  motion  for  an  election  or  dismission.^ 
The  practice  in  this  respect,  lias,  however,  undergone  a  material 
alteration ;  and  now,  if  a  plaintiff  sues  a  defendant  at  the  same 
time  and  for  the  same  cause  at  Common  Law  and  in  Equity,  the 
defendant  niay,  after  full  answer  put  in,  or,  in  case  no  answer  is 
rO(]uired,  after  the  expiration  of  the  time  for  the  service  of  inter- 
rogatories, obtain,  as  of  course,  on  motion  or  petition,^  an  order 
that  the  plaintiff  may  take  his  election  in  which  Court  he  will 
proceed  ;  and  he  cannot  i)lead  the  jiendency  of  the  suit  at  Common 
Law,  in  bar  of  the  suit  in  Equity.^ 

It  is  stated  in  an  anonymous  case  in  Moseley,*  that  the  ob- 
jection that  another  suit  is  depending  for  the  same  mattei-,  may, 
in  the  Court  of  Chancery,  be  taken  by  motion,  instead  of  plea ; 
but  in  3[urray  v.  Shadwell.,^  Loi'd  Eldon  said,  that,  according 
to  the  ])ractice,  the  regular  way  of  obtaining  this  reference  is  by 
plea.  There  are  cases,  however,  in  which  the  Court  will  interfere 
to  restrain  a  second  suit  brought  against  the  defendant,  for  the 
same  matter,  upon  motion,  without  requiring  him  to  ])lead  tlie 
pendency  of  the  fonner  suit ;  as  in  the  case  of  two  or  more  suits, 
instituted  on  behalf  of  an  infant  for  the  same  matter :  in  such 
case,  the  Court  will,  as  we  have  seen,  upon  representation  of  the 
fact,  immediately  direct  an  inquiry  which  suit  is  most  for  the 
infant's  benefit,  withoiit  requiring  the  defendant  to  plead  the  pen- 
dency of  another  suit.®  It  is  to  be  observed,  however,  that  in 
the  case  of  suits  instituted  on  behalf  of  infants,  the  reference  is 
not  to  inquire  into  the  fact  of  two  or  more  suits  having  been 
instituted,  but  which  of  them  is  most  for  the  benefit  of  the 
infant. 


1  Beames's  Orders,  177;  Ld.  Red.  249. 

2  See  post.  Chap.  XIX.  §  4,  Election. 
For  forms  of  motion  paper  and  petition, 
see  Vol.  III. 

8  See  post,  Chap.  XIX.  §  4,  Election ; 
Ld.  Ked.  249;  Ord.  XLII.  5,  6,  7;  see 
Storv  Kq.  Fl.  §§  741,742;  Livingston  v. 
Kane,  3  John.  Ch.  224;  Sanger  v.  Wood,  3 
John.  Ch.  416  ;  Rogers  v.  Vosburg,  4  John. 
Ch.  84;  Gibbs  v.  Parkinson,  4  Hen.  &  M. 
415.  Where  a  suit  is  pending  for  the  same 
cause  in  a  Court  of  Law,  all  that  the  defend- 
ant can  ask,  is  an  order  putting  the  plain- 
tiff to  his  election,  whether  he  will  proceed 
at  Law  or  in  Lfpiity.  But  the  plaintiff  will 
not  be  put  to  his  election,  unless  the  suit 
at  Law  is  for  the  same  cause,  and  the  reme- 
dy afforded  co-extensive  and  equally  bene- 
ficial with  the  remedy  in  Equity.     Way  v. 


Bragaw,  1  C.  E.  Green  (N.  J.),  213;  see 
Conover  v.  Conover,  Saxton  (N.  J.),  409; 
Rogers  V.  Vosburg,  4  John.  Ch.  84;  1  Hoff. 
Ch.  Pr.  342;  Story  Eq.  PI.  §  742.  Wiiere 
the  remedies  at  Law  and  in  lujuit}'  are  in- 
consistent, any  decisive  act  of  the  I)arty, 
with  the  knowledge  of  his  rights  and  of 
the  facts,  determines  his  election.  Sanger 
V.  Wood,  3  John.  Ch.  416,  421.  So  if  he 
neglects  to  make  his  election  in  pvoi)er 
time.  Conover  ?;.  Conover,  I  Saxton  (N. 
J.),  403,  409;  Rogers  v.  Vosburg,  4  John. 
Ch  84.  He  need  not  miike  his  election 
until  after  the  defendiiiit  has  answered. 
Conover  v.  Conover,  1  Saxton  (N.  J.),  409. 

4  P.  268. 

5  17  Ves.  353. 

6  Ante,  p.  69. 


DIFFEKEXT   GROUNDS   OF   PLEAS.  635 

In  the  case,  also,  of  creditors  suing  an  executor  or  adminis-  Cn.  XY. 
trator,  after  a  decree  for  an  account  at  the  suit  of  other  creditors, 
the  Court  will,  upon  motion  by  the  defendant,  stay  the  proceed- 
ings in  the  second  cause,  without  requiring  him  to  plead  the 
pendency  of  the  first  suit ;  ^  but  both  courses  are  open  to  him, 
and,  in  some  cases,  that  of  a  plea  may  be  more  advantageous.^ 

It  is  not  necessary  to  the  sufficiency  of  a  plea  of  this  nature.  Former  suit 
that  the  former  suit  should  be  precisely  between  the  same  parties  f"^*''^^  ^°^  V® 

..  .  nr-  between  the 

as  the  latter,^  for,  if  a  man  institutes  a  suit,  and  afterwards  sells  same  parties. 

part  of  the  property  to  another,  who  files  an  original  bill  touching 

the  part  so  purchased  by  him,  a  plea  of  the  former  suit  depending 

touching  the  whole  property  will  hold,  although  filed  by  a  difierent 

plaintiff.*      So,  where    one    part-owner    of   a    ship    filed    a    bill 

against  the  ship's  husband  for  an  account,  and  afterwards  the  same 

part-owner  and  the  rest  of  the  o^vTiers  filed  another  bill  for  the 

same  purpose,  the  pendency  of  the  first  suit  was  held  a  good  plea 

to  the  last ;  ^  for,  although  the  first  bill  was  insufficient  for  want 

of  parties,  yet,  by  the  second  bill,  the  defendant  was  doubly  vexed 

for  the  same  cause.     And  where  a  decree  has  been  made,  upon  a 

bill  brought  by  a  creditor  on  behalf  of  himself  and  all  other 

creditors,  and  another  creditor  comes  in,  to  take  the  benefit  of  the 

decree  and  prove  his  debt,  and  then  files  a  bill  on  behalf  of  himself 

and  all  other  creditors,  the  defendant  may  plead  the  pendency  of 

the  former  suit :  for  a  person  coming  in  under  a  decree,  is  gicasi  a 

party,®    The  proper  way  for  a  creditor  to  proceed,  if  the  plaintiff 

in  such  original  suit  is  dilatory,  is  by  application  to  the  Court  for 

liberty  to  conduct  the  cause  himself.^ 

It  was  said  by  Sir  John  Leach  V.  C.  in  JloukUtch  v.  The  Mar-  stafce  at 
quis  of  Donnegal^^  that  the  pendency  of  another  suit  for  the  f^,|.',',i!r!,''*-f  °* 
same  object,  in  a  court  of  concuiTent  jurisdiction,  could  not  be   imist  be 
pleaded  in  bar,  before  a  decree  in  such  other  suit ;  this  observation,  ^  '^'^'^^'^• 
however,  can  only  be  ap])lical)]e  to  creditors'  suits,  where,  as  in 
the  case  last  put,  the  plaintiff  in  the  second  suit  will  not  have 
become  quasi  a  party  to  the  first  till  after  the  decree.    In  other 
ca.ses,  all  that  seems  to  be  necessary  to  a  plea  of  this  nature  is, 
that  there  shoidd  be  a  suit   actually  pending:  for  which  j)urpose, 
there  need  not  have  been  more  than  either  an  appearance,  or  pro- 
cess requiring  appearance."     That  one  or  other  of  such  steps,  at 
least,  should  have  been  taken,  is,  however,  absolutely  necessary .^° 

^  Pogt,    Chap.    XIX.,    §    1,  DUmissing  Companv,  1  Eq.  Co.  Ab.  39,  pi.  14;  Story 

Bills  and  Slai/ini/  Pniceediiir/s.  En.  I'l.  ^  740. 

2  l'i<kfi.nrr.  Hunter,  5  Sim.   122;  sec  *  Dmimd  »?.  Hutchinson,  Ld.  Red.  248. 

Miers  r.  Zaiie-vilh;  &  .Maysville  Turnpike  ''  Neve  v.  Weston,  3  Atk.  557. 

Co.,  11  Ohi...  273.  7  L,i.  Hed.  249. 

«  See   Hartell   v.  Van  IJiircn,  3   Edw.  8  i  s.  &  S.  491,  492. 

Ch.  20.  u  I.d.   r.ed.  240;  Anon.,  1  Vern.  318. 

♦  Ld.  Red.  248;  Moor  v.  Welsh  Copper  "•  Moor  v.   Welsh  Copper  Company,  1 

Eq.  Ca.  Ab.  39,  pi.  14. 


636 


PLEAS. 


Ch.  XV.  §  ■_'. 


Averments 
necessary. 


It  is  to  be  ol)S(.n'vo(l,  tliat  a  cross-bill,  nllhough  between  the 
same  parties  as  an  original  suit,  cannot  be  met  by  a  plea  of  this 
nature;^  tlius,  it  lias  been  held  that,  after  a  bill  brought  in  the 
Exeheciuor  to  foreclose  a  mortgage,  the  defendant  may  bring  a 
bill  in  the  Court  of  Chancery  to  redeem,  and  the  pendcMicy  of  the 
former  suit  is  not  pleachd^le."  And  it  seems  that  such  a  })lea  will 
not  lie,  in  any  case  where  the  second  bill  was  not  brought  on  the 
same  right  as  the  first:  so  that  a  decree,  dismissing  the  original 
suit,  would  not  be  a  bar  to  a  new  })roceeding;  thus,  where  a  plain- 
titf  mistook  his  right,  and  being  the  executor  of  an  administrator, 
conceived  himself  to  be  the  personal  representative  of  a  deceased 
person,  and  filed  a  bill  in  that  capacity,  but  afterwards,  finding 
that  he  did  not  properly  sustain  the  character  he  had  assumed, 
obtained  letters  of  administration  de  bonis  non^  and  filed  a  new 
bill,  a  ]>lea  of  the  former  suit  dejiending  was  overruled  by  Lord 
Hardwicke;^  and  we  have  seen,  that  a  suit  by  a  husband  and 
wife,  against  the  trustees  of  the  wife's  separate  property,  cannot 
be  pleaded  in  bar  to  a  subsequent  suit  by  her  and  her  next  friend 
against  the  trustees  and  her  husband,  although  the  relief  prayed 
in  both  suits  is  the  same :  because  the  first  suit  is  considered  as 
the  suit  of  the  husband  alone,  and  a  decree  of  dismission  in  it 
would  be  no  bar  to  the  wife.* 

From  what  has  been  before  said,  it  is  obvious  that  it  is  neces- 
sary to  the  validity  of  a  plea  of  a  former  suit  depending,  that  it 
shovdd  contain  a  distinct  averment  that  the  second  suit  is  for  the 
same  matter  as  the  first ;  and,  therefore,  a  plea  which  did  not 
expressly  aver  this,  though  it  stated  matter  tending  to  show  it, 
was  considered  as  bad  in  point  of  form,  and  was  overruled  upon 
argument,^  The  plea  must  also  aver,  that  there  have  been  j)ro- 
ceedings  in  the  suit :  as  appearance,  or  process  requiring  appear- 
ance at  the  least.®  It  seems  likewise  regular  to  aver,  that  the 
suit  is  still  depending:''  though  it  has  been  held  that  a  positive 
averment  of  that  fact  is  not  necessary.*  It  is,  however,  necessary 
that  the  time  when  the  suit  was  instituted  should  be  distinctly 


i  See  Story  Eq.  PI.  §  400. 
2  Lord  Newbury  v.  Wren,  1  Vern.  220. 
8  HuE'f^ins  V.  York  BuiMiiit;s  Company, 
2  Atk.  44;  Story  Eq.  PI.  §  739. 

4  Ante,  p.  108;  Reeve  v.  Dalby,  2  S.  «& 
S.  404;  see  also  Stooke  v.  Vincent,  1  Coll. 
527,  h2<J ;  9  .Jur.  99. 

5  Lfl.  Red.  246 ;  Devie  v.  Lord  Brown- 
low,  2  Dick  Gil.  But  in  McEwen  v. 
BroE'lhead,  3  Stockt.  {X.  .1.)  131,  132,  the 
Chancellor,  in  givin<^  ju'igment,  said: 
''  Put,  if  the  fMCts  stated  in  the  plea  plain- 
ly show  that  the  second  suit  is  for  the 
same  subject-matter  as  the  first,  I  can  see 
no  reason  why  it  should  be  held  neces'-ary 
that  there  should  be  an  express  averment 


to  that  effect.  It  would  be  accurate  and 
correct  pleading  to  m;ike  the  averment, 
but  accuracy  may  demand  what  is  not 
required  as  absolutely  necessary.  Tiie 
Courts  are  not  as  much  inclined  to  refjiird 
mere  technicality  in  pleading  as  they  were 
three  quarters  of  a  century  ago."  And  he 
held  that  a  plea  of  another  suit  pending 
might  be  good,  though  it  did  not  contain 
that  averment. 
«  \A.  Red.  247. 

7  Ihid. 

8  Urlin  V.  Hudson,  1  Vern.  ^Z2;  see 
the  forms  of  such  a  plea,  2  Van  Hey.  117; 
Beames  on  Pleas,  330. 


DIFFEREXT   GROUNDS    OF   PLEAS.  637 

averred  ;  and  where  a  plea  merely  stated  that  m  or  about  such  a  Ch.  XV.  §  2. 

year  the  plaintiff  filed  his  bill,  praying  the  like  account,  and  the   ' > ' 

same  relief  with  the  present,  Lord  Hardwicke  held  the  plea  to  be 
defective  in  form.^  > 

A  plea  of  a  former  suit  depending,  being  clearly  a  good  plea,  if  Must  not  be 
true,  the  plaintiff,  if  he  dispute  the  truth  thereof,  should  not  set  f^J^,;;";^^,^*"" 
it  doAvn  for  argument,  but  the  plaintiff  should,  on  motion  or  peti-  but  plaintiff 
tion  of  course,^  obtain  an  order  for  an  inquiry  as  to  the  truth  ^Xr'i.f  ^'*'''" 
thereof*    If  such  order,  and  a  certificate  in  pursuance  thereof,  are  course,  for 
not  obtained  within  one  month  after  the  filing  of  the  plea,  the  de-  Irutll'^t'pka; 
fendant  may  obtain,  as  of  course,  an  order  to  dismiss  the  bill  with  ^||^g^J^j°' 
costs.*     If,  instead  of  taking  this  course,  the  plaintiff  set  down  may  obtain 
the  plea  for  argument,  it  is  considered  that  he  admits  the  fact  that  Jiii^Tof"^ 
a  former  suit  for  the  same  matter  is  depending,  and  the  plea  must,  course. 
therefore,  be  allowed,  unless  it  is  defective  in  form.^     If,  however,   But  if  plea 
the  plaintiff  considers  the  plea  defective  in  form,  he  may  set  it  fornr,^pjaintiff 
down   for  argument.®      In  the    case  of  Jones  v.  Segueira^    the  may  set  it 
plaintiff,  instead  of  obtaining  an  inquiry  as  to  the  truth  of  a  plea  argument. 
of  this  kind,  filed  a  replication  ;  Avliereupon  the  defendant,  after  Dismissal  of 
the  expiration  of  a  month  from  the  filing  of  the  plea,  moved  upon   bill,  after  plea 
notice,  that  the  bill  might  be  dismissed  with  costs,  and  an  order 
to  that  effect  was  made  by  Lord  Lyndhurst,   on  appeal:   who, 
moreover,  was  of  opinion,  that  the  appHcation  ought  to  have  been 
made  by  a  motion  of  course.*    "Where,  however,  a  plaintiff,  after  a 
plea  of  another  suit  depending  to  part  of  the  bill,  and  an  answer 
to  the  rest,  without  moving  for  the  usual  reference,  replied  gener- 
ally to  the  answer,  without  noticing  the  plea,  and  witnesses  were 
examined  on  both  sides,  and  the  cause  heard  and  decided  in  favor 
of  the  plaintiff',  the  defendant,  who  petitioned  for  a  rehearing,  Avas 
lield  to  have  waived  his  plea,  and  was  not  alloAved  to  avail  him- 
self of  the  objection  arising  from  the  plaintiff's  irregularity.^ 

If  the  result  of  an  inquiry  into  the  truth  of  the  plea  is,  that 

1  Foster  «  Vassal),  3  Atk.  087;  Storj'  swered  in  liis  favor.  Long  v.  Storie,  9 
E(|    I'l.  §  737.     A   plea  of  ])roc(('dings   in        Hare,  542;  IG  .lur.  3'liJ. 

another  Court,  must  aUo  sliow  that  the  ^  \A-  Heil.  247. 

obji'ct  is  the  catne,  and  ihat  the  Court  has  C  Tarletoii  v.  Barnes,  2  Keen,  632,  630; 

com])Otent  jurisdiction,  and  that  the  result  see    McIOwen    v.    liroadhead,    3    Stockt. 

of  the  procei'dings  therein  would  lie  con-  (N.  .).)  132. 

elusive,  so  as  to  Idnd   everv  other  Court.  "^  1  I'hil.  82;  0  Jur.  183. 

Behren.s  v.    Sieveking,  2   M.   &   C.    602,  8  See  .Stnry  Kq.  I'i.  §§  743,  744.  AVhcre 

603.  upon  such  ])Um,  the  delendant  obtains  the 

2  For  forms  of  motion  paper  and  peti-  blaster's  report  in  lavor  of  the  truth  of 
tion,  see  Vol.  III.;  and  see  Leigh  v-  I'ur-  the  ])len,  he  cannot  have  an  order  to  dis- 
ner,  14  W.  K.  361,  M.  K.  miss  the  plaintilf's  bill  on  motion.     Hut 

8  "  I  he  correct  ])ractice  is  a  reference  he  must  bring  the  case  on  to  be   heiird 

to  a  Master."     AIcKwen   v.   Broadhead,  3  u|)on  th('  ]ilea  and  the  Ma-ter's  report,  to 

btockt.  (N.  .1.)  132.  eirihle  the   (,'ourt   to  (iccide  u[)i)ii   tlie  va- 

<  Ord.   XIV.  6,    7.      If   the   defendant  lidity   of  the    i)lca.      Hart   r.   I'lnllips,  a 

takes  the  objecti'in   b}-  answer,  instead  of  I'aige,  203. 

plea,  it  seems  tliat  he'will  not  be  allowed  "  Lucas  v.  Holder,  1    Kip   Ca.  Ab.  41, 

Lis  costs,   although   the   imiuiry    be   an-  pi.  3. 


638 


PLEAS. 


Plea  not  ]iut 
in  upon  oath. 


2.  rioa,  that 
the  l)ill  is 
insutticient  to 
answer  tlie 
purpose  of 
complete 
justice, 


Cii.  XV.  §  '2.  hoth  suits  are  for  tlie  same  matter,  the  plea  will  then  be  allowed  ; 
but  if  otherwise,  the  plea  will  be  overi-uleil.  Where,  however,  it 
aj)peared  that  the  second  suit  embraced  more  objects  than  the 
first,  a  special  order  was,  as  wo  have  seen,  made,  dismissing  the 
first  bill  with  costs,  and  directing  the  defendant  to  answer  the  sec- 
ond, upon  being  paid  his  costs,  as  upon  ]>lea  allowed.^ 

As  the  pendency  of  a  former  suit,  unless  admitted  by  the  plain- 
tiff, is  made  the  immediate  subject  of  inquiry,  a  plea  of  this  kind  is 
not  put  in  upon  oath."-^ 

2.  A  plea  which  oifers  any  matter  tending  to  show  that  the 
bill,  as  framed,  is  insufficient  to  answer  the  purposes  of  complete 
justice,  must,  it  is  evident,  be  ranked  amongst  pleas  to  the  bill ; 
for  it  does  not,  in  general,  dispute  the  right  of  the  plaintiff,  as 
stated  in  the  record,  but  merely  ofiers  a  reason  why  the  suit  should 
not  proceed  as  fi-amed.  The  only  reported  cases  of  pleas  of  this 
description  are,  where  the  objection  arises  from  want  of  sufficient 
parties  to  the  bill.  There  can  be  no  doubt,  however,  that  if  it  can 
be  shown  to  the  Court  that  with  the  j)arties  already  before  it,  the 
suit  has  been  so  framed  as  to  be  insufficient  to  answer  the  purpose 
of  complete  justice,  a  plea  suggesting  the  facts  necessary  to  make 
such  a  case  would  prevail. 

The  question  of  necessary  parties  to  a  suit  has  been  before  so 
fiilly  discussed,  that  it  is  unnecessary  to  enter  any  further  into  it 
in  this  place.^  It  is  merely  requisite  to  remind  the  reader,  that 
when  the  defect  is  not  apparent  upon  the  face  of  the  bill,  it  may 
be  pointed  out  to  tlie  Court  by  plea  :  the  jieculiarities  arising  from 
which  course  of  proceeding  have  been  before  made  the  sulyect  of 
inquiry.^ 

TV.  Whatever  shows  that  there  is  no  right  which  can  be  made 
the  subject  of  suit,  or  whatever  is  a  comi)lote  and  perpetual  bar  to 
the  right  sued  for,  may  constitute  the  subject  of  a  plea  in  bar ;  or, 
as  it  is  expressed  in  a  work  on  Pleadings  at  LaAV,  "  Whatever  de- 
stroys the  plaintiff's  suit,  and  disables  him  for  ever  from  recovering, 
may  be  pleaded  in  bar."  ^ 

Kinds  of.  Pleas  in  bar  are  usually  ranked  under  the  heads  of:  1.  Pleas 

of  Acts  of  Parliament ;  2.  Pleas  of  Matters  of  Record,  or  as  of 


by  reason 
of  want  of 
parties. 


rV.  Pleas  in 
bar: 


1  Crofts  V.  Wortley,  1  Ch.  Ca.  241 ;  ante, 
pp.  632  034 ;  and  see  Leigh  v.  Turner,  14 
W.K.  301,  M.  R. 

2  Uriin  I'.  Hudson,  1  Vern.  332;  Ld. 
Red.  247.  It  is  not  very  distinctly  stated  in 
the  books  wlietiier  tlie  rule  that  a  plea  of 
this  nature  need  not  be  upon  oath,  will 
apply  where  the  suit  already  pending  is 
in  another  Court.  The  reason  for  its 
adoption,  in  cases  where  the  suit  is  in  the 
Court  itself,  is  sulliciently  evident  when 
we  considi-r  that  the  pendency  of  it  must 
be  epparent  from  ita  own  proceedings,  of 


which  the  Court  always  takes  notice,  with- 
out further  evidence;  but  with  nsjject  to 
proceedings  in  another  Court  (unh'ss  they 
are  in  the  st;ite  of  perfect  records,  which 
can  hardly  he  the  Ciise  when  the  suit  is 
still  pendinp;),  the  fact  of  the  pendency  of 
the  suit  must  be  established  by  evidence 
upon  oath  in  the  usual  manner.  HeajMst, 
§  3,  Form  of  Pleas. 

2  Ante,  Chap.  V.,  Parties  to  a  Suit. 

4  Ante,  p.  290. 

^  lieames  on  Pleas,  160,  citing  Law  on 
PI.  40. 


DIFFERENT   GROUNDS    OF    PLEAS. 


639 


Record,  in  the  .Court  itself,  or  some  other  Court ;  and  3.  Pleas  of 
Matters  iyijxds} 

1,  Any  statute,  jiublic  or  private,  which  may  be  a  bar  to  the 
demands  of  the  plaintiif,  may  be  pleaded,  with  the  avepnents  nec- 
essary^ to  bring  the  case  of  the  defendant  within  the  statute,  and  to 
avoid  any  equity  which  may  be  set  up  against  the  bar  created  by 
the  statute.- 

Amougst  other  statutes  which  may  be  thus  set  up  in  bar  of  the 
plaintiff's  demands,  may  be  mentioned  the  various  statutes  Avhich 
have,  from  time  to  time,  been  jjassed  for  the  limitation  of  the  time 
within  which  actions  or  suits  at  Law  may  be  commenced.  Pleas 
of  this  description  are  called  Pleas  of  the  Statute  of  Limitations ; 
and  the  statute  which,  until  recent  enactments,  afforded  the  most 
ordinary  grounds  for  pleas  of  this  sort,  was  the  21  Jac.  I.  c.  16.^ 
By  that  Act,  §  1,  it  is  enacted  that  all  wi-its  of  foi-medon  must  be 
sued  out,  and  all  entries  into  lands  by  persons  haAdng  a  right  of 
entry  must  be  made,  witliin  twenty  years  next  after  the  title  to 
the  person  suing  out  the  writ  or  making  the  entry  accrued  ;  and, 
by  §  3,  that  all  actions  upon  the  case  (otherwise  than  for  slander), 
or  for  account  (other  than  such  accounts  as  concern  the  trade  of 
merchandise,  between  merchants  and  merchants,  their  factors  or 
servants),  and  all  actions  for  trespass,  debt,  detinue,  rej^levin,  &c., 
and  the  action  of  trespass  quare  clausum  fregi%  must  be  com- 
menced within  six  years  next  after  the  cause  of  such  action  or  suit, 
and  not  after.  Tliis  statute,  although  its  provisions  apply  only  to 
actions  or  suits  at  Law,  has,  nevertheless,  been  considered  as  avail- 
able as  a  bar  to  suits  in  Equity  for  analogous  purposes,  in  cases 
where  they  were  not  commenced  within  the  period  limited  by  the 
Act;*  therefore,  Avhere  a  plaintiff's  right  to  lands  had  accrued 
thirty  years  before  the  filing  of  tlie  bill,  the  Court  allowed  a  plea 
of  the  Statute  of  Limitations  to  prevail :  the  plaintiff  having  been 
so  circumstanced  that,  although  he  could  not  bring  an  ejectment, 
he  might  have  brouglit  a  bill  in  Equity.  And  so  it  has  been  held, 
that  the  statute  may  Ije  pleaded  to  a  bill  to  redeem  a  nu)rtgage,  if 
the  mortgagee  had  been  in  possession  twenty  years.**     The  statute 


Cii.  XV.  §  2. 


Statute  of 
Limitations. 


In  what  cases 
21  Jac.  I.  c. 
16,  may  be 
pleaded : 


1  Beames  on  Pleas,  160;  Coop.  Eq.  PI. 
251  ;  Story  Kq.  I'l.  §  74'J.  The  arrange- 
ment ndntited  l>y  Lord  Kedesdaie  is  some- 
what dilk-rciit  ;  see  Ld.  Ked.  230.  For 
I'orm  of  H  plea  in  bar,  .«ee  Vol.  III. 

'^  Ld.  Hed.  274.  Sern/zle,  di:t'ei,datit  may 
have  the  tiunetit  of  a  statute  extinguishing  a 
right,  without  pleading  it.  l>e  lieauvoir  v. 
Owen,  6  Lxcli.  10(J,  Cam.  Scac. 

3  See  al^o  '.)  (jeo.  IV.  c.  14,  post,  p.  C45. 
For  forms  of  pk-as  under  this  statute,  see  2 
Van  Hey.  II H,  114. 

*  See  Ld.  1:.<1.273,  n.  (2);  Coop.  Kq.  I'l. 
261;  Beames  on  I'lens,  101;  Stor^-  lv|.  I'l. 
§  701.    The  rule  in  Courts  of  Eijuity  now 


is,  that  tUey  will  take  notice  of  the  Statute 
of  Limitiitiont,  and  apply  it  in  the  same 
maimer  as  Courts  of  Law.  Conovcr  v.  Con- 
over,  1  Saxton  (N.  .1.),  403;  see  anft,  55!), 
500  and  notes;  Story  H(|.  I'l.  §  751, t'<  si'ij  ; 
Miller  V.  Mclntire,  0  I'eturs,  01;  Stack- 
house  V.  lianistun,  10  Siimin-r's  Ves.  453, 
note  (c),  and  cases  cited;  Townshend  v. 
Townsliend,  1  Hro.  C  C.  (I'erkins's  ed.) 
555,  note  ('/),  and  American  cases  cited; 
Walkins  v.  Ilarwood,  2  (jili  k  .\  307;  Car- 
roll )'.  \\'aring,  3  ih.  4'Jl;  Harris  v.  Mills, 
2s  III.  44. 

1  Ld.  Ke<l.  271,  272;  C-'op.  Kq.  PI.  264; 
Deames  on  Pleas,  102 ;   Story  Eq.  PI.  767. 


May  be 
pleaded  to 
bill  to 
redeem ; 
or  to  )irevcnt 
setting  up  of 
term ; 


640 


PLEAS. 


(^11.  XV 


or  tor  liis- 
covcrv ; 

or  for  pay- 
niont  of 
debts; 


or  for 
account. 


mny  also  1)0  i>leaik'd  to  a  bill  to  pivveiit  the  sottinc;  up  of  an  out- 
standing term,  and  for  discovery;^  and  to  a  bill  for  discovery 
only  :  -  tliongh  it  -was  fonnerly  fonsidcrod  that  the  latter  could  not 
be  done.* 

The  statute  may  also  be  ])leaded  to  a  bill  which  seeks  the  pay- 
ment of  a  debt,  provided  such  debt  be  due  iipon  simple  contract. 
It  api)ears,  formerly,  to  have  been  considered,  that  although  the 
statute  is  a  bar  to  the  claim  of  a  debt,  it  -would  not  o])erate  as  a 
bar  to  the  discovery  Avhen  the  debt  was  due  :  for,  if  that  had  been 
set  forth,  it  would  have  appeared  to  the  Court  Avhether  the  time 
limited  by  the  statute  had  elapsed ;  but  later  decisions  have  been 
to  the  contrary,  and  a  defendant  pleading  the  statute,  must  not  an- 
swer to  that  part  of  the  bill  which  calls  upon  him  to  set  out  when 
the  debt  became  due.*  If,  however,  the  bill  alleges  that  if  the  de- 
fendant would  discover  books  and  papers  in  his  possession,  the 
plaintiff  would  thereby  be  enabled  to  show  that  the  debt  became 
due,  or  was  acknowledged  since  the  period  limited  by  the  statute, 
the  defendant  must  answer  that  part  of  the  bill.^ 

The  statute  21  Jac.  I.  c.  16,  may  also  be  pleaded  to  all  bills  for 
account,  except  where  the  account  relates  to  the  trade  of  merchan- 
dise between  merchants  :  which  species  of  account  is,  as  we  have 
seen,  expressly  excepted  out  of  the  statute.^     Thus,  where  one  had 


Now,  however,  the  statutes  properly  appli- 
cable to  lands,  rents,  redemption  of  mort- 
gages. &c.,  are  the  3  &  4  Wni.  IV.  c  27;  7 
Will.  IV.  &  1  Vic.  c.  28;  and  see  ;;os^  p.  598; 
Hardy  v.  lieeves,  4  Sumner's  Ves.  466, 
note  lb),  and  cases  cited;  Story  Eq.  PI. 
§  757 ;  Acherley  r.  Roe,  5  Sumner's  Ves. 
673,  Perkins's  note  («),  and  cases  cited; 
Trash  v.  White,  3  Bro.  C  C.  ( Perkins's  ed.) 
291,  notes.  If  the  mortgagee  gets  into 
possession,  and  continues  in  possession 
twenty  years  without  any  acknowledg- 
ment of  the  mortgage  title,  the  mortgiigor 
is  barred  of  his  redemption.  Gates  v.  Ja- 
cob, 1  15.  Moil.  308;  Hatfield  v.  Mont- 
gomery, 2  Porter,  58;  Phillips  v.  Sinclair, 
20  Ma"ine,  26'J;  Demarest  v.  Wynkoop,  3 
John.  (Jh.  129.  So  when  the  statutory 
period  necessary  to  bar  a  recovery  at  Law 
has  pii'sed,  a  foreclosure  in  Eipiitv  will  be 
barred.  Harris  r.  Mills,  28  111.  44."  But  an 
acknowledgment  of  the  mortgage  title 
within  twenty  years  before  filing  the  bill 
for  redemption  or  lor  foreclosure,  maintains 
the  e<iuit3'  of  redemption,  or  the  right  to 
foreclosure.  Hodle  v.  Healey,  6  Madd.  181 ; 
liayner  v.  Castlee,  id.  274;  Cheeverr.  Par- 
ley, 11  Allen,  584.  As  where  the  mort- 
gagee has  treated  it  as  a  mortgage  by 
keeping  accounts,  and  in  other  ways.  See 
Glee  V  Manhattan  (Jo.,  1  Paige,  48  ;  Fen- 
wiek  V.  Macev,  1  Dana,  279;  Hughes  v. 
Edward*,  9  \V  iieat.  489  ;  Oc.xter  v.  Arnold, 
3  .Sumner,  152  ;  Kdsell  v.  BucliaiiHn,  3  Hro. 
G.  G.  (Perkius's  ed.)  254,  256.     The  time 


is  to  be  computed  from  the  last  period  at 
which  the  parties  treated  the  transaction 
as  a  mortgage.  Shepperd  v.  Murdock,  3 
Murph.  218. 

i  Jeremy  v.  Best,  1  Sim.  373,  375. 

2  Beaines  on  Pleas,  275  ;  Gait  v.  0^baI- 
deston,  1  Kuss.  158;  Mendizabel  v.  Mach- 
ado,  1  Sim.  68,  77;  Macgregor  v.  East 
India  Corapanv,  2  Sim.  452,  455  ;  Scott  v. 
Broadwood,  2  Goll.  447,  456;  10  Jur.  214; 
VVigram  on  Disc.  35  ;  see  also  Ld.  Red.  269, 
and  post,  Ghap.  XXXIV.  §  2,  Hills  of  Dis- 
covery. 

8  Hindman  v.  Taylor,  2  Bro.  C.  C.  7, 10; 
Scott  V.  Broadwood,  2  Gol.  447;  Hamilton 
V.  Wood,  3  Edw.  Ch.  106;  see  the  remarks 
upon  the  case  of  Hindman  v.  Taylor,  cited 
in  support  of  the  text,  in  Wigram  on  Dis- 
cov.  (1st  Am.  ed.)  PI.  66  et  stq.,  p.  33  et 
seq.,  where  the  learned  author  expresses  his 
dissent  from  thejudgnient  of  Lctrd  Thuriow 
in  that  case,  and  cites  the  authorities  which 
refer  to  ami  n(.tice  it.  See  Mendizabel  v. 
Machado,  1  Sim.  68;  Macgregor  v.  East 
India  Companj',  2  Sim.  452;  Gork  v.  Wil- 
lock,  5  Mad.  331;  Story  Kq.  PI.  §  821 
and  notes,  in  which  the  author  remarks 
that  the  reasoning  of  Mr.  VVigram,  dissent- 
ing from  Lord  Tiiurlow,  is  very  able. 

*  Ld.  Ked.  269. 

6  Ante,  p.  61-8. 

"  The  accounts  must  be  "  such  as  con- 
cern the  trade  of  merchandise,"  "  between 
merchant  and  merchant,  their  factors  and 
servants."    See  W.  W.  Story  Contracts, 


DIFFERENT    GROUNDS    OF    PLEAS. 


641 


To  what 
transactions 


received  the  profits  of  an  infant's  estate,  and,  after  six  years  had  Ch.  XV.  §  2 
elapsed  fi*om  his  coming  of  age,  the  infant  brought  a  bill  for  an 
account,  the  Court  held  that  the  Statute  of  Limitations  was  a  bar 
to  such  suit,  as  it  would  be  to  an  action  at  Common  Law  for  the 
sarne  pui-pose.^  It  is  to  be  observed,  that,  notwithstanding  the  ex- 
ception as  to  merchants'  accounts  in  the  thu*d  section,  it  has  been 
held  that  the  Statute  of  Limitations  will  operate  as  a  bar,  where 
the  accounts  have  ceased  six  years  before  the  filing  of  the  bill.'^ 

In  Jones  v.  Pengree^  it  was  doubted  whether  transactions  be- 
tween principal  and  agent  came  within  the  exception  in  favor  of  ti'^^sacjion 
merchants'  accounts.  It  has  been  decided,  that  transactions  with 
a  foreign  Piince  and  his  government,  do  not  concern  the  trade  of 
merchandise  within  this  statute ;  *  and  also,  that  a  letter  of  at- 
torney from  a  merchant  to  authorize  the  getting  in  of  debts,  will 
not  constitute  the  person  thereby  deputed  a  merchant,  within  the 
meaning  of  the  excej^tion.^  It  m;iy  be  mentioned,  that  the  ex- 
ception has  been  considered  as  apjjlying  only  to  merchants  trading 
beyond  sea,  and  not  to  inland  merchants.®  The  clause  relating  to 
m  erchants'  accounts,  also,  is  only  applicable  to  cases  Avhere  there 
are  mutual  accounts  and  reciprocal  demands  between  two  persons : 
it  is  inapplicable  to  accounts  between  a  tradesman  and  his  custom- 
er; and  it  has  been  determined  that,  in  such  accounts,  and  in  all 


Merchants' 
accounts. 


702;  Blair  r.  Drew,  6  X.  H.  235;  Codman 
V.  Kodgers,  10  Tick.  118;  Springy.  Gray, 
6  Mason,  528;  S.  C.  6  Peters,  151;  Colter 
V.  .Murray,  5  John.  Ch.  522,  583,  592,  599; 
Ciiitty's  Corit.  (loth  Anier.  ed.)  909,  910, 
and  notes.  Unliquidated  accounts  between 
merchants  in  the  capacity  of  principal  and 
fac;or  have  Ijceu  held  to  he  within  the  ex- 
ception. Stiles  I'.  Donaldson,  2  Dall.  2C)4; 
S.  C.  2  Vates,  105.  The  exception  of  nier- 
cliuiit«'  account*  does  not  apply  to  stated 
accounts.  Toland  v.  Sprague,  12  I'et.  300. 
1  Lockey  v.  Lockey,  Tree,  in  Ch.  618. 
I.ong  aciiuiescence  and  lapse  of  time  are, 
by  analogy,  or  in  obedieuci;  to  the  Statute 
of  Limitations,  a  bar  to  a  bill  for  an  account. 
Acherley  v.  Hoe,  5  Sumner's  Ves.  505, 
Perkins's  note  (/> I,  and  cases  there  cited; 
Uaker  V.  Hirklle,  I  Bald  394,418;  Graham 
V.  lorrance,  1  Ired.  Kq.  210  ;  Parks  v. 
Kiicker,  5  Li-igli,  149;  liayner  i'.  I'ca'sall, 
3  John.  Ch.  578;  Burton  r.  Dickinson,  3 
Yerger,  112;  Druminoiid  f.  Duke  of  St. 
Albans,  5  SuminTs  Ves.  439,  note  (3); 
Andrew  P  Wrigley,  4  Bro.  C  C  (  Perkins's 
ed.;  125,  138,  and'iiotes;  1  Story  Va\  Jur. 
§  629;  Spring  r.  (jni}',  5  M:isoti,  627,  628; 
^herwo(pd  r.  Sutton,  5  Mason,  143;  Lewis 
V.  Marshall,  1  .McLenn,  17;  Itiynioiid  y. 
Simonson,  4  BlacKf.  83;  (ieorge  i".  John- 
son, 45  N.  II.  450;  At w  iter  ».  I'owler,  1 
Ivlw.  (Jli.  417  ;  see  also  Kundolph  w.  Kan- 
d..lph.  1  Men.  &  M.  180,  Bi)tifeiir  f.  Wcy- 
nian,  1  M'(>>id,('li.  101;  Cave  w.  Saunders, 
2  ;\  K  .Miir.ih.  04;  Lover.  White,  4  Hay w. 
vol-.  I. 


211;  King,=land  I'.  Roberts,  2  Paige,  193; 
Mooers  v.  White,  6  John.  Ch.  300;  Ives  i; 
Sumner,  1  Dev.  Eq.  338;  Bertien  t».  Variau, 
1  Edw.  34-3;  Faruum  r.  Brooks,  9  Pick. 
213.  Between  partners.  Cowart  v.  Perrine, 
3  C.  E.  Ureen  (N.  J.),  454;  George  v. 
Johnson,  45  N.  II.  456. 

••^  Weilord  V.  Lidiiel.  2  Ves.  S.  400  ; 
Crawford  c.  Liddel,  cited  6  Ves.  582;  Jol- 
lilfe  V.  Pitt,  2  Vern.  694;  Hridstes  v.  Mitch- 
ell, Glib.  224  ;  Bunb.  217  ";  Barber  v. 
Barber,  18  Ves.  286;  Coster  v.  Murray, 
5  John.  Ch.  522,  531 ;  Spring  r.  (iray,  528  ; 
S.  C.  0  Peters,  151;  Union  liank  v.  Knapp, 
3  Pick.  30;  Jones  V.  Pengree,  6  Sumner's 
Ves  680,  note  (c). 

But  in  Bass  v.  Bass,  6  Pick.  362,  it  was 
held  tiiat  the  Statute  of  Limitations  could 
not  be  pleaded  to  an  account  "  concerning 
the  tr.ide  in  merchandise  between  merchant 
ami  mer<'hant,"  although  none  of  the  items 
came  within  six  years.  See  also  S.  C.  8 
Pick.  187  ;  Mandeville  v.  Wilson,  5  Cranch, 
16;  Davis  v.  Smitli,  4  (ireenl.  339;  M.Lel- 
lan  V  Oofion,  6  (Jreenl.  3()h;  ChitI}'  Coiit. 
(loth  Am.  ed.)  909,  910,  and  cases  cited; 
Hancock  \\  Hancock,  18  Pick.  30. 

»  0  Ves.  680,  582. 

<  Stun  y.  Mellish,  2  Atk.  012. 

6   lb.  613. 

0  Sherman  r.  Withers.  1  Ch.  Ca.  162; 
and  see  Beaines  on  Pleas,  163,  n.  3,  and  the 
cases  there  cited;  but  see  Farrindon  v.  Leo, 
I  Mod.  209,2  Mod.  311. 


41 


642 


PLEAS. 


Cannot  be 
pleaded  to 
trusta. 


Devise  for 
debts  will  not 
revive  debts 
barred. 

WHiether 
right  to 
barred  debts 
may  be 
revived  by 
advertise- 
ments. 


otluM-s  wluMv  the  ileniP  arc  all  on  one  side,  the  circumstance  of  the 
l:ist  itcMi\  liaj^jiining  to  be  within  six  years,  does  not  draw  after  it 
those  wliidi  are  of  a  loniivr  standin<j.^  In  such  cases,  the  proper 
course  is,  to  plead  the  statute  as  to  all  the  items  wliich  are  within 
the  statute,  and  ansAver  as  to  the  rest. 

The  Statute  of  Limitations,  21  Jac.  I.  c.  16,  cannot  be  pleaded 
ill  bar  tt)  a  trust  ;^  and  upon  this  ground  it  was  held,  that  a  de- 
mand upon  the  sejiarate  estate  of  a  manied  woman  was  not  barred  : 
because  all  the  sejjarate  estate  of  a  feme  covert  is  a  trust.'  Upon 
the  same  principle,  it  is  held,  that  where  a  debtor  creates,  by  his 
will,  a  trust  or  charge  for  the  payment  of  liis  debts  out  of  real 
estate,  such  a  trust  w^ll  prevent  the  statute  from  operating  upon 
a  debt  not  barred  at  the  time  of  the  creation  of  the  trust.^  The 
rule  docs  not  apply  to  a  trust  for  the  papnent  of  debts  out  of  per- 
sonal estate  ;  ^  and  it  seems  that  a  devise  for  the  payment  of  debts 
will  not  have  the  effect  of  reviving  debts  barred  by  the  statute^ 
upon  the  death  of  the  devisor.*' 

It  may  also  be  noticed  that,  in  Andrews  v.  Broxon^  it  was  held, 
that  although,  if  a  man  has  a  debt  due  to  him,  and  has  made  no 
demand  of  it  for  six  years,  he  is  barred  by  the  Statute  of  Limita- 
tions, yet,  if  the  debtor,  after  the  six  years,  piiblish  an  advertise- 
ment in  the  Gazette,  or  any  other  news2:)aper,  that  if  all  persons, 
who  have  any  debts  OAving  to  them  from  hira,  will  .ipply  to  such  a 
place  they  will  be  paid,  the  opei-ation  of  the  statute  will  be  de- 
feated ;  and  in  Jones  v.  Scott,^  the  question  was  discussed,  whether 
such  a  notice,  by  a  j^ersonal  representative,  would  have  the  same 
effect.  In  that  case,  however,  the  Court  did  not  come  to  any  ex- 
press decision  upon  the  point :  thoiigh  Lord  Brougham  aj^pears  to 
have  intimated  an  opinion  that  it  would.^  It  is  to  be  observed 
that,  in  Jones  v.  Scott,  the  advertisement  requested,  all  persons, 
having  claims  on  the  estate,  to  send  in  their  statements  prior  to 
their  being  laid  before  a  ])articular  person,  by  whom  the  persons 
claiming  were  to  submit  them  to  be  examined ;  and  that  (accord- 
ing to  the  reporter's  marginal  note)  the  Court  appeared  to  think 
that  such  an  advertisement  would  not  take  a  debt,  previously 
barred,  out  of  the  operation  of  the  statute.     It  may  here  be  men- 


1  Coop.  Eq.  PI.  253;  Bull.  N.  P.  149; 
Coster  V.  Murray,  6  John.  Ch.  522;  Buntin 
V  Lagow,  1  Blackf.  375;  Kimball  i'.  Bnjwn, 
7  Wend.  322;  Ingram  v.  Sherard,  17 
Serg.  &  K.  347  ;  Gold  v.  Whitcomb,  U 
Pick.  188. 

■^  Hollis'  case,  2  Ventr.  345;  Sheldon  v. 
Weldman,  1  Cha.  Ca.  26;  Freeni.  150. 

8  Norton  v.  Turvill,  2  P.  VVms.  144. 

*  Burke  I'.  Jones,  2  V.  &  15.  275;  Hughes 
V.  Wynne,  T.  &  It.  307,  30y  ;  Hargreaves 
V.  Michell,  6  Mad.  32ti;  Kendell  f.  Carpen- 
ter, 2  Y.  &  J.  484;  Scott  v.  Jones,  4  CI.  & 
Fin.  382  ;  S.  C.  Jones  v.  ScoU,  1  K  &  M. 


255;  see  also  Freake  v.  Cranefeldt,  3  M.  & 
C.  499;  2  Jur.  1080. 

6  Jones  V.  Scott,  uhi  sup. ;  Lyon  v.  Col- 
ville,  1  Coll.  449;  F^viins  v.  Tweedy,  1 
Beav.  55,  58. 

6  Burke  «.  Jones,  2  V.  &  B.  275,  ,291; 
see  also  Executors  of  Fergus  v.  Gore,  1 
Sell.  &.  Lef  107;  Stackhouse  v.  Bariiston, 
10  Ves.  453,  409;  Ax  partelioffey,  19  Ves. 
468,  470;  Stanton  v.  Knight,  1  Sim.  482. 

7  Prec.  in  Cha.  385. 

8  1  R.  &  M.  255;  Rev.  4  CI.  &  Fin.  382, 
nom.  Scott  v.  Jones. 

9  1  K.  &  M.  270;  but  see  3  M,  &  C.  502. 


DIFFERENT    GROUNDS    OF    PLEAS.  643 

tioned,  that  where  a  debt  had  become  barred  by  the  statute  after  Cn.  XV.  §  2. 

the  death  of  the  creditor,  it  was  held  to  be  revived  by  the  debtor   " r ' 

proving  the  creditors  will.^  •  Eftect  on 

The  principle  of  the  rule,  that  the  creation  of  a  trust  for  the  of  proof  by 
benefit  of  creditors,  will  prevent  the  application  of  the  Statxxte  of  delator  of 
Limitations,  extends  to  proceedings  in  bankruptcy  ;  and,  therefore,  ^m. 
it  was  determined  that,  after  a  commission  had  issued,  the  Statute  j^  ^^^^  ^^ 
of  Limitations  did  not  prevail  against  th§  creditor  of  a  bankrupt.^  bankruptcy. 
It  was  also  held,  that  where  a  man  had  taken  advantage  of  the  Act  in  case  of 
for  the  relief  of  insolvent  debtors,  the  statute  did  not  apply ;  and  "isoi^'^ncy. 
that,  where  a  person  who  had  taken  the  benefit  of  the  act  twice  had 
died,  leaving  assets  more  than  sufticient  to  pay  all  the  debts  con- 
tracted after  his  second  insolvency,  the  debts  scheduled  under  his 
first  insolvency  were  not  barred  by  the  statute." 

A  decree  for  the  payment  of  debts,  under  a  creditor's  bill  for  the  Effect  of  a 
administration  of  assets,  is  also  considered  as  a  trust  for  the  benefit  '^yg^g^^'tjjj 
of  creditors,  and  will,  in  like  manner,  prevent  the  statute  fi-om  the  operation 
barring  the  demand"  of  any  creditor  coming  in  under  the  decree  ;''  ° 
the  creditor's  demand,  however,  must  not  have  been  barred  at  the 
time  when  the  suit  was  instituted :  for,  if  the  creditor's  demand 
would  have  been  barred  by  the  statute  before  the  commencement 
of  the  bill,  the  statute  may  be  set  up/'     It  is  to  be  remarked  upon  iqung  of  bill 
this  point,  that  it  has  been  held  that  it  was  the  decree  only  which  ^g'^^pPralion. 
created  the  trust ;  and  that  the  mere  circumstance  of  the  bill  hav- 
ing been  filed,  although  it  might  have  been  pending  six  years, 
would  not  take  the  case  out  of  the  statute  ;  ^  but  according  to  the 
later  decisions,  it  seems  that  the  filing  of  the  bill  will  0})erate  by 
itself  to  save  the  bar  of  the  statute,  though  the  plaintiff,  by  delay 
in  prosecuting  the  suit,  may  disentitle  himself  to  relief.''     And  the 
dismissal  of  the  bill  will  not  prevent  the  defendant,  in  a  new  suit, 
from  taking  the  benefit  of  the  statute.* 

It  may  be  noticed  in  this  place,  that,  in  JSlc  jxtrte  DevKlney^  it  Executors,  in 
was  laid  down  by  Lord  Eldon,  that,  in  the  administration  of  assets   ^  creditors' 

.  1     1       CI  suit,  not 

xmder  a  creditor's  bill,  executors  are  not  bound  to  plead  the  Statute  bound  to 
of  Limitations.^**    If  the  statute  has  not  been  taken  advantage  of  ^tat'uti!'*' 

1  Inglei7.Kichards(No.  2),  28Beav.366;  4  Dr.  &  War.  303,  318;  Ilele  r.  Lord  L$ex- 

6  Jur.  N.  S.  1178.  ley,  20  Heav.  127. 

ii  Ivx  p'lrte  Iv'is",  2  fllyn  &  J.  46.  •*  Stcnidale  v.  Ilankinson,  rM  sup. 

8  Barton  r.  latrer.sali;  1  K.  &  M.  237.  »  15  Ves.  4'J8;  Alston  v.  Trjllope,  L.  R. 

<  St.-rndale  r.  llarikinsoij,  1    Sim    303,  2  E(|.  20.-,,  M.  I{. 

398;  Forstir  r.  .MKcnzie.  17  Jieav.  414.  •"  Lord  <  astleton  v.  Lord  Fanshaw,  1  Eq. 

6  Shewin   v.   VanderliorMt,    1  K.  &   M.  fa.  Ab.  30.',,  pi.  13;  I'rec.  in  Ch.  99.     In 

347,352;  Updike  v.   Doyle,  7   K.   L  440,  Scott  v.  Hancock,  13  Mass.  1G4,  it  is  said 

460-402.                             '  to  be  settled  tliut  an  a(llnini^trator  is  not 

0  Luke  r.  Ilayes,  1   Atk.281;  Anon.,  2  ImhiiuI  to  [ilead  the  general  statuie  of  liiiii- 

Atk.  1.  talioiiHin  bar  to  nn  action  on  a  di'bt  of  his 

'  Coppin  1-'.  Gray,  1   Y.  &  C.  C  C.  205,  inle.-tate.     Si  e  uKo  Smith's  l^talc,  I  A«h- 

207;  6.lur.312;  I'urcell  v.  Ulennerli-.issett,  nnad,  352;  l)ut  see  the  remarks  o(  IJaylev 

3  Jo.  &  Lat.  24,  45;   Forster  r.  Tliom|>son,  .1.  in  M(  I  ulloek  t'.  Dawes,  9  Dowl.  &  Kyi. 

40,  oil  this  point. 


(544 


PLEAS. 


(11.  \V.  $ 


liv  tlu'  ('\(M'ut(M-s,  nn.l  a  dt'crci'  for  an  account  of  di'bts  has  been 
].ronoiiiu-cil,  tlic  statute  may  be  set  up  in  the  course  of  tlie  pro- 
cooain.os  uiuler  tlic  docrt'C,  as  well  by  a  creditor  or  legatee,  as  by 
a  jHMsonal  representative,^  against  all  the  creditors,  except  the 
j)laintiir.- 

The  rub',  that  trusts  are  not  within  the  Statute  of  Limitations, 
ai>iilies  t)nly  between  trustees  and  cestui  que  trusts:^  not  between 
trustees  or  cesiui  que  tr^(,sts  and  third  persons;  and,  therefore,  it 
has  been  held,  that  where  an  executor,  or  administrator,  or  trustee 
for  an  infant,  neglects  to  sue  within  the  time,  the  Statute  of  Limi- 
tations will  bind  the  infant,  and  prevent  his  suing  the  debtor,* 
although  it  would  not  prevent  the  infant  from  suing  his  trustee  for 
a  breach  of  trust ;  and  so  it  has  been  determined,  that  the  Statute 
of  Limitations  will  bar  a  bill  for  an  account  of  rent  of  land  held 
of  trustees.^  The  rule  also  will  not  hold,  where  the  claim  is  made 
against  a  trustee  by  implication ;  more  especially  where  such  im- 
plication is  raised  upon  a  doubtful  point.^  The  rule,  in  fact,  can 
only  be  taken  to  apply  to  those  cases  where  the  possession  of  the 
trustee  cannot  be  considered  as  adverse  to  that  of  the  cestui  que 
trust :  if  the  possession  of  the  trustee  is  adverse,  the  statute  may 
be  pleaded ;  thus,  it  was  held,  that  in  the  case  of  parceners  and 
joint-tenants,  they  are  accountable  to  each  other,  without  regard 
to  the  length  of  time,  because  the  possession  of  one  being  the  pos- 
session of  all,  there  is  a  mutual  ])ossession  between  them  ;  but  it  is 
otherwise  in  the  case  of  tenants  in  common,  where  the  possession 
of  one  may  be  adverse  to  that  of  the  other.^  This  distinction  is 
clearly  pointed  out  by  Lord  Redesdale,  in  Ilovenden  v.  Lord  Atv- 
nesley^  who  lays  it  down  as  a  rule,  thfit  if  the  trust  be  constituted 
by  act  of  the  parties,  the  possession  of  the  trustee  is  the  posses- 
sion of  the  cestui  que  trust,  and  no  length  of  such  possession  will 


1  Shewen  f.  Vanderhor>t,  uhi  sup. ;  Moo- 
die  «.  Bannister,  4  Drew.  432;  5  Jur.  N. 
S.  402;  1-ulIer  v.  Hedmaii,  26  Beav.  614.^ 

'^  Brigf-'S  V.  Wilson,  5  De  G.,  M.  &  G. 
12;  l-'uiier  r.  liednian,  ubi  sup.  ;  Adams  v. 
Waller,  1  W.  N.  200;  14  W.  K.  783,  V. 
C.  W. 

8  In  ca'*e  of  a  direct  trust,  no  length  of 
time  bars  the  claim  between  trustee  and 
cestui  que  trust.  Cook  v.  Willinms,  1  Green 
Ch.  209;  Baker  r.  Whitin,ir,3  Sumner,  476; 
Armstront;  i".  Campbell,  3  Yerger,  201; 
Overstreet  v.  I5iite,  1  .J.  J.  Marsh.  370 ;  Cos- 
ter V.  Murray,  o  John.  Ch.  224;  Gist  v. 
Cattei,  2  Ufsau-.  53;  Thomas  v.  White,  3 
Litt.  177;  Stephen  v.  Yamlle,  3  H;iyw.  221; 
1  recoihick  v.  Au'^tin,  4  Mas.m,  16;  1  uirill 
r.  Muzzv,  4  Yerger,  104;  Wisner  v.  Bar- 
net,  4  Wash.  C.  C.  631;  Bryant  v.  I'lickett, 
3  Ilayw.  2.02;  Fisher  v.  Tucker,  1  M'Cortl 
(;ii.  161);  Van  Khyn  v.  Vincent,  ib.  314; 
Decouche  v.  Savetier,  3  John.  Ch.  216; 


Wamburzee  v.  Kennedy,  4  Desaus.  474; 
Pierson  v.  Ivev,  1  Yerger,  297;  Turner 
V.  Debell,  2  A.'K.  Marsh.  384;  Bigelow  v. 
Bigi'low,  6  Ilam.  97;  Kane  ».  Bloudgood, 
7  Juhn.  Ch.  90;  Farnam  v.  Brooks,  9  Pirk. 
242-244;  Williams  v.  Watkins,  3  Peters, 
51,  52;  Cowart  V  I'errine,  3  C.  E.  Green 
(N.J. ),  454,  457  ;  Conover  v.  Conover,  Snx- 
tin  (N.  J.),  403;  Wanmaker  «.  Van  Bus- 
kirk,  ib.  685;  Allen  v.  Woolley,  1  Green 
Ch.  209;  Stark  v.  Hunt m,  2"  Green  Ch. 
311;  Burdick  v.  Garrick,  L.  K.  6  Ch.  Ap. 
233. 

4  Wych  V.  East  India  Company,  3  P. 
Wms.  309. 

6  Hercy  «.  Ballanl,  4  Bro.  C.  C   468. 

6  Townshend  v.  Townshend,  1  Cox,  28; 
1  Bro.  C   C.  550,  554. 

T  I'rince  v.  Ileylin,  1  Atk.  493;  Cox  v. 
Dolman,  2  De  G.,  M.  &  G.  592,  597. 

«  2  Sch.  &  Let.  633. 


DIFFERENT    GROUNDS    OF    PLEAS. 


045 


bar ;  but  if  a  party  is  to  be  constituted  a  trustee  by  the  decree  of 
a  Court  of  Equity,  founded  on  fraud  or  the  hke,  his  possession  is 
adverse,  and  the  Statute  of  Limitations  will  run  fro'm  the  time 
that  the  circumstances  of  the  fraud  were  discovered. 

Although  it  is  a  rule  in  Equity  that  no  length  of  time  will  bar 
a  fraud,  yet  a  transaction  cannot  be  impeached  on  the  ground  of 
fraud,  wliere  the  fact  of  its  having  been  committed  has  been  within 
the  knowledge  of  the  party  for  many  years  ;  ^  if,  therefore  the  bill 
states  circumstances  of  fraud,  and  that  the  plain tiif  did  not  become 
apprised  of  them  till  after  the  period  limited  by  the  statute  had 
expired,  a  plea  of  the  Statute  of  Limitations  will  not  prevail,  unless 
the  defendant  meets  such  statement  by  an  averment  and  answer, 
negativing  the  fi-aud  ^  or  the  fact  of  the  discovery  within  the  time 
specified  in  the  bill.^  The  same  rules  which  are  applied  by  Courts 
of  Equity  to  cases  of  fraud,  will  also  be  applied  to  cases  of  mis- 
take ;  and  it  has  been  held,  where  there  has  been  a  mistake,  that 
the  statute  will  not  o])erate  till  after  the  expiration  of  six  years 
from  the  discovery  of  it.*  The  principle  upon  which  this  rule  is 
founded  is,  that  the  statute  ri;ns  from  every  new  right  of  action  or 
suit  which  accrues  to  the  plaintiff,  and  that  the  discovery  of  the 
fraud  gives  to  the  plaintiff  a  new  right ;  but,  if  he  does  not  pro- 
ceed within  the  time  limited  by  the  statute  from  such  discovery, 
he  will  be  barred.^  This  rule,  which  appears  to  have  been  the  one 
relied  upon  by  the  Courts  under  the  old  Statute  of  Limitations,  21 
Jac.  I.  c.  16,  has  been  distinctly  embodied  in  the  Act  of  8  &  4  Will. 
IV.  c.  27,  §  26.« 


Ch.  XV.  §  2. 


In  cases  of 
fraud: 


Xot  if  fraud 
discovered 
inanj-  years 
before. 


Rule  in  cases 
of  mistake. 


1  (iould  V.  Gould,  3  Story,  516. 

2  Sec  Goodrich  v.  Pendleton,  2  John. 
Ch.  3H4. 

3  Hovenden  «.  Lord  Anneslev,  «i(Sw/>.  ; 
Blennerhas^ett  v.  Dav,  2  Hall '&  U.  118; 
Whallev  r.  Whailcy,  3  IJilKh,  1,  12;  Blair 
V  Hioniley.  2  I'liil.  3.04,  3ti0;  11  Jur.  617; 
Beaden  r.'Kiiitr,  '•>  Hare,  499. 

In  ca^cs  of  Iriud  the  Statute  of  Limita- 
tions hefriii-  to  run  from  tlie  time  of  the 
di.tcoverv  of  tlie  fniuil.  See  Homer  i'. 
Fish,  1  f'ick.  43*^;  NVelU  r.  Fish,  3  Tick. 
74,  70  (2(1  ed  ).  and  cuses  cited  in  note  (1 ); 
Jones  V.  (.'onowiiv,  4  Yeates,  109;  Sher- 
wood c.  Sutton,  '>  Mason,  143;  llarsell  r. 
Keilev,  2  MM'onl,  42*5;  Bishop  v.  Little, 
3  (Jrei-ni.  40.'i;  .Mont'li  i:  Clmndler,  8 
(Ireeiil.  9;  Hamilton  r.  Sheppard,  2  Murjjli. 
W,;  I'a.NMc  r.  Hathawnv.  3  Vt.  212;  2 
Storv  Ki\.  .lur.  §§  l.')21,  l.')21  o,  and  notes 
and  ca«eH  citi^l;  Slu-ibv  v.  Shelhv,  (.'ooke, 
lt«3;  I'lich  >:  Hell,  i  J.  J.  Marsh.  401 ; 
Crane  r.  leather.  4  id.  77:  Croft  i:  Arthur, 
8  IlesiiiiH.  323;  Waml'iirze  i:  Kennedy,  4 
I)»''^nuH.  474;  Hailix  i".  Davison,  3  Mon.  40; 
Cole  r.  .MMiia'hrv,  9  GreenL  131 ;  Shield  i: 
Andersoi),  3  L'-igli,  729;  KifjIelmrL'er  v. 
Kihler,  I  Hill  (  h.  121 ;  Haywood  r.  Marsh, 
6  Yi-rjjfr,  00;  I'ennock  v.  Krecinaii,  1 
Wattt,  401 ;  Bertine  r.  Varinn,  1  Ldw.Ch. 
342;  Hunter  r.  Siwtswood,  1  Wash.  140; 


Storv  Eq.  PI.  §  754;  Warner  v.  Daniels,  1 
WooV,.  &  M.  90;  Kadclift'  i'.  Rowley.  2 
Barb.  Ch.  23;  Baker  v.  Grunrlv,  1  Duvall 
( Kv. ),  281 :  Gibson  i'.  Fifer,  21  Texas,  200 ; 
Myers  v.  Hanlon,  12  Rich.  (S.  C.)  Kq.  190; 
Martin  r.  Martin,  35  Ala.  560;  Longworth 
V.  Hunt,  11  Ohio(N.  S.),  194;  Smith  v. 
Fly,  24  Texas,  345.  But  tlie  bar  crested 
by  the  Statute  of  Limitations  is  not  avoi<led 
by  mere  constructive  fraud.  Farnam  v. 
Brooks,  9  Pick.  212.  Nor  is  the  bar 
avoiile<l  by  a  fraurl  whicli  tlie  party  lias 
the  full  means  of  di^coverinj;.  Farnam  v. 
Brooks,  9  I'ick.  212;  Cole  i'.  M'Glathiy,  9 
Green).  131;  Dodge  ».  Essex  Ins.  Co.,  12 
Gray,  65,  71. 

■t  "Hrooksbank  r.  Smith,  2  Y.  &-  C.  F.x. 
58,  00;  Doiljre  v.  Kssex  Ins.  Co,  12  Grav, 
05,  71 ;  Hout,di  v .  Richardson,  3  Storv,  059 ; 
Thomas  t'.  MnrHliall,  36  Ala.  504;  Gibson 
V.  Fifer,  21  Texas,  2f!0;  Smith  v.  Fly,  24 
Texas,  345. 

C  Hovenden  v.  Lord  Anneslcy.  2  Sch.  & 
Lef.  03»i;  South  Sea  Com|)aMV  v.  Wyniond- 
sell.  3  1*.  Wms.  143. 

6  So  in  Massncliusetts,  where  tlie  fruud 
is  coiice:ded  bv  tiie  person  liable  to  the  ac- 
tion, (ienl.  Stx.  c.  155,  §  12.  In  Maine, 
there  must  be  proof  of  actual  fraud  and 
c  ncealmcnt  by  the  party  soiit;lit  to  be 
charged.    Cole  "v.  MGluthry,  9  Greenl.  131. 


646 


PLEAS. 


Cm.  XV.  § 


whore  the 
(lomaiul 
arises  upon 
simple 
contract, 
acknowledg- 
ment must  be 
in  writing. 

9  Geo.  IV. 
c.  14. 


.Vi'liiio-  upon  the  priiu'ii)le  above  laid  down,  that  the  period  when 
evei-y  new  right  of  action  or  suit  aeerues  to  the  party,  should  be 
the  ]ieriod  front  wliieh  to  date  the  operation  of  the  statute,  the 
Courts  liave  hehl,  that  where  any  new  promise  or  any  acknowledg- 
ment has  been  given  by  the  debtor  to  the  creditor  or  liis  agent/ 
it  confers  a  new  riglit  of  action  upon  the  creditor ;  and  that,  there- 
fore, the  time  within  Avhich  the  creditor's  remedy  would  be  barred 
must  be  reckoned  from  the  time  of  such  acknowledgment  or  jiromise 
being  given.'^  Upon  this  i)rinciple  the  Courts  have  held,  that  l)ay- 
ment  of  any  part  of  the  ])rinci])al  or  interest,  within  the  period 
limited,  is  a  sufficient  acknowledgment  to  take  the  case  out  of  the 
statute.^  So  they  have  held  the  rendering  an  account,  or  an  offijr 
to  accoimt,  to  be  sufficient  to  prevent  the  bar.* 

Formerly,  the  Courts  acted  with  very  considerable  laxity  in  their 
decisions  upon  the  nature  of  the  acknowledgment  which,  in  the 
case  of  demands  arising  upon  simple  contracts,  would  be  sufficient 
to  take  them  out  of  the  Statute  of  Limitations  :  which  laxity  gave 
rise  to  various  questions  as  to  the  proof  and  effect  of  acknowledg- 
ments and  promises,  offered  in  evidence,  for  the  purpose  of  taking 
the  case  oiit  of  the  operation  of  the  statute.  These  questions 
have  now,  however,  in  a  great  measure,  been  set  at  rest :  for,  by 
Lord  Tenterden's  Act,  it  has  been  declared,  that,  in  actions  of  debt 
or  upon  the  case,  grounded  on  any  simple  contract,  no  acknowl- 
edgment or  promise  by  words  only  shall  be  deemed  sufficient  evi- 
dence of  a  new  or  continuing  contract,  whereby  to  take  any  case 
out  of  the  operation  of  the  statute,  21  Jac.  I.  c,  16,  or  to  deprive 
any  party  of  the  benefit  thereof,  unless  such  acknowledgment  or 
promise  shall  be  made  or  contained  by  or  in  some  writing,  to  be 
signed  by  the  party  chargeable  thereby ;  ^  and  by  the  Mercantile 
Law  Amendment  Act,  1856,**  an  acknowledgment  or  promise  by 
writing,  signed  by  the  duly  atithorized  agent  of  the  party  charge- 
able thereby,  has,  with  reference  to  the  provisions  of  Lord  Tenter- 
den's Act,  the  same  effect  as  if  such  writing  had  been  signed  by 
the  party  himself. 


1  Fuller  V.  Redman,  26  Beav.  614. 

2  See  Bangs  v.  Hall,  2  Pick.  378;  Exeter 
Bank  v.  Sullivan,  6  N.  H.  135;  Whitney 
V.  Bigelow,  4  I'ick.  110;  Porter  v.  Hill,  4 
Greenl.  41 ;  Deshon  v.  Eaton,  4  Greenl. 
413;  Kusseil  i'.  Copp,  5  N.  H.  154;  Bailey 
V.  Crane,  21  Pick.  324;  Illsley  «.  .lewett, 
2  Met.  168.  Upon  this  subject  ofthe  revival 
of  the  remed}'  by  an  acknowledgment  of 
and  a  nHW  promise  to  pav  the  debt,  see 
Chitty  Cont  (10th  Am.  ed  )  924  gt  seq., 
and  notes,  and  American  cases  cited;  A'a; 
parte  Dewdiiey,  15  Sumner's  Ves.  479, 
note  (i),  and  cases  citeiJ;  Baillie  v.  Sib- 
bald,  ib.  185,  note  (a). 

3  Hony  V.  Honv,  1  S.  &  S.  568,  580; 
Briggs  V.  Wilson,  "17  Beav.  330. 


^  Earl  Pomfret  v.  Lord  Windsor,  2  Ves. 
S.  485;  and  see  Briggs  v.  Wilson,  6  De 
G.,  M.  &  G.  12. 

'^  9  Geo.  IV.  c.  14,  §  1.  It  is  also  declared, 
by  the  same  section,  that  where  there  shall 
be  two  or  more  joint  contractors,  orexecu- 
tors  or  administrators  of  any  contractor,  no 
such  joint  contractors,  executor,  or  admin- 
istrator shall  lose  the  benefit  of  the  21  Jac. 
I.  c.  16,  so  as  to  be  chargeable  in  respect 
or  by  reason  only  of  any  written  acknowl- 
edgment or  [iromise  made  and  signed  by 
an}-  other  or  others  of  them  To  the  same 
effect,  see  Genl.  Sts.  Mass.  c.  155,  §  13  et 
seq. 

c  19  &  20  Vic.  c.  97,  §  13. 


DIFFERENT   GROUNDS    OF   PLEAS. 


G47 


Lord  Tenterden's  Act  does  not,  however,  alter  or  take  away  or 
lessen  the  effect  of  any  payment  of  any  principal  or  interest  made 
by  any  person  whatever ;  so  that  the  payment  of  any  interest,  or 
any  part  of  the  principal,  within  the  j^eriod  limited  by  the  21  Jac. 
I.  c.  16,  §  3,  will  still  have  the  effect  of  taking  the  case  out  of  the 
statute ;  but  by  the  l-4th  section  of  the  Mercantile  Law  Amend- 
ment Act,  1856,  it  is  enacted  that  no  co-contractor  or  co-debtor, 
executor,  or  administrator  of  any  contractor  shall  lose  the  benefit 
of  the  21  Jac.  I.  c.  16,  §  3,  so  as  to  be  chargeable  in  respect,  or  by 
reason  only,  of  payment  of  any  principal,  interest,  or  other  money, 
by  any  other  or  others  of  such  co-contractors  or  co-debtors,  execu- 
tors, or  administrators.^ 

It  is  to  be  observed,  that  the  operation  of  Lord  Tenterden's  Act 
is  confined  to  cases  of  demands  arising  upon  simple  contracts  :  in 
which  cases  only  it  was  held,  before  the  passing  of  the  Act,  that 
parol  promises  or  undertakings  would  destroy  the  operation  of  the 
statute  21  Jac.  I.  c.  16.  Where  the  cause  of  action  was  a  tort^  sub- 
sequent acknowledgments  were  held  nugatory ;  ^  and  in  actions 
arising  upon  si)ecialty,  the  statute  did  not  apply. 

The  statute  21  Jac.  I.  c.  16  provides,  by  §  2,  that  if  any  person 
entitled  to  the  writs  therein  named,  or  Avho  shall  have  a  right  of 
entry,  shall  be  under  the  age  of  twenty-one  years, /bme  covert,  non 
compos  mentis,  im])risoned,  or  beyond  the  seas,'  such  person  or  his 
heirs  may,  notwithstanding  the  twenty  years,  by  the  preceding 
section  limited  as  the  period  within  which  such  writs  might  be 
sued  out  or  entries  made,  bring  his  action  or  make  his  entry,  as  he 
might  have  done  before  the  Act,  so  that  such  action  or  entry  was 
brought  or  made  within  ten  years  after  his  disqualification  ceased  ; 
and  by  §  7,  that  persons  under  any  of  such  disqualifications  may 
bring  the  several  actions  enumerated  in  the  third  section,*  so  that 
the  same  be  brought  within  tlie  time  1>efore  limited  for  bringing 
the  same  after  the  teriiiiiiation  of  tlic  disqualification  ;  but  now,  the 
absence  beyond  the  seas,  or  the  imprisonment  of  a  creditor,  does 
not  entitle  hini  to  any  time  within  wliich  to  bring  his  action  or 
suit  beyond  the  time  fixed  by  21  Jac.  I.  c.  16,  §  3.'"' 


Ch.  XV.  §  2. 

V y- ' 

Part-pay- 
ment. 


9  Geo.  IV.  c. 
14,  is  confined 
to  simple 
contracts. 


Persons 
under  legal 
disabilities 
may  sue, 
under  21  Jac. 
I.  c.  10,  alter 
their  disabili- 
ties have 
ceased. 


1  See  Senf,'er  v  Aston,  3  .lur.  X.  S.  481, 
V.  (!.  S.  Section  14  is  not  retrosjicctive. 
Jackson  v.  Woolley,  8  Kl.  &  151.  778;  4 
Jur.  N.  S-  O'jO;  and  see  Thompson  v. 
Waifhman,  3  Drew.  R28;  2  Jur.  N.  S. 
1080;  C'ockriil  v.  Sparke,  3  F.  &  ¥.  150; 
9  Jur.  N    S.  307. 

3  Arijiitnili,  Mony  v.  Hony,  1  S.  &  S. 
6C«,  57H. 

8  It  is  held  in  (Jtiio  ttiat  the  term  "  be- 
yond PCiiH,"  in  their  statute  of  1H04,  is 
cqnivak'nt  to  "  without  the  limits  of  the 
J^tate."  liichardson  r.  lliflianNori,  G  Ham. 
(Ohio)  126.    As  to  the  coustructiuuof  this 


ti^rm  in  the  statutes  of  other  States,  see  2 
Stark  Kv.  (6tli  Am.  ed.)485,  note  (3),  Tit. 
Limitations.  In  Massachusetts,  it  has  been 
decided  that  n  citizen  of  anotlier  State, 
who  has  never  been  in  tliat  (Jommou- 
weahh,  is  not  a  person  "  beynnd  seas, 
without  anv  of  the  United  States,"  and 
th'-n'fore  n'lt  within  the  saviii);  clause  in 
the  Statute  of  l.nnilali(ins.  St.  17J<6,  c.  62, 
§  4;  see  (ienl.  Sts.  Mass.  c.  165,  §  6. 
Whitney  v.  Goddard,  20  Pick.  304. 

■*  Aiifv,  p.  r,;i<). 

*  MiTcantile  Law  .\mendment  Act,  185(5 
(la  &  20  Vic.  c. 'J7),  §  10. 


()48 


PLEAS. 


('II.  XV.  5  J. 


19  &  -20  Vic. 
c.  97,  §  1-2. 


Where  ex- 
ecutor has  not 
proved. 


Where 
executor 
de  sun  tort. 

Assif^nee  in 
like  position 
to  his 
assignor. 


3  &  4  Will. 
IV.  c.  27. 


Altliougli  the  Ttli  section  of  the  21  J:ic.  I.  c,  16,  provided,  as 
above  mentioned,  for  the  statute  not  attaching  where  the  plaintiif 
was  under  any  of  the  disabilities  therein  mentioned,  no  ])rovision 
was  made  to  jirevent  its  operating  as  a  bar,  during  the  time  tlie 
debtor  might  be  out  of  the  jurisdiction.  The  4  &  5  Anne,  c.  1(5, 
§  19,  lias,  however,  remedied  that  defect,  and  the  creditor  has 
under  it  the  same  privilege,  where  the  debtor  is  beyond  the  seas, 
as  he  had  by  the  statute  of  James,  where  he  was  beyond  the  seas 
himself;  ^  but  no  part  of  the  United  Kingdom  of  Great  ]>ritain 
and  Ireland,  nor  the  Islands  of  Man,  Guernsey,  Jersey,  Alderney, 
and  Sark,  nor  any  islands  adjacent  to  any  of  them,  being  part  of 
the  Queen's  dominions,  is  to  be  deemed  to  be  beyond  seas  within 
the  meaning  of  the  last-mentioned  Act.^ 

It  is  right  to  notice  here,  that  it  has  been  considered,  that 
the  21  Jac.  I.  c.  16,  will  not  be  a  good  plea  in  a  suit  against  an 
executor  or  administrator,  where  he  has  not  proved  the  will,  or 
administered:  because  no  laches  can  be  imputed  to  a  plaintiff  for 
not  suing,  Avhile  there  is  no  executor  or  administrator  against  whom 
he  can  bring  his  action ;  ^  but  where  the  allegation  of  the  bill, 
u]3on  a  fair  construction,  was,  that  the  defendant  had  possessed 
the  personal  estate,  and  therefore  might  have  been  sued  as  exec- 
utor de  son  tort,  a  plea  of  the  Statute  of  Limitations,  by  an  exec- 
utor who  had  not  taken  out  probate  till  some  years  after  the 
testator's  death,  was  allowed.*  And  it  may  be  laid  down  as  a 
general  rule,  that,  wherever  a  party  takes  by  assignment,  from 
another,  the  assignee  Mall  not  be  in  a  better  position  than  the 
assignor:  and  therefore,  where  the  Statute  of  Limitations  might 
have  been  pleaded  against  the  assignor,  it  may  be  equally  so 
against  the  assignee,  whether  such  assignment  be  by  act  between 
the  parties,  or  by  act  of  law,* 

It  is  to  be  remarked,  that  previously  to  the  passing  of  the 
statute  3  &  4  Will.  IV.  c.  27,«  neither  the  21  Jac.  I.  c.  16,  nor 
any  of  the  other  statutes  for  the  limitation  of  actions,  applied 
specifically  to  Courts  of  Equity :  though  those  Courts  have,  in  all 
cases  where  legal  titles  and  demands  were  the  subject  of  litigation, 
lield  themselves  bound  by  them,  and,  in  respect  of  equitable  titles 
and  demands,  have  been  influenced  in  their  determination  by 
analogy  to  them.''     The  first-mentioned  statute  specifically  men- 


1  Start  V.  MpJIish.  2  Atk.  612.  In  Genl. 
Sts.  Mass.  c.  155,  §  9,  there  are  provisions 
on  this  subject. 

2  Mercantile  Law  Amendment  Act,  1856 
(19  &  20  Vic.  e  97),  §  12.  This  section  is 
not  retro'ipective.  Flood  v.  Patterson,  29 
IJeav.  295;  7  .hir.  N.  S.  .324. 

8  ,Io!ifr^  V.  Pitt,  2  Vern.  694;  1  Eq.  Ca. 
Ab.  305,  pi.  11;  see  also  Lord  Eldon's  ob- 


servations in  Webster  v.  Webster,  10  Ves. 
93. 

4  Wcb-iter  V.  Webster,  ubi  sup. ;  Story 
Kq.  PI.  §  753;  Bunlitt  ?;.  Gew,  8  Pict. 
108. 

5  South  Sei  Comptiny  v.  Wvmnndsell, 
3  P.  Wins.  143. 

6  Amended  bv  7  Will.  IV.  &  1  Vic.  c. 
28. 

'  See  ante,  p.  659. 


DIFFERENT   GROUNDS    OF    PLEAS. 


649 


tions  suits  in  Equity  amongst  the  actions  and  suits  to  be  limited  Ch.  XV.  §  2. 
by  its  operation  :  it  does  not,  however,  apply  to  any  suits  but  those    ""^       y       ■' 
relating  to  real  property,  and   moneys   charged   upon  land,  and 
legacies.^     These   provisions   have   since   been   extended   by   the  23  &  24  Vic. 
23  &,  24  Vic.  c.  38  -  to  the  case  of  claims  on  the  personal  estates  ^"  ^^'  ^  ^^' 
of  intestates.     The  statute  21  Jac.  I.  c.  16,  may  therefore  still  be 
insisted  upon,  by  way  of  plea,  in  all  cases  not  included  in  the  3 
&  4  Will.  IV.  c.  27,  and  the  23  &  24  Vic.  c.  38,  in  Avhich  it  might 
before  have  been  pleaded.^ 

It  may  be  useful,  in  this  place,  to  point  out  the  cases  in  which  Cases  in- 
the  Statute  of  Limitations  of  the  3  &  4  Will.  IV.  c.  27,  operates  as  3  &  4  wiii. 
a  bar  to  suits  in  Equity.     By  the  24th  section,  all  suits  in  Equity  IV.  c.  27 : 
are  barred,  as  against  persons  claiming  any  land  or  rent  (wathin 
the  meaning   of  the  definitions  contained  in  the  first   section  of  Suit  concem- 
the  Act),  unless  within  the  period  during  which,  by  \nrtue  of  the  rent; 
provisions  thereinbefore  contained,  they  might  have  made  an  entry 
or  distress,  or  brought  an  action  to  recover  the  same  res])cctively, 
if  they  had  been  entitled  at  Law  to  sucli  estate,  interest,  or  right, 
as  they  claim  in  Equity,     This  right,  however,  in  the  case  of  an 
express  trust,  it  is  declared,  by  the  25th  section,  shall  be  deemed  where  an  ex- 

,  -.  .  1       .         .  .1  1    •     •        xi  1     press  trust; 

not  to  have  accrued  against  the  trustee,  or  those  claiming  through 
him,  until  the  actual  conveyance  to  a  purchaser  for  valuable  con- 
sideration. It  is  also  declared,  that  it  is  only  against  such  pur- 
chaser, and  any  one  claiming  through  him,  that  the  right  shall 
then  be  deemed  to  have  accrued :  so  that,  as  between  the  trustee 
and  the  cestui  que  trust,  the  law  remains  the  same  as  it  did  before 
the  statute.* 

It  is  also  declared,  by  the  26th  section,  that,  in  every  case  of  in  cases  of 
concealed  fraud,  the  right  to  bring  a  suit  in  Equity  for  the  recovery  fraudf  ®^ 
of  any  laml  or  rent,  shall  be   deemed  to  have  accrued  at,  and  not 
before,  the  time  at  wliich  such  fraud  has,  or  with  reasonable  dili- 
gence might  have  been  known  or  discovered,^     It  also  provides,   whore  there 

,  ,...,,  ,.  ,     ,,  ,1  x"  1       J  is  a  purchaser 

that  nothing  in  that  section  shall  enable  any  owner  ot  lands  or  for  valuable 
rents  to  have  a  suit  in  Equity  for  the  recovery  of  such  lands  or  considcra- 
rents,  or  for  setting  aside  any  conveyance  of  such  lands  or  rents, 
on  account  of  fi;iu<l,  against  any  bond  Jide  purchaser  for  valuable 
consideration  who  has  not  assisted  in  the  commission  of  such  fraud, 
and  who,  at  tlie  time  that  he  made  the  ])urchase,  did  not  know, 

1  Sec  §  40.  For  the  cn»p«  on  this  sec-  Acts,  03  ft  seq.  In  cnsc»  of  cqnilahio 
tion,  fpc  Sliflfonl  K.  I*.  Acts,  248-2C'2;  waste,  hcp  Duke  of  I.ced"  f.  Karl  Aiiilierst, 
8iiK<J    J'   '*•  Acts,  120,  etseq.  2  I'hil.  117,   125;  10  .lur.  !)r)G;  niiil  a- to  the 

2  Sfc  §  13.  Act  ff'-'i'-vally,  Dixon  v.   Guyferi-,  No.  1, 
8  For  a  collrction  of  cases  on  the  21  .luc.        17  IJeav.  42 1";  Siind.  II.  V.  A"(ts,  ICJ;   see 

I.  c.  !•;,  and  5i  (Jfo.  IV.  c.  14,  see  Shelf. rd  FaniMm   v.   Urcoks,   !•   I'ick.   212;  Colo  v. 

K.  P.  Acts,  283-310.  M'(;iMlliry,  U  Grecnl.  131;  fin/e.  (>43,  note. 

*  For  tho  cases  on  §§  24,  2.'),  sec  Shel-  «  Colce.    M'Glatliry,   9   Grcenl.    131; 

ford  K.  r.  Acts,  211-214-222;  Sugd.  R.  1'.  ante,  045,  note. 


f)50 


PLEAS. 


Cn.  XV.  § 


or  iiciiuies- 

Ct'lUL". 

Ill  oases  of 
mortgage : 


No  redemp- 
tion at^er 
twenty  years' 
possession, 


without 
acknowledg- 
ment. 

What 

acknowledg- 
ment was 
formerly 
sulhcieut. 


Present  law 
as  to 

acknowledg- 
ments : 


:inil  liad  no  ro.ison  to  believe,  that  any  such  fraiul  had  been  com- 
mitteil;  and  the  '27th  section  saves  the  jurisdiction  of  Courts  of 
K(]uity  on  the  ground  of  acquiescence.^ 

It  lias  been  before  stated,  that,  previously  to  the  passino^  of  the 
Act  now  under  consideration,  a  plea  of  the  Statute  of  Limitations, 
21  Jac.  I.  c.  10,  was  held  to  be  a  good  bar  to  a  bill  for  the  redemp- 
tion of  a  mortgage,  if  the  mortgagee  had  been  in  possession  of  the 
mortgaged  premises  upwards  of  twenty  years ;  "^  and,  indeed,  as 
we  have  already  seen,  demurrers  upon  that  ground  have  been 
allowed.'  The  Courts,  however,  permitted  the  redemption  of 
mortgages,  if,  at  any  time  within  the  period  of  twenty  years,  the 
mortgagee  had  acknowledged  that  the  estate  was  redeemable  prop- 
erty. For  this  })urpose,  a  positive  acknowledgment  of  the  mortgage 
was  not  required ;  but  any  act  on  the  jjart  of  the  mortgagee,  or  of 
any  one  claiming  under  him,  tending  to  shoAV  that  he  considered 
the  mortgage  as  still  subsisting  (such  as  the  keeping  of  accounts), 
was  considered  as  sufficient  to  keep  alive  the  interest  of  the  mort- 
gagor;* nor  was  it  necessary  that  the  acknowledgment  should 
have  been  made  to  the  mortgagor,  or  to  one  claiming  under  him  : 
any  act  by  which  the  existence  of  the  mortgage  was  admitted,  even 
in  transactions  with  a  third  party,  was  held  sufficient ;  ^  and  so 
has  a  recital  in  a  will,  or  any  other  deliberate  instruinent ;  ®  and 
even  a  parol  acknowledgment,  provided  it  was  clear  and  unim- 
peachable, and  made  within  twenty  years,  has  been  permitted  to 
take  the  case  out  of  the  bar  created  by  the  statute.'^  The 
statute  3  &  4  Will.  IV.  c.  27,  §  28,  has,  however,  made  a  con- 
siderable alteration  in  the  law,  in  this  respect,  by  enacting,  that 
where  a  mortgagee  shall  have  obtained  the  possession  or  receipt 
of  the  profits  of  any  land,  or  the  receipt  of  any  rent  comprised  in 
his  mortgage,  the  mortgagor,  or  any  person  claiming  through  him, 
shall  not  bring  a  suit  to  redeem  the  -  mortgage,  but  within  twenty 
years  next  after  the  time  at  which  the  mortgagee  obtained  such 
possession  or  receipt :  unless,  in  the  mean  time,  an  acknowledgment 
of  the  title  of  the  mortgagor,  or  of  his  right  of  redemption,  shall 
have  been  given  to  the  mortgagor,  or  some  person  claiming  his 
estate,  or  to  the  agent  of  such  mortgagor  or  person,  in  writing, 
signed  by  the  mortgagee  or  the  person  claiming  through  him  ;  and 
in  such  case,  no  such  suit  shall  be  brought  but  within  twenty  years 


1  For  the  cases  on  §§  26,  27,  see  Sliel- 
ford  K.  P.  Acts,  222-227-229;  Sugd.  K.  1'. 
Acts,  98. 

2  Ld.  Red.  271;  Coop.  En.  PI.  2.54; 
Beames  on  I'leas,  162;  Story  hq.  PI   757. 

3  Ante,  p.  560. 

*  Kdsed  V.  IJuchanan,  4  Bro.  C.  C  254, 
256;  2  Ves.  J.  84. 


5  Hardy  v.  Reeves,  4  Ves.  466,  479; 
SniMrt  V.  Hunt,  cited  ib.  478. 

6  Ord  V.  Smith,  2  Eq.  Ca.  Ab.  600,  pi. 
27;  I'errv  v.  Al'irstm,  2  Bro.  C.  (!.  397, 
399;  Hansard  v.  llnrdy,  18  Ves.  455,459; 
Price  V.  Copner,  1  S.  &  S.  347,  355. 

7  Kavnor  v.  Oastler,  6  Mad.  274;  Whit- 
ing V.  White,  2  Cox,  290,  295;  Perry  v. 
Marstou,  ubi  sup. 


DIETERENT    GROUNDS    OF    PLEAS.  ^51 

next  after  the  time  at  which  siich  acknowledgment,  or  the  last  Ch.  XV.  §  2. 
of  such  acknowledgments,  if  more  than  one,  was  girert.  So  that,  "  i  ' 
according  to  that  section  no  acknowledgment  will  take  a  suit  for 
the  redemption  of  a  mortgage  out  of  the  operation  of  the  Act,  un- 
less it  is  in  writing,  signed  by  the  mortgagee,  or  the  person  claim- 
ing through  him,  and  given  to  the  mortgagor  himself,  or  to  the 
person  claiming  the  estate,  or  the  agent  of  such  mortgagor  or 
person.^ 

The  same  section  then  proceeds  to  enact,  that  when  there  shall  where  more 

, ,  1    •      •  than  one 

be  more  than  one  mortgagor,  or  more  than  one  person  clamimg  mortgagor; 
through  the  mortgagor  or  mortgagors,  the  acknowledgment,  if  given 
to  any  of  such  mortgagors  or  persons,  or  his  or  their  agent,  shall 
be  as  effectual  as  if  the  same  had  been  given  to  all  of  them ;  but  where  more 
where  there  shall  be  more  than  one  mortgagee,  or  more  than  one  mortgagee; 
person  claiming  the  estate  and  interest  of  the  mortgagee  or  mort- 
gagees, such-  acknowledgment,  signed  by  one  or  more  of  such  mort- 
gagees or  persons,  shall  be  effectual  only  as  against  the  ]wrty  or 
parties  signing  the  same,  and  the  person  or  persons  claiming  any 
part  of  the  mortgage  money,  or  land,  or  rent,  by,  fi-om,  or  under  him 
or  them,  and  any  person  or  persons  entitled  to  any  estate,  or  interest, 
to  take  eflfeot  after  or  in  defeasance  of  his  or  their  estate  or  estates, 
interest  or  interests  ;  "^  and  shall  not  operate  to  give  to  a  mortgagor 
or  mortgagors  a  right  to  redeem  the  mortgage,  as  against  the 
person  or  persons  entitled  to  any  other  undivided  or  divided  part 
of  the  money,  or  land,  or  rent.     It  also  provides,  that  where  such 
of  the  mortgagees  or  persons  as  shall  have  given  an  acknowledg-  .j^hpre  mort- 
ment,  shall  be  entitled  to  a  divided  part  of  the  land  or  rent  com-  ^^^ 
prised  in  the  mortgage,  or  some  estate  or  interest  therein,  and  not  edirimut  lias 
to  any  ascertained  ])art  of  the  mortgage  money,  the  mortgagor  or  o»y  asiare. 
mortgagors  shall  be  entitled  to  redeem  the  same  divided  part  of 
the  land  or  rent,  on  pa}Tnent,  with  interest,  of  the  part  of  the  mort- 
gage money  which  shall  bear  the  same  proportion  to  the  whole  of 
the  mortgage  money,  as  the  value  of  such  divided  part  of  the  land 
or  rent  sliall  bear  to  the  value  of  the  whf)le  of  the  land  or  rent 
comj»rised  in  the  mortgage.* 

The  above  Act  not  only  limits  the  right  of  the  mortgagor  to  No  suit  to  re- 
redeem,  but  it  provides,  by  §  40,  against  the  mortgagee,  or  other  ^",'^rgjj""„^ 

'  The    aekn'>w|c<lf;meiif    need    not    be  after  twenty  years,  not  only  against  the 

given  within  twenty  veiirs  alter  the  niort-  person  signing  the  same,  ami  thoj-c  rhiim- 

gaeee  has  entered  into  possession.     Stiins-  ing  under,  or  in   privity    with    him,    but 

fi'-ld  V.   HoliHon,  3   Ik'  (1.,   M.  &   G.  *i'iO,  against  all  otiiers,  wlielher  ilaiming   by 

62fi;    8ee  also  Pendleton  v.  liMoth,  1  (iitl".  descent  or  purehnse,  in  reinMincler  or  rc- 

3(>;  fj  .(ur.  N.  S.  840;   1  De  (}  ,  F.  &,  J.  ><1 ;  version;  and  that  (here  is  no  saving' clause 

6  Jur.  N   S.   1H2;  SiiKd.  It.   I'.  Acts,  113,  in  Ihe  Act  in   lavor  of  persons  under  dis- 

as  tv)  eft'crt  of  acknowlcdf^ment  liy  teiiatit  abililii-«,  such  as  infancy,  coverture,  &c. 
in  tail  and  heir  ..f  the  niort^iiK-'e.  **  I'or   the  cases  on    §   28,  see  .Shclford 

2  It   is  to  he  observed,  that  Ihe  above  H.    I'.    Acts,  229-230;  Sugd.  U.  1".    Acts 

clause  render!)  the  ackuowledjjuiuut  valid  111-116. 


652 


PLEAS. 


Cn.  XV.  §  -2. 


land  or 
lojjiiov,  iiflcr 
twenty  years, 


after  last 
pa^Tuent  or" 
acknowleilg- 
ment. 


§  40  cannot 
be  pleaded  in 
bar  to  a  fore- 
closure suit. 


Effect  upon 
legacies. 


porsdu  entitled  to  Miiy  moiu'v  sccunMl  ])y  inorto-ao^e,  ju(l<i;inoiit,  or 
liiMi,  (H-  otlionvisc  clmrniMl  upon  or  |)MyMl)le  out  of  any  land  or  rent, 
at  Law  or  in  Equity,  or  to  any  le^'acy,  brinii'insj:  any  action,  suit,  or 
otlior  procoetliuL!:  to  recover  such  money,  but  within  twenty  years 
ne.\t  allter  a  present  ri<>-ht  to  receive  tlie  same  shall  have  accrued 
to  some  ]>erson  ca])able  of  giving  a  discharge  for  or  release  of  the 
same :  unless,  in  the  mean  time,  some  part  of  tlie  principal  money, 
or  some  interest  thereon,  shall  have  been  paid,  or  some  acknowl- 
edgment of  the  right  thereto  shall  have  been  given  in  writing, 
signed  by  the  person  by  whom  the  same  shall  be  payable  or  his 
agent,  to  the  person  entitled  thereto  or  his  agent :  in  which  case, 
no  siich  action,  suit  or  proceeding  can  be  brought  but  Avithin  twen- 
ty years  after  such  jiayment  or  acknowledgment,  or  the  last  of  such 
payments  or  acknowledgments,  if  more  than  one,  was  given. ■^ 

It  has  been  decided,  that  a  bill  of  foreclosure  is  a  suit  for  the 
recovery  of  the  estate,  and  not  of  the  money,  although  it  may  lead 
to  the  payment  thereof;  and  that,  therefore,  this  section  of  the 
statute  cannot  be  ])leaded  in  bar  to  such  a  suit.^ 

Before  the  passing  of  the  3  &  4  Will.  IV.  c.  27,  it  had  been 
repeatedly  held,  that  the  Statute  of  Limitations  could  not  be  plead- 
ed to  suits  for  the  recovery  of  legacies :  although  the  Court,  after 
the  lapse  of  a  great  time,  would,  under  certain  circumstances, 
presume  payment.^  It  is  now,  however,  provided  by  §  42,  that  no 
interest  in  respect  of  any  legacy  shall  be  recovered  but  within  six 
years  next  after  the  same  shall  have  become  due,  or  next  after  an 
acknowledgment  of  the  same  shall  have  been  given  to  the  peri5on 
entitled  thereto,  or  his  agent,  signed  by  the  person  by  whom  the 
same  was  payable,  or  his  agent.  In  the  case  of  J^hillipo  v. 
Jifunninffs,*  Lord  Cottenham  considered  it  clear,  that  a  sum   of 


1  See  Cheever  v.  Perley,  11  Allen,  584. 
Absence  beyond  the  seas,  and  imprison- 
ment are  no  longer  rlisabilities  witliin  this 
section.  See  19  &  20,  Vic.  c.  97,  §  10. 
Some  doubt  having  arisen  whether  the 
mortgiigee  could  make  an  entry,  or  brine: 
an  action  at  Law,  to  recover  possession  of 
the  property,  after  twenty  j'ears  had 
elapsed  from  the  mortgage  becoming  ab- 
solute, alflioui^h  principal  an!  interest 
miglit  have  been  paid  in  the  mein  time, 
the  7  Will.  IV.  &  1  Vic.  c.  28  was  passed, 
by  which  it  was  declared,  thitt  mortgagees 
misht  bring  fictions  or  suits  in  F^fjuitv,  to 
recover  the  land,  &c.,  at  any  time  within 
twenty  j'ears,  after  the  hist  payment  of 
any  pnrt  of  the  i)rincipal  or  interest  se- 
cured bv  the  inortgacre.  Ky  the  23  &  24 
Vic.  c.  38,  §  13,  a  provision  similnrto  §  40 
is  en:icted  with  resfiect  to  the  case  of 
claims  on  the  personal  estate  oi'  intestates. 
P'or  the  ca-ps  on  §  40,  see  Shelford  li.  P. 
Acts,  248-202;  Sugd.  R.  P.  Acts,  119- 
151. 

2  VVrixon  v.  Vize,  3  Dr.  &  War.  104, 


120,  121;  Sugd.  R.  P.  Acts,  121,  122;  .see, 
contra,  Dearman  v.  Wvche,  9  Sim.  570, 
582;  see.  al<o  SeaHe  v.  Clilt,  1  Y.  &  C.  C.  C. 
SS;  Du  Vigier??.  Lee,  2  Hare,  326,  334:  7 
Jur.  299;  Sinclair  t).  Jackson,  17  Beav. 
405. 

8  Anon.,  Freem.  22,  PI.  20;  Parker  v. 
Ash,  1  Vern.  256;  Fotherbv  v.  Hnrtridfre, 
2  Vern.  21;  Wood  v.  Brian't,  2  Atk.  521; 
Jones  ■«.  Turherville.  2  Vts.  J.  11,  13;  4 
IJro.  C.  C.  115;  cited  2  Ves.  J.  280;  Hi<r- 
gins  V.  Crawfiird,  ih.  571;  .Sauzer  v.  De 
Meyer,  2  Paige,  574  ;  Ksnie  v.  Kloodgood, 
7  .lohn.  Ch.  90;  Andrews  v.  Sparkliawk, 
13  Pick.  393.  Though  the  Statute  of  Lim- 
itations is  no  bar  to  a  legaej',  j-et  the 
Court,  in  regard  to  very  stale  demand-', 
will  adopt  the  provisions  of  the  statute,  ia 
the  exerci-^e  of  their  discretion.  Arilen  v. 
Arden,  1  John.  Ch.  313;  see  Inby  v.  M'- 
Crea.  4  De*au=.  422;  Wilson  i'.  Kilcaimon, 
4  Havw.  185 ;  Lindsay  v.  Lindsay,  1  Desaus. 
151." 

4  2  M.  &  C.  309,  314. 


DIFFERENT    GROUNDS    OF    PLEAS.  653 

money,  wliich  had  been  bequeathed  by  a  testator,  upon  certain   Cn.  XV.  §  2. 

tinists,  and  which  was  severed  from  the  personal  estate  by  the    "^     y ' 

executor,  for  the  purpose  of  those  trusts,  ceased  to  bear  the  char- 
acter of  a  legacy,  and  assumed  that  of  a  trust  fund,  as  soon  as  it 
was  severed  from  the  general  estate  ;   consequently,  he  decided, 
that  the  statute  did  not  bar  a  suit  to  recover  the  fund  from  the 
executor.     It  was  doubted  whether  the  Act,  in  any  case,  extended  Applies  to 
to  legacies  not  charged  upon  land ;  ^  but  in  /ShejJ2^ard  v.  Dide,^  o7pcrsond 
Sir  Lancelot  Shadwell  Y.  C.  held,  that  it  applied  to  legacies  pay-  estate. 
able  out  of  personal  estate. 

The  Act  also  provides,  that  no  arrears  of  dower,  or  any  damages  Arrears  of 
on  account  of  such  arrears,  shall  be  recovered  or  obtained  by  any  recoverable 
action  or  suit,  for  a  Iono;er  period  than  six  years  before  the  com-  lieyond  six 

5  »        1  J  ^  years; 

mencement  of  such  action  or  suit,  and  that  no  arrears  ot  rent  or  ^^^  arrears 
of  interest  in  respect  of  any  sum  of  money  charged  upon  or  pay-  of  rent  or 
able  out  of  any  land  or  rent,  or  in  respect  of  any  legacy,  or  any    "  '^''  -^ ' 
damages  in  respect  of  such"  arrears  of  rent  or  interest,  shall  be 
recovered  by  any  distress,  action,  or  suit,  but  within  six  years  next 
after  the  same  respectively  shall  have  become  due,  or  next  after  an  unless  an 
acknowledgment  of  the  same  in  writing  shall  have  been  given-  to  '"^^^^^Hl^^^^' 
the  person  entitled  thereto,  or  his  agent,  by  the  person  by  whom  writing, 
the  same  was  payable  or  his  agent.^     It  is,  however,  provided, 
that  where  any  prior  mortgagee,  or  other  incumbrancer,  shall  have  or  unless 
been  in  possession  of  any  land,  or  in  receipt  of  the  profits  thereof,  gc"hrrbefn 
within  one  year  next  before  an  action  or  suit  shall  be  brought  by  i".  p'jssession 

•'         .  ,     ,  ,         T  Within  a  year. 

any  person  entitled  to  a  subsequent  mortgage  or  other  incum- 
brance on  the  same  land,  the  person  entitled  to  such  subsequent 
mortgage  or  incumbrance  may  recover,  in  such  action  or  suit,  the 
arrears  of  interest  which  shall  have  become  due  during  the  whole 
thne  that  such  prior  mortgagee  or  incumbrancer  was  in  such  pos- 
session or  receipt  as  aforesaid,  although  such  time  may  have  ex- 
ceede<l  the  tenn  of  six  years.*  It  has  been  decided,  tliat  §  42  does 
not  a]»ply  to  a  case  where  the  relation  of  trustee  and  cestui  que 
trust  has  existed,  between  the  person  in  possession  of  the  land, 
and  the  parties  entitled  to  the  legacies  and  annuities.''    A  testator, 

1  See  Sauzer  v.  De  Mever,  2  I'uigc,  Mason  v.  Bioadbent,  33  Beav.  296;  Mar- 
674.                                         "  shall  1-.  Smith,  lu  Jur.  N.  S.  1174:  13  W. 

2  9  Sim.  507,  569;  3  .Jur.  168;  and  see  li  1K8,  V.  C.  S.;  hdnuimis  v.  U'aiigh,  L. 
Paget  r.  I'olev,  2  Uii.g.  N.  C.  07i».  K.  1  Eq.  418;  12  .lur.  N.  S.  326,  V.  C.  K.; 

83   &  4.  Will    IV   c.  27,  §§  41,42.    Ab-  and  see    Slielfcjr.i,  U.     1*.   Acts,  262-273; 

sencc  beyond  the  seas  or  irnpri'^onnient  is  Sugd.  It   1'.  Aets,  1 1'J,  136-l.Jl. 
no   longer  a  di^Mbility  wiiliin  these  sec-  ^    Yiniiig  v.  Lord   Walerpark,  13  Sim. 

tions.     lit  &  20  Vic.  c.  i>7,  §  10.  204;  6  .lur.  656;  on  app.  lo.lur.  1;  Ward 

<  On  this  section,  see  the  cases  of  Sin-  v.  Arch,  12  Sim.  472,  475;  (,'ox  r.  Diiinian, 
clHJr  r.  Jiickson,  17  lieav.  405;  Klvy  v.  2  De  (i..  M.  &G.  5U2,  6'j7;  Hunter  i-.  Nock- 
Norwood,  6  De  (j.  &  Sm.  240;  16  .lur.  olds,  1  MX.  &  G.  640-660;  Snow  y.  Uoolh, 
493;  (Jreenwav  r.  IJromfield,  U  lliirc,  201 ;  &  De  (J.,  M.  &  G.  69;  2  K.  &  J.  132; 
Holding  V.  I,aric,3  (;ilf.  561;  t^.Iur.  N.  S.  Lewis  i;.  Dunconibc,  29  IJeav.  176;  7  .Jur. 
407;  fit  Ashwcll,  John  112;  Hound  f.  N.  S.  695 ;  Shaw  r.  .loiinsou,  1  Dr.  &  Sm. 
Bell,   30   Beav.    121;  7  Jur.  N.  S.   1183;  412;  7  Jur.N.S.  1006. 


654 


PLEAS. 


Cn.  XV.  §'2.    by  c'liavgiiio-  Ills  estate  Avitli  the  imynieiit  of  an  annuity,  docs  not 

" Y       ^    make  the  devisee  a  trustee  ibr  the  annuitant,  so  as  to  ])revent   the 

operation  of  the  statute.^ 
Form  of  pica.  Care  must  be  taken,  in  framint^  a  plea  of  a  Statute  of  Limita- 
tions, to  set  up  tlie  proi)er  statute.'-  Thus,  in  all  cases  where  the 
suit  relates  to  a  debt  or  money  due  upon  simple  contract,  or  an 
account,  the  statute  of  21  Jac.  I.  c.  16,  should  be  pleaded ;  where 
the  subject-matter  of  the  suit  is  land  or  rent,  or  tlie  redemption  of 
a  mortgage,  or  where  it  relates  to  the  recovery  of  the  ])rincii)al 
money  secured  on  mortgage,  judgment,  or  lien,  or  otherwise 
charged  upon  or  payable  out  of  land  or  rent,  at  Law  or  in  Equity, 
or  to  the  payment  of  a  legacy,  the  3  &  4  Will.  IV.  c.  27,  must  be 
pleaded.  And  this  statute  must  also  be  the  one  pleaded,  where 
the  suit  is  for  the  recovery  of  the  arrears  of  dower,  or  for  the 
arrears  of  rent,  or  interest  accrued  in  respect  of  any  charges  upon 
land  or  rent,  or  in  respect  of  any  legacy.^ 

The  statute  of  3  &  4  Will.  IV.  c,  27,  also  contains  provisions 
for  the  limitation  of  demands  by  ecclesiastical  or  eleemosynary 
corporations  sole,^  and  of  suits  for  enforcing  the  right  of  jjrcsenta- 
tion  to  any  church,  vicarage,  or  other  ecclesiastical  benefice;^  in 
all  these  cases,  the  Act  must  be  pleaded. 

A  plea  of  a  Statute  of  Limitations  must  contain  sufficient  affirm- 
ative averments  to  bring  the  case  within  the  statute  pleaded.^ 
Thus,  a  plea  of  the  statute  21  Jac.  I.  e.  16,  to  a  bill  for  a  debt, 
must  aver,  besides  reciting  the  statute,  that  the  debt  accrued  more 
than  six  years  before  the  filing  of  the  bill ;  and  so,  where  a  demand 
is  of  any  thing  executory,  as  a  note  for  the  payment  of  an  annuity, 
or  of  money  at  a  distant  period,  or  by  instalments,  the  defendant 
must  aver  that  the  cause  of  action  has  not  accrued  within  six 
years :  because  the  statute  bars  only  what  was  actually  due  six 
years  before  the  action  brouglit.''  -  It  does  not  appear,  however, 
that  a  particular  form  of  words  is  necessary  in  such  averments, 
provided  those  made  use  of  are  sufficient  to  bring  the  case  Avithin 
the  statute ;  therefore,  where  the  jjlea,  instead  of  aven-ing  that 


Ecclesiastical 
corporations. 


Positive 
averments. 


1  Francis  v.  G rover,  5  Hare,  39,  49;  10 
Jur.  280;  and  see  Hargteaves  v  Michell, 
6  Mad.  32tt;  Jacquet  i;.  Jacquet,  27  Beav. 
332. 

2  See  the  form  of  such  a  pli-a,  Willis, 
562;  2  Eq.  Drafts.  113,  114.  In  setting  up 
a  defence  under  a  public  statute,  it  is  not 
necessary,  either  in  a  Court  of  Chancery 
or  in  a  Court  of  Law,  that  the  jileader 
should  set  forth  the  statute  in  his  plea,  or 
that  he  should  allege  the  existence  of  a 
statute  of  which  the  Court  is  judicially 
bound  to  lake  notice.  It  is  suflicient  for 
liini  to  state  the  facts  which  are  necessary 
to  bring  the  case  within  the  operation  of 
the  statute;  and  to  insist  that  u|)on  these 
lacts  the  plaintiff's  right  or  remedy  is  at 


an  end.  The  Court  will  then  judicially 
take  notice  of  the  existence  of  the  statute 
and  declare  its  legal  effect  upon  the  case 
as  made  by  the  pleadings.  Bogardus  v. 
^I'rinitv  Church,  4  I'aige,  148,197;  see 
Salter" V.  Tobias,  3  Paige,  338. 

8  As  to  suits  in  respect  of  an  intestate's 
personal  estate,  see  23  &  24  Vic.  c.  38, 
§13. 

*  Sect.  29. 

6  Sects.  30,  31,  32,  33.  For  the  cases 
on  §§  29-33,  see  Shellbid  R.  P.  Acts,  236; 
Sugd.  K.  P.  Acts,  152-154. 

0  See  Andrews  v.  Huckabee,  30  Ala. 
143.  I'or  forms  of  such  plea,  see  2  Van 
Hey.  113,  114. 

t  Ld.  Red.  271. 


DIFFERENT   GROUNDS    OF   PLEAS. 


655 


the  money  in  question  was  not  received  within  the  last  six  years,  Ch.  XV.  §  2. 

averred,  that  no  cause  of  action  accrued  within  that  time,  it  was   ' y ^ 

hehl  sufficient.^ 

"Whenever  any  matters  are  stated  in  the  bill  which  are  calculated  Negative 
to  take  the  case  out  of  the  statute,  these  must  be  met  by  negative  averments. 
averments.^  Thus,  if  the  bill  charges  fraud,  the  plea  must  deny 
the  fraud,"  or  aver  that  the  fraud,  if  any,  was  discovered  above  six 
years  before  the  filing  of  the  bill.*  So,  if  the  bill  alleges,  that  the 
fraud  was  not  discovered  till  within  six  years  before  the  bill  was 
filed,  the  plea  must  aver  that  the  fraud  (if  any)  was  not  discovered 
within  that  time.^  If,  moreover,  the  defendant  is  interrogated  as 
to  any  statements  in  the  bill  which  allege  matter  ancillary  to,  or 
afibrd  evidence  of  facts  directly  negatived  by  the  plea,  such  state- 
ments ought  to  be  met  by  an  answer  in  support  of  the  plea.® 
Where  no  answer  is  required,  the  defendant  has  been  allowed  to 
plead  the  statute  orally  at  the  hearing.'^ 

The  Statute  of  Frauds*  may  be  pleaded  in  bar  to  a  suit  to  statute  ot 
which  the  provisions  of  that  Act  apply.^  Thus,  to  a  bill  for  a  Frauds: 
discovery  and  execution  of  a  trust,  the  statute,  with  an  averment 
that  there  was  no  declaration  of  the  trust  in  writing,  may  be 
pleaded :  ^°  though,  in  the  case  cited,  the  plea  was  overruled  by 
an  answer  admitting  in  effect  the  trust."  To  a  bill  for  the  specific 
performance  of  an  agreement,  the  same  statute,  with  an  averment 
that  there  was  no  agreement  in  writing  signed  by  the  parties,  has 
also  been  pleaded.^'^  The  Statute  'of  Frauds  may  also  be  pleaded 
to  a  bill  to  enforce  a  parol  variation  of  a  written  contract,  unless 


1  Sutton  V.  Lord  Scarborough,  9  Ves. 
ri.75. 

^  Ante,  pp.  605,  614. 

8  liicknell  v.  Gougli,  3  Atk.  558. 

*  Ld.  Ked.  269;  South  Sea  Company 
V.  VVvmondsell,  3  P.  Wms.  143. 

6  /bid. ;  Ld.  IJed.  269 ;  Sutton  t).  Lord 
Scarborougli,  9  Ves.  71,75. 

«  Dcarman  v.  Wvche,  9  Sim.  570,  582; 
Foley  «.  Hill,  3  M  &  C.  476,  480;  2  .Jur. 
440.  But  where  the  plea  sets  up  the  Stat- 
ute of  Limitations  in  defence,  it  is  not  nec- 
essary in  sui:hpleafo  deny  anew  promise 
witliin  ti'xK  years,  unless  the  hill  alleges 
such  promise;  hut  if  so  denied  in  the  plea 
it  will  he  mere  .surplusage.  Uavi.<on  v, 
Schcmerhorn,  1  Itarb  Ch.  480. 

7  Lincoln  v.  Wright,  4  De  G.  &  J.  16; 
6  .Jur.  X.  S.  1142;  Snearl  v.  (Ireen,  8  Jur. 
N.  S.  4,  y\.  It.;  but  see  Holding  v.  IJarton, 

1  Sm.  &  (j.  A]).  20. 

8  29  Car   II.  c.  3. 

»  Ld.  Ked.  265;  Story  Va\.  V\.  §  761 
tt  $eq. ;  Cozine  f.  (iraliam,  2  I'aigc,  177; 
MeHch  P.  I'erry,  D.  <;hi[i.  1H2;  I  homton 
V.  Henry,  2  Siain.  219;   Kinziei".  Penrose, 

2  Scam.  520.  The  defence  of  this  stiitute 
must  Ijc  iii'-iste  I  on  by  iinswi;r,  or  tin;  de- 
fendnnt  niu-t  sit  it  up  by  way  of  jjli'a ;  he 
cannot  by  demurrer  to  tlio  bill   rely  on  the 


Statute  of  Frauds,  unless  it  clearly  ap- 
pears, on  the  face  of  the  bill,  that  the  agree- 
ment is  witiiin  the  statute.  Switzet  v. 
Skiles,  3  Gilinan,  529.  Hut  when  it  does 
so  appear  the  objection  may  be  talven  by 
demurrer.  Walker  v.  Locke,  5  Cusli.  90; 
see  Dudley  v.  liiichelder,  63  ISLiine,  403, 
406 ;  Farnham  i'.  Clements,  61  Maine,  426 ; 
Cranston  v.  Smith,  6  U.  I.  231 ;  unit,  p.  561 
note.  For  tbrms  of  such  plea,  see  2  V^au 
Hey.  107,  112. 

i»  (Jottington  V.  Fletcher,  2  Atk.  155. 

11  Ld  Hed.  265;  see  Dean  r.  Dean,  1 
Stockt.  (N.  ,J.)  425.  If  the  Court  can  ex- 
ecute the  trust  from  the  admissions  made 
by  thiMinswer,  so  tlnit  the  ])laintill'is  not 
under  the  necessity  of  resoriini;  U)  jmrol 
proiif  of  the  trust,  to  entitle  him  to  re- 
liel,  such  udmissions  will  exclude  the  de- 
fentlaiit  Irom  the  benelit  of  the  statute,  if 
not  insisted  on  in  the  answer.  Dean  v. 
Dciin,  nhi  xii/) 

1-  Jb.  26ij;  Mussell  v.  Cooke,  I'rec.  in 
Ch.  533;  Child  v.  (iodolpliin,  1  l)i<k.  39. 
42  ;S.  (J.noin.  CluM  i'.  (Joinber,  3  Swiinst. 
423  ri.;  Hawkins  r.  Holmes,  1  I'.  Wms. 
770;  Clerk  u.  Wright,  1  Atk.  .12;  Story 
I'^ip  I'l.  §671;  Stevens  V.  C()o|)er,  1  .lohn. 
Cli.  42.').  I'or  tbrm  of  such  plea,  see  2 
Van  liey.  112. 


656 


PLEAS. 


('II.  XV.  § 

' Y 

AvornuMits 


Benefit  of 
statute  may 
be  had  by 
answer. 


Bills  relating 
to  trusts. 


Where 

a^ecment 
admitted,  bu 
statute  not 
set  up. 

Where  no 

answer 

required. 


tho  variation  is  siu-li  as  amounts  to  a  nioro  waiver  of  a  tci'ni  in  the 
agivoniont :  such  as  tho  time  for  the  connnencenu'iit  of  a  lease.^ 

A  plea  of  tliis  sort  must  contain  an  averment,  that  there  was  no 
(leehiration  of  trust  or  agreement  in  writing,  duly  signed;'^  and 
where  there  are  any  e(iuital)le  facts  alleged,  Avhich  may  have  the 
effect  of  taking  the  case  out  of  the  opei-ation  of  tlie  statute,  they 
iimst  be  met  by  negative  averments  in  the  }>lea,'  and  must  also,  if 
interrogated  to,  be  denied,  by  answer  in  support  of  the  plea.*  This 
proposition  appears  to  be  strictly  in  conformity  with  the  princi- 
ples before  laid  down,®  as  well  as  with  the  existing  authorities.  It 
is  right,  however,  to  state,  that  in  Lord  Kedesdale's  treatise,^  his 
Lonlship  mentions  it  as  a  ])osition  which  was  formerly  considered 
to  be  well  founded,  but  which  the  decision  of  the  Court,  in  one 
case,''  had  rendered  it  impossible  now  to  sustain ;  and  it  cannot 
be  denied,  that  the  point  is  one  of  considerable  difficulty ;  and  as 
it  is  now  placed  beyond  all  doubt  that  the  beneiit  of  the  statute 
may  be  had,  if  insisted  on  by  answer,  although  a  parol  agreement 
be  admitted,^  there  can  be  little  use  in  pleading  it  in  bar :  at  least 
to  bills  seeking  the  specific  performance  of  a  contract. 

AVith  respect  to  bills  relating  to  trusts,  where  there  is  no  dec- 
laration of  trust  in  writing,  it  seems  that  there  is  some  doubt 
whether  the  rule  which  has  been  applied  to  parol  agreements, 
namely,  that,  although  the  defendant  confesses  them  by  his  an- 
swer, yet,  if  he  insists  on  the  protection  of  the  statute,  no  decree 
can  be  made  merely  on  the  ground  of  that  confession,  will  be 
extended  to  the  confession  of  a  trust  by  answer.  In  such  cases, 
therefore,  the  safest  course  will  be  to  meet  the  case  made  by  the 
bill  by  a  plea  of  the  statute,  negativing  any  matter  charged  by 
the  bill  which  may  avoid  the  bar:  generally  by  way  of  averment 
in  the  plea,  and  particidai-ly  and  precisely  by  way  of  answer  in 
supjjort  of  the  plea,  if  discovery  is  required  as  to  such  matter.^ 

It  should  be  added,  that  if  a  defendant,  in  an  answer,  admits 
the  agreement,  and  does  not  claim  the  benefit  of  the  statute,  he 
will  be  considered  to  have  waived  it,  and  he  cannot  afterwards 
be  allowed  to  insist  upon  it,  although  he  claims  it  by  answer 
to  the  bill,   when   amended.^"     Where  no  answer  was  required, 


1  Jord  in  V.  Suwkins,  1  Ves.  J.  402. 

2  Ld.  lied.  206. 

3  As  to  negative  averments,  see  ante, 
pp.  G05,  G14. 

<  Coojj.  Eq.  PI.  2.50 ;  Beames  on  Pleas, 
172;  and  for  I'orm  of  sucli  plea,  see  2  Van 
Hev.  107;  S'-e  a!s<i  Den^'s  v.  Locock,  .3  M. 
&  C.  205,234;  1  Jur  605;  Dearman  v. 
Wvche,  9  bim.570,  582. 

5  Ante,\)p.  61.3,614. 

e  Ld.  Ptd.  268. 

"  Wliitbreiid  v.  Brockliur.st,  1  Bro.  C 
C  404,  416;  2  V.  &  B.  153  n. 


8  Ld.  Red.  267;  Moore  v.  Edwnrd.s,  4 
Ves.  23;  Cooth  v.  .Jackson,  6  Ves.  17; 
Blagden  i;.  Bradbe;ir,  12  Ves.  406,  471; 
Rower.  Teed,  15  Ves.  375;  Jackson  v. 
Ogliuuier,  2  II  &  M.  465.  As  to  the  mode 
ol  iii>-i.'^ting  on  tlie  >tatute  by  answer,  see 
Skinner  v.  M'Douall,  2  L)e  G.  &  Sm.  265; 
12  Jur.  741. 

**  i>d.  Red.  268;  see  Beames  on  Pleas, 
179  et  stq. 

w  Beames  on  Pleai,  178,  and  notes; 
Skinner  v  M'Douall,  2  De  G.  &  Sm.  265; 
12  Jur.  741;  Baskett  t).   Cafe,  4   De  G.  & 


DIFFERENT    GROUNDS    OF    PLEAS. 


657 


the  defendant  has  been  allowed  to  plead  the  statute  orally  at 
the  hearino;;!  and  if  the  defendant  denies,  or  does  not  admit,  the 
ao-reement,  the  plaintilf  must  prove  that  it  can  be  enforced.^^ 

Before  quitting  the  subject  of  the  Statute  of  Frauds,  it  should 
be  observed,  that  the  Court  will  not  allow  a  party  to  avail  himself 
of  the  Statute  of  Frauds  for  the  purpose  of  committing  a  fraud ;  ^ 
and,  therefore,  where  a  mere  mortgage  was  contemplated,  and  an 
absolute  conveyance  was  made  by  one,  with  the  intention  of  a 
defeasance  being  executed  by  another,  which  was  never  carried 
into  effect,  the  Court  refused  to  allow  a  defendant  to  avail  himself 
of  the  Statute  of  Frauds,  to  protect  him  in  the  enjoyment  of  the 
estate  under  the  conveyance.*  And  so,  where  an  heir-at-law  filed 
a  bill  against  a  devisee,  alleging  that  the  devise  was  upon  a  secret 
trust,  for  a  charitable  purpose,  contrary  to  the  statute  9  Geo.  II. 
c.  36,  a  plea  of  the  Statute  of  Frauds  was  overruled.^  And  the 
Court  will  never  permit  a  party  to  protect  himself,  by  a  plea  of 
the  statute,  from  discovering  whether  a  devise  was  obtained  or 
prevented  by  the  undertaking  of  the  devisee  or  heir  to  do  certain 
acts  in  favor  of  individuals.*' 

It  is  to  be  observed  here,  that  sales  conducted  under  a  decree  or 
order  of  the  Court,  are  not  within  the  Statute  of  Frauds.^ 

The  above  statutes,  namely,  those  for  the  limitation  of  actions 
and  suits,  and  for  the  prevention  of  frauds  and  perjuries,  have  been 
the  object  of  particular  attention  in  the  preceding  pages,  because 
they  are  those  which  have  been  most  frequently  the  subject  of 
discussion  before  the  Court ;  but  any  other  public  statute,  which 
may  be  a  bar  to  the  demands  of  the  plaintili",  may  be  taken  advan- 
tage of  by  a  plea,  containing  the  averments  necessary  to  bring  the 
case  of  the  defendant  witliin  the  statute,  and  to  avoid  any  equity 
which  may  he  set  up  against  the  bar  which  the  statute  creates.* 


Cn.  XV.  §  -2. 

^ > ^ 


Statute  of 
Frauds 
canuot  be 
pleaded,  to 
enable  a  party 
to  commit  a 
fraud. 


Sales  by  the 
Court  are  not 
within  the 
statute. 

Pleas  of  other 
general 
statutes : 


Sm.  388;  Kidgway  v.  Wharton,  3  De  G., 
M.  &  G.  tJ77,  (i'Jl ;  Jackson  v.  Oglander,  'A 
H.  &  M.  465.  It  is  now  scttlcl,  tluit  a 
party,  who  adinits  a  parol  ii};reenu;iit  by 
answer,  may  nevertheless  iiave  the  benelit 
of  the  .statute,  it  he,  by  his  answer,  prays 
the  benelit  of  it.  If  he  iloes  not  thus  in- 
sist on  the  benefit  of  llie  statute,  he  must 
be  taken  to  renounce  it.  Woods  v.  Dike, 
1 1  Ohio,  450  ;  2  Story  K(|.  J  ur.  §§  755-758 ; 
Fla^K  »'  .Mann,  2  Sinnner,  5•2^,  52'J;  New- 
ton v  Swasev,  8  N.  11.  'J;  Tii'inipson  v. 
Todd,  1  I'eiersC.  ('■  '.'.HH;  Talbot  v.  iSowen, 
1  Marsh.  4'',7  \  liowt^n  V-  Ivowton,  1  lien. 
&M.  in;  Stearns  v.  Iluljbiird,  8  (JnM.-nl. 
320;  Story  \'.i\.  1*1.  §  7«3;  Ontario  Hank  r. 
RoMt,  3  I'liige,  478;  (jozine  v.  Graham,  2 
Paige.  177;  Thornton?'.  Henry,  '2  Scam. 
219;  .Moore  v.  Kdward-<,  4  Sumner's  Ves. 
23,  note  ('();  Whitchurch  v.  I'.cvis,  2  15ro. 
C.  C  (Perkins's  cd.)  500,  5t;7,  note  (e); 
Van  Duvne  v.  Vreeland,  1  IJeasley  (N.  .1  ), 
142;  S.  \].  3  Stockt.  (N.  J.)  370;  Deau  v. 
VOL.   I. 


Dean,  1  Stockt.  (N.  J.)  426;  Ash  more  v. 
Evans,  3  Stockt.  (N  J.)  151. 

1  Liticoln  V.  Wrifiht,  4  De  G.  &  .J.  16;  5 
Jur.  N.  S.  1142;  Snead  i».  Green,  8  Jur. 
N.  S.  4,  M.  II  ;  S.  C  nimi.  Green  f.  Snead, 
30  Hcav.  231 ;  but  see  Holding  v.  Barton, 
1  Sm   &G.  Ap.  2-'). 

■■^  Kidgway  r.  Wliarton,  ubi  sup. 

8  Storv  E<{.  i'l.  §  7  67. 

•»  Di.xon   I'.  I'arker,  2  Ves.  S.  219,  224. 

6  Stickbind  V.  Aldridgc,  'J  Ves.  516. 

6  J/).  51U;  Story  Va\.  I'b  §  768;  Cham- 
berlain r.  Ager,  2  V.  &  15.  25t»;  .see  also 
llnrrow  v.  (Jrecnough,  3  Sumner's  ^'es. 
1.V2,  note  (a);  1  Story  Kip  .lur.  §  256;  2  id. 
§781;  Guallalier  v.  Guallaher,  6.  Watts, 
200. 

^  Attorney-General  v.  Day,  1  Ves.  S. 
218,  221;  blagden  v.  Bradbeur,  12  Ves. 
466,  472. 

»  l.d.  Ked.  274.  Of  this  natiiro  are  2 
&  3  W.  IV.  c  71;3  &  4  W.  IV.  c.  42;  as 
to  §  5  of  which  last  Act,   see   Moodic  v. 


42 


658 


PLEAS. 


<"ii.  \V.  5  J. 


Ajjniiif't  liiiy- 
iiitr  or  si'llinj; 
titles. 

Against 
bankrupts. 


Pleas  of 
private  and 
focal  acts. 


Pleas  of 
statutes  must 
be  upon  oath. 


2.    Pleas  of 
matters  of 
record : 


Thus,  in  Wfr/i>„s  v.  Lam/tW  llu>  statute  .'V2  lien.  VTIT.  c.  0, 
a^-ainst  l)u\  iiiLi:  an<l  scllinu'  jirclen.K'd  titles,  was  pleaded,  and  the 
))lea  allowed.  And  so,  wlieie  a  hill  was  filed  against  a  bankrupt, 
in  respeet  of  a  demand  oeeiu'ring  het'ore  his  hankruptcy,  tlie  5  Geo. 
II.  r.  od,'-  was  pleaded,  and  the  jdea  allowed.*  And  so,  it  has  been 
held,  that  where  a  mortgagee  of  an  advowson  apjiears  and  presents 
to  tlie  Church,  whieh  he  is  not  entitled  to  do  before  foreclosure,  a 
hill  hv  the  mortgagor,  seeking  to  compel  a  resignation,  must  be 
hrouyht  within  six  months  after  the  death  of  the  late  incumbent: 
being  the  period  within  which,  by  the  Statute  of  Westminster  2,* 
a  quare  iuipedit  must  be  brought.'' 

A  private  or  local  statute  may  also  be  pleaded  in  the  same  man- 
ner; thus,  to  a  bill  impeaching  a  sale  of  land  in  the  fens,  by  the 
conservators  under  the  statute  for  draining  the  fens,  the  defendant 
pleaded  the  statute,  and  that  the  sale  was  made  within  and  ac- 
cording to  the  statute,  and  the  plea  was  allowed,^  It  is  to  be 
observed,  that  a  plea  of  a  private  Act  of  Parliament  must  state  the 
Act,  or  at  least  so  much  of  it  as  relates  to  the  matter  insisted 
upon ;  and  it  seems  that,  although  an  Act,  which  is  in  its  nature 
private  or  local,  contains  a  clause  directing  that  it  shall  be  recog- 
nized in  Courts  as  a  public  Act,  such  a  clause  will  not  dispense 
with  tlie  necessity  of  setting  the  Act  out.'' 

A  plea  of  a  statute  must  be  put  in  upon  oath ;  for,  although  the 
statute  itself  is  matter  of  record,  the  avennents  necessary  to 
bring  the  case  withui  it  are  matters  in  2)ais,  which  must  be  sup- 
ported by  the  oath  of  the  party.^ 

2.  We  come  now  to  the  consideration  of  those  pleas  in  bar 
which  consist  of  matters  recorded,  or  as  of  record  in  the  Court 
itself,  or  some  other  Court  of  Equity,  or  in  some  Court  not  a 
Court  of  Equity .» 


Bannister,  4  Drew.  432,  5  Jiir.  N.  S.  402; 
Koddam  v.  Morlev,  1  De  G.  &  J.  1;  3  Jur. 
N.  S.  449;  2  id. '805;  2  K.  &  J.  336,  and 
cases  collected  in  SheU'ord  K.  P.  Acts,  279- 
281;  Su^d.  K.  V-  Acts,  149.  In  regard  to 
the  plea  ot  Usury,  see  New  Orleans,  G. 
L.  &  B.  Co.  II.  Dudlev,  8  Paige,  452;  Dyer 
V.  Lincoln,  11  Vt.  300;  Lane  v.  Ellzey, 
4  Hen.  &  M.  504;  S.  C.  C  Kiind.  661; 
(Chambers  v.  Chambers,  4  Gill  &  J.  420; 
Shed  V.  GarlieM.  5  Vt.  39;  Vroom  v.  Dit- 
mas,  4  Paige,  526;  New  Jersey  Patent 
Tanning  Co.  c  Turner,  1  McCarter{N.  .1.), 
226,229;  Cu  tis  v.  Master,  11  Paige,  15; 
Kowc  V.  Phillips,  2  Sandf.  Ch.  14. 

1  (i.  Coop.  34,  38;  see  also  Wall  v. 
Stubbs,  2  V.  &  B.  354,  357.  For  form  of 
plea  under  this  statute,  see  Beanies  on 
P.eas,  333. 

2  Repealed  bv  6  Geo.  IV.  c.  16;  see  now 
•12  &  13  Vic.  C.106;  24  &  25  Vic.  c.  134. 

3  De  Tastetv.  Sharpe,  3  Mad.  61,    60. 


For  form  of  plea  of  Bankruptcy,  see  2  Van 
Hey.  96;  and  as  to  such  a  plea,  see  ante, 
p.  631. 

4  13  Ed.  I.  c.  5. 

5  Gardiner  v.  Griffith,  2  P.  Wms.  405 ; 
cited  Atk.  559. 

0  Brown  v.  Hamond,  2  Cha.   Ca.  249. 

"!  Nabubof  Arcot  v.  East  Jmlia  Com- 
pany, 3  Bro.  C.  C.  292,  308;  Nabob  of  the 
Carnatic  v.  Ea'-t  India  Company,  1  Ves. 
J.  371,  393;  Bailey?;.  Birkenhead  Bailway 
Company,  12  Beav.  433,  443;  14  Jur.  119; 
see  13&"l4  Vic.  c.  21. 

«  Wall  V.  Stubl)s,  2  V.  &  B.  354,  357; 
1  Smith,  Ch.  Fr.  (2d  Am.  ed.)  232. 

'■>  Ld.  Ked.  236,  237.  If  a  former  de- 
cree is  relied  upon,  it  must  be  duly  ))leaded. 
Galloway  v.  Hamilton,  1  Dana,  575;  Fer- 
guson V-  Miller;  5  Ohio,  459  Or  it  may 
be  set  up  in  the  answer.  White  v.  Bank 
of  U.  States,  6  Ohio,  528;  S.  1'.  Strader  v. 
Byrd,  7  Ohio,  184. 


DIFFERENT    GROUNDS    OF    PLEAS. 


659 


A  decree  or  order  of  the  Court,  by  whicli  the  rights^of  the  par- 
ties have  been  determined,  or  another  bill  for  the  same  matter 
dismissed,  may  be  j^leaded  to  a  new  bill  for  the  same  matter ;  ^  and 
this,  even  if  the  party  bringing  the  new  bill  were  an  infant  at  the 
time  of  the  former  decree :  for  a  decree  enrolled  can  only  be  altered 
upon  a  bill  of  review.'^ 

By  tlie  original  practice  of  the  Court,  a  decree  or  order  dismiss- 
ing a  former  bill  for  the  same  matter  could  only  be  pleaded  in  bar 
to  a  new  bill,  where  the  dismission  had  been  upon  the  hearing  : ''' 
for  a  dismissal  was  a  bar  only,  where  the  Court  had  determined 
that  the  plaintiff  had  no  title  to  the  relief  sought  by  his  bill.  It 
was  not,  however,  necessary,  in  order  to  entitle  a  defendant  to 
plead  a  former  suit  and  decree  of  dismissal,  that  the  decree  should 
have  been  made  upon  discussion  of  the  merits :  if  the  dismissal 
had  been  merely  for  want  of  evidence,  the  decree  would  have  been 
equally  a  bar  to  another  suit.*  Under  the  present  practice,  if  the 
plaintiff,  after  the  cause  is  set  dowTi  to  be  heard,  causes  the  bill  to 
be  dismissed  on  his  own  application,  or  if  the  cause  is  called  on  to 
be  heard  in  Court,  and  the  plaintiff  makes  default,  and  by  reason 
thereof  the  bill  is  dismissed,  such  dismissal,  unless  the  Court  other- 
wise orders,  is  equivalent  to  a  dismissal  on  the  merits,  and  may  be 
pleaded  in  bar  to  another  suit  for  the  same  matter.^  Under  the 
old  practice,  an  order  dismissing  a  bill  upon  an  election  by  the 
plaintiff  to  proceed  at  Law,®  or  for  want  of  prosecution,''  was  not 
a  bar  to  another  bill :  and  it  does  not  seem  that,  in  these  cases,  the 
Order  above  stated  has  affected  the  practice. 

A  decree  cannot  be  pleaded  in  bar  of  a  new  bill,  unless  it  is  for 
the  same  matter  as  the  bill  to  which  it  is  pleaded ;  *  therefore,  a 
decree  in  a  former  suit,  for  an  account  of  tithes,  could  not  have 
been  jtleaded  to  a  bill  for  the  tithes  of  any  subsequent  year.^     It 


Ch.  XT.  5  2.  - 


Decree  or 
order  of  dis- 
missal ; 

■when  a  bar  to 
another  suit 


"After  cause 
has  been  set 
down  for 
hearing; 


but  not  ■when 
dismissed  on 
election  to 
proceed  at 
Law,  or  for 
want  of 
prosecution. 

Decree  must 
be  for  same 
matter; 


1  B  irker  v.  Belknap,  39  Vt.  168.  A 
bill  rei;alarly  dismissed  upon  the  merits, 
where  the  matter  has  been  passed  upon, 
and  the  di-inissal  is  not  without  prejudice, 
may  be  ph-a'led  in  bar  ofa  new  bill  for  the 
»ame  matter.  I'erine  r.  Dunn.  4.lohn.  Ch. 
Ul;  st!e  Neafie  v.  Neatie,  7  .John.  Ch.  1; 
Storv  Kq.  VI  §  703;  Wilcox  v.  Badger, 
C  Ohio,  406;  French  v.  French,  8  Ohio, 
214;  .Jenkins  v.  FhJi<  dye,  3  Storv,  'M'->; 
Davis  V.  Hall,  4  .J..iies  Kci.  (N.  C.)  301; 
Mickles  V.  Thiyer,  14  Allen,  121,  \iZ; 
Foote  V.  Giblts,"  1  Gray,  412;  pus!  "  'Ve/i- 
eriil  nnturt  of  dtcretg  nwi  onlers."  Such 
a  decree  is  (•oiiclu'-ive  ajjaiiist  a  new  bill 
though  renlereil  in  anotiier  State.  Low 
V.  .Vlu->Hey,  41  Vt.  303;  see  Urown  v.  Lex- 
ington ami  Danville  K.I'.  Co.,  1  McCarter 
(N  .1),  101.  For  li'.w  tar  the  rliMiii-sal 
of  a  hill,  bv  a  plaintifl' sum;;  on  behalf  of 
himsell  and  'itliers,  is  a  liar  to  another  suit 
bv  pci  suns  having  the  same  inten-st,  sej 
llankcr  v.  Walters,  8  Bcav.  'J'l,  07;  0  .Jur. 


73 ;  and  ante,  pp.  239,  240.  One  assignee  of 
a  bankrupt  may  plead  the  allow:ince  of  a 
demurrer  by  one  of  his  co-assignees  to  the 
same  bill.  Tarleton  v.  lloruby,  1  Y.  &,  C. 
Ex.  333,  336. 

•i  Ld.  lied.  237. 

8  Jb.  238. 

■*  Jones  V.  Nix'in,  Tounge,  359;  ante, 
p.  032. 

0  Order  XXIII.  13.  See  Cummins  v. 
fiennett,  8  I'aige,  70;  Sears  o.  .Jiick-on,  3 
Stockt.  (N.  J.)  45;  Buinbly  v.  Staiiilon, 
24  .Ma.  712. 

0  Couiites^  of  Plymouth  v.  Bladon,  2 
V'ern.  32;  ante,  p.  633;  jwst,  Chap.  XIX. 
§  4,  Klciliun. 

7  Ld.  Red  238;  Brandlyn  v.  Ord,  1 
Atk.  671. 

"  See  Neafie  v.  Nealie,  7  .John.  Ch.  1 ; 
Lyon  V.  Tiilhnadge,  14  .lohii.  601;  Me- 
nude  V.  D«laire,3  Ue-aus.  44. 

'•'  Minor  Canons  of  St.  Paul's  v.  Crick- 
ctt,  Wrightw.  30. 


660 


PLEAS. 


On.  XV.  §  2. 


and  lio  ooii- 
cliisivo  of 
plaiiilitl's 

and  as  bene- 
lii'ial  to 
plaintirt"; 

and  be  final. 


When 
decree  may 
be  pleaded 
where  fraud 
alleged. 


Decree  must 
be  signed  and 
enrolled ; 


how  pleaded, 
when  not 
signed  and 
enrolled. 


nuist  also  ho  conchisivo  of  the  riglits  of  (lie  jtbiiiiliffs  in  tlie  bill  to 
which  it  is  pleaded,  or  of  tliose  under  whom  they  claim;  therefore, 
a  (l(\^ree  against  a  mortgagor  and  order  of  foreclosure  enrolled, 
will  not  be  deemed  a  bar  to  a  bill  by  intervening  incuiid)ran(^er8 
to  redeem,  although  the  mortgagee  ha<l  no  notice  of  their  incum- 
brances.^ It  must  also  be  as  benelicial  to  the  i)luintitt"  as  that 
wiiidi  might  be  obtained  in  the  second  suit.^ 

The  decree  must  also  be  in  its  nature  final,  or  afterwards  made 
so  by  onler,  or  it  will  iu)t  be  a  bar;"  therefore,  a  decree  for  an 
account  of  pi'incipal  and  interest  due  on  a  mortgage,  and  for  a 
foreclosure  in  case  of  non-payment,  cannot  be  pleaded  to  a  bill  to 
redeem,  unless  there  has  been  a  final  order  of  foreclosure.* 

A  plea  of  a  decree  founded  on  a  particular  deed,  which  it  is  the 
object  of  the  second  suit  to  set  aside,  on  the  ground  of  fraud  dis- 
covered since  the  decree  made,  would  not  be  good.^  If,  however, 
a  bill  is  brought  to  impeach  a  decree,  on  the  ground  of  fraud  used 
in  obtaining  it  (which  may  be  done  without  the  previous  leave  of 
tlie  Court),  the  decree  may  be  pleaded  in  bar  of  the  suit,  with 
averaients,  negativing  the  charges  of  fraud,  and  (if  interrogated) 
supported  by  an  answer  fully  denying  them.^  It  is  presumed  also, 
that,  even  in  the  case  last  put,  of  a  bill  to  impeach  the  deed  upon 
which  a  decree  has  been  founded,  a  plea  of  the  decree,  supported 
by  similar  aA^ennents  and  answers,  would  be  good. 

A  decree  must  be  signed  and  enrolled,  or  it  cannot  be  taken 
advantage  of  by  plea : ''  though  it  may  be  insisted  upon  by  way  of 
answer.*  Although  a  deci'ee  not  signed  and  enrolled  cannot  be 
pleaded  directly  in  bar  of  the  suit,  it  seems  that  it  may  be  pleaded 
to  show  that  the  bill  has  been  exhibited  contrary  to  the  usual 
course  of  the  Court,  and  ought  not,  therefore,  to  be  proceeded 
upon ;  *  for,  if  the  decree  had  appeared  upon  the  face  of  the  bill, 
the  defendant  might  have  demurred :  ^^  a  decree  not  signed  and 
enrolled  being  to  be  altered  only  uj)on  rehearing,  as  a  decree 
signed  and  enrolled  can  be  altered  only  upon  a  bill  of  review.^^ 


1  Morret  v.  Westerne,  2  Vem.  663;  see 
ante,  p.  277;  Ld.    Ked.  2.38;   and  see  At-* 
torney  General  v.  Sidney  Sussex  College, 
Cambridge,  34  Beav.  654. 

2  Pickford  v.  Hunter,  5  Sim.  122,  129; 
Rattenbury  v.  Fenton,  C.  P.  Coop.  t. 
Brough.  60. 

<*  Ld.  Hed.  237;  see  Neafie  v.  Neafie,  7 
John.  Ch.  1;  Stor^  Eq.  PI.  §  791. 

4  Senhouse  v.  Larl,  2  Ves.  S.  450. 

^  Wing  V.  Wing,  2  Eq.  Ca.  Ab.  71, 
pi.  13. 

6  Ld.  Ked.  239;  Storj-  Eq.  PI.  §  794. 

■^  Anon.,  3  Atk.  809;  Kinsey  v.  Kinsey, 
2  Ves.  S.  577;  but  see  Peansew.  Dobinson, 
L.  K.  1  Eq.  241,  V.  C.  K. 

8  Jl/id.;  Charles  v.  Kowley,  2  Bro.   P. 


C.  ed.  Toml.  485;  Story  Eq.  PI.  §  790; 
Davoue  v.  Fanning,  4  John.  Ch.  199.  It 
will  not  be  allowed  on  the  hearing  unless 
set  up  in  the  answer,  or  (if  enrolled) 
pleaded.  Lyon  v.  Tallmadge,  14  John.  501. 
A  prayer  in  the  answer,  that  i\\e,  pleadings 
una  proofs,  in  a  former  suit,  may  be  made 
a  part  of  the  cause,  does  not  present  the 
dtcrte  ;  and  although  it  be  copied  in  the 
transcript,  it  will  not  be  regarded.  Gal- 
loway V.  Hamilton,  1  Dnna,  576. 

'J  Ld.  Ked.  ^39;  Kinsey  v.  Kinsey,  2 
Ves.  S.  577  n. 

1"  Wortley  v.  Birkhead,  3  Atk.  809:  2 
Ves.  S.  571;  Lady  Granville  v.  Kamsden, 
Buiib.  50. 

11  1  Ld.  Ked.  239. 


DIFFERENT   GROUNDS    OF    PLEAS. 


G61 


As  a  plea  of  tlais  kind  proceeds  upon  the  ground  th^it  the  same 
matter  "was  in  issue  in  the  former  suit,  and  as  every  plea  that  is  set 
up  as  a  bar  must  be  ad  icUm^  the  plea  should  set  forth  so  much  of 
the  former  bill  and  answer  as  will  suffice  to  show  that  the  same 
point  was  then  in  issue,  and  should  aver  that  the  allegations  as  to 
the  title  to  relief  were  the  same  in  the  second  bill  as  in  the  first  ;^ 
and,  therefore,  where  the  defendant  pleaded  only  that  a  bill  was 
brought  for  an  account  and  a  decree  made,  Lord  HardA^dcke  con- 
sidered the  plea  as  defective.^  Where  the  bDl  seeks  to  impeach 
the  decree  on  the  ground  of  fraud,  the  alleged  fraud  must,  as  we 
have  seen,  be  negatived  by  avennents  in  the  plea,  supported  by 
an  answer  fully  denying  the  circumstances  of  fraud  as  to  which 
the  defendant  is  interrogated.*  But  as  the  averments  negativing 
the  charges  of  fraud  are  used  merely  to  put  the  fact  of  fraud,  as 
alleged  by  the  bill,  in  issue  by  the  plea,  they  may  be  expressed  in 
the  most  general  tenns,  provided  such  tenns  are  sixfficient  to  put 
the  allegations  of  the  bill  fully  in  issue.  The  answer,  however, 
must  be  so  full  as  to  leave  no  doubt  on  the  mind  of  the  Court 
that,  if  not  controverted  by  evidence  on  the  part  of  the  plaintiff, 
the  fact  of  fraud  could  not  be  established.^ 

In  the  case  of  a  plea  of  a  fornier  decree,  the  plaintiff  should 
obtain  an  onler,  on  motion  or  petition  of  course,  for  an  inquiry  as 
to  the  truth  thereof;  ®  and  if  the  fact  is  certified  to  be  true,  the 
bill  will  be  dismissed,  unless  the  Court  should  otherwise  order.'' 
The  plaintiff  may,  however,  apply  to  vary  the  certificate,  and  thus 
bring  on  the  matter  to  l)e  argued  before  the  Court.*  He  may  also, 
if  he  conceives  the  ]dea  to  be  defective  in  point  of  form  or  other- 
wise, indepen<lently  of  the  mere  truth  of  the  fiict  pleaded,  set  the 
plea  down  to  be  argued,  as  in  the  case  of  pleas  in  general.^ 

As  the  ground  of  the  defence  by  plea  of  a  decree  signed  and 
enrolled  is,  that  the  matter  has  been  already  decided,  a  decree  of 
any  Court  of  Equity,  in  its  nature  final,  or  made  so  by  subsequent 
order,  may  be  pleaded  in  Ijar  of  a  new  suit.^° 


Cii.  XY.  §  2. 


Answer  in 
support. 


Plaintiff 
must  obtain 
in(iuir\-  as  to 
truth  of  plea, 


or  set  it  down 
for  argu- 
ment. 


Decree  of  any 
other  Court 
of  Equity. 


1  Per  Lonl  Ilarilwicke,  in  (Jhilil  v.  Gib- 
non,  2  Atk.  G03;  ami  see  .Moss  y.  Anj^lo- 
Ejjvptian  Nav.  «"o.,  L.  K.  I.  Ch.  Ap.  108; 
12  Jur.  N.  S.  13  [..  C. 

■■^  I.adv  I.onilondcrry  r.  Haker,  8  Giff. 
128;  7  Jur.  N.  S.  652;  affd.  ib.  811;  9  W. 
R.  7r.3 

3  Child  r.  Gih'4on.  vhi  sup. ;  Bunk  of 
Michigan  v.  Williams,  Ilarring.  Ch.  219; 
CatPs  V.  I.oftus,  4  Monroe,  439. 

*  Ld.  Ked.  239. 

*  Ld.  Red  239;  see  ««<«,  p.  060.  Where 
a  bill  ebargod  mi-representation,  cotrreitin, 
and  fr.iuil  in  pr(»i'urini^  tlin  r  h^use  of  a 
debt,  and  a  d-'fenlant  put  in  a  plea  and 
nnnwer,  and  in  hi<*  plea  in-isted  oti  tin'  n-,- 
le.ise  in  bar,  with  luf  n  iticini;  the  iillegi- 
tiun  of  fraud,  though  in  the  unawer  it  woa 


fully  met  and  denied,  it  was  held  that  the 
plea  was  bad.  Allen  i'.  Uandolph,  4  John. 
Ch.  693. 

6  Ord.  XIV.  6.  For  forms  of  motion 
and  p'^ition,  sec  Vol.  III. 

^  l.d.  RcmI.  305;  and  sec  .Tones  v.  Se- 
pu.-ira,  1  Phil.  K2,  84;  6  .lur.  1K3;  Tarle- 
ton  V.  Marnes,  2  Keen,  632,635;  Morgan 
V.  Morgan,  1  Atk.  53. 

»  Ld.  Red    305. 

»  Ibid. 

1"  L<1.  Red.  245;  Fitzgerald  n.  Fitzger- 
ald, 5  ISro.  I'.  C.  cd.  Toml.  567;  see  also 
■Tones  V.  Nixon,  Younge,  359;  and  see 
Ord.  XIV.  7,  and  ante,  p  632,  as  to  plea 
of  pending  suit  in  another  Court  of  Kquity. 
See  l'"i;rL'u-ion  ii  Mill(!r,5  llam.  460;  Hughes 
V.  Ulake,  6  Wheat.  453. 


662 


PLEAS. 


(11.  XV.  §  •:. 


Averments. 


Fines  abol- 
ished hv  3  &4 
Will.  IV.  c. 
74,  §  2. 


(2.)  Common 
recover}'. 


Uecoveries 
abolished  bv 
3  6L-  4  Will." 
IV.  c.  74,  §  2. 


Form  of  plea. 


(3.)  Judg- 
ment of  a 
Court  of 
ordinary 
jurisdiction: 


A  ploa  in  h-.w  oi"  miUtors  of  ivoonl,  or  of  matters  in  the  nature 
oi'  mat  tors  of  record  in  some  Court,  not  beinaf  a  Court  of  Equity, 
may  be:  (1.)  Fine;  (2.)  Recovery;  (3.)  Judgment  at  Law,  or 
Sentence  of  some  other  Court. 

(1.)  A  fine  is  a  record  of  tlic  Court  in  wliicli  it  has  been  levied, 
aiul,  if  levied  on  or  before  the  81st  of  ])eci!mber,  1833,^  is  equally 
good  as  a  bar  in  Equity  as  it  is  at  Common  Lavr,  provided  it  be 
l)leaded  witli  pro])er  averments.^  In  a  plea  in  Equity  of  a  fine  and 
ncm-claim,  the  same  strictness  is  required  as  at  Law ;  therefore, 
where  a  defendant,  instead  of  averring  ])ositively  that  the  party 
levying  the  fine  was  actually  seised,  averred  that  he  was  seised,  or 
pretended  to  be  seised,  the  plea  was  held  to  be  bad.^  A  plea  of  a 
fine  and  non-claim  can  now  only  be  n\ade  use  of  where  the  fine 
has  been  levied  on  or  before  the  31st  of  December,  1833:  the  3  & 
4  Will.  ly.  c.  74,  having  abolished  that  species  of  assurance  from 
that  date,  and  substituted,  in  its  stead,  a  more  simple  form,  by 
deed  enrolled  in  the  High  Court  of  Chancery,  within  six  months 
fi-om  the  date  thereof;  and  such  deed  and  enrolment  may  now  be 
pleaded,  instead  of  a  fine. 

(2.)  A  common  recovery  duly  suffered,  like  a  fine,  is  a  record  of 
the  Court  in  which  it  has  been  suflered  ;  and  if  it  has  been  suffered 
on  or  previously  to  the  31st  of  December,  1833,  such  recovery  may 
be  pleaded  in  Equity,  as  well  as  at  Law,  if  the  estate  limited  to 
the  plaintiff,  or  under  which  he  claims,  is  thereby  barred.*  Since 
the  statute  3  &  4  Will.  IV,  c.  74,  common  recoveries  can  be  no 
longer  suffered ;  but  where  an  estate  tail  has  been  barred,  by  the 
execution  of  a  deed  enrolled  in  the  Court  of  Chancery,  according 
to  the  provisions  of  that  Act,  such  deed  and  enrolment  may  be 
shown  to  the  Court,  by  i)lea,  instead  of  a  recovery.  The  form  of 
a  i)lea  of  a  recovery  appears  to  be  nearly  the  same  in  Equity  as  at 
Law.  In  Attorney-  General  v.  /Sutton,^  the  suffering  of  the  recov- 
ery appears  to  have  been  averred  in  the  following  form  :  "  Tliat 
Thomas  Sutton,  the  testator's  nephew,  being  tenant  in  tail  by  the 
will,  had  suffered  a  common  recoveiy,  and  thereby  barred  the 
charities." 

(3.)  The  judgment  of  a  Court  of  ordinary  jurisdiction,  is  also  a 
matter  of  record,  which  may,  in  general,  be  ])leaded  in  bar  to  a 
suit  in  Chancery,  provided  such  judgment  has  finally  detennined 
the  rights  of  the  parties.®     Thus,  a  judgment  of  a  Court  of  Com- 


1  S-e  3  &  4  AVill   IV.  c.  74,  §  2. 

2  Ld.  Ked.  251;  Thynne  v.  Cary,  W. 
Jones,  416;  Salisbury  v.  Haggot,  1  Ch. 
Ca.  278;  2  Swanst.  603.  610;  Watkins  v. 
Srone,  2  S  &  S.  500,  573;  Storv  v.  Lord 
Wiiid-or,  2  Atk.  630,  632;  see  Story  Kq. 
PI.  §  771  et  seq.  For  form  of  such  plea 
see  2  Van  Hey.  100. 


s  Story  V  Lord  Windsor,  2  Atk.  630, 
632;  Dobson  v.  Lcadbcater,  13  Ve.s.  233. 

*  Ld.  Red.  253;  Attorney-General  v. 
Sutton,  1  1'.  Wms.  753. 

li  1  P.  Wms.  754;  3  Bro.  P.  C.  ed.  TomL 
75;  riunkett  v.  Cayendish,  1  R  &  M  713, 
718. 

8  Ld.  Red.  253;   see  Cammnnu  v.  Trap- 


DITTERENT    GROUNDS    OF    PLEAS.  GG3 

mon  Pleas  in  a  writ  of  right,^  or  a  verdict  and  judgment  entered   Ch.  XV.  §  2. 

thereon  in  a  Court  of  Common  Law,  have  been  held  to  be  a  good   "^ y ' 

bar  in  a  Court  of  Eqiuty,  for  the  same  matter.'-^  So  it  seems,  that  Courts  of 
a  plea  of  a  nonsuit,  in  an  action  of  trover,  has  been  allowed  as  a  Law.'"'^° 
good  plea.^ 

In  Behrens  v,  Paxdi^  a  plea,  that  a  verdict  and  judgment  in  LordMavor's 
the  Lord  Mayor's  Comt  had  been  obtained  by  the  defendant  Court, 
against  the  plaintiff,  on  the  same  matter  in  respect  of  which  relief 
was  sought  by  the  bill,  was  allowed  by  Lord  Langdale  M.  R.  on 
the  ground  that  the  Lord  Mayor's  Court  was  a  Court  of  competent 
jurisdiction  to  decide  the  case ;  and,  although  the  decision  of  the 
Master  of  the  Rolls  was  afterwards  oveiTuled  by  Lord  Cottenham, 
in  Belirens  v.  Sieveking^  it  was  merely  upon  the  ground  of  an 
informality  in  the  plea,  in  not  shoAviug  that  the  subject-matter  of 
the  suit,  in  the  Lord  Mayor's  Court,  was  the  same,  and  that  the 
proceedings  were  taken  for  the  same  purpose. 

It  is  not  necessary  that  the  Court,  the  judgment  of  which  is  otherCourts: 
pleaded,  should  be  a  Court  of  Common  Law ;  the  sentence  of  any  ^^ 
Court  may  be  a  proper  defence  by  way  of  plea.     Thus,  it  seems 
that  a  sentence  of  a  Court  of  Admiralty  will,  if  properly  pleaded,  Court  of 
be  a  good  plea.®    And  so  may  a  sentence  of  a  Court  of  Probate;   ■'*^^n"'"*l<^3'; 
therefore,  a  will  and  probate,  even  in  the  common  form,  may  be  i>r"bate; 
pleaded  to  a  bill  by  ])ersons  claiming  'as  next  of  kin  to  a  person 
supposed  to  have  died  intestate."     If  fraud  in  obtaining  the  will  is  wlicre  fraud 
alleged,  that  is  not  a  sufticient  equitable  ground  to' impeach  a  jho-  -'"^^'-'S*^'^- 
bate:  for  the  parties  may  resort  to  the  Court  of  Probate,  wliich  is 
competent  to  determine  the  question  of  fraud,^  unless  iufleed  the 
case  be  one  in  whicli  the  fraud  has  not  gone  to  the  whole  will,  but 
only  to  some  particular  clause,  or  in  which  it  has  been  practised  to 
obtain  the  consent  of  the  next  of  kin  to  the  probate :  in  which 

hagan,  1  Saxton(N.  J  ),28;   StoryEq.Pl.  231;    Harrison  v.  Nettlesliip,  2  M.  &  K. 

§   778,  and   note;    Standish  v.  Parker,  2  423,  425. 

Pick.  (2'l  ed  )  22.  and   notes,   1,2,3.  and  3  Wilcox  r.  Start,  1  Vern.  77. 

cases  cited;  Van  Wycii  r.  Seward,  1  Kdw.  4  1  Keen,  4.'J6,  403. 

327.     A   JMd(,'nient  "on   tlie  merits,  wliieh  fl  2  M.  &  C.  602,  C03. 

will  liiir  any  other  J-iiit  at  I,a won  the  >anie  •>  Parkinson  v.    Lccras,  cited   Ld.   Red. 

cause  of  action,  will   also  bar  a  snit  in  257. 

Ch:mcerv  on   the  same  cau-e  of  action.  7  Jnnncv  c.    Sealev,  1  Vern    397;  Ld. 

Hunt  »."Terril,  7  .J.  .1.  MHr~h.  68,  70.     A  -    •       -  ' 

judfjnient  on  either  a  speci-.il  verdict  or  "n 

demurrer  to  eviilcnee  has  this  effect    Ihid.        „  _,  >  „ 

1  Sidney  I'.  I'eiTv.  cited   Ld.    lieil.  251.  G^5,  5itr, ;  7  .Jur.  54. 

2  Wil.-.i'.x  V  Stuit.  1  Vern  77;  Hlu.k  i-.  »  Ld.  Red.  257;  Arclier  r.  Mos.se.  2 
F.iliot.  Itep.  t.  Finch,  V.',\  Pitt  v.  I!ill,  \b.  Vern.  8;  Nelson  v.  Oldfield,  ih.  76;  At- 
70;  Tnmple  i-.  Ladv  I5altinf,'Iass,  (6.  275;  tornev-tJeneral  r.  Kvder,  2  Clii.  Ca.  178; 
Williams  r.  Lee.  3  Atk.  223;  and  fir  Iho  I'liime  v.  lieaie,  \'\'.  Wms.  3SK;  Ste- 
Plea  in  that  case,  see  H'-arnes  on  Pleas,  ])heiiton  i'.  (Janliner,  2  I'.  Wins.  286; 
337.     For  the  effect  of  a  jiidL'tnent  Mt  Law,  I'.ennet  r.   Vade,  2  Atk.   324;  Kerrick  r. 

Uraiisliy,  7  Hro.  I'.  C.  ed.  loinl.  437; 
Meadows  v.  Duchess  of  Kint'^tnn,  And). 
766,  761;  (Jrifliths  r.  Hamilton,  12  Ve». 
2S»8,  307;  Story  Eq.  PI.  §  782. 


Red.  257;  see  also  I'envill  v  Luscombe,  2 
.1.  &  W.  201,  203;  Barns  v.  .Jackson,  1 
\'\\\\.  582;  9  .fur.    609;   1  Y.   &;  C.   C.  C. 


when  piven  in  evidence  in  a  suit  in  Iv|'.iity, 
nee  I'earce  v.  Grav,  2  Y.  &  C  C.  C  322, 
826;  Protheroe  v.  Forman,  2  Swanst.  227, 


GG4 


PLEAS. 


Cn.  XV.  5  '2. 


Foreign 
probate. 


Uccrce  of 
the  Irish 
C'haucorv. 
after  issue 
(lefisavit  vet 
non. 


Sentence  of 
a  foreign 
Court, 

having  full 
j  urisdiction ; 


unless  equi- 
table circum- 
stances 
against  it ; 


where  no 
equitable 
grounds  to 
avoid  it. 


cases  the  Court  lias  laid  liuld  of  these  cironmstanecs  to  deelave  the 
executor  a  trustee  for  the  next  of  kiii.^  Where  there  are  no  such 
circumstances  in  the  case,  the  ])robate  of  tlie  will  is  a  clear  bar  to 
a  deniaiid  of  ]>ersonal  estate.^  And  where  a  testator  died  in  a 
foreiun  country,  aiul  left  no  goods  in  any  other  country,  probate 
of  his  will,  according  to  the  law  of  that  country,  was  determined 
to  be  a  sufficient  defence  against  an  a<lministrator  appointed  in 
England:*  but  such  foreign  probate  will  not  do,  if  there  are  any 
goods  in  England:  for  in  that  case  the  will  m\ist  be  proved  here. 
80  also  a  decree  of  the  Court  of  Chancery  in  Ireland,  after  a  ver- 
dict upon  an  issu.e  devisavit  vel  tio?i,  does  not  determine  the  valid- 
ity or  invalidity  of  the  will,  so  far  as  it  relates  to  lands  in  England, 
and  cannot  be  pleaded  in  bar  to  a  suit  here.^  It  is  not,  indeed, 
necessary  in  every  case,  that  the  Court  whose  sentence  is  pleaded 
should  be  an  English  Court:  the  sentence  of  a  foreign  Court 
may  be  a  proper  defence  by  w^ay  of  plea ;  but  the  plea  must  show 
that  the  Court  pronouncing  the  sentence  had  full  jurisdi(;tion  to 
determine  the  rights  of  the  parties  ;''  that  the  subjects  iu  question, 
and  the  issue,  were  the  same :  that  the  cause  was  decided  on  the 
merits,  and  that  the  sentence  pleaded  was  final,  and  not  an  inter- 
locutory proceeding.*' 

Although  a  final  judgment  of  a  Court  of  competent  jurisdiction, 
whether  in  this  or  any  other  country,  will,  as  we  have  seen,  operate 
as  a  bar  to  a  claim  for  the  same  matter  in  a  Court  of  Equity,  yet 
if,  from  any  circumstance,  such  as  fraud,  mistake,  or  surprise,  it  is 
against  conscience  that  the  defendant  should  avail  himself  of  such 
a  bar,  a  Court  of  Equity  will  interfere  to  set  it  aside.''  Where, 
however,  a  bill  for  that  purpose  is  filed,  the  defendant  may  plead 
the  judgment  in  bar,  negativing  by  averments,  and  (if  interrogated 
as  to  them)  denying  by  answer,  the  equitable  circumstances  alleged 
in  the  bill,  uj)on  which  the  judgment  is  sought  to  be  impeached. 

It  is  to  be  observed,  that  where  a  bill  itself  states  a  sentence  of 
another  Court,  without  alleging  any  equitable  matter  to  avoid  it, 


1  Ld.  Red.  257;  Bwrneslv  v.  Powel,  1 
Ve«.  S.  284,  28,';  Harriot  v.  Harriot, 
1  Stran.  666;  Meadows  v.  Duchess  of 
Kingston,  Amb.  762,  76.3;  Allen  v. 
M'I'lierson,  1  Phil.  13.3,  14.3;  Gingell  v. 
Home,  9  .Sim.  .5.39,  ,548;  Hindson  r.  Weath- 
erell,  5  De  G.,  M.  &  G.  301;  18  Jur.  499; 
1  Sm.  &  G.  604 ;  Dimes  v.  Steinberg,  2  Sm. 
&  G.  75 

2  Ld.  Red.  2.58. 

8  .lauMcy  V.  Sealev,  1  Vem.  397. 

*  Hoyse  V.  CoIclout;h,  1  K.  &  .J.  124. 

5  Ld'  Ked.  255;  Newland  r.  Horseman, 
1  Vern.  21;  2  Ch.  Ca.  74;  Burrows  v. 
Jemineau,  Sel.  Ca.  in  Cba.  69;  1  Dick. 
48;  Giige  V.  Bulkeley,  3  Atk.  215;  Wliite 
V.  Hall,  12  Ves.  321,  324;  see  aWo  Hen- 
derson V.  Henderson,  3   Hare,  100,  115; 


Farquharson  v.  Seton,  5  Russ.  45,  63 ;  Mar- 
quis of  Hreadalbane  v.  Chandos,  2  M.  & 
C.  711,732;  Story  Eq.  PL  §  783;  Story 
Confl.  Laws,  584-018. 

6  Garcias  v.  Ricardo,  14  Sim.  265,  271; 
8  .Jur.  1037;  S.  C.  on  appeal,  nnm.  Ri- 
cardo V.  Gnrcias,  12  CI.  &  Kin  .368;  9  .Jur. 
1019;  Samudii  v.  Furt:ido,3  liro.  C.  C.  70, 
72;  Ostell  v.  Lcpjige,  2  De  G.,  M.  &  G. 
892,  895;  5  De  G.  &  S.  95;  16  .lur.  404; 
Hunter  V.  Stewart,  8  Jur.  N.  S  317;  10 
W.  U.  176,  ly.  C. ;  see  also  Keimers  v. 
Druce,  23  I5eav.  145;  3  .lur.  N.  S.  147;  2 
Seton  (3d  Kng  ed.),  882. 

■^  As  to  the  circumstnnces  wliich  will  be 
sufHcieiit  to  impeiich  a  verdict  and  judg- 
ment in  Equity,  see  Williams  v.  Lee,  3 
Atk.  223 ;  Samuda  v.  Furtado,  ubi  sup. 


DIFFERENT    GROUNDS    OF    PLEAS. 


6G5 


a  plea  of  that  sentence  will  not  hold :  because  it  brings  forward  no 
new  matter,  and  the  defendant  ought  to  have  demurred.^  Where 
a  bill  was  filed  by  an  executor,  who  had  assented  to  a  specific 
bequest,  to  set  aside  a  verdict  and  judgment  in  trover,  obtained  by 
the  specific  legatee,  on  the  ground  that  trover  would  not  lie  for  a 
legacy,  and  that  the  damages  given  by  the  jury  were  excessive, 
and  the  defendant  pleaded  the  verdict  and  judgment  in  bar,  the 
plea  was  allowed ;  -  but  it  may  be  doubted  whether  the  defence 
ought  not  to  have  been  by  demurrer,  as  there  was  no  allegation  in 
the  bill  requiring  averment  in  support  of  the  plea.^  Upon  this 
principle,  where  the  probate  of  a  will  is  impeached  on  the  ground 
of  fi-aud  used  in  obtaining  it,  the  defence  should  be  by  demurrer : 
because  fraud  not  being  a  suflicient  equitable  groimd  to  impeach 
the  probate,'*  the  mere  setting  up  of  a  probate,  which  appears  upon 
the  bill  is  not  a  suificient  averment  of  a  new  fact  to  support  a 
plea. 

3.  Pleas  in  bar  of  matter  in  pais  only  are,  principally :  (1.)  A 
stated  account ;  (2.)  A  release ;  (8.)  An  award  ;  (4.)  An  agi-ee- 
raent ;  (5.)  A  title  founded,  either  on  adverse  possession,  or  on  a 
will,  or  conveyance,  or  other  instrument  affecting  the  right  of  the 
parties ;  (6.)  A  purchase  for  valuable  consideration,  without  notice 
of  the  plaintiff's  title. 

(1.)  A  plea  of  a  stated  account  is  a  good  bar  to  a  bill  for  an 
account ;  ^  for  there  is  no  rule  more  strictly  adhered  to  in  this 
Court  than  that,  when  a  defendant  sets  forth  a  stated  account,  he 
shall  not  be  obliged  to  go  upon  a  general  one.^ 

In  order  to  support  a  plea  of  a  stated  account,  it  must  be  shown 
to  have  been  final ;  it  is  not  sufficient  to  allege  that  there  has  been 
a  dividend  made  between  the  parties,  which  implied  a  settlement; 
for  a  dividend  may  be  made  upon  a  supposition  that  the  estate 
^\nll  amount  to  so  much,  but  may  be  still  subject  to  an  account 
being  stated  afterwards.''  A  plea  of  a  stated  account  must  show 
that  it  was  in  writing,  and  likewise  the  balance  in  writing,  or  at 
least  set  forth  what  the  balance  was.*  It  does  not,  however,  seem 
to  be  necessary  to  aver,  that  the  account  was  settled  between  the 


Cii.  XV.  §  2. 


3.  Pleas  of 
matters 


(1.)  Stated 
account: 


must  be  final ; 


and  in  vait- 
ing; 


1  T,d   Rod.  255. 

2  Williams  v.  f.ec,  3  Atk.  223. 
8  L.I.  Ked.  255. 

••  Antf.  p.  612. 

fi  Ld.  1{<-(I  255t;  I)awHon  v  Dawson,  1 
Atk.  1;  ('liai)p"d<'I;iine  v.  Dccheniiux,  4 
Cran'di,  30ti;  sec  the  form  of  a  iil^n  of  ii 
otatod  a'Touiit.  Willis,  5-')0.  What  will 
constitute  a  st.iteil  aeconnt  in  the  sense  of 
a  Oiurt  of  K(|ui'y.  is  in  <-oine  uiCMsure  de- 
pendent on  the  (Mrcnmstance''  of  the  case. 
1  Slory  K(|.  .lur.  §  520.  A  ftnlcl  arcouiit 
profM-rly  i-xists  finly  where  the  accounts 
have  been  examined,  and  the  balance  ad- 


mitted as  the  true  balance  between  the 
parties,  without  haviuf;  been  paid.  Wlien 
the  b.ilance  thus  admitted  is  paiil,  the  ac- 
coimt  is  deemed  a  sftlU'l  account.  Ktido 
V.  ('aleham.  1  Younj^e.  306;  ('apon  v. 
Miles,  13  Price,  767 ;  Weed  v.  Small,  7 
l'aij,'e,  573;  1  Story  Kq.   IM.  §  798. 

''<  Sumner  t'.  Thorpe.  2  Atk.  1;  Coop. 
K(|  I'l.  277;  see  also  (^ainiichael  i'.  Car- 
michuel,  2  Chill.  101,  104;  lO.lur. 'J08;  1 
Story  K(\.  .lur.  §  527. 

"^  i>awson  V.  Dawson,  1  Atk.  1. 

8  Burk  V  Brown,  2  Atk.  3'J9. 


nOG 


PLEAS. 


(11.  XV.  5 


aiul  is  no  liar 
to  discovery, 
as  a  protec- 
tion afjaiust 
strangers. 
General 
release,  not 
under  seal. 

Stated 

aeeoiint  need 
not  be 
signed ; 


l)ut  mere 
delivery  of 
account 
will  not  be 
sutlicient. 

Rule  among 
merchants. 


Stated 

account  must 
be  averred 
to  be  just 
and  true. 

Form  of  plea. 


I^artios  uixtn  :i  iniimto  invrsti<j;;iti()ii  ol'  iti'iiis:  a  c;riier:il  MgrciMiiont 
ov  ooin])ositiou  will  1)('  siiiliciont ; '  nor  will  tlio  circumstance  of 
the  account  a])])carin;j;  to  have  been  settled,  errors  excepted,  be  a 
sutticient  ground  to  open  a  settled  account,  unless  specific  errors 
are  j)ointed  out  in  tlie  l)ill.'- 

A  stated  account  will  not  operate  as  a  bar  to  discovery,  where 
the  plaintifV  is  entitled  to  such  discovery,  not  for  the  purpose  of 
any  proceeding  between  him  and  the  defendant,  but  to  enable  him 
to  i)rotect  himself  from  claims  by  other  people.'  A  general  release 
of  all  demands,  not  under  seal,  may  be  pleaded  as  a  stated 
account.^ 

It  is  not  essential,  in  order  to  the  validity  of  a  stated  account  as 
a  bar,  that  it  should  have  ]>een  signed  by  the  parties ;  "^  it  will  be 
sufficient  if  an  account  has  been  delivered  and  acquiesced  in  for 
a  considerable  length  of  time ;  ^  thus,  where  there  have  been 
mutual  dealings  between  a  merchant  in  England  and  a  merchant 
beyond  sea,  and  an  account  is  transmitted  by  one  to  the  other :  if 
the  person  to  whom  it  is  sent  keej)s  it  by  him  for  a  length  of  time 
without  making  any  objection  it  will  bind  liim,  and  prevent  him 
opening  the  account  afterwards.'^  The  mere  delivery  of  an  ac- 
count, however,  will  not  constitute  a  stated  account,  without  some 
evidence  of  acquiescence  which  may  afford  sufficient  legal  pre- 
sumption of  a  settlement.^  It  has  been  said  that,  among  nier- 
chants,  it  is  looked  upon  as  an  allowance  of  an  account  current,  if 
the  merchant  who  receives  it  does  not  object  to  it  in  a  second  or 
a  third  post ;  ®  but  in  Tickel  v.  Short^^"  Lord  Hard\vicke  said,  that 
if  one  merchant  sends  an  account  to  another  in  a  different  country, 
on  which  a  balance  is  made  due  to  himself,  and  the  other  keeps  it 
by  him  about  two  yeai's  without  objection,  the  rule  of  this  Court, 
as  well  as  of  merchants,  is,  that  it  is  considered  as  a  stated  account. 

A  defendant,  pleading  a  stated  account,  must,  whether  error  or 
fraud  be  charged  or  not,  aver  that  the  stated  account  is  just  and 
true,  to  the  best  of  his  knowledge  and  belief; "  but  it  is  not  neces- 
sary that  the  account  should  be  annexed  by  way  of  schedule :  for 
the  plea  is  sufficient,  in  case  it  be  a  fair  account  between  the  par- 


1  Sewell  V.  Bridge,  1  Ves.  S.  297. 

2  Taylor  v.  Haylin,  2  Bro.  C.  C.  310; 
1  Cox,  435;  Johnson  v.  Curtis,  3  Bro.  C. 
C.  266. 

8  Clarke  v.  Earl  of  Ormonde,  Jac.  116. 

4  Gilb  For.  Kom.  57. 

6  Story  Va[.  Jur.  §  526. 

6  Murray  v.  I'oland,  3  .John.  Ch  569; 
Freeland  v.  Heron,  7  Cranch,  147;  1  Story 
Eq.  Jur.  §  526;  Consequa  )'.  FanninL',  3 
John.  Ch.  587;  Wilde  v.  Jenkins,  4  Paige, 
481.  In  regard  to  acquiescence  in  stated 
accounts,  although  it  amounts  to  an  admis- 
sion, or  presumption  of  their  correctness, 
it  by  no  means  establishes  the  fact  of  their 


liaving  been  settled,  even  though  the  ac- 
quiescence has  been  for  a  considerable 
time.  There  must  be  other  ingredients  in 
the  case  to  justify  the  conclusion  "f  a  set- 
tlement. 1  Stoi-y  Eq.  Jur.  §  528;  Ld. 
Clancarty  ?;.  Latouche,  1  B.  &  Beat.  428; 
Irving  V.  Young,  1  S   &  S.  333. 

"  Willis  V.  Jernegan,  2  Alk.  2-52. 

»  Irvine  V.  Young,  1  S.  &  S.  333. 
Sherman  v.  Sherman,  2  Vern.  276. 

10  2  Ves.  S.  239. 

11  Anon,  3  Atk.  70;  Daniels?;.  Tageart, 
1  Gill  &  J.  311;  Schwarz  v.  Wendell, 
Uarring.  Ch.  395. 


DIFFERENT    GROUNDS    OF    PLEAS. 


667 


ties.^  "WTiere,  ho'wever,  a  bill  impeaches  tlie  account,  and  alleges 
that  the  plaintiff  has  no  coiintei-part  of  it,  and  it  is  required  to  be 
set  forth,  the  defendant  must  annex  a  copy  of  the  account  to  his 
ans%ver  by  way  of  schedule,  so  that,  if  there  are  errors  upon  the 
face  of  it  the  plaintiff  may  have  an  op2:>ortunity  of  pointing  them  out.^ 

The  delivery  up  of  vouchers  is  an  affirmation  that  the  account 
between  the  parties  was  a  stated  one  ;  and  where  such  a  transac- 
tion has  taken  place,  it  should  be  averred  in  the  plea.^ 

It  has  been  before  stated,  that  the  effect  of  pleading  a  stated 
account  to  a  mere  bill  for  an  account,  is  to  com])el  the  plaintiff  to 
amend  his  bill,  and  to  charge  either  fraud  or  j^articular  errors ;  *  it 
remains  only  to  observe,  that  if  specific  errors  or  frauds  are  charged 
in  the  bill,  for  the  purpose  of  impeaching  the  account,  they  must 
be  denied  by  averments  in  the  plea,  as  well  as  by  the  answer  in 
6up>port  of  the  plea,  if  the  defendant  is  inteiTogated  as  to  them.^ 

It  may  be  observed  here,  that  when  fraud  is  proved  to  have 
taken  place  in  a  settlement  of  account,  it  will  be  a  sufficient  ground 
to  ojK'n  the  whole  account,"  and  this  has  been  done  by  the  Court, 
though  the  account  had  been  settled  for  twenty-three  years,  and 
the  party  who  was  guilty  of  the  fraud  was  deadJ 

Upon  the  same  ])rinciple,  where  an  account  has  been  settled 
between  an  attorney  and  his  client,  and  it  a])pears  upon  the  face  of 
the  account  that  the  attorney  has  not  given  that  credit,  and  pro- 
duced to  his  client  that  state  of  his  affairs  which  he  Avas  entitled 
to  have,  the  Court  will  not  permit  such  an  account  to  stand.*  The 
same  rule  will  a]ij)ly  to  cases  of  accounts  settled  between  principal 
and  agent,^  guardian  and  ward,^°  and  trustee  and  cestui  que  trust}^ 


Ch.  XV.  §  2. 


Delivery  up 
of  vouchers, 
to  be  averred. 

Effect  of 
pleading  a 
stated 
account. 


Where  fraud 
is  proved. 


In  accoimta 
between 
attorney  and 
client, 


principal  and 
agent,  &c. 


1  Hankev  v.  Simpson,  3  Atk.  303. 

2  Haiikey  v.  Simpson.  3  Atk.  303. 

8  Ld.  Red.  200;  Willis  v  Jernegan,  2 
Atk.  2.i2;  Clarke  v.  IC:irl  of  Ormonde,  Jhc. 
110.  But  the  delivering  up  of  vouchers 
on  Ik  t^cttleinent  of  accounts,  is  not  neces- 
sary. Meeker  v.  Miirsh,  1  Sa.xton  (N.  J.), 
VjH. 

*  Ante,  p.  371;  Weed  v.  Smnll.  7  Paige, 
673;  Krown  v.  Van  Dyke,  4  Halst.  Uh. 
(N.  J.)"!).i. 

6  Ld.  Red.  261;  Phelps  v.  Sproule,  1 
M.  &  K.  231,  230;  Parker  v.  Alc^ck.  1  Y. 
&  .1.  432;  Chailwick  v.  Hroadwood,  3 
15eav.  r)30,  .'■.40;  5  .lur.  :ir,'j. 

0  See  1  Stoiy  Ku.  .lur.  §  523;  Hiirrow 
V.  Kliinclinder,  ]  .lolin.  <'h.  .5-'i0;  Story 
Iv|.  I'l.  §§  f-Ol,  Hfi2;  Baker  r.  Biddle,  1 
Bald.  3!»4:  Biiinbridgc  v  Wikocks,  i/j. 
&'!0,  r,40.  Where  there  has  been  Iniud  a 
Court  of  F.ipiity  will  open  and  examine 
accounts  nfier  any  lengih  of  time,  even 
though  the  perMDO  coinmilling  tiie  fraud 
be  dead.  Botifeiir  v.  Weyman,  1  M'Cord, 
Ch.  101.  A  running  account  closed  by  a 
bond  maybe  opened  by  a  Court  of  Koiiity 
on  the  ground  of  trnul.  (Inivr.  W  iish- 
ington,  Cook,  321.     If  in  a  hill  of  Ecjuily 


to  open  a  settled  account,  the  facts  al- 
leged and  proved  should  show  frnud  actual 
or  constructive,  in  the  settlement,  the 
plaintiff  will  be  entitled  to  relief,  not- 
withstanding the  bill  contains  no  direct 
averment  of  fniud.  Farn.'im  v.  Brooks, 
9  Pick.  212. 

7  Vernon  i'.  Vaudry,  2  Atk.  119. 

8  Matthews  ),-.  Wiillwyn,  4  Ves.  118, 
125;  Middleditch  r.  Sharlaiid,  5  Sum- 
ner's Ves.  b7,  Perkins's  note  («),  and 
cases  cited;  Hickson  v.  Aylward,  3  Moll. 
1;  Kamam  v.  Brooks,  D  Pick.  212;  1  Story 
lv|.  .lur.  §  402,  and  notes;  Pickering  v. 
Pickering,  2  Beav  31;  Graham  i'.  David- 
son, 2  Dev.  &  Bat.  Eq.  155;  De  Mont- 
morency V.  Devereux,  I)ru.   &  W.  119. 

1*  Beaumont  i;.  Bolthee,  5  Ves.  485,  494; 
7  Ves.  599,  001;  11  Ves.  358;  Clarke  v. 
Tipidng,  9  Beav.  284,  287,  where  the  fact 
apiieared  from  admissions  in  tiio  answer. 

"»  Alllrev  r.  Allfrev,  10  Beav.  353.  ;)57; 
11  .lur.  981;  1  M'N.\^  G.  87,  93;  13  .Jur. 
209;  Coleman  v.  Mellei>h,  2  M'N.  &  (J. 
309,  315;  and  see  Browiieli  v.  Brownell, 
2  Bro.  C.  C.  02. 

"  Cl.-irkc  ti.  l'",arl  of  Ormonde,  .lac.  110. 
As  between  trustee  and  cestui  que  Irutt, 


6G8 


PLEAS. 


Til.  XV.  §  2. 


Where  errors 
and  mistakes 
only  are 
proved. 


Of  surcharg- 
ing and 
falsilyiug. 


All  the  errors 
noeil  not  be 
proved  at  the 
hearing. 


Errors  in  law 
or  fact  may 
be  shown. 


Leave  to 
surcharge 
and  falsify 
is  mutual. 


Tlio  caso,  licvvovor,  is  diilori'iit,  wlioro  errors  or  inistakos  only  are 
shown  to  exist  in  tlie  account :  for  there  the  account  will  not  be 
0})ene(l,  but  the  ])Mrty  will  be  permitted  merely  to  surcharge  and 
falsity  it.*  This  is  :ui  important  distinction:  because,  where  an 
account  is  oj)ejuMl,  the  whole  of  it  may  be  unrav(>lled,  and  the  ])ar- 
ties  will  not  be  bomid  by  deduc-tions  agreed  upon  between  them 
on  taking  the  former  account ;  ^  but  where  a  party  has  liberty  to 
surcharge  and  flilsify,  the  onus  prohandi  is  always  on  the  party 
having  the  liberty:  for  the  Court  takes  it  as  a  stated  account  and 
establishes  it;  but  if  the  l)arty  can  show  an  omission  for  which 
there  ought  to  be  credit,  it  will  be  added  (which  is  a  surcharge), 
or  if  any  wrong  charge  is  inserted  it  will  be  deducted  (which  is  a 
falsification).^  This,  however,  must  be  done  by  proof  on  his  side.* 
In  some  cases,  where  the  circumstances  would  justify  opening  the 
account,  the  Court  Avill  only  give  leave  to  surcharge  and  falsify,  if 
it  is  satisfied  that  it  will  in  that  manner  best  do  justice  between 
the  parties.^ 

It  is  to  be  noticed  here,  that  although  a  party  seeking  to  open  a 
settled  account,  must  specify  the  errors  he  insists  upon,"  it  is  not 
necessary  that  he  should,  at  the  hearing,  prove  all  the  errors  speci- 
fied in  his  bill.''  If  he  proves  some  of  them,  he  entitles  himself  to 
a  decree,  giving  him  liberty  to  surcharge  and  falsify.*  Where 
parties  are  at  liberty  to  surcharge  and  falsify,  they  are  not  confined 
to  mere  errors  of  fact,  but  they  niay  take  advantage  of  errors  in 
Law ;  ^  and  where  one  party  is  allowed  to  surcharge  and  falsify, 
the  other  may  do  so  too." 


the  trustee   cannot   protect  himself  from 
discovery  of  the  vouchers,  S.  (_]. 

1  Vernon  v.  Vaudrv,  2  Atk.  119;  Brown 
v.  Van  Dyke.  4  Halst.  Ch.  (N.J.)  795.  The 
burden  of  showing  errors  is  on  him  who 
receives  an  account  without  objection. 
Bakerr.  Hiddlc,  1  Bald.  394;  Baihbridge 
V.  Wilcncks,  ih.  536,  540;  Chappedelaine 
V.  Declienaux,  4  Cranch,  203;  Lock  v. 
Armstrong,  2  Dev.  &  Bat.  Eq.  147;  Wilde 
r.  Jenkins,  4  Paige,  481;  Murray  y.  Tol- 
land, 3  John  Ch.  569;  Honore  v.  Cohnes- 
nel,  1  J.  J.  Marsh.  417;  Bull  'ck  v.  Bovd, 
2Edw.  Ch.  293;  Troup  v.  Ilaight,  1  Ilopk. 
239;  Browneli  r.  Biownell,  2  Bro.  C  C. 
(Perkins's  ed.)  62,  and  notes.  In  the  case 
of  transactions  between  trustee  and  cestui 
que  trust,  or  guardian  and  ward  (Browneli 
V.  Browneli,  2  Bro.  C-  C.  62),  or  between 
solicitor  and  client  (Matthews  v.  Wall- 
wyn.  4  Ves.  125),  the  Court  allows  a 
greater  latitude. 

2  Osborne  v.  Williams,  18  Ves.  379, 
382. 

3  Pit  V.  Cholmondeley,  2  Ves.  S.  565; 
Heighington  v.  Grant,  1  Phil.  600.  For  an 
explanation  of  the  terms  surchai'ffe  and 
fuLifu.  see  1  Story  Eq.  Jur.  §  525. 

<  'Jhid. 


6  Allfrey  v.  Allfrey,  1  M'N.  &  G.  87, 
94;  13  Jur.  269. 

6  Ante,  p.  371.  A  general  charge  is 
not  sufficient,  specific  errors  must  be 
pointed  out.  Calvit  i".  Mnrkham,  3  How. 
(Miss  )  343;  Mebane  v.  Mebane,  1  Ired. 
Va{.  403;  I)e  Montmorenc}'-  v.  Devereux,  1 
Dru.  &.  W.  119;  Leavcraft  j;  Dempsev, 
15  Wend.  83;  Baker  w."  Biddle,  1  Bald. 
394,418;  Bainbridge  V.  Wilcox,  ib.  536, 
540;  Consequa  v.  Fanning,  3  .John.  Ch. 
587;  S.  C.  17  John.  511;  1  Story  Eq.  Jur. 
§§  623,  627;  Browneli  n.  Browneli,  2  Bro. 
C.  C  (I'erkins's  ed  )  62,  notes;  VVeed  v. 
Small,  7  Paige,  573;  Hobart  v.  Andrews, 
21  Pick.  576;  Chappedelaine  v.  Deche- 
nan.x,  4  Cranch,  30(1;  Bullock  v.  Boyd,  2 
Edw.  Ch.  293;  Phillips  v.  Beld<'n,  2  F.dw. 
Ch.  1 ;  Stoughton  v.  Lj'uch,  2  John.  Ch. 
509 ;  Story  Eq.  PI.  §  809. 

■^  Anon.,  2  Freem.  62;  Chambers  v. 
Gold  win,  5  Ves.  8.34,  837;  Dawson  v.  Daw- 
son, 1  Atk.  1;  Drew  v.  Power,  1  Sch.  & 
Lef.  192. 

8  Twogood  V-  Swanston,  6  Ves.  485. 

9  Hoberts  v.  Kuflin,  2  Atk.  112. 
10  1   Mad.  Ch.  144. 


DIFFERENT   GROUNDS    OF   PLEAS.  669 

It  is  to  be  remarked,  however,  that  although  an  admission  by  Cn.  XV.  §  2. 

the  defendant  in  the  answer  accompanying  his  plea,  of  an  error  in   ' y -' 

the  stated  account,  may  be  sufficient  evidence  to  induce  the  Court   Where  error 
to  open  the  account,  the  mere  circumstance  that  the  defendant,   before  suit. 
after  the  account  was  settled,  confessed  that  there  was  an  error  in 
the    account,   and    before   suit   corrected   it   and   paid   over  the 
amount,  is  not  a  ground  upon  which  the  Court  will  make  such  a 
decree.^ 

(2.)  If  the  plaintiff,  or  a  person  under  whom  he  claims,  has  (2.)  A  release. 
released  the  subject  of  his  demands,  the  defendant  may  plead  the 
release  in  bar  of  the  bill,^  whether  executed  before  or  after  the 
filiug  of  the  bill ;  ^  and  this  will  apply  to  a  bill  praying  that  the 
release  may  be  set  aside :  *  in  which  case,  the  defendant  must  deny 
the  equitable  circumstances  charged  for  the  purpose  of  impeaching 
the  release,  by  averments  in  the  plea,  and  also  by  the  answer  in 
support  of  the  j^lea,  if  interrogated  as  to  them.^ 

A  release,  however,  to  be  an  effectual  bar  to  an  account,  must  -^y^ija^  ;<,  ^ 
be  under  seal :  otherwise,  it  ouglit  to  be  pleaded  as  a  stated  account  good  release. 
only.®  But  although  it  is  necessary  that  a  release,  when  insisted 
upon  as  such,  should  have  been  sealed  and  delivered,''  there  is  no 
authority  for  saying  that  it  must  have  been  signed.^  It  seems, 
tliat  where  a  person  taken  in  execution  on  a  judgment  has  been 
discharged  by  his  creditor's  express  order,  such  discharge,  being  a 
release  of  the  debt,  may  be  pleaded  in  bar  to  a  bill  to  have  satis- 
faction of  tlie  judgment.® 

In  a  plea  of  release,  the  defendant  must  set  out  the  consideration  romi  of  plea. 
upon  which  it  was  made ;  for  every  release  must  be  founded  on 
some  consideration :  otherwise  fraud  will  be  presumed.^"  A  plea 
of  a  release,  therefore,  cannot  extend  to  the  discovery  of  the  consid- 
eration ;  and  if  tluit  is  impeached  by  the  bill,  the  plea  must  be 
assisted  by  averments,  covering  the  ground  upon  which  the  con- 
sideration Ls  so  impeached ; "  therefore  where  there  was  a  bill  for 

1  Davis  r.   Spurlinp,  1  R.  &  M.  64,  67.  »  Beames   on   Pleas,    221;    Beatiiiflf  v. 

2  1,(1.  Ucil   2i;i;    Bower  v.   SwHcilin,  1        Gardiner,  2  Eq.  Ca.  Ab.  73,  PI.  20. 

Atk.  2'j4;  'I'aunton  v.  iVpler,  G  .Mud.  100;  i"  I.tl.   lied.  261;  l{oclie  v.  Morgell,  ubi 

Clarke  r.  JOari  ot<  )riiii)iiii«,  .Jac.  110;  lioche  sup.     A  plea  of  release  to  a  l)ill  for  an  ac- 

V.  Moff^eli,  2  Sell.  &  Lef  721.  count  in  insufficient,  unles.s  it  sets  out  by 

8  Sernrovc   v.  Muyhcw,  2  5I'N  &  G.  97,  way  of  averment  tiie  accounts  wliicli  form 

99;  14  .lur  l.'»8.  its  consideration.     Brooks  v.  Sutton.  L.  R. 

*  Ld.  Ued.  261.  6  Kq.  aoi. 

6  Ld.  Ked.  201,  n.;  Lloyd  r.  Smitli,  1  n  \,,\.  Hed.  261,  262.  Story  Eq.  PI.  §§ 
Anst. '25H;  Krceland  II.  .lolinson,  ib.  270;  7!iO,  7'.»7.  Where  the  consideration  lor  u 
Walter  <;.  (jlaiivillu,  rj  Hro.  P.  C.  ed.  Tond.  release  is  the  peneral  settlenu'iit  of  ac- 
6f).'j;  Koclie  r.  Morgell,  2  Sch.  &  Lef.  7U7;  counts,  and  such  settlement  is  impeached 
.Saiiderd  v.  Kin^,  0  Mad.  01,  64,  cited  2  S.  in  tlie  bill,  this  must  be  met  by  a  plea,  and 
&  .S.  277;  see  also  I'arker  v.  Alcock,  1  Y.  be  supported  by  an  answer  denying  tlie 
&  .J.  4:i2.  imputations  charged   in   the  bill.     I'urker 

8  Ld.  Kfd.  26.3.  v.  Alcock,  1  V.  iS:  .J.  432;   Kisli  r.  Miller,  6 

7  The  plea  should  state  that  the  release  I'aif^c,  20;  Allen  n.  Itandoljili,  4  . John  Cli. 
WHS  under  seal ;  but  this  does  not  seem  to  6'j3;  Bolton  v.  Gardner,  3  raigei  273; 
be  indispensable.  Phelps  v.  Sproulc,  1  M.  Storv  l';<i.  I'l.  §  797 ;  I'eck  v.  Burgess, 
&  K.  231,  2W.  Walk.  Cli.  4b6. 

*  Taunton  V.  Pepler,  6  Mad.  166. 


670 


PLEAS. 


("11.  \V.  §  -2. 


Parol  agree- 
ment to 
waive  all 

accounts. 


(3.)  An 
award : 


"UTiere  the 
matters  in  the 
bill  were 
referred  after 
bill  filed. 


Covenant  or 
agreement  to 
refer  to 
arbitration 
cannot  be 
pleaded. 


nil  .'iccount  :ui(l  a  disoovory  of  (Icaliiigs  botwcon  the  ])artIo9,  to 
w  hirli  a  ri'loaso  was  jileadod,  and  it  a])iii'ar(.'(l  that  the  release  was 
loumk'd  tui  an  aci'ouut  ol'  those  deaUngs  made  \i]),  Lord  Ilardwickc 
hehl  it  to  be  bad  :  because  it  extended  to  a  discovery  ot"  those 
dealings,  and  of  the  account  so  made  up.^ 

In  the  ease  of  JJrotcn  v.  Perkins^^  to  a  bill,  by  the  executors  of 
a  deceased  partner,  for  an  account  of  the  dealings  and  transactions 
of  a  ])artnership,  the  defendant  i)leaded  a  parol  agreement  between 
himself  and  the  testator,  to  the  eflect  that  all  accounts  between 
tlu'iii  should  be  waived.  Sir  James  Wigram  V.  C.  seemed  to  be 
of  oj)inion,  that  such  a  plea  might  be  a  good  defence  to  a  bill 
for  an  account ;  but  he  was  of  opinion,  upon  the  construction  of 
the  agreement  in  the  case  before  him,  that  it  must  be  understood 
as  imj^orting  that  the  defendant  took  upon  himself  the  liabilities 
of  the  partnership  ;  and  he  held  the  plea  bad :  because  it  was  not 
supported  by  negative  averments,  showing  that  the  plaintiff's 
testator's  estate  was  discharged  from  all  liability  in  respect  of  the 
partnership. 

(3.)  An  award  may  be  pleaded  in  bar  to  a  bill,  which  seeks  to 
disturb  the  matter  submitted  to  arbitration.^  It  may  likewise  be 
pleaded  to  a  bill  to  set  aside  the  award  and  open  the  account ;  and 
it  is  not  only  a  good  defence  to  the  merits  of  the  case,  but  likewise 
to  the  discovery  sought  by  the  bill.^ 

It  seems  doubtful  whether  an  award,  made  under  an  agreement, 
entered  into  after  the  bill  has  been  filed,  to  refer  the  matter  of  the 
suit  to  arbitration,  can  be  set  up  in  bar  to  the  bill  by  a  plea,  in  the 
nature  of  a  plea  puis  darrein  continuance  at  Law ;  the  object  in 
view  can,  however,  be  much  more  effectually  obtained  by  an  ap- 
plication to  stay  proceedings  in  the  cause. ^ 

Although  an  award  duly  made  will  be  a  good  plea  in  bar  to  a 
bill,  for  the  matters  concluded  by  it,  a  covenant  or  agreement  to 
refer  di?!])utes  to  arbitration,  as  it  cannot  be  made  the  subject  of  a 
bill  for  a  specific  performance,®  cannot  be  pleaded  in  bar  to  a  bill 


1  Salkeld  v.  Science,  2  Ves.  S.  107, 108; 
Roclie  r.  .Morgell,  ubi  sup. 

•^  1  Ilari!,  &e4,  569;  6  Jur.  727. 

3  Till^-nson  v.  Peat,  3  Atk.  529;  Far- 
ringtr)ii  V.  (,'liute,  1  Vern.  72.  A.s  to  the 
jurisdiction  of  the  Court  over  awards,  see 
Harding  v.  Wickham,  2  J.  &  H.  676: 
Smith  V.  Whitniore,  10  Jur.  N.  S.  65;  12 
W.H.  244,  V.G.  W.;  lOJur.  N.  S.  1190;  13 
W.  K.  2,  L.  JJ.;  2  De  G.,  J.  &  S.  297; 
Wakefield  V.  Llanelly  iJaiiway  &  Dock 
Co..  3DeG.,  J  &.S.  11;  11  .)ur.  N.  S.  456; 
Russt-ll  on  Arbitration,  I'art  III.  Chap.  XI. 
ante,  p.  605.  An  award  con-stitutt-s  no 
valid  defence  unless  it  cleiirly  appears 
that  the  suliject-matter  of  the  suit  was 
witnin  the  award.  Davison  v.  Johnson,  1 
C.  E.  Green  (N.  J.),  112. 


4  Ld.  Red.  260 ;  Tittenson  v.  Peat,  ubi 
sup. 

5  Kowe  V.  Wood,  IJ.  &  W.  315,  334, 
337;  2  Bligh,  505;  see  also  Dryden  v.  Rob- 
inson, 2  S  &  S.  529,  the  marginal  note  of 
which  case  is  incorrect. 

6  Pi  ice  V.  Williams,  cited  6  Ves.  818; 
Ager  V.  Macklew,  2  S.  &  S.  418;  Earl  of 
Mexborougli,  v.  Bower,  7  l$eav.  127;  Tat- 
ter-all/;.  Uroote,  2  15.  &  1'.  131;  Copper 
V.  Wells,  Saxton  (N.  J.),  10;  Darbcy  v. 
Whitaker,  4  Drew.  134;  March  v.  Ivistern 
Railroad,  40  N.  II.  571;  Smiths.  Boston, 
C.  &  iM.  R.R.,  36  N.  II.  487;  King  v. 
Howard,  27  Miss.  21.  No  mere  agreement 
to  refer  a  controversy  to  arbitration  can 
oust  the  proper  courts  of  justice  of  their 


DIFFERENT    GROUNDS    OF    PLEAS. 


671 


brought  in  consequence  of  such  diiFerences ;  ^  and  where  a  bill  is 
filed  in  respect  of  matters  agi-eed  to  be  referred  to  arbitration,  the 
proper  course  is  for  the  defendant,  after  appearance,  but  before 
plea  or  answer,  to  apply  to  the  Court  to  stay  the  proceedings  in 
the  suit.- 

If  the  bill  impeach  the  award  upon  grounds  of  fraud,  corrup- 
tion, or  mistake,  or  for  any  other  reason,  such  statements  must  be 
denied  by  averments  in  the  plea,  and  (if  interrogated  to)  by 
answer  in  sujjport  of  it.^ 

We  have  already  had  occasion  to  observe,  that  arbitrators  may 
be  made  parties  to  a  bill,  to  set  aside  an  award  which  is  impeached 
on  the  ground  of  gross  misconduct  on  their  parts.*  In  such  a  case, 
they  may  plead  the  award  in  bar  of  all  that  part  of  the  bill  which 
seeks  a  discovery  of  their  motives  in  making  the  award  ;  but,  they 
must,  if  charged  with  con-uption  or  partiality,  support  the  jAea  by 
avennents,  denying  such  charges,  and  showing  themselves  incor- 
rupt and  impartial,  and  (if  interrogated)  they  must  also  deny  them 
by  answer.* 

(4.)  It  has  been  stated  above,  that  an  agreement  or  covenant  to 
refer  matters  in  dispute  to  arbitrators  cannot  be  pleaded  in  bar  to 
a  bill,  unless  there  has  been  an  arbitration  and  aAvard  consequent 
upon  it.  The  reason  of  this  is,  that  such  an  agreement  is  execu- 
tory :  and  an  executory  agreement  is  a  cause  of  action  only,  and 
cannot  be  pleaded  in  bar  to  another  cause  of  action.®  Where  an 
agreement  is  final,  and  settles  the  whole  matter,  the  case  is  differ- 
ent ;  therefore,  Avhere  an  administratrix,  who  was  a  defendant  in  a 
bill  for  an  account  and  distribution,  pleaded  an  inventory  duly 


Cii.  XV.  §  2. 


Motion  to 
stay,  under 
Common 
Law  Proce- 
dure Act, 
1854. 

Negative 
averments 
and  answer. 


"When  arbi- 
trators made 
parties. 


(4.)  An 
affrecment : 


must  be  final. 


juii>diction  of  the  case.  Contee  v.  Daw- 
son, 2  Hiaiid,  264;  see  also  Allegre  v. 
Marvliin.l  Ins.  Co.,  6  Ilarr.  &  J.  408; 
Kandiill   f.  Chesapeake,   &c.,  Canal  Co., 

1  Harring.  234;  Grav  v.  Wilson,  4  Watts, 
39;  .Miles  r.  Stanley^  1  Miles,  418;  Stone 
t).  Dermis,  3  Porter,  231;  Story,  Partner- 
ship, §  21.1,  nnd  notes;  Story  Ii(|.  PI. 
§  8U4 ;  Tobey  V.  County  of  Bristol,  3  Story, 
bOO. 

1  Ld.  Red.  264;  Wellington  «.  Mwckin- 
tosh,  2  Atk.  5G'J,  670;  Michell  v.  Harris, 
4  Hro  C.  C.  311,315;  2  Ves.  .1.  129,  130; 
Satti-rley  v.  Holjinson,  cited  4  liro.  C.  C. 
310,  11  ;  Street  r.  Rij,'by,  0  Ves.  815,  817, 
overrulinj;  llairiiidi;  v.  Fennin^f,  2  Bro. 
C-  C.  330 ;  anil  see  Kanper  v.  Great  West- 
ern Hailway  C"in[)aiiv,  0  H.  L.  Ca.  72;  18 
Jur.  7U5;  f>((ift  I'.  Av«"ry,  0  II.  L.  di  843; 
2.1ur.  X.  .S.  81.');  .Scott  v.  Corporation  of 
Liverpor.I,  1  (Jiff.  215;  4   .lur.   .\.  S.   402; 

2  !)«(;.  &  .1.  324;  5  .lur.  N.  S.  105;  l.'oper 
V.  Let  don,  1  E.  &  E.  821;  5  .lur.  N.  S. 
491;  Horton  v.  Saver,  4  H.  &  N.  643; 
6  Jur.  N.  S.  989;  Cooke  v.  Cooke,  L.  K. 
4  Eq.  87 ;  Henrick  v.  Blair,  1  John.  Ch.  101 ; 


Shepard  v.  Merrill,  2  John.  Ch.  27C;  Un- 
derhill  v.  Van  Cortlandt,  2  John.  Ch.  339; 
Bouck  V.  Wilber,  4  John.  Ch.  405 ;  Tappin  v. 
Heath,  1  Paige,  293;  Campbell  y.  Western 
3  id.  124;  Kitzpatrick  v.  Smith,  1  Desaus. 
245;  Atwyn  v.  Perkins,  3  Desaus.  297; 
SluTnian  r.  Beale,  iWash.  11;  Pleasants  v. 
Koss,  1  Wash.  150;  Morris  ?!.  Koss,  2  Hen. 
&  M.  171,  408;  Mitchell  v.  Harris,  2  Sum- 
ner's Ves.  129,  notes  (e)  and  (rf),  and 
cases  cited;  Tobey  v.  County  of  Bristol,-  3 
Story,  800,  819  et  serj. 

'^  (ji'nunoii  Law  Procedure  Act,  1854 
(17  &  18  Vic.  125),  §  11,7^08/,  Chap.  XLV. 
tStiilulortj  Jurisdiction.  For  form  of  notice 
of  motion,  see  Vol   HI. 

3  Ld.  Ile.i.  261;  Coop.  Eq.  PI.  280; 
Beames  on  Pleas,  231 ;  Story  Eq.  PI.  §  803 ; 
and  see  anle,  p.  614. 

■•  Ante,  p.  297-;  Padlev  i'.  Lincoln  Wa- 
terworks Company,  2  ^^.N.  v^'  (J.  68, 
71;  14  Jur.  299;  Ponsford  v.  Swainc,  1  J. 
&  H.  433. 

li  Ante,  p.  297. 

c  Kowe  V.  Wood.  1  J.  &  W.  316,  344. 
Wood  V.  Kowe,  2  Bligh,  696. 


672 


PLEAS. 


Ch.  XV.  § 


Averments. 


Agrreement, 

containing 

executorj' 

clauses, 

cannot  be 

pleaded. 


(5.)  Title: 


Adverse  pos- 
session : 


Adverse  pos- 
session will 
bar. 


General  alle- 
gation of  dis- 
abilities will 
not  invalidate 
plea. 


t:ikiMi  Mild  :i]>|)ri)ve(l,  and  an  agrcomcnt  (oundcd  tlieroon,  tlie  plea 
Nvas  allowi'd.'  It  is  to  bo  observed,  (hat  an  agreement  to  put 
an  end  to  a  suit  must  not  be  final  only  as  between  the  j)arties 
to  the  bill  to  "svhic-h  it  is  ])leaded,  but  it  must  be  final  as  to  all 
tlie  ]i:irties  to  the  suit  eom})romised  by  it.  If,  therefore,  an  agree- 
ment be  made  subsequent  to  the  filing  of  a  bill,  between  the 
parties  to  the  suit  and  other  parties,  for  the  purpose  of  putting  an 
end  to  the  proeeedings  in  the  suit,  and  for  other  piu'poses,  it  can- 
not be  pleaded  in  bar  to  the  bill  by  one  of  the  i)arties  only ;  at  all 
events,  if  it  is  so  pleaded,  it  must  contain  averments  that  all  the 
conditions  of  the  agreement  have  been  performed,  or  from  circum- 
stances could  not  be  performed,  and  that  the  other  parties  not 
joining  in  the  plea  are  ready  to  perform  the  agreement ;  indeed, 
all  the  circumstances  by  which  such  an  agreement  is  affected, 
should  be  noticed  in  the  averments.  And  where  an  agreement  of 
this  sort,  which  has  been  entered  into  for  the  purpose  of  putting 
an  end  to  a  suit,  contains  a  great  many  stipulations  and  clauses 
which  are  executory,  it  can  scarcely  be  considered  a  fit  subject  for 
a  plea.- 

(5.)  If  the  defendant's  title  be  paramount  to  the  plaintiff's,  he 
may  plead  it  in  bar.  ^  A  plea  of  this  nature  is  called  a  plea  of  title  ; 
and  a  title  so  pleaded  will,  generally  speaking,  be  founded  either 
on  a  long  ])eaceable  possession  by  the  defendant,  and  those  under 
whom  he  claims  ;  on  a  will ;  or  on  a  conveyance.^ 

As,  at  Law,  length  of  time  raises  a  presumption  against  claims 
otherwise  most  clearly  made  out,  so,  in  Equity,  a  long  and  peace- 
able possession  may  be  pleaded  in  bar  to  the  relief;  tlms,  an  un- 
disturbed possession  of  sixty  years  or  more,  was  long  ago  hehl  to 
be  a  good  subject  of  plea.**  It  appears  to  be  settled,  that  where 
there  has  been  adverse  possession,  not  accounted  for  by  some  disa^ 
bility,  such  as  coverture,  or  infancj^,  a  Court  of  Equity  will  not 
interfere ;  and  when  a  title  is  so  stated  in  a  bill,  that  there  ap2)ears 
to  have  been  a  possession  adverse  to  it  of  above  twenty  years, 
without  any  allegation  of  disability,  the  defendant  may  demur ; 
but,  where  the  title  is  not  so  stated,  the  defendant  must  plead  the 
facts  necessary  to  shoAV  the  existence  of  the  adverse  jiossession." 
A  mere  general  allegation  in  the  bill,  that  there  have  been  disabil- 
ities arising  from  infancy  or  coverture,  will  not,  however,  be  suffi- 
cient to  invalidate  such  a  plea.'' 

In  a  plea  of  adverse  possession,  if  the  possession  is  derivative, 


1  Cocking  r.  Pratt,  1  Ves.  S.  400;  see 
Belt's  Sup.  to  Ves.  187. 

2  Wood  V.  Kowe,  Rowe    v-  Wo(>il  ttbi 


sup. 

3  Wvatf  8   P. 
§  611.  " 


R.  328;    Story 


PI 


4  Beanies  on  Pleas,  247 ;  Storj'  Eq.  PI. 
§  811. 

6  Wyatt's  P.  R.  328. 

6  Lord   Cliolmondeley  v.  Lord  Clinton, 
T.  &  K.  107.  118. 

7  lilewit  V.  Thomas,  2  Ves.  J.  669,  671; 
Story  Eq.  PI.  §§  814,  815. 


DEFFEEENT   GROUNDS    OF   PLEAS.  673 

and  has  not,  during  the  whole  tune  covered  by  the  plea,  been  in  Ch.  XV.  §  2. 

the  defendant  himself,  the  plea  must  show  in  whom  the  possession    ' y ■' 

was,  at  the  time  when  the  plea  sets  it  np,  and  how  the  defendant  Form  of  plea, 
deduces  his  possession  from  such  person ;  and  if  the  adverse  pos- 
session is  to  be  inferred  from  circumstances  which  do  not  appear 
upon  the  bill,  the  defendant  must  state  clearly,  upon  the  face  of 
his  plea,  the  cii'cumstances  on  which  he  means  to  rely  as  constitut- 
ing the  adverse  possession.^ 

A  ^'ill  may  also  be  pleaded  in  bar  to  a  bill  brought,  on  a  ground  A  will. 
of  equity,  by  an  heir-at-law  against  a  devisee,  to  turn  the  devisee 
out  of  possession.-  Thus,  where  a  bill  was  brought  to  set  aside  a 
will  on  accoimt  of  fi'aud,  on  a  suggestion  that  the  testator  was 
rendered  incapable  of  making  it,  by  being  jjei-petually  in  liquor, 
and  particularly  when  he  executed  the  will,  and  likewise  for  a  re- 
ceiver to  be  appointed,  and  the  defendant  pleaded  the  will,  and 
that  it  was  duly  executed :  ^  Lord  Ilardwicke  allowed  the  plea,  so 
far  as  it  applied  to  that  part  of  the  bill  which  sought  to  set  the 
will  aside :  because  "  you  cannot,  in  this  Court,  set  aside  a  will  for 
fraud ; "  but  he  would  not  allow  it  as  to  the  x'eceiver :  for  he  would 
not  tie  up  the  hands  of  the  Court,  in  case  it  should  be  necessary, 
in  the  progress  of  the  suit  at  Law,  to  have  a  receiver  appointed.* 
A  will,  however,  cannot  be  pleaded  to  a  bill  by  an  lieir-at-laAV, 
pi'aying  fur  production  of  documents,  and  an  injunction  to  restrain 
the  defendants  fi'om  setting  up  legal  imi^ediments,  in  an  action  of 
ejectment  commenced  by  him  against  them.^ 

In  like  manner,  upon  a  bill  filed  by  an  heir  against  the  person  a  convey- 
claiming  under  a  conveyance  from  the  ancestor,  the  defendant  may  ^°<=*^- 
plead  the  conveyance,  in  bar  of  the  suit ;  "^  and  so,  Avhei'e  a  bill 
was  filed  by  persons  claiming  under  a  will,  to  set  aside  a  convey- 
ance made  by  the  testator,  on  the  ground  of  fraud,  and  the  defend- 
ant pleaded  a  conveyance  by  the  testator,  before  the  date  of 
his  will,  of  the  estate  Avhich  the  plaintifls  claimed,  the  plea  was 
allowed.^ 

In  all  pleas  of  title,  whether  derived  imder  a  will  or  a  deed,  if  Avci-mcntsto 
the  defendant  is  not  the  person  taking  immediately  under  the  Avill   P'*'^  °'  '''^'*^- 
or  decfl,  l)Ut  derives  his  title  through  others,  the  title  of  the  defend- 
ant must   be   deduced  from    the  j)erson   immediately  taking,   by 
proper  avennents  in  the  plea.     And  in  all  cases  it  is  necessary,  Must  .show 
wliether  the  title  be  derived  from  adverse  posses.sion,  or  fi-om  a  will  ''"^  •'^J"" 

'  .  ineiicea 

or  conveyance,  to  show  that  it  had  a  commencement  anterior  to   i)ofore 


|il;iiiiti(r'.s. 


J  Hanlmnn  v.  KHamcs,  2  M.   &  K.  732  '^  Anon.,  3  Atk.  17. 

739,744;  (J.  I'.  Coop.  t.  lirouph.  351,354;  ''  liiimbold  v.   Fortcatli,    2   Jur.  N.    S. 

«ee  Jcrnrd  v.  Snn<ler»,  2  Vcs.  J.  187.  C8G,  V.  C.  W. 

2  I-<1.  Hr<1.  2tl3.  0  Ld.  IJtd.  263. 

8  Story  I>i.  IM.  §    812.  For  form  of  such  ^  Howe  r.  Diippa,  1    V.  &  15.    511,  513; 

a  plea  sec  Vol.  III.  Willis,  659.  Story  E(|.  I'l.  §  812. 
VOL.  I.                                                       48 


1)74 


PLEAS. 


Cii.  XV.  §  -2. 


(6.)  Purchase 
for  valuable 
considera- 
tion, without 
notice: 


by  purchaser 
■with  notice 
from  a  pur- 
chaser with- 
out. 


that  of  the  plniiitill's  title,  :is  shown  hy  the  hill:  a  title  posterior 
to  that  of  the  ])lainliir  will  not  nxaW  as  a  plea,  unless  it  be  some 
way  oounoctod  witli  the  plaintiff's  title.  Thus,  Avhere  a  bill  was 
lileil  by  one  elaiining,  eitlier  as  heir  ex  parte  materna  of  the  per- 
son last  seised,  or  as  a  remainder-man  under  the  limitations  of  a 
prior  settlement,  eharging  that  the  person  last  seised  had  only  a 
life-interest  in  the  property,  and  that  it  would  so  appear  if  the 
contents  of  a  certain  deed,  executed  in  1730,  and  within  the  ])Ower 
of  the  defendant,  Avere  set  forth  ;  and  the  defendant  pleaded  that, 
in  the  year  17GG,  the  person  last  seised,  being  tenant  in  tail  in  ])os- 
session,  had  dixly  suftered  a  recovery  of  the  estates  in  question,  to 
the  use  of  himself  in  fee,  and  had  subsequently  devised  them  to 
the  defendant,  the  plea  was  overruled :  because  the  defen(hnit, 
relying  upon  a  subsequent  title  which  he  had  not  connected  in  any 
way  with  the  ground  of  the  title  upon  which  the  plaintiff  stood, 
had  not  denied  that  title,  or  any  substantial  part  of  it,  or  the  pos- 
session or  existence  of  the  deed  of  1730.^ 

(6.)  From  what  has  been  above  stated  it  is  obvious,  that  where  a 
conveyance  is  insisted  upon  by  plea,  as  an  adverse  title,  it  must 
bear  a  date  anterior  to  the  commencement  of  the  plaintiff's  title, 
as  shown  by  the  bill :  though  there  are  cases  in  which  a  convey- 
ance may  be  insisted  upon,  posterior,  in  point  of  date,  to  the 
plaintiff's  title.^  In  such  cases,  however,  it  is  necessary  to  the 
validity  of  the  plea,  that  the  conveyance  should  have  been  for  a 
valuable  consideration ;  and  that,  at  the  time  it  was  perfected,  the 
defendant,  or  the  person  to  w^hom  it  was  made,  should  not  have 
had  notice  of  the  plaintiff's  right.'^  A  plea  of  this  sort  is  called 
"  a  plea  of  purchase  for  a  valuable  consideration,  without  notice  ; " 
and  it  is  founded  on  this  principle  of  equity,  namely,  that  where 
the  defendant  has  an  equal  claim  to  the  protection  of  a  Court  of 
Equity  to  defend  his  possession,  as  the  plaintiff  has  to  the  assist- 
ance of  the  Court  to  assert  his  right,  the  Court  will  not  interpose 
on  either  side.^ 

A  purchaser  with  notice  from  a  purchaser  without  notice,  may 
shelter  himself  under  the  first  purchaser ;  ^  but  notice  to  an  agent 


1  Hungate  v.  Gascoigne,  1  R.  &  M. 
698;  see  also  Jackson  v.  Kowe,  4  ituss. 
514,  523. 

-  For  an  elaborate  review  of  the  cases 
in  which  this  defence  can  be  raised,  see 
the  judgment  of  Lord  Westburj'  L.  C  in 
Phillips  V.  Phillips,  8  Jur.  N.  S.  145;  10 
W.  K.  2.36. 

8  If  tlie  defendant  has  not  used  reason- 
able diligence  in  the  investigiition  of  the 
title,  the  plea  is  no  defence.  Jackson  v. 
Kowe,  2  .^5.  &  S.  472,  475. 

*  Ld.  Ked.  274.  Upon  this  principle  it 
has  been  lieM,  that  a  purchase  for  vahiabie 
consideration,  though  a  good  defence,  is 


not  good  as  a  ground  for  filing  a  cross-bill ; 
Patterson  v.  Slaughter,  Amb.  293;  High 
V.  IJalte,  10  Yerger,  335;  Doniiell  v.  King, 
7  Leigh,  393;  Story  Kq.  PI.  §  805;  Jcwcct 
V.  Palmer,  7  John.  Ch.  05;  (Jallatinii  v. 
Cunningham,  8  Cowen,  301;  Souzer  v.  De 
Meyer,  2  Paige,  574;  see  the  remarks  of 
Lord  Chancellor  Liflbrd  upon  this  i)lea,  in 
Lord  Drogheda  v.  Malune,  Piiilav's  Dig. 
449,  cited  in  Mitlord  Eq.  PI.  {5th  Am.  ed.) 
277,  note  (1).  This  defence  must  be  ntised 
on  the  pleadings.  Phillips  v.  Phillips,  3 
Gitf.  200;  7  Jur.  N.  S.  1094;  8  id.  145;  10 
W.  It.  230,  L.  C. 
t  Ld.  Ked.  278 ;  Brandlyn  v.  Ord,  1  Atk. 


DITFEREXT    GROUNDS    OF    PLEAS. 


675 


Effect  of 
marriage 
settlement. 


is  notice  to  the  principal ;  ^   and  where  a  person  having  notice,  Cn.  XV.  §  2. 

I>urchased  in  the  name  of  another  who  had  no  notice,  and  knew 

nothing  of  the  purchase,  but  afterwards  approved  it,  and  ^\'ithout 

notice  paid  the  purchase-money  and  procured  a  conveyance,  the 

person  first  contracting  was  considered,  from  the  beginnmg,  as  the 

agent  of  the  actual  purchaser,  who  was  therefore  held  alFected 

with  notice.^ 

A  settlement,  in  consideration  of  marriage,  is  equivalent  to  a 
purchase  for  a  valuable  consideration,  and  may  be  pleaded  in  the 
same  manner.''  If  a  settlement  is  made  after  marriage,  in  pur- 
suance of  an  agreement  before  marriage,  the  agreement  as  well  as 
the  settlement  must  be  shown.*  A  widow,  defendant  to  a  suit 
brought  by  any  person  claiming  under  her  husband,  to  discover 
her  title  to  lands  of  Avhich  she  is  in  possession  as  her  jointure, 
may  plead  her  settlement  in  bar  to  any  discovery,  unless  the 
plaintiff  offers,  and  is  able  to  confirm  her  jointure ;  but  a  plea  of 
this  nature  must  set  forth  the  settlement,  and  the  lands  comprised 
in  it,  with  sufficient  certainty.^ 

Some  doubt  was  entertained,  whether  a  plea  of  purchase  for  Maybe   . 
valuable  consideration  will  avail  against  a  legal  title.     The  point  |',!';!jf  jf^i**'  * 
has  been  fully  discussed  by  Lord  St.  Leonards,  in  his  "Treatise 
of  the  Law  of  Vendors  and  Purchasers,"  ^  and  it  seems  now  to 
be  settled  that  there  are  cases  in  which  this  defence  may  be  so 
pleaded.'^ 


571;  Lowther  v.  Carlton,  2  Atk.  139,  242; 
Crt.  t.  Talbot,  187;  Sweet  v.  Soiithcote,  2 
Bro.  C.  C.  Oti;  M'Queen  v.  Farquhar,  11 
Vl-s.  47b;  Iliern  r.  Mill,  1.3  Ves.  120;  and 
see  Harri-on  v.  Forth,  Prec.  in  Chan.  51; 
btory  Ivj.  i'l.  §  fcO^;  Varick  v.  liriggs,  6 
Piiige,  3-M;  Bennett  v.  Walker,  We.-t,  130; 
Jack>:on  v.  McChesney,  7  Cowen,  300; 
liunipus  V.  Piatiier,  iJolin.  Ch.213;  Dem- 
arest  ».  W3'nkoop,  3  .lohn.  Ch.  147;  .lack- 
son  V.  Henry,  10  Jolin.  Ibo;  .lackson  v. 
Given,  8  .John.  573;  Alexander  v.  Pendle- 
ton, b  Craiicli,  402;  1  Storj-  Kq.  .lur.  §§  409, 
410,  and  notes;  liagthorp  v.  ilook,  1  Gill 
&  .J.  203;  Curtis  c.  Luiin,  0  Miinf.  42; 
Griftith  v.  Gndith,  1  Il-.ff.  Ch.  103; 
Lacy  V.  Wilson,  4  Muiif.  313;  Liiid.sa}'  v. 
Kankin,  4  P>ibl),  4^2;  McN'itt  v.  Logiin, 
Litt.  .Sel.  Ca.  (i'J.  lint  if  he  would  avail 
liim.'icir  of  the  waut  of  notice  in  hiit  vendor, 
he  must  expressly  aver  that  ignontnce  in 
pleading,  (iailatian  »'.  Erwin,  1  IIopk.5t<; 
S.  ('.  on  appe;d,  8  (Jowen,  301;  (irillith  v. 
(Jritlith,  1  lliitf.  Ch.  163;  (;unnninp.s  ?•. 
Coleinnn,  7  Kich.  iCq.  .S.  ('.  5(i9.  A  pur- 
chaser without  noti(;e  from  one  who  has 
fraduleiitly  purchased,  is  not  aflVctsd  by  the 
fraud,  iiuuipuit  u.  I'latntr,  1  .lohn.  Ch. 
213;  Jackson  i".  Heiirv,  10  .lohn.  1^5. 

•  Ld.  i:ed.  278;  IJrotherton  r.  llatt,  2 
Vern.  574;  I.e  Neve  r.  I,.;  Nc-ve,  3  .\lk. 
640,055;  Maddox  r.  .Miiddox,  1  Ves.  S.  02; 
Ashley  v.  IJaiilie,  2  Ve.s.  S.  370;  lliern  v. 


Jlill,  vM  sup. ;  Mountford  v.  Scott,  3  Mad. 
34,  39;  Keniiedv  v.  Green,  3  M.  &  K.  699; 
Atterbury  v.  Wallis.  8  De  G.,  M.  &  G.  454; 
2  .Jur.  N.  S.  343;  Kspin  v.  Pemberton,  3 
De  G.  &  J.  547  ;  5  .Jur.  N.  S.  157 ;  4  Drew. 
333 ;  5  Jur.  N.  S-  55 ;  Llovd  v.  Attwood,  3  Ue 
G.  &J.614;5Jur.  N.S"'l322;StorvE(i.  PI. 
§  808;  Grilfith  v.  Griffith,  1  Hoff.  Cii.  153. 

2  Ld.  Ked.  278;  Jennings  i^.  Moore,  2 
Vern.  009;  Blenkarne  c.  .lennens,  2  Bro.  P. 
C.  ed.  Tond.  278;  see  Molony  v.  Kernan, 
2  Dr.  &  War.  31. 

8  Ld.  Hed.  278;  Harding  v.  Hardrctt, 
Rep.  t.  Finch,  9;  Jackson  v.  lio\vc,ubisup. 

■1  Ld.  Ked.  279;  Lord  Keeper  v.  Wyld, 
1  Vern.  139. 

6  Ld.  Ked.  279;  Petre  v.  Pctre,  3  Atk. 
611;  PynciMit  v.  Pvncent,  ilj.  571;  .Sen- 
house  V.  Karl,  2  Ve8.  S.  450;  Leech  u. 
Trolloj),  ib.  602. 

0  (lltli  Kng.  ed.)  pp.  1067-1072;  (7th 
Am.  ed.)  vol.  2,  572-578. 

"  See  .(u<lgment  of  Lord  Westbuiy,  L. 
C.,  in  Phillips  V.  Phillips  KJur.  N.  S.  145; 
10  \V.  K.  230;  Lord  St.  Leonards,  V.  & 
P.  791,  790,  where  this  case  is  reviewe<l; 
Bowen  v.  Evans,  1  Jo.  &  Lat.  178,  203; 
■Joyce  V.  De  Moleyns,  2  Jo.  &  Lat.  374; 
Penny  I'.  Watts,  1  M'N.  &  G.  160;  2  De 
(L  &"S.  501 ;  Attorney-(  Jeneral  i'.  Wilkiu'^, 
17  Be'iv.  2H5;  17  .Fur.  885;  Lnrio  r.  Jack- 
son, 20  Beav.  635;  Cnlyur  i:  Finch,  6  H. 
L.  C.  920;    3  Jur.   N.  "S.  25;    S.   C.  nom 


R76 


PLEAS. 


I'll.  XV.  §  •_».        The  rulo.<!  for  the  guidance  of  a  j^leader  in  fraining  pleas  of  tliis 

*— — Y -'    (losi'ri))tion  lirive  been  so  clearly  and  succim-lly  laid  down  by  the 

Form  of  ]>Ka.  leanii'd  nutlior  of  the  Treatise  last  referred  to,  that  it  a])})ears  to 
be  the  best  course,  on  the  present  occasion,  to  call  the  reader's 
attention  to  the  following  extracts  from  that  valuable  work,^ 
namely:  -  — 

"The  plea  must  state  the  deeds  of  jnirchase:  sotting  forth  the 
dates,  parties,  and  contents,  briefly,  and  the  time  of  their  execu- 
tion :  ^  for  that  is  the  peremptory  matter  in  bar.* 

"  It  must  aver  that  the  vendor  was  seised,  or  prejtended  to  be 
seised,  at  the  time  he  executed  the  conveyance.''  In  Carter  v. 
Pritchard  ^  it  was  held,  that  the  plea  of  a  jDurchase  without  notice 
must  aver  the  defendant's  belief,  that  the  person  from  whom  he 
purchased  was  seised  in  fee.  If  it  be  charged  in  the  bill  that  the 
vendor  was  only  tenant  for  life  or  tenant  in  tail,  and  a  discovery 
of  the  title  be  prayed,  such  a  discovery  cannot  be  covered,  unless 
a  seisin  is  sworn  in  the  manner  already  mentioned,  or  that  such 
fines  and  recoveries  were  levied  and  suffered  as  would  bar  an 
entail  if  the  vendor  was  tenant  in  tail :  for  if  a  purchase  by  lease 
and  release  should  be  set  forth,  which  would  pass  no  more  from 


Deeds  of  jnir- 
chase to  be 
stated. 


Averment  of 
seisin. 


Finch  V.  Shaw,  19  Beav.  500,  507;  18  Jur. 
935;  Greenshide  v.  Dare,  17  Beav.  502;  20 
Beav.  284;  1  Jur.  N.  S.  294;  Stackhouse 
V.  Countess  Jersev,  1  J.  &  H.  721;  7  Jur. 
N.  S.  359;  Wood't;.  Mann,  2  Sumner,  507. 
"  The  point  of  doubt,"  says  Mr.  Justice 
Stor\',  "has  been,  whether  the  defence 
ought  to  apply  to  a  case,  where  the  plain- 
tiff founds  liis  bill  upon  a  legal  title,  seek- 
ing to  support  it  liy  a  di'-covery,  and  the 
defendant  relies  soleh'  on  an  equitable  title 
to  protect  himself  from  the  discovery. 
Upon  this  point  the  authorities  are  at  vari- 
ance; but  upon  princijjle,  it  would  seem 
difficult  to  resist  Ihe  reasoning  by  which 
the  doctrine,  that  the  purchaser  is,  in  such 
a  case,  entitled  to  protection,  is  supported." 
Story  Eq.  PI.  §  G04  a;  see  3  Sugden  V.  & 
P.  (7th  Am.  ed.)  1067  tt  seq.  Snelgrove 
V.  Snelgrove,  4  Desaus.  288,  where  this 
point  is  fully  examined,  and  the  Chancel- 
lor (Desaussure)  remarks:  ''It  should  be 
remembered,  that  the  plea  protects,  by  the 
Court  refusing  to  aid  the  plaintiff  in  setting 
up  a  title.  N'lw,  when  the  title  attempted 
to  be  set  up  is  an  equitable  one,  it  .seems 
very  reasonable  that  the  Court  should  for- 
bear to  give  its  assistance  in  setting  up  such 
equitable  title  against  another  title  set  up 
by  a  fair  purchaser.  But  when  the  plain- 
tiff comes  with  a  legal  title,  I  do  not  see 
how  he  can  be  refused  the  aid  of  the  Court." 
See  aWo  Larrowe  v.  I'eame,  10  Ohio,  498. 
1  This  Ktibject  is  fully  discussed  in  Snel- 
prove  V.  Snelgrove,  4  Desaus.  28S ;  2  Sug- 
den Vend.  &  Purch.  (7th  Am.  ed.)  1007 
tt  seq. ;  Cardwell  v.  Cheatman,  2  Head 
(Tenn.),  14.      The  same  explicitness  has 


been  held  not  to  be  necessary  in  setting  up 
the  defence  of  hand  Jide  purchase  for  a 
valuable  consideration,  without  notice, 
when  made  in  an  answer  as  in  a  plea. 
Servis  v.  Beatty,  32  Miss.  (3  George)  52. 

=2  V.  &  P.  788-790  (7th  Am.  ed.j,  1067 
et  seq. 

3  Quoere  this,  as  the  plaintiff  might 
thereby  be  enabled  to  proceed  against  the 
defendant  at  Law ;  see  Anon.,  2  Clia.  Ca. 
101;  in  Day  ?;.  Arundle,  Hardres,  510,  it 
was  expressly  held,  that  the  time  of  the 
purchase  need  not  be  stated  in  tlie  plea. 

'1  See  Gilb.  For.  Bom.  58;  Aston  v.  As- 
ton, 3  Atk.  302;  Salkehl  v.  Science,  2  Ves. 
S.  107 ;  Harrison  v.  Southcott,  ib.  389,  396 ; 
and  see  Walwyn  v.  Lee,  9  Ves.  24,  and  the 
plea  in  that  case.  Beanies  on  Pleas,  341. 
It  seems,  that  the  practice  formerly  was  to 
extend  the  plea  to  the  discover3'  even  of 
the  purchase  deeds;  and  in  Watkins  v. 
Hatchet,  1  Kq.  Ca.  Ab.'3G,  pi.  3,  although 
the  purchaser  improvidently  offered  to  pro- 
duce his  i)urcha>*e  deeds,  yet  the  Court 
would  not  bind  him  to  do  so. 

5  Storv  V.  Lord  Windsor,  2  Atk.  630; 
Head  v.  Egerton,  3  P.  VVms.  279,  281;  and 
see  Attorney-General  v.  Backhouse,  17 
Ves.  290;  Jackson  v.  Rowe,  4  Russ.  514, 
523 ;  Beames  on  Pleas,  342 ;  Craig  v.  Lei  per, 
2  Yerger,  193;  Lanesborough  v.  Kilmaine, 
2  Moll.  403;  Snelgrove  v.  Snelgrove,  4 
Desaus.  287. 

c  Michaelmas  Term,  12  Geo.  II.  1739,  2 
Vivian's  MS.  Rep.  90,  in  J^incoln'.s  Inn 
Library;  see  Jackson  v.  Rowe, 4  Russ.  514, 
519. 


DIFFERENT    GROUNDS    OF    PLEAS. 


677 


the  tenant  in  tail  than  it  laMlFully  may  pass,  and  that  is  only  an  Ch.  XV.  §  2. 

estate  for  the  life  of  the  tenant  in  tail,^  then  there  is  no  bar  against  '^- — i — -^ 
the  issue.2     Where,  however,  a  fine  was  pleaded,  the  plea  must 
have  averred  an  actual  seisin  of  a  freehold  in  the  vendor,  and  not 
that  he  was  seised  or  pretended  to  be  seised.^ 

"  If  the  convevance  pleaded  be  of  an  estate  in  possession,  the  and  of  pos- 

^  -,  .  •  .1.      i-  i?  session; 

•plea  must  aver  that  the  .vendor  was  m  possession  at  the  time  ot 
the  execution  of  the  conveyance.*    And,  if  it  be  of  a  particular 
estate  and  not  in   possession,  it   must  set  out  how  the   vendor 
became  entitled  to  the  reversion.^    But,  although  a  bill  be  brought  or  of  rever- 
by  an  heir,  ttie  plea  need  not,  on  that  account,  aver  the  purchase  ^'^^' 
to  be  from  the  plaintiff's  ancestor.® 

"  The  plea  must  also  distinctly  aver,  that  the  consideration  and  payment 
money  mentioned  in  the  deed  was  bond  fide  and  truly  paid,''  °  P"'^*^' 
independently  of  the  recital  of  the  purchase  deed:^  for  if  the 
money  be  not  paid,  the  plea  will  be  overruled,^  as  the  purchaser 
is  entitled  to  relief  against  papnent  of  it.  The  particular  con- 
sideration must,  it  should  seem,  be  stated,^'^  although  this  point  has 
been  decided  otherwise."  There  can,  however,  be  no  objection  to 
state  the  consideration :  as,  if  it  be  valuable,  the  plea  will  not  be 
invalidated  by  mere  inadequacy .^^  The  question  is,  not  whether 
the  consideration  is  adequate,  but  whether  it  is  valuable  :  for  if  it 
be  such  a  consideration  as  will  not  be  deemed  fi-audulent  Avithin 
the  statute  27th  Elizabeth,  or  is  not  merely  nominal,^'^  or  the  pur- 
chase is  such  a  one  as  would  hinder  n.  puisne  purchaser  from  over- 
turning it,  it  ought  not  to  be  impeached  in  Equity. 

"  Tlie  plea  must  also  deny  notice  of  the  plaintiff's  title  or  claim,!-* 
previously  to  the  execution  of  the  deed  and  payment  of  the  pur- 


and  denial  of 
notice. 


1  This  is  the  doctrine  of  Littleton,  with 
which,  it  seems,  Gilbert  ii;,'ree(i;  but  since 
Littleton's  time  it  has  been  held,  that  the 
releasee  has  a  base  fee,  det'-ritiinablo  by  the 
entrv  or  action  of  the  issue;  see  Butler's  n. 
1,  to'Co.  Litt.  331  a,  and  the  authorities 
there  referred  to.  But  now  estates  tail 
niav  be  barred  bv  deed.  3  &  4  Will.  IV. 
c.  74. 

2  Gilb.  For.  Kom.  07. 

«  Story  V.  Lord  Windsor,  2  Afk.  630; 
and  see  raiier.  I^ever,  2  \\;<  J.  4.'jO;  Uob- 
8on  V.  I.eadbeater,  13  Ves.  230,  2;J3. 

<  Trevimian  i'.  Mo-'se,  1  Vern.  246; 
Strolo  V.  Blickburne.  3  Ves.  222,  220; 
WalUvyn  v.  Lee,  9  Ves.  32;  Beames  on 
Pleas.  342;  see  also  .lacksoii  r.  Kowe,  4 
liuss.  r)14,  r>19;  Ladv  Laiicsboniiifrh  r. 
Lord  Kilmain",  2  Moll.  403;  <)t;ilvie  v. 
Jeaffre-oii,  2  (JitT.   3-03;  6  .Inr.    N.  S.  970. 

6  llu(;lu-s  r.  (iarth,  Amb.  421. 

0  .Sevmcr  r.  No-iwortliv,  Kreem.  128;  3 
Chtt.  Hep.  40;  N.ls.  Kep.'lS.".. 

T  Moi.re  f.  Mayhow.  1  Cha  On.  84; 
Brcretnn  v.  (Jamuf,  2  ,\lk  211 :  Molony  v. 
Kernan,   2   Dr.  &   War.   31;    BBames  on 


Pleas.  344 ;  Storv  Eq.  PI.  §  805 ;  Jewett  v. 
Palmer,  7  .John.'Ch.  65;  Hit;h  v-  Hatte,  10 
Yerfjer,  335;  Donnell  v.  Kin<r,  7  Leigh, 
303;  Molony  v.  Kernan,  3  Dr.  &  War.  31; 
Snelffi'oye  i'.  Snelgrove,  4  Dcsaus.  286. 

8  Maitlandi'.  Wilson,  3  Atk  814;  2Sug- 
den  V.  &  P.  {7th  Am.  ed.)  1069. 

9  lIiirdiiiKham  v.  NichoUs,  3  Atk.  304; 
as  to  necesbit}'  of  proof,  see  Molony  v.  Ker- 
nan, 7/it  sup. 

1"  Millard's  case,  Freem.  43;  Snag's 
case,  cited  ibid. ;  and  see  Wagstalf  r.  Hand, 
2  Cha.  Ca.  156;  Hi-;h  v.  Balle,  10  Yerger, 
335;  Donnell  f.  King,  7  Lei{,'h,  393. 

11  Moore  r.  Mayhow,  vbl  sup.;  Day  v. 
Arundel,  Hardre,  510. 

1'^  Basset  r.  Nosworthy,  Rep  t.  TInch, 
102,  ciled  .\mb.  "66;  Mildmay  «.  Mildmay, 
cited  ibid.;   Bullock  r.  Sadlier, //a  763,767. 

13  See  Moore  v.  Mavliow,  1  Cha.  Ca.  34; 
Wag^tairu.  Iteiid,  2  Cha.  Ca.  156. 

l*  Lady  Bodmin  v.  Vandenbendy,  1 
Vern  179;  Anon.,  2  Vcntr.  361,  No.  2; 
Cummiiigs  v.  Coleman,  7  Hich.  Ivj.  (S.  C) 
509. 


1x8 


PLEAS. 


<'ii.  XV.  §  1.  c'linso-iiionoy ;  ^  lor,  till  llirii,  tlie  (ninsaction  is  nut  C()in])lete;  aiul, 
lluMvlbiv,  if  the  jnirchast'i-  h;i\('  notice  previously  to  that  time,  he 
will  be  bound  by  it.  And  the  notice  so  denied  must  be  notice  of 
tlie  existence  of  the  plaintiff's  title,  and  not  jnerely  notice  of  the 
existence  of  a  person  who  could  claim  under  that  title.'-^  But  a 
denial  of  notice,  at  the  time  of  jnaking  the  i)urcliase  and  l)aying 
the  purchase-money,  is  good ; "  and  notice  before  the  purchase 
need  not  be  denied :  because  notice  before  is  notice  at  the  time  of 
the  purchase ;  ■*  and  the  party  will,  in  such  case,  on  its  being  made 
to  appear  that  lie  had  notice  before,  be  liable  to  be  convicted  of 
perjury.'^ 

"  The  notice  must  be  positively,  and  not  evasively,  denied,"  and 
must  be  denied  whether  it  be  or  bo  not  charged  by  tlie  bill.''  If  par- 
ticular instances  of  notice,  or  circumstances  of  frau"d,  are  charged, 
the  facts  from  which  they  are  inferred  must  be  denied  as  specially 
and  particularly  as  charged.^  So,  if  the  bill  charges  that  the  pur- 
I'ossession  of  chaser  has  in  his  possession  certain  papers  and  documents,  whence 
it  will  appear  that  his  was  not  a  purchase  without  notice,  the  de- 
fendant is  bound  to  sup})ort  his  plea  by  an  answer  to  that  charge.® 

"  But  he  need  only  by  his  plea  deny  notice  generally,  unless 
where  facts  are  specially  charged  in  the  bill  as  evidence  of  notice.^" 

"  Notice  must  also  be  denied  by  answer ;  ^°  for  that  is  matter  of 
fraud  and  cannot  be  covered  by  the  }jlea ;  ^^  because  the  jjlaintiff 


riirticular  in- 
stances 10  be 
(lonied 
specially. 


papers. 


Where  gen- 
eral denial 
sufficient. 


1  Moore  v.  Mavhow,  vbi  sup. ;  Story  v. 
Lord  Windsor,  2  Atk.  630;  Attornev-(ien- 
eraU'.  Gower,  2  Eq.  Ca.  Ab.  685,  pi.  11; 
Beaines  on  Pleas,  344;  Aiken  v.  Smith,  1 
Sneed  (Tenn.),  304;  Wilson  v.  Hillver,  1 
Saxton  (N.  .1.),  63;  Story  Eq.  PI.  §  806; 
Jewett  V.  Palmer.  7  John.  Ch.  65;  Gordon 
V.  K.>ckafel!ow,  Halst.  Dig.  169;  Pillow  «. 
Shannon,  3  Yerger,  508;  Murray*.  Ballon, 
1  .John.  Ch.  566;  Heatley  v.  Finster,  2 
John.  Ch.  158;  Murray  i'.  Finster,  2  .lohti. 
Ch.  155;  M'Gnhee  v.  Sneed,  1  Dev.  &  Bat. 
333 ;  Frost  v.  Beekman,  1  Jolin.  Ch.  288 ; 
De  Mott  V.  Starkey,  3  Barb.  Ch.  403; 
Boone  v.  Chiles,  10  Peters,  177,  211,  212; 
VVilliiiins  V.  IloUingsworth,  1  Strobh.  Eq. 
103;  Ellis  V.  Woods,  <J  Kieh.  Eq.  (S.  C.)  19. 

2  Kelsall  V.  Bennet,  1  Atk.  522,  which 
has  overruled  Brampton  v.  Barker,  cited  2 
Vern.  159. 

3  See  Snelgrove  v.  Snelgrove,  4  Desaus. 
287;  Murray  v.  Finster,  3  John.  Ch.  155, 
157. 

*  To  make  the  plea  of  bond  fide  pur- 
chaser without  notice  availiible,  the  notice 
before  the  whole  of  the  purclmse-raoney 
was  paid  and  conveyimce  received,  must 
be  denied.  Natz  v.  M'Pherson,  7  Monroe, 
599;  Frost  v.  Beekman,  1  John.  Ch.  298, 
303;  Jewett  v.  Palmer,  7  John.  Ch.  65; 
High  V.  Batte,  10  Yerger,  385. 

6  .lones  V.  Thomas,  3  P.  Wms.  243. 

*  Cason  V.  Round,  Prec.  in  Cha.  226; 
and  see  2  Eq.  Ca.  Ab.  682  (D.),  n.  (b). 


"^  Aston  V.  Curzon,  and  Weston  v. 
Berkeley,  3  P.  W^ms.  244,  n.  (F);  and  see 
the  6th  resolution  in  Brace  v.  Duchess  of 
Marlborough,  2  P.  \Vms.  496;  Hughes  v. 
Gtinier,  2  Y.  &  C.  Ex.  328,  335;  Lowry  u. 
Tew,  3  I5arb.  Ch.  407. 

8  Meder  r.  Birt,  Gilb.  Eq.  Rep.  186; 
Radford  v.  Wilson,  3  Atk.  815;  and  see 
Jeranl  v.  Sanders,  2  Ves.  J.  187;  4  Bro. 
C.  C.  322,  325;  6  Dow,  230;  Folevv.  Hill, 
3  xM.  &  C.  475,  481 ;  2  Jur.  440;  VVil«on  v. 
Hillycr,  1  Snxton  (N.  J.),  63;  Denning  v. 
Smith,  3  John.  Ch.  345;  Balcohn  v.  N.  Y. 
Life  Ins.  and  Trust  Co.,  11  Paige,  454; 
Lowry  v.  Tew,  3  Barb.  Ch.  407;  Slanhat- 
tan  Co.  V.  Everston,  6  Paige,  457 ;  Galatian 
V.  Erwin,  1  Hopk.  48;  Pillow  v.  Shannon, 
3  Yerger,  508. 

0  Hardinan  v.  Ellames,  5  Sim.  640,  650; 
2M.  &  K.  732;  C.  P.  Coop.  t.  Brougli. 
351;  and  see  Gordon  v.  Shaw,  14  Sim. 
3»8. 

1"  Pennington  v.  Beechey,  2  S.  &  S.  282 ; 
Thring  v.  Edgar,  ib.  274,  281;  Beamos  on 
Pleas,  348;  Griffith  v.  Griffith,  1  Hotf.  Ch. 
163.  This  rule  will  not,  however,  apply 
to  an  answer  in  support  of  a  plea,  unless 
the  plea  is  negative;  and  now,  the  defend- 
ant need  only  answer  those  facts  to  which 
be  is  interrogated;  see  aii/e,  pp.  534,  615. 

11  Care  must  be  taken  in  case  of  a  plea 
of  a  purchase  for  a  valuable  consideration 
without  notice,  not  to  make  an  answer  to 
any  statements  in   the  bill  actually  and 


DIFFERENT    GROUNDS    OF   PLEAS. 


679 


must  have  an  opportunity  to  except  to  its  sufficiency  if  lie  think  Ch.  XV.  §  2. 
fit ;  ^  but  it  must  also  be  denied  by  the  plea :  because,  otherwise, 
there  is  not  a  complete  plea  in  Court  on  which  the  plaintiff  may 
take  issue,^  Although  a  purchaser  omit  to  deny  notice  by  an- 
swer, he  will  be  allowed  to  put  in  the  point  of  notice  by  Avay  of 
answer,^  and  the  omission  will  not  invalidate  his  plea,  if  it  is  de- 
nied by  that.'*  If  notice  is  omitted  to  be  denied  by  the  plea,  and 
the  plaintiff  reply  to  it,  the  defendant  has  then  only  to  prove  his 
purchase  ;  and  it  is  not  material  if  the  plaintiff  do  prove  notice,  as 
he  has  waived  setting  down  the  plea  for  argument ;  in  which  case 
it  would  have  been  overruled.^  If,  however,  a  bill  is  exhibited 
against  a  purchaser,  and  he  plead  his  purchase,  and  the  bill  is 
therefore  dismissed,  a  new  bill  will  lie  charging  notice,  if  the  point 
of  notice  was  not  charged  in  tlie  former  bill,  or  examined  to  ;  and 
the  former  proceedings  cannot  be  pleaded  in  bar.®  But  if  notice  is 
neither  alleged  by  the  bill  nor  proved,  and  the  defendant  by  his 
answer  deny  notice,  an  inquiry  will  not  be  granted  for  the  purpose 
of  affecting  him  with  notice.' 

"  A  plea  of  a  purchase  for  valuable  consideration  without  notice, 
will  not  be  allowed  where  the  purchaser  might,  by  due  diligence, 
have  ascertained  the  real  state  of  the  title.* 

"  If  a  purchaser's  plea  of  valuable  consideration  without  notice, 
be  falsified  by  a  verdict  at  Law,  and  thereupon  a  decree  is  made 
against  the  purchaser,  and  he  then  carries  an  appeal  to  the  House 
of  Lords,  it  will  be  dismissed,  and  the  decree  affirmed,  without 
further  inquiry."  ° 

A  plea  of  purchase  for  a  valuable  consideration  without  notice 
protects  a  defendant  from  meeting  the  title  set  up  by  tlie  plaintiff; 
but  a  plea  of  bare  title  only,  without  setting  forth  a  consideration, 
is  not  sufficient  for  that  purjiose.^*'  It  will  also  protect  a  defendant 
from  the  disc<jvory  of  deeds  and  writings,  except  of  the  purchase 


Plea  no  pro- 
tection, where 
want  of 
diligence. 

Decree  after 
verdict,  and 
then  appeal. 


Protection 
afVorded  by 
plea. 

Pica  ore 
tenvs  :  when 
not  allowed. 


properly  covered  by  the  plea ;  for  notwitli- 
Htandin;^  smne  douhrs  formerly  entertained, 
itseeni.snowe^talilislicd.tliat,  in  siicli  ucase 
if  the  defendant  answer  at  all  to  the  matters 
covered  by  the  j)l(;ii,  lie  must  answer  fully ; 
and  if  he  puts  In  a  j^oiieral  answer,  he  can- 
not protect  himself  l)y  such  a  defence  in 
his  answer  fWim  nnswerinf^  fully-  8tr)ry 
Kfj.  I'i.  §  GO(i,  and  note,  and  cases  cited, 
§  blO,  note.  The  3«tli  Equity  Kules  of  tlio 
Unift-d  States  Courts  ^ives  to  such  a  per- 
son the  rii;ht  to  prutect  himself  bv  answer, 
EH  he  miKhl  by  ]ilea.  Story  Ivj.  I'l.  §  847, 
note,  §  84G,  note. 

1  Anon..  2  (ha.  Ca.  161;  Price  v.  Price, 
1  Vern.  is.5;  I'<,lev  v.  Hill,  3  M.  &  <;.  475, 
481;  2.Jur.  440;  linw,  the  defendant  need 
only  sn|)p'>rt  his  plea  by  answer,  if  intcr- 
ropatorjes  are  filed;  see  ovtr,  p.  Cl.'i. 

"  Harris  v.  Intiledew,  ."J  1'.  Wm.x.  !tl,  04; 
Meadows  v.  Duchess  of  Kingston,  F.,d.  Ked. 


370,  n.  (s.);  Amb.  750;  Jones  v.  Jones,  3 
Mer.  101,  171. 

3  Anon.,  2  Cha.  Ca.  101. 

^  Coke  V.  Wilcocks,  Mos.  73. 

6  Harris  v.  Infjlcdew,  ulii  sup. ;  Eyre  v. 
Dolphin.  2  Hall  &  H.  302. 

c  Willi;unsr.  Williams,  1  Cha.  Ca.  252. 

7  I  lardy  v.  Heeves,  5  Ves.  426,  432. 

8  Jacks'on  v.  Kowe,  2  S.  &  S.  472,  475; 
4  Uuss.  514,523;  Ilnmilton  p.  Lj-ster,  7 
Ir.  E.  n.  500.  If  a  party  means  to  defend 
hini'elf,  on  the  ^cround,  tint  in'  was  a  /xmu 

fiilc  |)ur(liaser  tor  a  vahial)le  consideration, 
without  notice,  he  must  deny  the  tact  of 
notice,  and  of  every  circumstrinco  from 
which  it  can  be  niferred.  IMurr.iy  r.  I!al- 
lou,  1  John.  Ch.  575;  I'.alcolm  r.  N.  V.  Life 
Ins.  &  Trust  Co.,  11  I'aip',  454. 

»  Lewis  V.  Eieldinf,',  Colhs'    I'.  <".  301. 
10  lirereton  v.  Gamul,  2  Atk.  241. 


G80 


PLEAS. 


Ch.  XV.  §  J. 


I'l.a  of 
ili'llots  ill 
t'orm  of  li 


ill. 


Pleas  to 
iliscoverv. 


Pleas  to 
amended 


bill. 


(loi'd  which  is  j)1o;i(1(m1.'  If  (ho  (Icll'iidniit  h:is  the  op))ortunity  of 
raising  this  dotbiico  by  his  aiiswei-,  and  does  nut  do  so,  lie  cannot 
plead  it  orally  at  the  hearing.'- 

There  are  also  certain  cases  in  a\  hieli  deiects  in  the  form  of  the 
bill  may  be  taken  advantage  of  by  j)lea  :  such  as  a  nusdescrij)tion 
of  the  plaintitf's  residence,''  or  of  his  name.*  In  these  cases,  as  we 
have  seen,^  the  present  practice  is  to  move  that  the  plaintiff  may 
give  security  for  costs  ;  and  the  Court  will  not  encourage  pleas  of 
this  nature.*" 

All  the  grounds  of  pleas  above  enumerated  go  to  the  relief 
prayed  by  the  bill ;  and,  as  we  have  seen,  if  they  are  sufficient  to 
protect  the  defendant  from  the  relief  prayed,  they  will  also  serve 
to  protect  him  from  the  discovery  sought,  except  so  far  as  such 
discovery  is  material  to  enable  the  })laintirt'  to  avoid  the  effect  of 
the  matter  pleaded.  There  are,  however,  as  has  been  already 
stated,  cei'tain  cases  in  which,  though  the  plaintiff  may  be  entitled 
to  relief,  the  defendant  will  be  protected  from  making,  either  the 
whole,  or  some  part  of  the  discovery  sought  by  the  bill :  because, 
the  situation  in  Avhich  he  is  placed  renders  it  improper  for  a  Court 
of  Equity  to  compel  discovery,  either  because  the  discovery  may 
subject  him  to  pains  and  penalties,  or  to  forfeiture,  or  something 
in  the  nature  of  a  forfeiture ; ''  or  because  it  would  betray  the 
confidence  reposed  in  him  as  a  legal  adAaser,  or  as  an  ai-bitrator. 
The  cases  in  which  these  exemptions  from  discovery  can  be  insisted 
upon  have  been  before  pointed  out,  and  the  principles  upon  which 
they  rest  discussed,  in  treating  of  demurrers ;  *  all  that  need, 
therefore,  be  now  said  in  addition  is,  that  if  the  facts  upon  which 
the  defendant  rests  his  claim  to  exemption  from  the  discovery 
sought  do  not  appear  upon  the  bill,  they  may  be  presented  to  the 
Court  by  plea.  The  same  principles  apply  in  the  case  of  bills  for 
discovery  only.^ 

It  has  been  already  stated,  that  a  defendant  may  not  only  an- 
swer an  amended  bill,  but  may  also  defend  himself  from  the  effect 
of  the  amendments  by  a  demurrer  or  plea.^°  Pleas  to  amended 
bills  may  be  put  in  upon  the  same  grounds  as  pleas  to  original 
bills ;  but  it  i^  to  be  observed  that,  if  a  defendant  has  answered 
the  original  bill,  his  answer  may  be  read  to  counterplead  his  plea 
to  the  amended  bill ;  and  that  if,  u]>on  so  reading  it,  it  should  ap- 


1  Salkeld  v.  Science,  2  Ves.  S.  107; 
Storv  £q.  PI.  §  809;  see  1  Storv  Kq.  Jur. 
§  410,  and  note;  Lub(5  Eq.  PI.  245,  246. 

2  Phillips  w.  Phillips,  S  .Jur.  N.  S.  145; 
10  W.  Pv.  236,  L.  C;  3  Giff.  200;  7  Jur.N. 
S.  1094. 

8  Rowley  V.  Eccles,  1  S.  &  S.  511; 
Smith  V.  Smith,  Kaj-  Ap.  22;  Bainbrigge 
V.  Orton,  20  Beav.  28. 

*  Cust  V.  Southee,  13  Beav.  435. 


<>  Ante,  p.  358. 

6  Bainbrigfre  v.  Orton,  uhl  sup. 

7  United  States  of  America  v.  M'Rae,  L. 
E.  4  Eq.  327 ;  S.  C.  L.  R.  3  Ch.  Ap.  79. 

8  Ante,  pp.  5fj2,  570. 

9  Balls  I'.  Marf,'ravc,  3  Beav.  448.  For 
form  of  plea  that  discovery  would  subject 
defendant  to  penalty,  see  Ueames  on  Pleas, 
339. 

i«  Ante,  p.  682. 


FORM    OF   PLEAS.  ^  681 

pear  that  the  facts  stated  upon  the  answer  to  the  original  bill  Cn.  XV.  §  3. 
would  operate  to  avoid  the  defence  made  by  the  plea  to  the 
amended  bill,  tlie  plea  will  be  overruled.^  If  the  defendant  answer 
the  original  bill,  and  the  amendments  do  not  vary  the  case  made 
by  it,  he  cannot  plead  to  the  amended  bill."  The  mere  fact,  how- 
ever, that  the  answer  comprises  matters  retained  in  the  amended 
bill  does  not  prevent  the  defendant  from  pleading  to  the  latter  ;  ^ 
and  where  the  objection  for  want  of  parties  arose  again,  in  conse- 
quence of  an  amendment  of  the  bill,  a  second  plea  on  that  ground 
has  been  allowed.^ 


Sectio:s^  III.  —  Form  of  Pleas. 

A  plea  is  intituled  in  the  cause,  and  is  headed  as  follows :  "  The  Title. 
plea  of  the  above-named  defendant  (or,  of  A.  B.,  one  of  the  above- 
named  defendants)  to  the  bill  of  complaint  of  the  above-named 
jdaintiff  (or,  plaintiffs)."  When  put  in  by  more  than  one  defend- 
ant, the  heading  runs  as  follows  :  "The  joint  and  several  plea  of 
the  above-named  defendants  (or,  of  A.  B.  and  C.  D.,  tAVO  of  the 
above-named  defendants),"  &c.,  &c.^  "Where  it  is  the  ])lea  of  a 
man  and  his  wife,  the  words  "  and  several "  should  not  be  inserted  ; 
but  where  an  objection  was  taken  to  a  plea  by  husband  and  wife, 
on  the  ground  that  those  words  were  inserted,  Sir  John  Leach  V. 
C.  considered  the  term  "several"  as  meaning  nothing,  and  that, 
being  mere  surplusage,  it  did  not  vitiate  the  plea."^  It  may  be  ob-  . 
served,  that  Avhere  a  plea  was  prepared  as  a  joint  plea  of  a  husband 
and  wife,  but  the  wife  refused  to  swear  to  it,  whereupon  the  hus- 
band put  in  the  plea,  and  a]i]jlied  that  it  should  stand  for  himself, 
it  was  so  ordered.'^  The  title  of  the  plea  must  agree  with  that  of 
the  cause  at  the  time  when  the  bill  is  tiled. 

A  defendant  is  not  allowed  to  correct  or  alter  the  name  of  a  Correction  of 
plaintiff,  or  a  co-defendant ;  and  if  his  own  name  is  misspelt  in  the 
l)ill,  the  title  of  his  )>lea  miist,  nevertheless,  agree  with  that  of  the 
bill.  Tlie  corn;ction  should  be  made  in  the  beading,  tluis  :  "The 
plea  of  the  above-named  defendant,  John  Jones  (in  the  bill  by 
mistake  called  AVilliam  Jones)."*  If  a  female  defendant  marries  -wiuiv 
subseciuently  to  the  filing  of  the  bill,  but  before  pleading,  the  plea  JjihmK'  ii> - 

»  Lfl.  Red.  299;  Ilvliftrfl  v.  White,  ibid. ;  *  TIenley  v.  Stone,  4  Beav.  389,  391.  i,iii  ,ii^.,i.' 

Noel  ?".  Wiird,  1  Mad.  322,  330;  Hildyanl  o  Hraithwaite's    I'r.   01.     For  I'orm.s  ol 

r.  Crcssv,  3  ,\tk.  803.     As  to  form  nf  pleas  pleas,  Pee  Vol.  MI. 
to  ninendcd  \t\\h,  see  Ilavnes  v.  IJarton,  «  Kiteh  v.  Chapiiian,  2  S.  &  S.  31. 

K!  .Iiir.  4H0,  V.  C  !•:.  '  ''  I'ain   v. ,  1    Ch.   Ca.  29(i;    S.   C. 

2  r.sdnili- V.  Molincux,  2  Coll.  030,  639;  worn.    I'avie   V.    Acourt,  1   Dick.    13;   Keo 

10  .Inr.  H.".2.  iinle,  pp.  180,  499. 

»  Wvllic  1?.   Kllice,  6   Hare,  505,  615;  »  I5raitli\vaite'.s  IV.  44,  02. 

F.llice  r.  Uou(.ell  (No.  1),  32  iJeav.  299;  9 
Jur.  N.  8.  630,  633. 


misnomer  ni 
title. 


682 


PLEAS. 


C'n.  XV.  §  ;i. 


Whoiv  i>lo;i 
iiccoiniiaiiii'd 
bv  answer. 


rivtcstation. 


Statenu'iit  of 
the  part  of 
bill  to  which 
plea  applies. 


Statement 
of  matter 
pleaded. 


sl'.oiild  (^unloss  slu'  Iki.s  obtained  an  ovdw  to  dofend  tlio  suit  l)y  lier- 
sclf)  be  headed  thus:  "The  ])U'a  of  A.  B.  and  C.  his  wife,  lately, 
and  in  the  bill  called  C.  D.,  spinster  (or,  widow,  as  the  case  may 
be),  to  tlie  liill  of  complaint  of  the  above-named  plaintiff."^ 

AYhere  a  plea  is  accomjjanied  by  an  answer,  it  must  be  headed 
"The  plea  and  answer,"  or,  "The  joint  plea  and  answer,"  or  "The 
joint  and  several  plea  and  answer,"  according  to  the  circmiistances. 

A  plea,  like  a  demurrer,  is  introduced  by  a  protestation  against 
the  confession  of  the  truth  of  any  matter  contained  in  the  bill.'^ 

The  extent  of  the  plea,  that  is,  whether  it  is  intended  to  cover 
the  Avhole  bill  or  a  part  of  it  only,  and  what  part  in  particular,  is 
usually  stated  in  the  next  place;  and  this,  as  before  observed, 
must  l)e  clearly  and  distinctly  sliown.^  Formerly,  a  j)lea,  like  a 
demurrer,  was  liable  to  be  overruled,  if  the  answer  accompanying 
it  extended  to  any  part  of  the  bill  covered  by  the  plea  ;  and  the 
same,  if  not  a  greater  degree  of  accuracy,  was  required  of  the 
pleader  in  applying  this  rule.  Now,  as  we  have  seen,^  this  strict 
practice  is  so  far  modified,  that  a  plea  is  no  longer  liable  to  be 
overruled  only  because  it  does  not  cover  so  much  of  the  bill  as  it 
might  by  law  have  extended  to,  or  only  because  the  answer  of  the 
defendant  extends  to  some  jjart  of  the  same  matter  as  is  covered, 
by  the  plea.^ 

The  matter  relied  upon  as  an  objection  to  the  suit  or  bill  gen- 
erally follows,®  accompanied  by  such  averments  as  are  necessary  to 
support  it :  "^  and  where  a  plea  is  of  matter  which  shows  an  imper- 
fection in  the  frame  of  the  suit,  it  should  point  out  in  what  that 
imperfection  consists.  Where,  for  instance,  a  plea  is  for  want  of 
parties,  it  must  not  only  show  that  there  is  a  deficiency  of  parties, 
but  should  point  out  who  the  parties  are  that  are  required.  Thus, 
in  Merrewether  v.  Mellish^  where  a  defendant  jDleaded  a  settlement, 
for  the  jmrpose  of  shoAving  that  there  were  certain  parties  not  be- 
fore the  Court  who  were  interested  in  the  suit,  but  did  not  aver 


1  liraitlnvaite's  Pr.  46,  62. 

•^  \A.  Red.  300;  Story  Eq.  PI.  §  694. 
The  reasons  for  the  introduction  of  this 
form  have  been  before  alluded  to,  ante,, 
p.  .OKI.  At  Common  Law,  prote.«tation  in 
pleadincr  is  now  unnecessary.  Protesta- 
tions in  pleas  are  not  (dlowed  in  New 
Hampsliire.  Rule  6  of  Ch.  Pr.  38  N.  H. 
606. 

«  Ld.  Red.  294,  300;  Mitford  Eq.  PI.  bj- 
•Jeremy  (h\\\  Am.  ed.)  300,  note  (1),  in 
which  the  editor  has  j^iven  the  opinion  of 
ChHiiceilor  Walworth  upon  tliis  point,  as 
pronounced  in  Leacraft  ?;.l)einprev,4  Paif^e, 
124;  see  .Story  Kq.  Pi.  §  694.  If  an  an- 
swer commences  as  an  answer  to  the  whole 
bill,  it  overrules  a  plea  and  demnrrer  to 
anv  particular  part  of  the  bill,  although 
8uch  part  is  not  iu  fact  answered.    Lea- 


craft  V.  Demprey,  4  Paige,  124;  Summers 
V.  Murray,  2  Edw.  Ch.  205.  A  defendant 
may  plead,  answer,  and  demur  to  the 
same  bill ;  but  these  several  defences  must 
each  refer  to,  and  in  terms  be  put  in  as  a 
defence  to,  a  separate  and  distinct  part  of 
the  bill.  Leacraft  v.  Demprev,  4  Paige, 
124;  ante,  pp.  610,  616. 

4  Aniv,  p.  617. 

5  Ord.  XIV.  8,  9;  see  ante,  p.  540,  note, 
c  The  particular  facts  on  which  the  de- 

femiant  intends  to  rely  mu-^t  be  clearly 
stated,  so  that  the  plaintiff  may  know 
what  case  he  has  to  meet,  llardman  v. 
Ellames,  2  M.  &  K.  732,  739;  Coop.  t. 
Brough.  351,  355. 

V  Lfl.  Red.  300;  Story  Eq.  PI.  §  694. 

8  13  Ves.  435,  438. 


FORM   OF   PLEAS. 


683 


that  tliere  was  a  deficiency  of  parties,  or  that  the  persons  appearing  C"-  XV.  §  y 
by  tlie  settlement  to  be  interested  were  necessary  parties,  the  plea    ""^       > 
was  held  to  be  informal,  and  leave  was  given  to  amend  it.     A  plea, 
denying  a  negative  allegation  in  a  bill,  has  also  been  held  to  be 
informal.^ 

The  general  requisites  of  a  plea  have  already  been  discussed  at  General 
considerable  length  ;  it  is  unnecessary,  therefore,  noAV  to  allude  to  ^''^^^^'' 
them  further  than  to  remind  the  reader,  that  the  plea  must  be 
founded  upon  matter  not  apparent  upon  the  face  of  the  bill:- 
must  reduce  the  case  to  a  single  point,^  except  where  leave  has 
been  obtained  to  plead  double  :  •*  and  must  be  supported  by  proper 
averments.^ 

In  addition  to  the  abo^ve  requisites  it  may  be  added,  that  a  plea  Must  be 
must  be  certain :  it  must  tender  issuable  matter,  the  truth  or  false- 
hood of  which  may  be  replied  to  or  put  in  issue  ;  and  that,  not  in 
the  form  of  general  propositions,  but  specifically  and  distinctly.^ 
Therefore,  wiiere  a  ])lea  was  put  in  by  the  East  India  Company,  to 
a  bill  filed  by  the  Nabob  of  Arcot,  in  which  they  stated,  that  by 
charters,  confirmed  by  Act  of  Parliament,  they  had  certain  powers 
under  which  particular  acts  were  done,  the  plea  was  overruled, 
because  it  did  not  set  forth  the  contents  of  those  charters  and  Acts 
of  Parliament." 

A  jilea  must  also  cover  the  whole  case  made  by  the  bill,  or  by  Must  ^o  to 
that  part  of  it  which  the  plea  aflfects  to  cover  :  otherwise  it  will  be 
overruled.^  Thus,  where  a  bill  was  filed  for  a  foreclosure  of  a 
messuage  and  forty  acres  of  land,  and  the  defendant  pleaded  an 
absolute  title  in  himself  to  certain  property  mentioned  in  the 
deeds  by  which  he  deduced  his  title,  consisting  of  a  messuage  and 
tenement,  averring  that  they  were  the  same  which  were  meant  by 
the  bill,  the  Court  of  Exchequer  thought  the  plea  could  not  be 
considered  as  relating  to  the  forty  acres  of  land  mentioned  in  the 
bill,  and  oveiTuled  it.**  And  so,  where,  to  a  bill  i)raying  a  recon- 
veyance of  four  estates,  the  defendant  put  in  a  plea  of  a  fine  and 
non-claim  as  to  one,  averring  that  the  estate  comprised  in  the  fine 
was  the  only  jtart  of  the  estates  comprised  in  the  bill  to  which  he 
ha<l  or  claimed  a  right,  the  plea  was,  in  like  maimer,  overruled.^'' 
So,  also,  where  a  bill  prayed  an  account  of  rents  and  i)rofits,  and 
that  the  defendant  might  be  restrained  from  setting  up  outstand- 

1  Lakeman  v.  Agiin  Fria  Gold  Mining       there  is  any  mutter  of  equit}'  in  the  bill 
Comimnv,  22  Heiiv.  70.  to  wliieli  tlio  j)lea  does  not  set  \ij>  a  bar, 

2  Ante,  p.  60.3.  and  whicli  is  not  denied  by  way  of  an- 
8  Anit,  jip.  60.3,  607.  swcr,  tlie  pleii  niu^l  bf;  set  aside.  I'iatt  r. 
*  Aiili',\)p.  608,600.  Oliver,  1  .MeLeai),  303.  If  the  plea  is  to 
I  Anir,  p.  611.  the  whide  bdl,  l>ut  does  ni>t  extend  to  or 
«  I.d.  Heel.  297,  298.  c<iver  the  whole,  the  plea  is  bad.  Hell  v. 
'  Nnliob  of  Arcot  v.  Knst  India  Com-       Woodward,  12  X.  11.  l'J2,  1!»3. 

panv.  :i  I'.ro.  C.  C.  202.  308.  «  Wedlakc  r.  Mutton,  3  Ai*t.  633. 

«  Ld.  Ked.  2'Jl;  Story  L'[.  !'!.§  0'J3.    If  l«  Wulkins  v.  Stone,  2  Sim.  VJ,  52. 


case. 


684  PLEAS. 

Cii.  XV.  §  ;!.   iujv  tonus,  and  tlio  (lolondaut  i»lea(lcil  tliat  there  were  no  outstand- 

' Y iiiLj  terms,  Sir  John  Leaeh  V.  C.  lield  the  plea  to  be  bad,  because 

it  U>f\  ])art  ot"  tlie  case  untouclied.^ 
Liinj,'uu!,'e  of         With  res]>eot  to  the  language  of  pleas,  the  reader's  attention  is 
P'"'"  reealk'(l  to  tlie  observations  made  in  another  part  of  this  work  :  ^ 

in  whicli,  in  the  framing  even  of  bills,  the  propriety  of  adhering 
to  the  known  technical  language  of  the  Courts,  in  all  cases  where 
such  language  is  aji])licable  to  the  case,  has  been  discussed.  It 
only  remains  to  add,  that  if  such  an  adherence  to  the  ancient 
recognized  forms  of  pleading  is  desirable  in  the  case  of  bills,  it  is 
still  more  so  in  the  case  of  pleas,  in  which,  as  has  been  before 
stated,  there  must,  in  general,  be  the  same  strictness,  at  least  in  mat- 
ters of  substance,  as  in  })leas  at  Law.^  It  may,  however,  be  rej^eated 
here,  that  although  the  use  in  pleadings  in  Equity  of  such  technical 
expressions  as  have  been  adopted  in  pleadings  at  Common  Law  is 
desirable,  it  is  not  absolutely  necessary ;  and  that  the  same  thing 
may  be  expressed  in  any  terms  whicli  the  pleader  may  select  as 
proj)er  to  convey  his  meaning,  provided  they  are  adequate  to  the 
piu-pose.* 
Averments.  ^H  the  fiicts,  liowever,  Avhich  are  necessary  to  render  the  plea  a 

complete  equitable  Ijar  to  the  case  made  by  the  bill,  so  far  as  the 
plea  extends,  must  be  clearly  and  distinctly  averred,  in  order  that 
the  plaintiif  may  take  issue  upon  it ;  ^  and  averments  in  general 
ought  to  be  positive.®  In  some  cases,  indeed,  a  defendant  has 
been  permitted  to  aver  according  to  the  best  of  his  knowledge 
and  belief:  as  that  an  account  is  just  and  true;'  and  in  all  cases  of 
negative  averments,  and  of  averments  of  facts  not  within  the  im- 
mediate knowledge  of  the  defendant,  it  may  seem  improper  to  re- 
quire a  positive  assertion.^  It  is,  however,  the  opinion  of  Lord 
Redesdale,  that  unless  the  averment  is  positive,  the  matter  in  issue 
appears  to  be,  not  the  fact  itself,  but  the  defendant's  belief  of  it ; 
and  that,  in  all  cases,  therefore,  averments  should  be  positive,  as 
the  conscience  of  the  defendant  is  saved  by  the  nature  of  the  oath 

1  Birker  V.  Rav,  5  Mad.  64;  see  also  parts  are  covered  bv  it.  Davison  ».  Scher- 
Hook  v.  Dorman,  1  S.  t&  S.  227,  230;  nierhorn,  1  Uarb. 'Ch.  480.  VViiere  the 
Hoare  v.  Parker,  1  Cox,  224,  228;  1  Bro.  plea  does  not  go  to  the  wiiole  bill,  it  must 
C.  C.  578,  580;  Ld.  Red.  277,  n.  (s. )  clearlv  point  to  the  part  of  discovery  or 

2  Ante,  p.  362.  relief  intended  to  be  coverfd  by  it,  but,  if 
8  See  Marselis  v.  Morris  Canal,  &c.,  1       overruled  for  a  defect  in  this  particular, 

Saxton  (N.  J.),  31;  Story  Eq.  PI.  §  658.  In  the  defendant  will  not  thereby  be  j)recluded 

pleading  matters  of  sub-tance  the  same  from  insisting  upon  the  same  matter  in  his 

strictness  is  required  in  Equity  as  at  Lau'.  answer  as  a  defence  pro  tanlo.     Jarvis  v. 

Burditt  V.  Grew,  8  Pick.  108.  Palmer,  11  Paige,  650. 

••  yl«/e,  pp.  .362,  363.  6  Foster  v.  Vassall,  3  Atk.  587;  Story 

5  Ld.  Red.  298;  seeXewmanv.  Ilutton,  Eq.  I'l.  §  662. 

3  Beav.  114,  117;  Overtoti  v.  Hanister,  4  '  Anon.,  3  Atk.  70. 

Beav.  205,208.     The  plea '^hould  ■state  so  8  Drew  v.  Drew,  2  V.   &  1$.   159,  162; 

distinctly  t'),what  part  of   the  bill   it   is  Kirkman  i'.  Andrews,  4  Beav.  554,  557;  6 

intended  to  apply,  that  the  Ciuirt  can  de-  Jur.  130;  see  also  Small  v.  Attwood,  1  Y. 

termine,  on  examination  of  the  bill,  what  &  C.  Ex.  39. 


FORM    OF    PLEAS. 


685 


administered :  which  is,  that  so  much  of  the  plea  as  relates  to  his 
own  acts  is  true,  and  that  so  much  as  relates  to  the  acts  of  others 
lie  believes  to  be  true.^ 

The  plea  having  stated  the  facts  upon  which  it  is  founded,  com- 
monly concludes  with  a  repetition,  that  the  matters  so  offered  are 
relied  upon  as  an  objection  or  bar  to  the  suit,  or  to  So  much  of  it 
as  the  plea  extends  to ;  and  then  prays  the  judgment  of  the  Court 
whether  the  defendant  ought  to  be  compelled  further  to  answer 
the  bill,  or  such  part  as  is  pleaded  to.-  It  does  not  appear  that 
any  particular  form  of  conclusion  is  necessary,  in  pleas  in  Equity. 
Some  of  the  old  forms  of  pleas  to  the  jimsdiction  conclude  by 
])raying  the  judgment  of  the  Court,  "whether  it  will  hold  plea 
ui>on,  and  enforce  the  defendant  to  answer  the  bill,  for  the  cause 
aforesaid;"  whilst  other  precedents,  with  less  precision,  demand 
judgment  of  the  Court,  "  whether  the  defendant  shall  be  compelled 
to  make  further  or  other  answer."  ^  The  forms  of  pleas  in  Equity 
to  the  person  are  tolerably  unifonn  in  concluding,  by  praying 
judgment  of  the  Court,  whether  the  defendant  shall  be  compelled 
1  o  make  any  further  answer  duiing  the  existence  of  the  disability 
l)leaded.*  The  i)recedents  of  pleas  in  bar,  generally,  conclude 
with  pleading  the  matter  set  up,  in  bar  of  the  discovery  and  relief, 
or  of  the  discovery  (as  the  case  maybe),  and  demand  judgment  of 
the  Court,  whether  the  defendant  shall  be  compelled  to  make  fur- 
ther or  other  answer  to  "the  bill,  prapng  to  be  dismissed  with  costs : 
a  prayer  that  is  sometimes  added  and  sometimes  omitted.  They 
do  not,  however,  always  state,  that  the  matter  is  pleaded  in  bar.^ 

Where  a  plea  is  accompanied  by  an  answer,  the  answer  must 
follow  the  conclusion  of  the  plea.  If  the  answer  is  merely  to  sup- 
jiort  tlie  plea,  it  is  stated  to  be  made  for  that  purpose,  "not  waiv- 
ing the  plea."®  If  the  plea  is  to  part  of  the  bill  only,  and  there  is 
an  answer  to  the  rest,  it  is  expressed  to  be  an  ansAver  to  so  much 
of  the  bill  as  is  not  before  pleaded  to,  and  is  preceded  by  the  same 
protestation  against  waiver  of  the  plea.'' 

A  j»K'a  must  be  signed  by  counsel;**  and  no  counsel  is  to  sign 
any  plea,  utdess  he  has  drawn,  or  at  least  perused  the  same :  and 
he  is  to  take  care  that  documents  be  not  unnecessarily  set  out 
therein  in  hcec  verba  ;  and  that  no  scandalous  matter  be  inserted 


Cii.  XV.  §  3. 


Conclusion : 


to  the 
jurisdiction; 


to  the  person ; 


in  bar. 


V\nicre  ac- 
companied 
by  answer. 


Signal  lire  by 
counsel. 


1  \A.  Red.  298;  Story  Eq.  PI.  §§  CG2, 
C64;  Bolton  r.  (Janlner,  3  Pnipc,  273; 
Ik'iirtt  I".  Corning,  3  I'aigc,  606;  see  form 
in  Vol.  III. 

2  I.d.  Ked.  300. 

8  Deaitie.M  on  Pleas,  49. 
«  IIAJ. 
»  Ibi<l. 

"  Ld.  lied.  300.  A  question  not  rnii<cd 
b\-  the  plea  cannot  be  raised  by  an  answer 


in  support  of  the  plea.  Such  an  answer 
forms  no  part  of  the  defence;  but  is  that 
evidence  which  the  jihiiiitiff  has  a  right  to 
require,  and  to  use  to  invididatc  the  de- 
fence made  by  the  plea.  Sucli  answer  can 
be  used  only  to  support  or  disprove  the 
plea.  Andrews  v.  Prown,  3  Cusli.  133; 
Ld.  Red.  100. 

T  Ld.  lie.!.  300;  Story  Eq.  PI.  §  695. 

8  Ord.  VIII.  1. 


{^SC) 


PLEAS. 


(^n.  XV 


Scandal. 


In  what 
causes  pica 
must  be  on 
oath : 

where  plea  is 
not  of  matter 
purely  of 
record : 


tliorriii.^  TIio  sio'iinturo  of  counsel  is  usu;illy  attached  to  the  draft 
ot'  the  plea,  and  copied  by  the  solicitor  on  to  tlie  enoTossmcnt.  If 
a  plea  lias  been  inadvertently  filed  without  counsel's  name,  it  is 
conceived  that,  as  in  the  case  of  an  answer,  an  order  of  course 
may  be  obtained  to  a(hl  the  same  to  the  engrossment.'^ 

If  the  plea  contain  any  impertinent  matter,^  or  is  of  an  improjier 
or  uiHiecessary  lenglh,  the  defendant  putting  it  in  may  be  ordered 
to  pay  the  costs  occasioned  thereby.*  The  application  for  the 
costs  of  such  impertinent  matter  is  to  be  made  at  the  time  Avhen 
the  Court  disposes  of  the  costs  of  the  cause,  and  not  at  any  other 
time.^ 

If  tlie  plea  contain  any  scandalous  matter,^  exceptions  should  be 
taken  to  such  matter.  The  practice  on  such  exceptions  is  the 
same  as  in  the  case  of  exceptions  to  a  bill  for  scandal,  and  has  been 
ah-eady  described.'' 

Where  the  matter  of  the  plea  appears  i;pon  record,  the  plea  is 
jmt  in  without  oath ;  but  Avhere  the  matter  of  the  plea  does  not  so 
appear  it  must  be  upon  oath.^ 

In  consequence  of  this  rule,  if  the  matter  j^leaded  is  purely 
matter  of  record,  or,  in  other  words,  which  may  be  proved  by  the 
reconl,  the  oath  of  the  party  is  not  necessary;  but  if  any  fact  m 
pais  is  introduced,  which  would  require  to  be  proved  at  the  hearing, 
the  plea  must  be  upon  oath.  Thus,  where  a  defendant  jjleaded 
the  statute  32  Henry  VIII.  c.  9,  against  selling  pretended  titles, 
w'ith  the  necessary  averments  of  want  of  possession,  &c.,  and  did 
not  put  the  plea  in  upon  oath,  it  was  ordered  to  be  taken  off  the 
file,  because  the  jolea,  although  it  set  out  a  statute,  was,  in  sub- 
stance, matter  in  pais?  For  the  same  reason,  pleas  of  a  Statute 
of  Limitations,  or  of  any  other  statute  which  require  averments  to 
bring  tlie  defendant's  case  wathin  its  operation,  must  be  upon 
oath.     It  seems,  however,  that  a  mere  averment  of  identity  will 

1  Ord.  Vril.  2;  ante,  p.  313. 

2  Bniitlnvaite's  Pr.  iH;post,  p.  677. 

3  As  to  impertinence,  see  ante,  p.  349. 

4  15  &  1<5  Vic.  c.  86,  §  17;  Ord.  XL.  9. 
6  Ord,  XL.  11.     For  the  old  practice, 

in  case  of  impertinence  in  a  plea,  see 
Dixon  )•.  Olmius,  1  Cox,  412. 

6  As  to  scandal,  see  ante,  p.  347. 

~  Ord.  XVL  2,  3,  10;  unte,  pp.  349-3.54. 

8  Ord.  XIV.  2.  In  the  Courts  of  the 
United  States,  no  plea  shall  be  allowed  to 
be  liied  to  a  bill,  unless  upon  a  certificate 
of  couns-r-l,  that  in  his  o[)inion  it  is  well 
founded  in  point  of  law,  and  supported  by 
the  aftidavit  of  the  defendant,  tli  it  it  is 
n  it  interposed  for  delay,  and  that  it  is  true 
in  point  of  fact.  United  States  Equity 
Kule,  31;  see  Wdd  v.  Gladstone,  3  Ue  Gex 
&  Sm.  740.  The  rule  is  inflexible  in 
Chancery  proceedings^  that  a  plea  of  mat- 
ters in  pais,  and  pleas  in  bar  of  matters  in 


pais,  must  be  filed  on  oath.  Dunn  i\  Kee- 
zin,  3  Scam.  297.  A  plea  must  be  verified 
by  o:ith,  although  the  plaintiff  has  ex- 
pressly waived  an  answer  from  the  defend- 
ant on  oath.  Ileartt  v.  Corning,  3  I'aige, 
500;  Bassetc  v.  Company,  43  N.  II.  251. 
A  plea  is  not  evidence  in  behalf  of  the  de- 
fendant, as  to  the  facts  stated  in  it,  so  as 
to  require  the  testimony  of  more  than  one 
witness  to  contradict  it;  even  where  it 
negatives  a  material  averment  in  the  bill. 
Heartt  v.  Corning,  3  Paige,  569;  see  Sad- 
dler V.  Glover,  1  H.  Mon.  53;  Story  Eq. 
PI.  §  090;  1  Smith  Ch.  Pr.  (2d  Am.  ed.) 
231,  232;  Caroll  v.  Waring,  3  Gill  &  J. 
491;  Bassett  v.  Company,  43  N.  H.  251; 
Story  Eq.  PI.  §  696.  A  plea,  if  not  on 
oath,  will  be  set  aside  on  motion.  Bassett 
V.  Company,  43  N.  II.  249. 
'■»  Wall  V.  Stubbs,  2  V.  &  B.  354,  367. 


FORM   OF   PLEAS. 


687 


matter  of 
record  to 
which  oath 
unnecessary. 


not  render  it  necessary  that  a  jjlea  of  matter  of  record  should  be  Cn.  XV.  §  3. 

put  in  upon  oath  ;  therefore,  where  a  plea  of  the  plaintiff's  con^'ic-   ^^ y       ■' 

tiou  for  forgery  was  put  in  without  oath,  Lord  Eldon  held  it  suffi-   mere  aver- 
cient,  although  there  was  an  averment  of  the  identity  of  the   iaentity  will 
plaintiff;^  and  so,  the  circumstances  of  a  plea  of  outlawry,  con-  ^^^^'^j^^l.", 
taining  such  an  averment,  will  not  render  it  necessary  that  it  gary. 
should  he  upon  oath.- 

To  entitle  a  defendant  to  plead  any  matter  without  oath,  because  what  is 
it  is  matter  of  record,  it  must  have  been  properly  enrolled,  oi-  made 
a  complete  record  in  the  Court  out  of  w^hich  it  comes.     Records 
are  coniidete  for  this  purjiose  as  soon  as  they  are  delivered  into  the 
Court,  and  there  fixed  as  the  rolls  of  the  Court ;  but  before  they 
are  so  fixed,  and  do  not  constitute  a  perfect  record,  they  are  said 
to  be  as  of  record ;  afid  although  they  may  be  sufficient  in  the 
Courts  themselves  to  which  they  belong,  as  ground  for  ulterior 
proceedings,  they  have  not  assumed  that  permanent  form  Avhich 
gives  them  the  character  of  records.^     Thus,  a  judgment  at  Law, 
signed  by  the  proper  officer  of  the  Court  by  which  it  is  made,  is  a 
sufficient  foundation  for  the  issue  of  execution  by  the  same  Court ; 
but  as  it  is  merely  the  instruction  for  a  future  judgment,  and  the 
judgment  is  no  record  until  it  is  actually  made  up,  it  is  not  a  com- 
])lete  record,  and  is  not  admissible  as  evidence  in  another  Court.* 
So,  also,  in  the  Court  of  Chancery,  a  bill  or  other  pleading,  which 
lias  been  duly  filed,  or  even  a  decree,  though  passed  and  entered, 
is  not  a  record  of  the  Court,  of  which  a  copy  can  be  admissible  as 
evidence  in  another  Court.     A  proceeding  or  decree  does  not  be- 
come a  record  till  it  has  been  signed  and  enrolled.     When,  there- 
fore, it  is  said,  that  pleas  of  matters  of  record  may  be  jiut  in  without 
oath,  it  must  be  understood  as  confined  to  those  matters  which  are 
of  record,  strictly  so  speaking,  and  which  require  no  other  evidence 
to  prove  them  tlian  what  the  Courts  are  in  the  habit  of  recognizing 
upon  inspection ;  ^  such  as  exemplifications  under  the  Great  Seal  of 
the  Court  of  Chancery,  or  of  the  Court  out  of  which  it  comes. 
Upon  this  principle  it  is,  that  a  decree  of  dismissal,  signed  and 
cnnjlled,  may  be  pleaded  without  oath.     Upon  the  same  ])rinciple, 
a  plea  of  outlawry,  or  of  excomnmnication,  may  be  put  in  willidut 
oatli ;  and  so  may  a  plea  of  conviction  of  felony." 

Matters  not  so  recorded  may  be  ca])ablo  of  proof  aliunde  ;  but 
if  j)k'a(U'd,  tlie  plea  must  Ijc  accompanied  by  the  oath  of  the  jtarty: 
unless,  indiM'd,  tlicy  consist  of  transactions  in  the  Court  itsell",  wliifli, 


What  is  niat- 
llT  ijiKini  of 
rcc.nl  to 
whiili  oath 
unueccsj'ury. 


1  V.  Davies,  19  Ves.  Rl,  83. 

'■*  Ante,  p.  I>6;  anil  sec  I'rat  r.  Tnyl'f, 
1  Cha.  ('a.  237,  as  to  pica  oC  |)nviU')4(;  oi 
defeiiilHnc,  as  ccholur  of  tlio  Univcr'*ily  of 
Oxloril. 


8  2  I'hillips  on  Evi(1.2;  Tiivloron  ICvid. 
§§  137H-131H,  Mf)7-M0!". 
■■i    Tavloroii  Kvid.  §  1407. 

6  Sec  Wall  V.    8tui)bs,  2  V.   &  B.  3V1, 
8.17. 

0 V.  Davies,  ll»  Vch.  81,  83. 


688 


PLEAS. 


Cii.  XV.  §  :J 


In  case  of 
ploa  of 
outlawry. 


"Where 
accompanied 
by  answer. 


Omission  of 
oath  not  an 
irregularity 
which  can  be 
waived. 


although  tl>oy  have  not  bct'ii  solemnly  and  l"ornially  onrolled,  arc 
ijftafti  ol"  rri'oid.  l*li'as  of  such  jnattcrs,  as  well  as  matters  of  rec- 
ord, may  be  put  in  without  oath  :  for,  as  the  Court  is  in  the  habit 
of  notieing  its  own  ])roeeedint»;s,  they  are  cai)able  of  proof  without 
any  other  evidence  than  tlie  production  of  the  proceeding  itself^ 
or  an  office  copy  of  it,  signed. by  the  proper  officer.  Upon  this 
l)rincii)le  it  is,  that,  when  a  plea  of  a  suit  already  depending  in  the 
Court  of  Chancery  is  put  in,  the  Court  does  not  require  that  it 
should  be  upon  oath,  but  immediately  directs  an  incpiiry  into  the 
existence  of  such  a  suit.^ 

In  the  case  of  a  j^lea  of  outlawry,  the  record  must  be  pleaded 
sub  pede  sigilli ;  •  and  it  w^as  formerly  usual,  as  well  at  Law  as  in 
p]quity,  to  annex  to  the  plea  a  copy  of  the  whole  record  of  out- 
lawry, duly  authenticated  by  the  seal  of  the  Court  from  which  it 
issued,  in  order  that  the  Court  might  judge  immediately  of  the 
truth  of  the  plea ;  ^  but  it  was  afterwards  the  practice  to  annex  the 
capias  utlagatum  only,  under  the  seal  of  the  Court,''  or  of  the  proper 
office,  whidi  is,  in  fact,  the  seal  of  the  Court.  And  wdiere,  instead 
of  a  copy  of  the  cajnas  utlagatum,  duly  authenticated,  the  defend- 
ant annexed  a  certificate,  under  the  seal  of  the  Clerk  of  the  Out- 
lawries, the  plea  was  held  bad.^  But  it  seems  that  since  the  14  & 
15  Vic.  c.  99,  a  copy,  certified  by  the  proper  officer,  of  the  sheriff's 
return  to  the  w^it  of  exigi  facias,  is  suflljcient  evidence  of  the  out- 
lawry.*' 

In  all  cases  where  a  plea  is  accompanied  by  an  answer,  it  must 
be  i)ut  in  upon  oath.''  A  plea  by  a  peer,  or  a  person  having  privi- 
lege of  j^eerage,  must,  in  those  cases  where  an  oath  would  be 
required  from  persons  not  enjoying  the  privilege,  be  put  in  upon 
attestation  of  honor.  In  the  case  of  a  corporation  aggregate,  it 
must  be  under  the  common  seal ;  and  it  is  advisable,  though  not 
indispensable,  that  the  affixing  of  the  seal  should  be  attested  by 
some  officer  of  the  corporation.^ 

Where  a  plea  which  ought  to  be  upon  oath,  is  put  in  wdthout 
one,  the  irregularity  is  not  one  which  can  be  waived  by  the  plain- 
tiff's taking  any  proceeding  upon  it ;  ^  and  in  such  a  case,  the 
plaintiff  should  move,  upon  notice,  that  the  plea  may  be  taken  off 
the  file.^'^     Where,  however,  a  joint  and  several  plea  had  been 


1  Ord.  XIV.  6,  7;  Urlin  v.  Hudson,  1 
Vern.  332,  ante,  p.  661. 

2  Ord.  XIV.  4. 

3  Co.  Litt.  128  b. 

<  6  Bac.  Ab.  67 ;  and  see  Fox  v.  Yates, 
24  Beav.  271. 

6  Waters  i-.  Mayhew,  1  S.  &  S.  220. 
Leave  was,  however,  given  to  amend  the 
plea,  as  the  defect  arose  from  the  mistake 
of  the  Clerk  of  the  Outlawries,  and  not  of 
the  defendant. 


c  Anstruther  v.  Roberts,  4  W.  K.  349, 
V.  C.  K. ;  and  see  Winthrop  v.  Eklerton, 
15  Jur.  1028,  V.  C.  K.;  ante,  p.  55.  As  to 
outlawries,  see  Ctiitty's  Arcli.  12!)5-1305. 

"  .Jcfl'erson  v.  I^awson,  2  Cha.  Ca.  208. 

8  Uniithwaite's  I'r.  53.  For  form  of  at- 
testation, see  Vol.  III. 

9  Wall  V.  Stubbs,  2  V.  &  B.  354,  358. 

10  Wild  v.  Gladstone,  3  De  G.  &  S.  740; 
15  Jur.  713.  If  a  plea  is  not  verilied  by 
the  oath  of   the  defendant,  the  plaintiff 


interlinea- 
tions. 


SWEARING,    FILING,    SETTING   DOWN,    AND   ARGUING   PLEAS.  689 

sworn  to  by  all  the  defendants,  except  one  who  had  died,  the  Court  Ch.  XV.  §  4. 
refused  to  order  it  to  be  taken  off  the  lile.^ 


Sectiox  IV. —  Sioearing,  Filing,    Setting   Down,  and  Arguing 

Pleas. 

A  plea,  being  drawn  or  perused  and  settled  by  counsel,  must  be  How 
written  upon  paper  of  the  same  description  and  size  as  that  on  which  ^"S"^"^^®"^- 
bills  are  printed  ;  ^  and  the  Record  and  Writ  Clerks  may  refuse  to  Erasures  and 
file  any  plea  in  which  there  is  any  knife  erasure,  or  which  is  so 
blotted  as  to  obhterate  any  word,  or  is  improperly  written,  or  so 
altered  as  to  cause  any  material  disfigurement ;  or  in  which  there 
is  any  interlineation  :  unless  the  person  before  whom  the  same  was 
sworn  duly  authenticate  such  interlineation  with  his  initials,  in 
such  manner  as  to  show  that  such  interlineation  was  made  before 
the  plea  was  sworn,  and  so  as  to  mark  the  extent  of  such  interlin- 
eation.® A  joint  plea  and  answer  must  be  printed  in  the  same 
manner  as  answers  are  printed.^ 

Where  a  defendant  puts  in  a  plea  on  oath,  or  attestation  of  How  swom. 
honor,  it  must  be  signed  by  him,  and  the  signature  be  atfixed  or 
acknowledged  in  the  presence  of  the  person  before  whom  the  plea 
is  swoni.®     Pleas  are  sworn  and  taken  in  the  same  manner  as 
answers.^ 

A  plea  which  does  not  require  to  be  put  in  on  oath,  need  only   when  plea 

be  signed  by  counsel: '  and  in  other  cases,  if  the  plaintiff"  will  con-   '"?y  ^^  *''^^ 

®  •;  T         1       .       T  n  .  without  oath 

sent,  an  order  may  be  obtamed  as  of  course,  on  petition  at  the  or  signature. 

llf»lls,  to  file  the  plea  without  oath  or  signature,  or  witliout  oath 

only."     If  the  order  dispenses  with  the  oath  only,  the  defendant 

must  sign  tlie  plea,  and  his  signature  must  be  attested  by  some 

person  competent  to  be  a  witness.     The  order  must  be  produced 

at  the  time  of  filing  the  plea.^ 

The  j)l{'a  must  be  in<lorse<I  with  the  name,  place  of  business  or   Filing  plea. 

residence,  and  address  for  service,  if  any,  of  the  solicitor  or  party 

filing  it,  in  the  same  manner  as  other  pleadings  ;^°  and  it  is  filed  in 

the  Record  and  Writ  Clerks'  Office,"  without  any  other  formality 

than   that   require<l  for  filing  an  affidavit.^'^     Notice  of  the  filing  Notice  of 

thereof  shouhl  be  given  to  the  solicitor  for  the  plaintiff,  or  to  the   ''^"S- 

miiy  apt«lv  for  im  order  to  set  it  a'<i'le,  or  -  Oni.  16   March,  1860,  r.  10;    OnJ.  IX. 

to  liavt!  it  tak«'n  oil'  the  (iji's  of  the  (,'ourt;  3;  (lutc,  p.  3!)6. 

but  lie  caiiimi  make    the  ohjectii.n   u|)on  <•  Onl    I.  36. 

the  ar>^uiiient  of  the  pica     lleiirti  r.  (Jorn-  *  Sc'- /«>/(/,  tip.  756,  756. 

iiijC.  3  I'aiCe,  .',66:   lias-ett  t)   Cuiniiany,  43  ^  Ord   XIV.  3. 

N.  H.  2.-)l;  1  New.  (Jh.  I'.  117.     For  form  "  See /v»ji<.  op.  743.  et  seq. 

of  notice  c.f  motion,  see  Vd.  III.  7  Ord   VIII.  1;  XIV.  3. 

'  AttnrnHy-<ieneral   v.  fJradoek,  8  Sim.  *  For  (orm  of  pi-titioti,  see  Vol.  III. 

466;   1  .lur.  4!i.j;  see  also  (Jope  v.  I'nrrv,  1  ^   I'.raitliwaite's  I'r.  62,  63. 

Mad.  h3;  Cooke  w.  Westall,  lb.  206;  Done  '"   Ord.  III.  2,  .0;  ant,,  pp.  453,  454. 

V.  li-ad,  2  V.  &  B.  310.  n  Or>\.  I.  35;  VIII.  3. 


12  16  &  16  Vice.  86,  §  21. 


44 


690 


PLEAS. 


On.  XV.  5  4. 


Conseoueiu-o 
of  ncgloi-t  to 
give  notice. 


Time  allowed 
to  plead. 


Whether  plea 
may  be  tiled, 
under  order 
for  further 
time  to 
answer. 


pl;iiii(iti  hiiiisi'lt'  if  lie  siios  in  ])orson,  betbro  sovon  o'clock  in  tlic 
cvciiiiiii-  oi'  the  (l.iy  on  wliicli  the  plea  is  filed,  or,  if  filed  on  a  Sat- 
urday, belbre  two  o'clock  in  the  alVernoon  of  that  day.'  Neglect 
to  give  the  notice  in  dne  time  will  not  render  the  plea  inoperative  ; 
but  the  time  allowed  to  the  plaintift'  for  taking  the  next  stej)  in 
the  cause  will  be  extended,  su  as  to  give  him  the  benefit  of  the 
time  he  would  otherwise  lose  by  the  delay  in  the  service."^ 

A  defendant  is  allowed  the  same  time  for  pleading  as  for  answer- 
ing; and  any  extension  of  the  time  must  be  applied  for  in  the  same 
manner  as  in  the  case  of  answers;  and,  generally,  the  rules  regu- 
lating the  swearing,  and  the  •  reception  and  filing  of  pleas  at  the 
Record  and  Writ  Clerks'  Oflice,  are  the  same  as  those  which  regu- 
late the  swearing,  reception,  and  filing  of  answers.^ 

Some  doubt  at  one  time  existed  whether,  when  the  order  allow- 
ing further  time,  in  terms  gave  the  defendant  further  time  to  an- 
swer only,  he  was  entitled  to  plead  ;  and  in  the  case  of  Brooks  v. 
I^urton,-*  where  the  defendant's  ai)plication  to  the  Master  and  the 
afiidavits  in  support  of  it  had  reference  only  to  answering.  Sir  J. 
L.  Knight  Bruce  V.  C.  was  of  opinion  that  an  order  giving  leave 
to  answer,  2)i^ad,  or  demur,  not  demurring  alone,  was  irregular,  and 
he  ordered  the  words  in  italics  to  be  struck  out  from  the  order ; 
whereupon  his  Honor  directed  the  plea  to  be  taken  ofi"  the  file  ; 
afterwards,  the  defendant  filed  a  plea  upder  the  order  so  altered  : 
but  he  stated,  that  his  judgment  proceeded  entirely  on  the  circum- 
stances of  the  individual  case.  There  have,  however,  been  several 
cases  in  which  it  has  been  decided,  that  a  ]dea  was  an  ansAver 
within  the  meaning  of  an  order  for  time  to  answer ;  ^  and  in  the 
case  oi  Hunter  v.  JVockolds,  Lord  Cottenham  decided  that  if  it  is 
intended  to  limit  the  defendant  to  an  answer,  the  order  must  ex- 
pressly declare  that  intention.*^ 


1  Ord.  III.  9;  XXXVII.  2;  ante,  pp. 
454,  455.  For  form  of  notice,  see  Vol. 
III. 

2  Wright  V.  Angle,  6  Hare,  107,  109; 
Lowe  V.  Williams,  12  Beav.  482;  Jones  v. 
Jones.  1  Jur.  N.  S.  863,  V.  C.  S.;  Lloyd 
V.  Solicitors  and  General  Life  Assurance 
C..n)pany,  3  VV.  K.  640;    24  L.  J.  Ch.  704, 

•  V.  (J.  \V. ;  see,  however,  Matthews  v.  Chi- 
chester, 5  Hare,  207,  iverrultd  on  sippeiil, 
li.  210;  11  Jur.  49. 

8  bee  pust,  (Jliap.  XVII.  §  3,  Answeis. 
In  Massachusetts,  "  the  defendant  may, 
at  any  lime  before  the  bill  is  taken  for 
conte?»ed,  or  afterwards,  by  leave  of  tiic 
Court,  demur,  plead,  or  answer  to  the  bill." 
Kule  10  of  the  Rules  for  Pr.ictice  in  Chan- 
cery- 

*'  1  Y.  &  C.  C.  C.  278;  see  also  Taylor 
V.  Milner,  10Ve8.444;  Newmans.  White, 
16  Beav.  4. 

5  Kav  V.  .Marshall,  1  Keen,  190;  Anon., 
2  f.  Wras.  464;  Jones  v.  Karl  of  Straf- 


ford, 3  P.  Wms.  79,  81;  Kobtrts  v.  Hart- 
ley, 1  Bro.  C.  C.  56;  Ue  Minckuitz  v.  Ud- 
nev,  16  Ves.  3.')5;  I'hilips  v.  Gibbons,  1  V. 
&  B.  184;  Newman  v.  White,  16  B.-av.  4; 
Iluartt  V.  Cori.ini;,  3  Paige,  566.  The 
tiling  either  an  answer,  plea,  or  dennirrer, 
is  said  to  be  a  compliance  with  tlie  rule  to 
answer,  in  Bracken  v.  Kenneily,  3  Scam. 
564.  If  further  time  is  given  to  answer, 
it  is  improper  to  tile  a  ilemurrer  without 
leave  of  the  Court.  Jbifl.  Demurrer  to 
part  is  not  a  compliance  with  an  order  to 
an-iwer.  Kenrick  v  Clayton,  2  Bro.  C.  C 
(Perkins's  ed.)  214,  and  notes;  S.  C.  2 
Dick.  685;  Lansdown  v.  Elderton,  8  Sum- 
ner's Ves.  526,  note  (1),  and  cases  cited. 
Plea  under  an  order  for  time  to  answer 
is  regular.      8  Sumner's  Ves.  256,   note 

6  2  Phil.  540,  544;  12  Jur.  149.  revers- 
ing S.  C,  6Hare,  12;  11  Jur.  1006;  see 
also  Newman  v.  White,  16  Beav.  4. 


SWEARING,    FILING,    SETTING   DOWN,    AND   ARGUING   PLEAS. 


691 


If  the  defendant  does  not  obtain  an  order  for  further  time,  but 
allows  an  attachment  to  issue,  there  does  not  seem  to  be  any 
objection  to  his  filing  a  plea;  further  than  that  he  must,  as  in 
the  case  of  an  answer,  first  tender  the  costs  of  the  contempt.^ 
I£,  however,  the  defendant  is  in  contempt  for  want  of  an  answer, 
and  an  order  has  issued  for  the  Sergeant-at-Arms,  it  is  considered 
irregular  to  file  a  plea.'-  After  service  of  a  traversing  note,  a 
defendant  cannot  plead  to  the  bill,  without  the  special  leave  of  the 
Court.« 

An  office  copy  of  the  plea  is  taken  by  the  plaintiff;*  and,  as 
a  general  rule,  he  can  take  no  step  in  the  cause  until  tlie  plea  has 
been  disposed  of  Thus,  except  under  very  special  circumstances, 
there  can  be  no  motion  for  an  injunction  till  the  plea  has  been 
argued.  The  Court  will,  however,  at  the  instance  of  the  plaintiff, 
in  such  a  case,  expedite  the  hearing  of  the  plea ;  and  will  give  the 
])laintiff  leave  to  move  on  the  same  day  that  it  comes  on,  if  the 
plea  should  be  overruled  upon  argument,  that  an  injunction  may 
issue.^ 

So,  also,  if  a  defendant  pleads  to  part,  and  answers  to  the 
residue  of  the  bill,  the  plaintiff  cannot  except  to  the  answer  till 
the  i)lea  has  been  argued  : "  unless  in  cases  where  the  plea  is  con- 
fined to  the  relief  prayed,  and  the  defendant  profess(^s  to  answer 
as  to  the  whole  discovery  required  ;  in  such  cases,  it  seems  the 
Court  will  not  require  the  plaintiff  to  set  down  the  plea  before  he 
excepts  to  the  answer  for  insufficiency." 

Tlie  rule  which  re(piires  a  plea  to  be  dis])Osed  of  upon  argu- 
ment, before  any  further  proceedings  are  had  in  the  cause,  applies 
to  cases  where  the  defendant,  as  well  as  to  cases  where  the  plain- 
tiff, seeks  to  move  in  tlie  cause.  Thus,  if  a  defendant  plead  in 
bar,  he  cannot  obtain  an  order  for  the  phiintiff  to  make  his  elec- 
tion, till  tlie  i>]ea  lias  been  argued  :  for  the  plea,  by  insisting  that 
the  plaintitt"is  not  entitled  to  sue  in  Equity,  denies  that  he  has  an 
election;'*  and  an  order  for  the  plaintiff  to  make  his  election, 
made  under  such  circumstances,  will,  on  motion,  be  discharged;® 
as  will  also  be  an  order  to  elect,  made  where  the  delendant  has 
pleaded  to  ])art,  and  answcicd  to  tli<'  i-ciii.nii(lcr  of  the  bill.'" 

The  plaintiff  may,  within   three    weeks  alter  the   filing   of   the 


1  Wiiters  V.  ChamberK,  1  S.  &  S.  225; 
SandcrH  i'.  Muni'-v,  (/«>/.,•  II  imilioii  r. 
Jlil)b.-it,  2  S.  &.  S.''22r,;  Mclliir  r.  \\:>\\,  i/j. 
821.  '4il;   K(>iilk(M  V.  .Jones,  2  l!i-av.  274. 

■i  ltriiitliwait.''8  I'r.  63. 

8  Old.  Mil    7;  anfe,  \>.  610. 

*  Hniiili wiiii(!'s  I'r.  4'.il. 

*  Ilum|ilircyH ''•  llumplircvH,  3  I'.  Wins. 
8!»f),  31)7;  'I'thimpsoii  v.  Sclbv,  12  Sim. 
lUO. 

9  Darnell  t>.  Reyny,  1  Vern.  344  ;  Hniilli 
waite's  I'r.  127,  128.     Wlicrt;  the  pliiintifl" 
excepts  to  the  answer   accompanying  a 


Cn.  XV.  §  4. 


Slay  be  filed 
after  attach- 
ment ; 

but  not  after 
a  Sergeant- 
at-Arms ; 
nor  after  a 
traversing 
note,  without 
leave. 

Taking  office 
copy. 

No  proceed- 
ing in  cause 
till  plea 
disposed  of. 


pleii,  before  tlie  (irgunient  of  the  ple;i,  the 
rnith  lit'  till-  ])lca  is  iulniitted.  Urowiiell 
r.  Curtis,  10  I'aige,  210;  uiid  see  Huclian- 
nan  r.  Il'id;;soii,  11  IJeuv.  308,  a--  to  mov- 
ing tor  )ir()(lu('tii'ii  of  (locunieirls,  afler 
joint  [)lea  and  answer-. 

7  I'igot  V.  Stace,  2  Dick.  4iH);  Sidney  «. 
I'erry,  ih.  (J02. 

«  Anon.,  Mo.s.  304;  and  see  /x«/.  Chap. 
XI.\.  §  4,  KUcllim. 

'■>  Vaiiglian  r.  We'sh,  M<ii«.  210. 
10  i'islier  v.  Mee,  3  Mer.  40,  47. 


When  de- 
fondant 
pleads  to  part 
and  answers 
rest  of  bill. 

Exceptions 
pending  plea. 


No  step 
allowed  in 
the  cause  by 
any  party 
pending  plea. 


Election. 


1)92 


PLEAS. 


Cm.  XV.  S  1. 


of  former  suit 
depending; 
or  of  decree 
signed  and 
enrolled. 

Plea  need  not 
be  entered; 


and  either 
party  may 
set  it  down. 


|>U';i,'  olitiiin  on  motion  or  jtctition  ;is  ot  course,-  an  order  to 
miui'mJ  his  bill.  Tlu'  ]>cliti(tii  :in(l  order  slioidd  state  wliether  the 
jiU'a  has  or  has  not  boon  sot  down  lor  arnuniont : '  in  the  former 
oaso,  the  order  is  made  on  ])ayment  of  the  taxed  costs,  and  in  tlie 
latter,  of  "Jd.s'.  oosts."*  This  course  shouhl,  however,  only  be 
adopted  when  the  jdaintiff  considers  the  plea  to  be  good :  for  such 
an  amendment  of  the  bill  is  as  much  an  admission  of  the  validity 
of  the  plea,  as  if  the  same  had  been  allowed  on  argument.'* 

If  the  plaintiff  dis])Ute  the  validity  of  the  j)lea,  he  should  set  it 
down  for  argument.  There  are,  however,  certain  pleas  which  are 
not  usually  set  down  for  argument;  these  are:  1.  Pleas  of  Out- 
lawry; 2.  Of  a  former  Suit  depending ;  3.  Of  a  Decree  signed  or 
enrolled.  The  first  are  j)lca(lcd  s^ih  t>ir/tl/o,^  so  that  the  truth 
of  the  tact  is  ascertained  by  the  form  of  pleading;  and  the  suit  is 
consequently  delayed  until  the  disability  is  removed  :  and  when 
removed,  the  defendant  must,  on  receiving  his  costs,  answer  tlie 
bill  as  if  the  outlawry  had  not  existed.''  Where,  however,  the 
jilaintiff  conceives  such  a  plea,  through  misi)leading  or  otherwise, 
to  be  insufficient,  he  may  set  it  down  for  argument.**  In  the  case 
of  the  two  latter  kinds  of  pleas,  an  inquiry  will,  on  motion  or 
])etition  of  course,  be  directed  into  the  truth  of  them.^  The  order 
for  this  inquiry  ought  to  be  obtained  by  the  plaintiff:  ^°  unless  he 
conceives  the  plea  to  be  deficient  in  form,  in  which  case  he  may 
set  it  down  for  argument,^^ 

Formerly,  after  the  filing  of  a  plea,  it  was  necessary  to  enter  it 
with  the  Registrar ;  but  now  this  need  not  be  done ;  and  upon 
the  filing  thereof,  either  party  is  at  liberty  to  set  the  same  down 
for  argument  immediately;^^  and  it  is  irregular  to  set  the  same 
down  after  three  weeks  from  the  date  of  the  filing  thereof;  but 
the  times  of  vacation  are  not  to  be  reckoned.^^ 


1  Old.  XIV.  17.  The  vacations  nre  not 
reckoned,  Ord  XXXVll.  13  (3);  ante,  p. 
641. 

2  For  Terms  of  motion  pnper  and  peti- 
tion, see  Vol.  III.  But  nfter  the  plea  is 
get  down,  tlie  application  to  amend  mu^t 
be  bj'  special  .'-uniiiions.  See  ante,  p  593,  n. 
For  a  lorm,  see  Vol   III. 

3  .Jennings  v.  I'eirce,  1  Ves.  J.  448; 
Thorn  v.  Germand,  4  .John.  Cli.  363; 
Brown  v.   Kicketts,  2  .John.  Ch.  425. 

•*  .Jones  V.  VVattier,  4  .Sim.  128;  I'arker 
V.  Alcock,  1  Y.  &  J.  195. 

6  See  Si>en<-er  v.  Bryan,  9  Ves.  231. 
0  Ord.  XIV.  4;  ante,  p.  688. 
T  Ord.  XIV.  5. 

8  Ord.  XIV.  o;  Ld  Red.  305;  see  also 
Hunter  v.  Avre,  23  Beiv.  15;  Hunter  v. 
Nockol'ls,  6  Hare,  459,  462;  Fox  v.  Yates, 
24  Beav.  271 ;  and  see  ante,  p.  56. 

9  A7ite,  pp.  037.  661.  For  form  of  order, 
see  Seton,  1259,  No.  16;  and  for  forms  of 
rnotioii  paper  and  petition,  see  Vol.  III. 


10  Oi-a.  XIV.  6;  ante,  pp.  637,  661. 

11  Ante,  pp.  5b7,  610;  I.d.  Ked.  305; 
Thomas  v.  Brasher,  4  Monroe,  67.  Ex- 
ceptions are  never  tiled  to  a  |dca,  hut  if 
tlie  party  coiic-ives  the  plea  to  be  defec- 
tive, either  in  form  or  snb-taiice,  he  may 
on  motion  or  petition,  have  the  plea  itself 
set  down  for  arj^ument.  Kaymond  v. 
Simonson,  4  lilackf.  79. 

If  the  plaintiff  questions  the  validity  of 
a  plea  in  bar  to  the  whole  bill,  without  re- 
[)l^inL^  the  defi-ndant  must  sot  it  down 
for  argument ;  if  held  bad,  the  defeiic'ant 
mnsr,  answer;  if  sustained,  the  plaintiff 
must  ivplj-;  if  he  does  reply  and  takes 
issue,  the  determination  of  that  issue  is 
final.  Flagg  u.  Bonnel,  2  Saxtoii  (N.  J.), 
82. 

12  Ord.  XIV.  11. 

13  Neck  V  Gains,  1  De  G.  &  S.  223,  11 
Jur.  763;  Urd.  XXXVll.  13  (3). 


SWEARING,    FILING,    SETTING   DO^^Tf,    AND    ARGUING    PLEAS. 


693 


The  party  wishing  to  set  a  plea  down  for  argument  must,  where 
the  cause  is  attached  to  one  of  the  Vice-Cliancellors'  Courts, 
present  a  petition  to  the  Lord  Chancellor,  or,  where  it  is  attached 
to  the  Rolls'  Court,  to  the  Master  of  the  Rolls,  praying  that  the 
plea  may  be  set  down.^  The  petition  which,  if  the  cause  is 
attached  to  one  of  the  Vice-Chancellors'  Courts,  does  not  require 
any  fiat  from  the  Lord  Chancellor,  nor  any  stamp,-  is  left  with 
the  Registrar,  or  the  Secretary  of  the  Master  of  the  Rolls,  as  the 
case  may  be  ;  ^  and  must  state  the  name  of  the  Judge  to  whose 
Court  the  cause  is  attached,^  the  day  when  the  plea  was  filed, 
and  whether  it  is  to  the  whole  or  part  of  the  bill,  and  must  be 
subscribed  by  the  solicitor,  and  state  for  what  party  he  acts,  and 
be  dated  the  day  it  is  left."'^  The  order  for  hearing  the  plea,  Avhich 
is  as  of  course,  is  drawn  up  by  the  Registrar,  or  by  the  Secretary 
at  the  Rolls,  as  the  case  may  be.®  The  order  should  then  be  taken 
to  the  Registrar's  Clerk  at  the  order  of  course  seat,  and  he  Avill 
set  the  plea  down  at  once;''  and  a  copy  of  the  order  should  also 
be  served,  as  soon  as  2)ossible,  on  the  solicitor  of  the  opposite 
party.' 

Unless  specially  directed  by  the  Lord  Chancellor,  or  the  Lords 
Justices,  the  plea  must  be  set  down  before,  and  heard  by  the 
Judge  to  whose  Court  the  cause  is  attached.*  Previously  to  the 
hearing,  two  copies  of  the  bill  and  a  copy  of  the  plea  must  be  left 
with  the  under  secretary  or  the  train  bearer  at  the  Rolls,  or 
with  the  train  bearer  of  the  Vice-Chanccllor,  as  the  case  may  be, 
for  the  use  of  the  Court.^°  If  the  cause  is  attached  to  the  Rolls' 
Court,  the  plea  will  not  be  put  in  the  paper  until  two  clear 
days :  if  to  one  of  the  Vice-Chancellors'  Courts,  until  six  clear 
days  after  it  has  been  set  down. 

If  the  defendant  does  not  think  he  will  be  able  to  maintain  his 
plea  on  argument,  he  should,  before  it  comes  on  for  hearing,  obtain 
uu  order  for  leave  to  withdraw  it."  The  order  will  be  granted 
on  payment  of  the  costs  occasioned  by  the  plea. 

The  j»arties  should  be  provided  with  oflice  coj)ies  of  the  affidavits 
of  st!rvice  of,  and  of  being  served  with,  the  order  to  set  down  the 
plea.  If  the  jilea  has  been  set  down  by  the  ])laintift',  and  tlic 
defendant   makes   default  at  the   hearing,  the  ])lea  will   be   ovei- 


Ch.  XV.  §  i. 


Plea:  how 
set  down. 


Service  of 
order. 


Heard  before 

what  Judge. 

Papers  for  use 
of  the  Court. 


When  put 
into  Court 
paper. 


Application 
by  (lerenilant 
to  withdraw 
plea. 


Aflidavit  of 
service  of 
order; 
default  of 
defendant. 


1  Ord   XXr   9. 

2  \i,'u:-  \lx"\    15  March,  1860,  r.  3. 
'Ord     X.\I.  9.     F.-r  (ill  Ml  of  order,  see 

Seton,  r<!'i".  Km.  10;  and  for  (orin  of  peti- 
tion. Rce  Vol.  MI. 
*  Ord    XIV    10. 

6  ]{<•«    l!.-u'id.  1.".  March,  IKOO,  r  3. 
«  Ord.  XXI.  !i. 

7  \l,-ix    \U-.'\i\.  \r,  Miireii,  1800,  r.  1. 
'  llr:i'iliwnite'8  I'r.  06. 

»  Ord.  VI.  4. 


1"  If  these  directions  as  to  papers  are 
ncfjieclc'l,  and  in  coiiHecpicnce  thereof  tlie 
ple;i  cannot  he  heard,  the  .solicitor  may  ho 
ordered  to  pav  such  costH  as  the  <'ouit 
tliiiiks  Ht.  Ord".  XXI.  12.  The  M  K.  re- 
quires the  papers  tn  be  left  two  clear  da3'fl, 
at  least,  befire  iheplea  comes  on  furhear- 

illfr. 

"  l'"or  form  of  order  towillidrnw  m  plea, 
see  Seton,  l:J.'>'.i,  No.  IT);  ami  for  fiirm  of 
petition  for  that  purpose,  see. Vol.  III. 


CO-1 


TLTIAS. 


Cii.  XV.  5  4. 


aotault  of 
plaintitr. 


Onler  in 
wliii-h  coun- 
sel heard. 


Where 
plaintiff 
declines  to 
argue  plea. 

Plea  cannot 
stand  over 
indetinitely. 

Allegations 
in  bill  taken 
less  strongly 
against  plain- 
tiff on  plea, 
than  on 
demurrer. 

Answer  sup- 
porting plea, 
may  be  read 
to  counter- 
prove  plea. 


nilc'.l,  it'  I  ho  ])l:iiiititV  ('.'m  produce  mii  Mllldnvit  of  service  on  the 
(lefeiuhmt  of  llie  order  to  set  down  the  plea ;  ^  if  he  cannot 
jtroduce  siuh  an  affidavit,  it  will  be  struck  out  of  the  ])aj)er.  If 
the  plaint ilf  himself  makes  default,  the  ])lea  will  be  allowed,  if  the 
defendant  can  produce  an  ailidavit  of  havinti;  been  served  with  the 
order;  or  will  be  struck  out  of  the  })aj)er,  if  he  cannot.^  Similar 
rules,  mutatis  mxitandis,  apply  to  the  case  of  pleas  set  down  by  the 
defendant.^ 

On  the  arijument  of  the  plea,  where  all  parties  apjiear,  counsel 
for  the  defendant  are  first  heard  ;  then  the  counsel  for  the  ])laintiif; 
and  lastly,  the  leading  counsel  for  the  defendant  is  entitled  to  reply.* 

If,  when  the  plea  is  called  on  for  hearing,  the  plaintiff  declines 
arguing  it,  and  applies  for  leave  to  amend,  he  will,  in  general,  be 
allowed  to  do  so,  on  })ayment  of  the  costs.^ 

A  ])lea,  wdien  set  down,  will  not  be  allowed  to  stand  over  for 
an  indefinite  period.® 

It  may  be  observed  here,  that  on  the  argument  of  a  plea,  the 
allegations  in  the  bill  may  be  taken  less  strongly  against  the  plain- 
tiff than  they  would  be  on  a  demurrer.'' 

If  a  plea  is  supported  by  an  answer,  upon  the  argument  of  the 
plea  the  answer  may  be  read  to  counterprove  the  plea ;  and  if 
the  defendant  appears  not  to  have  sufficiently  supported  his  plea 
by  his  answer,  the  plea  must  be  overruled,  or  ordered  to  stand  for 
an  answer  only.^  Where  a  defendant  had  answered  to  an  original 
bill,  which  was  afterwards  amended,  whereupon  the  defendant 
put  in  a  plea  to  the  amended  bill,  the  plaintiff  was  permitted  to 
read  the  answer  to  the  original  bill,  to  counterprove  the  j)lea  to 
the  amended  bill.^ 

Upon  the  argument  of  a  plea,  every  fact  stated  in  the  bill,  and 
not  denied  by  the  averments  in  the  plea  and  by  the  answer  in  sup- 
port of  the  plea,  must  be  taken  as  ti-ue.^°  If  a  plea  be  set  down 
for  argument  by  the  ])laintiftj  without  replying  to  it,  the  matter 
contained  in  it  must  be  considered  as  true.^-^ 


1  For  form  of  order  in  such  case,  see 
Seton,  1258,  No.  13;  and  for  form  of  affi- 
davit, see  Vol  III. 

2  Where,  in  either  case,  the  plea  is 
struck  out,  a  fresh  onler  must  be  obtained 
for  settin;,'  it  down,  as  in  the  case  of  a  de- 
murrer; see  (IV te,  p   596. 

8  Mazarredo  v.  Maitland,  2  Mad.  38 

•*  Counsel's  brief  consists  of  copies  of 
the  bill  and  plea. 

6  Si-e  .Jones »'.  Wattier,  4  Sim  128;  see 
also  nnle,  p.  420. 

6  Ord.  XXI   13. 

^  Kumbold  v.  Forteath,  2  Jur.  N.  S.  686, 

V.  c.  vv. 

8  I,d.  Hed.  303;  see  Kirbv  v.  Tavlor, 
6  Joiiii.  Cli.  242;  Souzer  v.  'l)e  Mever,  2 
Paige,  574;  Bogardus  «.  Trinity  Church, 


4  Paige,  178;  Kuypers  v.  Dutch  Ref. 
Cliurcli,  6  Paige,  570;  Leaycraft  v.  Demp- 
sey,  4  Paige,  124, 126;  Story  Kq.  I'l.  §  699. 
If  a  plea  accompanied  by  an  iinswer,  i-* 
allovied,  the  answer  may  be  read  at  tlie 
liearing  of  the  cause  to  counterprove  the 
plea  Souzer?;.  I )e  Meyer,  2  I'aige,  574; 
B'igardus  v.  Trinitv  Cliiircli,  4  Paige,  178; 
Story  K<|    PI.  §§  690,  699. 

'■>  Hildvard  v.  Cressy,  3  Atk  303,  ante, 
p.  680. 

1"  liogardus  v.  Trinity  Church,  4  Paige, 
178;  Lawrence  v.  Pool,  2  Sandf.  S.  C. 
540. 

11  Gallagher  v.  Rolierts,  1  Wash.  C  C. 
320;  Itowl.-y  v.  Williams,  5  Wis.  151; 
D^ivison  V-  .(ohnson,  1  C.  E.  Green  (N.  J.), 
112. 


SWEAEIXG,    FILING,    SETTING   DOWN,    AND   ARGUING   PLEAS. 


095 


A  plea  upon  argument  may  be  either  allowed  sim|)ly,  or  Avith 
leave  to  amend,  or  the  benefit  of  it  may  be  saved  to  the  hearing, 
or  it  may  be  ordered  to  stand  for  an  answer,  or  it  may  be  over- 
ruled.^ The  conse(pience  of  each  of  such  judgments  will  be  con- 
sidered in  the  ensuing  sections. 

If  the  plaintifi*  conceives  the  plea  to  be  good,  though  not  true, 
he  should  reply  thereto,  and  take  issue  upon  it,  as  in  the  case  of 
an  answer.^  He  ^  should  not,  however,  reply  to  a  plea  of  the 
dependency  of  a  former  suit  for  the  same  matter.^ 

If  the  plaintiff  reply  to  the  plea,  he  thereby  makes  as  full  an 
admission  of  its  validity  as  if  it  had  been  allowed  upon  argument ; 
80  that,  if  the  defendant,  at  the  hearing,  proves  his  plea  to  be 
true,  the  bill  must  be  dismissed.*  Therefore,  where  a  defendant,  in 
a  plea  of  purchase  for  a  valuable  consideration,  omitted  to  deny 
notice,  and  the  plaintiff  replied  to  it,  and  the  defendant,  at  the 
hearing,  pi'oved  the  purchase  for  valuable  consideration,  it  was 
held  that  the  bill  ought  to  be  dismissed :  for  it  was  the  plaintiff's 
own  fault  that  he  had  not  set  the  plea  down  for  argument,  when 
it  would  have  been  overruled.^  And  it  seems,  that  in  such  case 
it  will  make  no  difference  if  the  plaintiff  should  prove  notice :  for 
all  that  is  required  of  a  defendant,  in  such  a  ease,  is  to  prove  his 
pleii,  which  he  does  by  proving  the  purchase,  and  the  payment  of 
the  consideration.^ 

If  a  jilea  to  tlie  whole  or  i)art  of  a  bill  is  not  set  down  for  argu- 
ment within  three  weeks  after  the  filing  thereof  (exclusive  of 
vacations),  and  the  plaintiff  does  not  Avithin  sucli  three  weeks 
Bcrve  an  order  for  leave  to  amend  the  bill,  or  by  notice  in  writing 


1  Ld.  Red.  301.  For  forms  of  orders  in 
Biicli  ca^es.      See  Setmi.  1208,  Nos.  12,  14. 

2  Ld.  Red.  301.  In  New  .lersey,  Chan- 
cellor Ijreen,  in  Unvison  v.  .lohn.-oii,  1  G. 
K.  fJrcen  (N.  .J.),  112.  113.  remarkef)  tlint, 
when  the  cause  is  heard  iiji'in  a  plea, 
"  the  (|uehtion  is  not  strictly  whether  the 
i)'ea  i"  in  proper  form,  hut  whether  in  the 
lan^juBKe  of  the  statute,  the  plea  he  good; 
tliat  is,  whether  upon  the  faee  (>f  the  ])lea 
it  prp«ent«.  if  true,  a  valid  defence  to  the 
action.  The  inquiry,  when  the  cause  is 
hoard  upon  the  plea,  is  snh'^taritiall}'  as  if 
the  plaint'fl'  had  'iemurred  to  the  ph;;!.  The 
(|U"Siioii  is  not,  whether  till'  plea  i- true, 
hut  whi'ther.  if  true,  it  is  a  (,'oo(l  defence. 
'I  his  IS  the  ol)vi"UH  nieaniri(r<>l  the  statute. 
If  the  phiinlitf  ilecni*  the  pica  biid,  th>-  case 
f^oes  to  hearing,'  npoii  the  pie  i.  I(  he  con- 
ceives the  plea  to  he  ii>><i(\,  thouiih  not  true, 
he  taken  insue  ufioii  it,  and  priH-ecds,  as  in 
case  iif  iin  answer."  "  I'he  siihjcMt  of  in- 
quiry, is  not  the  men:  technical  lorniof  the 
plea,  hut  the  sufliciency  of  its  averments 
to  fiustain  the  deieoee;  whether  it  is  ^cood 
both  in  furm  and  in  suhs'ance;  whether, 
»•';.,  as-uminf;  nil  the  f.icts  |)ro|)eily  set 
out  in   the  plea  to  he  true,   it  presents  a 


valid  defence."  See  Nix.  Dig.  99,  §  24; 
Flajrg  V.  lionnel,  3  Stockt.  (N.  J.)  82;  Mc- 
Kwen  V.  Broadhead,  3  Stockt.  (N.  J.) 
129. 

3  Jones  V.  Segucira,  1  Phil.  82,  84 ;  6  Jur. 
183;  Ord.  XIV'.  6,  7;  (inle,  pn.  637,  692. 

*  Daniels  i-.  Tapg:irt,  1  Gill  &  .1.  311; 
Storv  Eq.  PI.  §  697;  Meeker  r.  Marsh,  1 
Saxfon  (N.  J.).  198;  Dows  y.  McMichael, 
6  Paige,  139.  Upon  a  replication  to  a  plea, 
nothing  is  in  issue  except  wluit  is  dis- 
tinctly averred  in  the])lea;  and  if  that  is 
estahlishcd  at  the  hearing,  the  plea  is  a  bar 
t'l  so  inncli  of  the  hill  as  it  professes  tocover. 
Ki-h  r  Miller.  5  I'aige,  26;  ('ook  v.  Man- 
cius,  4  .lohn.  Ch.  166:  McKwen  v.  Broad- 
head,  3  Stockt.  (N.  .J.)  131.  The  replica- 
tion is  an  admission  of  the  sutficiency  of 
the  (acts  j)lcailed,  as  a  bur,  if  true  Hughes 
1'.  lilikc.  6  Wheat.  472;  Hoganlus  i-.  Trin- 
ilv  (Jhurch,  4  I'aige,  178;  (Jernon  r.  Hoe- 
cahne,  2  Wa-h  (J.  C.  199;  Fish  v.  Miller, 
6  Paige,  26;  Daniels  v.  Taggart,  1  (Jill  & 
J.  311;  Rhode  Island  i;.  Massachusetts, 
14  I'eters.  210,  2r)7 ;  Dows  r.  McMichael, 
2  I'aige,  345;  6  I'aige,  139;  (iallagher  v. 
IJoherls,  1   Wash    i;.  C.  320. 

<•  Harris  v  Ingledew,  3  P.  VVms.  94. 


Cn.  XV.  §  4. 


How  plea 
may  be  dealt 
with  on 
argimient. 

Replication 
to  plea; 

but  not  of 
pendency  to 
a  suit. 

Effect  of 
replication. 


When  plea 
will  l)e  suffi- 
cient, without 
being  set 
down. 


696 


PLEAS. 


(^11.  XV. 


( 'osta. 


WhiMi  pica  so 
holil  sulU- 
cient,  bill  to 
be  dismissed. 


After  under- 
taking to 
reply  to  plea, 
no  proceed- 
ing without 
leave. 


Vacations, 
and  day.s  on 
which  offices 
are  closed, 
not  reckoned 
in  time  to  set 
pleas  down. 


uiidortako  to  rej)ly  (o  (he  plcM,  llio  plt>;i  is  to  bo  heltl  goo<l  to  the 
s:»iiu'  extent,  :iii(l  tor  the  same  ))ur))osc's,  as  in  the  case  of  :i  plea 
to  tho  whole  or  part  of  a  hill  allowcMl  u|)on  armimont;^  and  the 
defendant  may  obtain  an  order  as  of  course  for  the  ])lainliif  to  pay 
the  costs  of  the  jilea,  and,  if  (he  plea  is  to  the  whole  bill,  the  costs 
of  the  suit. 

Where  the  plea  is  to  the  whole  bill,  the  defendant  by  whom  it 
was  filed,  may  at  any  time  after  the  e.vpiration  of  the  tliree  weeks 
obtain,  as  of  course,  an  order  to  dismiss  the  bill.^  A  plea  to  the 
whole  of  the  relief"  but  only  to  a  part  of  tlie  discovery,  is  not  a  plea 
to  tlie  whole  bill  within  the  meaning  of  this  rule.^ 

If  the  plaintiff  undertakes  to  reply  to  a  plea  to  the  whole  bill, 
he  is  not,  Avithout  the  si)ecial  leave  of  the  Court,  to  take  any  pro- 
ceeding against  the  defendant  by  whom  the  plea  was  filed  till 
after  re])lication ;  ^  and  if  he  does  not  file  his  replication  within 
four  weeks  after  the  date  of  his  undertaking,  the  defendant  may 
move,  upon  notice,  to  dismiss  the  bill  for  want  of  prosecution.* 

The  times  of  vacation  are  not  reckoned  in  the  comi)utation  of 
the  time  for  setting  down  pleas :  ^  and  if  the  time  expires  on  a 
day  on  which  the  offices  are  closed,  the  plea  may  be  set  down  on 
the  day  on  which  they  next  open.^ 


or  taking 
issue  upon 
the  plea : 


by  filing 
replication. 


Section  V.  — Allowing  Pleas. 

If  a  plea  is  allowed  simply,  it  is  thereby  detemiined  to  be  a  full 
bar  to  so  much  of  the  bill  as  it  covers,  if  the  matter  j)lcaded,  with 
the  averments  necessary  to  support  it,  be  trueJ  If,  therefore,  a 
plea  is  allowed  upon  argument,  or  the  plaintiff  wdthout  argument 
thinks  it,  though  good  in  form  and  substance,  not  true  in  point 
of  fact,  he  may  take  issue  upon  it,  and  proceed  to  disprove  the 
facts  upon  which  it  is  endeavored  to  be  supported.^     This  he  does 


1  Oni.  XIV.  17.  As  to  an  irregular 
amendment  after  the  above  time,  see 
Campbell  j).  Jovce.  L.  R.  2  Kq.  377,  V. 
C.  W.  I5y  the  38th  Kquity  Rule  of  the 
United  States  Courts,  if  the  plaintiff  shall 
not  reply  to  -Awy  plea,  or  set  down  any 
plea  iir  <leiniirrer  for  argument,  on  the  rule 
day,  when  the  same  is  filed,  or  on  the  next 
succeedinL'mle  day.  he  sha  1  be  deemed  to 
admt  the  truth  and  sutKciency  thereof  and 
his  bill  shall  be  dismissed  as  of  course, 
unless  a  judge  of  the  Court  shall  allow 
further  time  f'-r  the  purpo>e. 

Roberts  v.  Jones,  7  Beav.  57.  In  Massa- 
clmsetts,  "  the  plaintiff  may  set  down  the 
plea  to  be  argued,  or  take  issue  on  the 
plea,  within  fifteen  davs  from  the  time 
when  the  same  is  filed;  and,  if  he  fiiil  to 
do  80,  a  decree,  dismissing  the  bill,  with 


costs,  may  be  entered  upon  motion,  unless 
good  cause  appear  to  the  contniry."  Rule 
11  of  the  Rules  tor  I'mctice  in  Cliaucerv. 

2  Neck  V.  Gains,  1  De  G.  &  S.  223;"ll 
Jur  703.  For  forms  of  motion  paper  and 
petition,  see  Vol.  III. 

8  Old.  XIV.  18. 

4  Ord.  XXXIII.  10  (2).  For  torm  of 
notice  ni  motion,  see  Vol.  III. 

5  Ord    XXXVII    13  (3). 
0  Ord.  XXXVII.  12. 

7  Story  K(|.  PI  §  C07;  Ra.ssett«.  Com- 
paii}-,  43  N  H.  '2J3.  A  ])lea  may  be  good 
in  part  and  bad  in  part.  Lord  (Chelmsford 
in  I'nited  States  of  America  v.  McRae,  L. 
R.  3  Ch.  Ap.  79,  91;  ante,  p.  561  and  cases 
in  note. 

8  Ld  Red.  301  ;  Bassett  V.  Company, 
43  N.  11.  253. 


ALLOWING   PLEAS. 


697 


by  filing  a  replication,  in  the  same  manner  that  he  woi;lcl  do  if  Ch.  XV.  §  5. 
the  defendant  had  simply  put  in  an  answer  to  the  bill,  in  the  usual   '^        ^         ' 

way.^ 

Where  the  defendant  pleads  the  pendency  of  another  suit,  the  Where  plea  of 

,  ,1  -^  1       J-        i       4.1,       another  suit 

plaintiff  ought  not  to  reply  to  the  plea,  even  i±  he  disputes  the  pending, 
fact,  but  he  should,  on  motion  or  petition  of  course,  obtain  an  order 
for  an  inquiry  into  the  truth  thereof.'^  This  order,  and  a  certificate 
in  pursuance  thereof,  should  be  obtained  within  one  month 
from  the  fiUng  of  the  plea :  otherwise,  the  defendant  may  obtain, 
on  motion  or  petition  of  course,  an  order  to  dismiss  the  bill  with 
costs. ^ 

When  the  plaintiff  has  rephed  to  a  plea,  its  validity  can  never  If  replied  to, 
be  questioned,    but  only  its    truth:*    in    fact,  nothing  but   the   n^ustbe^^* 
matters  contained  in  the  plea,  as  to  so  much  of  the  bill  as  the  plea  proved. 
covei-s,  is  in  issue  between  the  parties.^       If,  therefore,  issue  is 
thus  taken  upon  the   plea,   the  defendant  must  prove  the  facts 
which  it  suggests:^  if  he  fails  in  this  proof,  so  that,  at  the  heaiing, 
the  plea  is  held  to  be  no  bar,  and  the  plea  extends  to  the  dis- 
covery sought  by  the  bill,  the  plaintiff  is  not  to  lose  the  benefit  of 
that  discovery,  but  the  Court  will  order  the  defendant  to  answer  If  plea  found 
the  interrogatories ;  ^   but,  if  the   defendant  proves  the  truth  of  ^ff  mayhave 
the  matter  pleaded,  the  suit,  so  far  as  the  plea  extends,  is  barred   ^;J^i^''^°^^f^^_ 
even  though  the   plea  is  not   good,  either   in   point  of  form  or  ant. 
substance.* 

Although,  when  a  plea  has  been  replied  to,  the  matter  in  issue  riaintiff  maj 
is  the  truth  of  the  plea  only,  which  must  be  proved  by  the  defend-  evidence*to 
ant,  this  will  not  prevent  the  plaintiff,  if  he  chooses,  from  entering  T'^:;^^';;^"^, 
into  evidence  to  prove  the  whole  case  made  by  his  bill.'     It  can   ^^^^  ^^^^  ^' 
scarcely,  however,  be  imagined,  that  a  case  should  ever  arise,  in   general, 
which  such  a  course  of  proceeding,  on  the  part  of  the  plaintiff,   todo.'' 
would  1)0  advisable,  especially  as  this  Court  will  not,  as  we  have 
seen,  in    the  event   of  the   plea   being  found   fiilse,  deprive   the 

1  See />"«<,  Ohap.  XXI.  Riplknlion.  by  tlic  proofs,   or  tlie  plea  willbe  over- 

2  Kor  forms  of  motion  p;iper  and  peti-       ruled  ms  filse.      Dows    v.  McMii'liael,    6 
tion.  see  Vol.  III.  I*ai{,'o,  1.39.     Upon  the  h«iirin}j  on  ilie  de- 

8  "Ord.   XIV.  0.7   ;   mile,  pp,  637,  692;  fenOant'.-*  pl<'a  evifieiu-e   previouslv   taken 

Biiknr  ji.   Bird.  2  Ve.i.   J.   672;  .lone*  v.  by  the  defi-ndant  cannot  he  cou'^idered   by 

SpKueirH,  1  I'hil.  ^2;  6  Jur.  1><3;  Leish  v.  the  Court.     Hancock  v.  Carlton,    6  Gray, 

lunier.   14   W.  |{.  361,    .M.  H.     For  forms  39. 

of  motion  paper  iind  petition,  .'<ee  Vol.  III.  '   I.d-  Red.  302;  Browiisword  v.  Kdwaris, 

<  Parker  «.  Hlvtbinore,  Prec.  iiiCh.  W\  2  Ves.  S.  247;   Wood  v.   Strickland,  2  V. 

2  V.i\.  ('a   .\b  70,  I'j    1);  Dnii.Kanv  V.  Sliaw,  &  15.  1'>K. 

r,    liro.    v.    (J.    ed.    Toinl.  262,    207;    Me-  »  Ld-   Kcd.  302;  Harris  v.  Inpledew,  3 

{■•.w.ai   >'.    Ilroadhead,   3   Stockt,    iN.  .1.),  1'.  Wms.  94;  Danielsv  Tiifj^art,  (Jill  &J. 

i:n.  311;    li-«li    /•.Miller,   .'i    I'Mipe,    26;    Ho^riir- 

'>  l.d.  Ked.  302    V'\A\  v   Miller,  5  Paitre,  diis  v.  Trinilv  ('liurcli.  4  Pai^;e,  17H;   I'eay 

2(?.  17.  Iiiinciin,  20  Ark   M>\  !•  I  if:^:  v.  Uonnol,  2 

8  Where   a   plea   contnins    geveral  dis-  St.ckt.  ( N.  .1  )  82;   Dows  n.  McMiclincl,  6 

tin'-f     averments  or   al'otr^itions   of   fact.  Paj^f.  144. 

all    Iho    allegation*    tnu.nt    be    supported  »  Ord  t)   lludJleslon   2  Dick.  010,512. 


698 


PLEAS. 


Cii.  XV.  5 


In  wlmt  cases 
plaintiti'  must 
go  into 
evidence. 


Effect  of 
allowing  the 
plea. 

Costs : 


under  former 
practice. 

under  present 
practice. 


Costs  of  two 
pleas  for  want 
of  parties,  by 
same  solicitor, 
not  allowed. 

When  plea 
allowed,  with 
leave  to 
amend. 


lilainliff  of  any  advantage  wliicli  he  niiglit  have  had  from  a 
discovery  by  the  defendant,  if  an  answer  had  been  originally  put 
in. 

The  plaintiff'  may,  ho\V('\  t'r,  if  he  pleases,  go  into  evidence  to 
disprove  lln'  plea;  and  if  lie  has,  in  his  bill,  alleged  any  matter 
which,  if  true,  may  have  the  eftect  of  avoiding  the  plea,  such  as 
notice  or  fraud,  he  may,  after  replying  to  the  plea,  enter  into  evi- 
dence in  supj)ort  of  his  allegation.  And  where  the  plea  introduces 
matter  of  a  negative  natiu'e,  such  as  denial  of  notice,  or  fraud,  it 
will  be  necessary  for  him,  in  case  sufficient  to  show  the  existence 
of  the  notice  or  fraud,  is  not  admitted  by  the  answei"  in  suji))ort 
of  the  plea,  to  go  into  evidence  in  supj)ort  of  the  affirmative  of  the 
pro])Osition.-' 

When  a  plea  is  allowed,  it  is  considered  as  a  full  answer;  and 
an  injunction  obtained  till  answer  will  be  dissolved,  upon  applica- 
tion, as  a  matter  of  course.^ 

Where  a  plea  to  the  whole  or  ])art  of  a  bill  is  allowed,  upon 
argument,  the  plaintiff,  unless  he  undertakes  to  reply  to  the  })lea, 
or  the  Court  otherwise  directs,  is  to  pay  to  the  party  by  whom  the 
plea  is  filed  the  costs  of  the  plea,  and,  if  the  plea  is  to  the  whole 
bill,  the  costs  of  the  suit  also ;  and  in  such  last-mentioned  case 
the  order  allowing  the  ])lea  is  to  direct  the  dismissal  of  the  bill.* 
Formerl)^,  upon  the  allowance  of  a  plea  to  the  whole  bill,  if  the 
plaintiff  undertook  to  reply  to  it,  he  had  to  pay  the  costs  of  the 
l^lea,  but  the  other  costs  of  the  suit  were  reserved ;  *  now,  it  would 
appear  that,  in  the  same  circumstances,  both  the  costs  of  the  plea 
and  the  costs  of  the  suit  will  be  reserved,  unless  the  Court  makes 
a  special  order.® 

A  solicitor  Avill  not  be  .allowed  to  act  oppressively,  by  putting  in 
two  jjleas  of  the  same  nature  for  two  defendants ;  and,  where  a 
solicitor  set  down  two  pleas  for  Avant  of  parties,  on  behalf  of  dif- 
ferent defendants,  he  was  allowed  the  costs  of  one  oidy.*^ 

If  a  plea  is  allowed,  it  is  not  uncommon  to  give  leave  to  the 
jdaintiff  to  amend  his  bill;  especially  in  the  case  of  a  plea  for 
want  of  jiarties.''  It  must  not  be  understood  that  this  is  a  matter 
of  course ;  ^  it  will,  however,  probably  be  done  more  frequently 
now  than  foiTncrly :  because,  under  the  present  practice,  a  plaintiff 
may  introduce  facts  or  circumstances  which  have  occurred  after 
the  institution  of  the  suit,  by  way  of  amendment,  into  liis  bill,  if 


1  Kye  V.  Dolphin,  2  Ball  &  B.  .303; 
Saunders  v.  Leslie,  ib.  51.5. 

2  Phillips  V.  Langhorn,  1  Diclc.  148. 

3  Ord.  XIV.  16.  I'lea  allowed  without 
costs,  an  I  with  liberty  to  amend  bill. 
Jones  ».  Binn«,  3.3  Beav.  362;  10  Jur.  N. 
S.  119. 


*  Fry  V.  Richardson,  10  Sim.  475. 

■•  Vfiungr.  White,  17  Beav.  532;  IH.lur. 
277. 

B  Tarbuck  v.  Woodcock,  3  Beav.  289. 

'  Ld.  Red.  281.  For  form  of  order  in 
sucii  ci.se,  see  Setoii,  1258,  No.  12. 

«  Ante,  pp.  290,  419. 


SAVING   THE   BENEFIT   OF   A   TLEA   TO   TTTE   HEAHING.  699 

the  cause  is  otherwise  in  such  a  state  as  to  allow  of  amendment  Ch.  XV.  §  6. 
beinw  made  therein.^     After  the  allowance  of  a  plea,  an  order  for 
leave  to  amend  the  bill  is  special ;  and  on  the  application  for  it,  the  Costs. 
plaintiff  must  specify  the  amendments  he  intends  to  make.^ 

"Where  the  plea  went  to  the  plaintiff's  right  to  sue,  and  was 
allowed,  leave  to  amend  the  bill  was  given,  on  payment  of  the 
costs  of  the  plea ;  ^  but  where  it  was  for  want  of  parties,  the  costs 
were  reserved  to  the  hearing  of  the  cause.* 


Section  VI.  —  Saving  the  Benefit  of  a  Plea  to  the  Hearing. 

It  sometimes  h:iiii)ens  that,  upon  the  argument  of  a  plea,  the  In  what  cases. 
Court  considers  that  although,  as  far  as  then  appears,  it  may  be  a 
good  defence,  yet  there  may  be  matter  disclosed  in  evidence  which, 
supposing  the  matter  pleaded  to  be  strictly  true,  would  avoid  it ; 
in  such  case,  the  Court,  in  order  that  it  may  not  preclude  the 
question  by  allowing  the  plea,  directs  that  the  benefit  of  it  shall 
be  saved  to  the  defendant  at  the  hearing.^  The  effect  of  such  an 
order  is  to  give  the  plaintiff  an  opportunity  of  replying,  and  going 
into  evidence,  without  overruling  the  plea.^  When  the  benefit  of 
the  plea  is  reserved  to  the  hearing  the  interrogatories  to  such 
part  of  the  bill  as  is  covered  by  the  plea  need  not  be  answered.'' 

Unless  any  thing  is  said  in  the  order  in  such  cases  with  respect  Costs. 
to  the  costs  of  the  plea,  they  must  abide  the  result  of  the  hearing: 
the  order  saving  the  benefit  of  the  i)lea  to  the  hearing  being,  in 
fact,  nothing  more  than  an  order  for  tlu;  adjournment  of  the  dis- 
cussion. Lord  Chief  Baron  Gilbert,  with  reference  to  this  subject, 
observes :  "  But  if  the  words  are  to  save  the  benefit  of  the  plea  till 
tlie  heai-ing,  no  other  use  could  ever  be  found  by  these  words,  but 
that  in  truth  it  saves  tlie  defendant  paying  costs  for  the  overruling 

1  I0&I6  Vic.  c.  86,  §53;  see  Tmlway  the  benefit  thereof,  is,  thiit  tlie  defeinhiiit 
r.  .I(ine«,  1  K.  &  J.  691,  where  such  an  shall  not  l)e  deprived  of  the  lienefit  of  his 
orler  wa»  made.  j)lea;    liut    tiiat   tlie    phiiiitilf  shall    be  at 

2  Tavlor  V.  Shaw,  2  S.  &  S.  12;  Neck  liberty  to  file  a  replicntidii,  and  proci'od  to 
V.  Uaiii"-<,  1  l)e  G.  &  S-  223;  11  Jur.  703;  the  proof  ot  the  fict-  in  reply  to  the  plea; 
pint,  p.  730  ami,  on   such   hearing,   the  plea  is  to   bo 

3  I'udway  w.  .lone",  nbl  sup.  taken,  //rimd  f'ncie,  a  jr<iod  bar  to  the  suit; 
*  iJiivle  *.  Muntz,  5  Hare,  503,  518;  10        but  as  there  may  pos'-ibly   be  cinumstan- 

Jiir.  i)14  ces,  which,  in    iMiuity,  oiiLlht  to  preclude 

''  Ld.  Ked.  803.     Thus  in  Heartt  v.  ('orn-  tlie  defendant  from  rcl\  in^j  upon  such  p  ta, 

inj?.  3  I'aip.',  572,  a  J)|.m  of  settled  partner-  the  ijuestioii  is  left  open  until  such  hearing. 

ship  a<c.iuiil  was  li(d.l  to  b-  well  pleaded;  Ihii.cock  «.  Carlton,  0  (Jriv,  .04;  Asl'ey  v. 

but  as  facts  m  ^'iit  be  ili-closed  juslilyiu;;  Koiintainc,    C:is.    temp.    I''iiich,  4;    Story 

a  decree  to  surcharKe  and  falsify,  the  bene-  K<|.  I'l.  §6!t8;  1  Barb.   Ch.    I'r.  121,   122; 

fit  of  it  wa- saved  until  tlie   hearinj;-      To  IJ  ssctt   v.   (Jompany,  43    X.    I[.   2.')3,  2.34. 

havM  allowed  ii,  wimply,  woidd  have  made  Ni  ither  party  rccuvcrs  costs  (Jii  the  arcu- 

it  a  concliiHive  bar.      '  nieiit  i)t    >i  plea    where  the   benefit  of  it    in 

8  See  Co'itli   1;   .Jack-on,  0  Ves.    12,   18.  saved  to  the  defendant  until    too   hearing. 

When  Hie  plei  covers  the  whole  bill,  (he  lleartt  v.  Corniiif;,  3  I'aige,  500. 

effect  of  the  order,  that  the  pKa  st  nid  over  '  Gilb.  I'or.  Horn.  04. 

till  the  liuurin^;,  saving  to  tho  defendant 


700 


TLKAS. 


I'll.  XV.  §7.  Ills  pica;  and,  tlioivl'oro,  lliou^li  tlio  Court  often  iiiakos  uso  of 
tlu'so  \vt)rils,  yi't,  wlu'ii  the  ])lea  is  very  faulty,  or  naught,  though 
the  Court  often  saves  the  benefit  thereof  till  the  hearing,  yet  they 
declare  it  shall  not  avoid  the  payment  of  costs."  ^ 


In  what  cases. 


KfTect  of. 


Where  no 
liberty  given 
to  except. 


Where  plea 
is  to  part 
onlv  of  bill. 


Where  lib- 
erty given  to 
e.vcept. 


Section  VII.  —  Ordering  a  Plea  to  stand  for  an  Answer. 

If,  u])on  argument,  the  Court  considers  that  the  matter  offered 
by  way  of  ])lea  may  be  a  defence,  or  part  of  a  defence,  but  that  it 
has  been  informally  pleaded,  or  is  not  properly  supported  by  the 
answer,  so  that  the  truth  is  doubtful,  it  will,  in  such  case,  instead 
of  overruling  the  plea,  direct  it  to  stand  for  an  answer."'^ 

If  a  ])lea  is  ordered  to  stand  for  an  answer,  it  is  allowed  to  be  a 
sufficient  answer  to  so  much  of  the  bill  as  it  covers,  unless,  by  the 
order,  liberty  is  given  to  the  plaintiff  to  except ;  ^  and  where  a 
defendant  pleaded  to  the  whole  bill,  and,  on  arguing  the  plea,  it 
was  ordered  to  stand  for  an  answer,  without  saying,  one  way  or 
the  other,  Avhether  the  plaintifi"  might  except,  the  plaintiff  was  not 
allowed  to  except :  because,  by  the  terms  "  for  an  answer,"  in  the 
order,  a  sufficient  answer  is  meant,  an  insufficient  answer  being  no 
answer.^  It  is  to  be  observed,  that  if  a  plea  is  to  part  only  of  the 
bill,  and  is  accompanied  by  an  answer  to  the  rest,  an  order  that  it 
may  stand  for  an  answer,  without  giving  the  plaintiff  liberty  to 
except,  will  not  preclude  the  plaintiff  fi-om  excepting  to  the  an- 
swer to  that  part  of  the  bill  which  is  not  covered  by  the  plea.'' 

The  order  for  the  plea  to  stand  for  an  answer  is,  however,  fre- 
quently accompanied  with  a  direction  that  the  })laintiff  shall  be  at 
liberty  to  except;*'  but  the  libei'ty  is  sometimes  qualified,  so  as  to 
protect  the  defendant  from  any  particular  discovery  which  he  ought 
not  to  be  called  upon  to  make.'' 

1  Gilb.  For.  Rom.  94. 

2  Ld.  Ked.  303;  Tempest  v.  Lord  Ca- 
movs,  1  W.  N.  16;  14  W.  R.  326,  M.  K.; 
Pearse  v  Dobinson.  L.  K.  1  Kq.  241,  V.  0. 
K.;  Mills  V.  Bailv,  1  W.  N.  348;  15  W. 
K.  86.  V.  C  W.  ;"Orcutt  v.  Onus,  3  Paige, 
461;  Lube  Kq.  Pi.  46;  Freeh  ».  Sliotvvell, 
5  .Jolm.  t'h.  .').")5;  Bell  v  Woodwnrd,  42  N. 
H  193,  1H6;  .larvis  r.  Palmer,  11  Paige, 
6-50;  Sauy.er  v.  I'e  Mever,  2  Pai<re,  574; 
Sf'Tv  Kf|.  I'l-  §  699;  Leaycraft»>.  Dempsev, 
4  Paige,  129;  Brooks  v  SuttDn.  L.  li  5  F.q. 
361.  If  a  plea  is  ordered  to  stand  for  an 
answer,  it  is  allowed  to  be  a  sutKi'ieiit 
answer  to  so  much  of  the  bill  as  it  covers, 
unle-s  by  the  order  lilieriy  is  given  to  the 
plaintiff  to  except.  Ld.  Rod.  303;  Kirby 
?;.  Taylor,  6  .John.  Ch  242;  Urcutt  v.  Onus, 
3  Paige,  459;  (Goodrich  v.  I'emlleton,  3 
John  <;li  394;  jMeeker  v.  .Mar.-li.  1  Sax- 
ton  (X.  J.),  198.  In  Orciitt  v.  Onns,  it 
was  said,  by  Chancellor   Walworth,  that 


the  answer  will  be  consiiiered  as  a  full 
answer,  though  not  necessarily  a  perfect 
defence  See  McCorniick  v  Ohiiinberlin, 
11  Paige.  543. 

3   Ih.  304 

^  Sellon  V.  Lewen,  3  P.  Wms.  239. 

6  Coke  V.  Wilcocks,  Mos.  73;  Ld.  Red. 
304. 

6  See  Glover  v.  Weedon,  3  Jur.  N.  S. 
903,  V.  C.  S.,  where  leave  to  amend  wns 
also  given;  ami  see  Seton,  1258,  No   14. 

7  Ld.  lied.  304;  Alardes  V-  Campbel, 
Buni).  265;  Breretoti  v.  (iamul,  2  Atk.  241 ; 
Pnsev  V.  Do>bouvrie,  3  \'.  Wins.  315,  322; 
Kingr»  Holcoinbe,  4  Bro.  C.  C.  439.  440; 
Bavlt'v  V  Adams,  6  Yes.  586,  599;  I'earse 
V.  boijinsoti,  L.  R.  1  Kq.  241,  V.  C.  K.; 
S'-li-n  V.  Lewen,  3  P.  Wins.  239;  McCor- 
Mwkv.  Chamberlin,.ll  Paige,  543;  Ba-sett 
V.  Conipiuiv,  43  N.  H.  254;  Bell  «.  Wood- 
ward, 42  N.  H.  195,  196. 


OVERRULING   PLEAS.  701 

"When  a  plea  has  been  ordered  to  stand  for  an  answer,  with  lib-  Ch.  xv.  §  8. 

eity  to  except,  the  plaintiff  must,  if  the  Court  does  not  fix  a  time   "^ y ■' 

within  which  he  is  to  except,  file  his  exceptions  within  six  weeks   Time 
from  the  date  of  the  order :  otherwise  the  answer  will  be  deemed  ^  °^®  ' 
sufficient.^     The  proceedings  upon  the  exceptions  are  the  same  as 
those  upon  exceptions  to  answers  in  general.^ 

When  a  plea  is  ordered  to  stand  for  an  answer,  the  question  of  Costs: 
costs  ought  to  be   decided  at  the  time  the  order  is  made,  and  a 
subsequent  application  for  them  has  been  refused.^      It  seems  that, 
generally,  the  defendant  is  ordered  to  pay  the  costs  of  the  plea:* 
though  they  have  been  made  costs  in  the  cause.^ 


Section  VIII.  —  Overriding  Pleas. 

If  the  Court,  upon  argument,  is  of  opinion  that  the  plea  cannot,  Kgect  of. 

under  any  circumstances,  be  made  use  of  as  a  defence,  it  is  simply 

overruled,  and  the  defendant  is  to  pay  to  the  jjlaintiff  the  taxed 

costs  occasioned  thereby,  unless  the  Court  otherwise  directs.®    The  piaintiflF 

T)laintiff  mav  also,  if  the  iiloa  has  been  to  the  whole  bill,  and  the   "layj^^ue 
'  » _  '  ^    .  .  _  _  '  attachment, 

defendant's  time  for  answering  the  bill  has  ex])ired,  issue  an  attach- 
ment for  want  of  an  answer,''  unless  the  defendant  has  obtained, 
either  from  Court  at  the  hearing,  or  from  the  Judge  at  Chambers, 
an  extension  of  time  to  answer :  in  which  case,  the  attachment 
must  not  be  issued  till  the  extended  time  for  answering  has  ex- 
])ired.  The  plaintiff  may  also,  if  he  does  not  require  an  answer,  or  file  travere- 
immediately  file  a  traversing  note,  unless  the  Court  has  given  time  mgnote. 
to  the  defendant  to  answer :  in  which  case  if  the  defendant  does 
not  file  his  answer  within  the  time  allowed,  the  ])laintiff  may  file 
the  note  at  the  expiration  of  the  time.** 

The  effect  of  overruling  a  jjlea  is  to  impose  ujion  the  defend-   Defendant 

ant  the    necessity  of  making  a  new  defence.     This  he  may  do,   "'"^'  ™*''^ 
•^  °  J         1    ne^y  defence: 

1  Ord.XVI.O;  sec  Esdaile  «.  Mol  \  neux,  shall  be  received,  but  the  defendant  shall 

2   C"ll     641.     A    less   time    is   frequently  proceed  to  answer  the  plaintifl"'s  bill;  iind 

li.xed;  see   M.inM;li  i'.   l-'eeiiey,  2  .1.   &  II.  if    he    sh:ill     (a;l    to    do    so    wi.hiii    one 

Sl.'l,  where  one  week  only  was  given.  niontli,   the  |)laintilf  nniy  enter  an  order 

^  F')r  the  iirarlice,  see  y;o«/.  Chap  XVII.  that  the  same,  or  so  niucli    theieof  as  is 

§  4,  /■.'xcr/ilioiis  Oi  Answtrs.  covered  by  the  ple;i,  betaken  for  confessed; 

^  Yainall  v  Ko^c,  2  Keen,  326.  and   the  matter  thereof  may   be  decreed 

<  Howhng /'.  Biillor,  2  Mild.  24a;Thomp-  nccordinfjly,    unless    good    c;iuse    appear 

*oii    r.    Wil.i,  fj    Mad.  82,  83;    Mansell  v.  to  llie  coh'trary."     Kule  12  ol   tlic  h'ules 

Vwni'y.  ubi  gu/>.  for  Practice  in  Chancery.     Under  Kulc  13, 

'  Hunt    r.    I'enrice,    17    Hcav.  l>2!'>;    18  it  is  y)niviile(i,  that  "upon    a    plea  beinR 

Jur.   4.  ovei  ruled,  nr  adjiid;;ed  good,  tiu' parly  pre- 

'>  Orl.  XIV.  12.  vailing    upon    the  questinn   shall    recover 

"  liindc,  224.     As  to  ovenMiling  plea  as  full  cost>  fruni  the  tune  of  tiling  such  nlca, 

frivolous,  Htfc  I'lownian  v.  .Mar^liali,  9  I'aige,  unless  tiie  (,'ourt  shnll  otherwise  specially 

"S;  1    Harb.    Ch.   I'r.  123.     In   Miissachu-  order." 
•ett.x,  "  if  n  plea  is  overruled,  no  oilier  jilea  ••  Ord.  XIH.  4;  ante,  p.  tjlB. 


PLEAS. 


by  demurrer: 


by  partial 
demurrer ; 


On.  XV.§s.    c'itluT  by  M  lUMV   ]ilr:i,  or  by   :iii    answer;    and    tlio    jirocoodinc^s 

' > uiMUi  tlio  lu'w  (li't'riuH'  will  bo  the  sanie  as  il'  it  liad  been  orig'iiially 

niado.' 

It  is  said,  in  some  of  tlu'  books  of  ]irac-tic(>,  that  allcr  a  ])lc'a  has 
boon  overridcd,  a  new  del'ence  may  be  made  by  demni-rer;  and,  in 
Tlie  Kant  India  Company  v.  Canipbel^-  such  a  demurrer  (which 
was  upon  tlie  ground  that  the  discovery  would  subject  tlie  defend- 
ant to  pains  and  penalties)  Avas  permitted.  It  is  to  be  re(M)llected, 
however,  that  this  occurred  under  the  old  practice,  under  which, 
provided  a  defendant  was  not  in  contempt,  or  had  not  obtained 
an  order  for  time,  he  might  have  put  in  a  demurrer  at  any  time ; 
but,  under  the  present  practice,  this  would  be  nearly  im])0ssible, 
unless  by  special  leave  of  the  Court :  since  twelve  days  only,  from 
aj)pearance,  are  allowed  to  a  defendant  to  demur  alone  to  any 
bill,*  A  demurrer  to  part  of  the  bill  may,  however,  still  be  put  in, 
in  cases  where  the  whole  time  allowed  by  the  orders  to  plead, 
answer,  or  demur,  not  demurring  alone,*  has  not  elapsed  at  the 
time  of  the  plea  being  overruled  ;  or  where  an  order  for  ad<litional 
time  for  the  same  purpose  has  been  obtained.  But  under  an  order 
for  time  to  answer  alone,  such  a  defence  cannot,  it  is  apprehended, 
be  put  in,^ 

We  have  seen  before  that,  after  a  plea  has  been  overruled,  a 
defendant  cannot  demur  ore  tenus.^ 

The  rule  with  regard  to  pleading  again,  must  be  understood 
with  this  qualification,  namely,  that  the  second  plea  must  not  be 
upon  the  same  ground  as  the  first ;  "^  therefore,  it  is  held  that  only 
one  ])lea  to  the  jurisdiction  can  be  allowed,^  And  so,  where,  to  a 
bill  to  set  aside  an  agreement  and  release,  stating  circumstances 
of  fraud  and  duress,  the  defendant  pleaded  the  agreement  and 
release  to  the  whole  bill,  without  denying  the  fraud  and  duress,  and 
the  plea  was,  upon  that  ground,  overruled,  whereupon  the  defendant 
put  in  another  jjlea,  insisting  upon  the  same  release  as  a  bar  to  the 
relief,  an<l  also  to  so  much  of  the  discovery  as  related  to  trans- 


but  not  by 
ore  ienus ; 

by  second 
plea. 


1-  Oil  overruling  a  plea,  leave  w:is  given 
to  the  defendant  to  plead  de  novo,  and  to 
plaintif}'  to  amend  his  bill.  (Jhadwick  v. 
iJroitdwood,  3  Beav.  316. 

2  1  Ves.  S.  240. 

8  Ord.  X.XXVII.  3;  ante,  p.  691, 

*  Ord.  XXXVII.  4,  5. 

6  Brooks  V.  l'urt..n,  1  Y.  &  C.  C.  C.  278; 
Hunter  v.  Isocko;ds,  2  I'hil.  540,  544;  12 
Jur.  149;  anie,  p.  690. 

6  Ante,  p.  5b8. 

7  When;  a  plea  has  been  overruled  on 
the  merits,  the  .-aine  matter  cannot  be  .set 
up  in  the  answer,  as  a  bar  to  the  suit,  with- 
out the  special  |)ermissioii  ol  the  Court. 
Towiishend  v.  Townshend,  3  Paige,  413; 
see  Goodrich   v.  Pendleton,  4  Joiiii.  Cli. 


549;  Costi-r  v.  Murray,  7  John.  Ch.  167; 
Bushr.  Bush,  1  Strobh  377;  l'iait«. Oliver, 
1  McLean,  295 ;  Kinggold  v.  Stone,  20  Ark, 
526. 

«  VVyatt's  P.  R.  325.  It  is  said,  in  the 
same  work,  p.  330,  that  if  outlawry  or  other 
matter  be  pleaded,  and  the  plea  i.s  over- 
ruled, no  other  ])lea  sli.tU  be  after  pleaded; 
but  the  defendant  niu-'t  answer.  This, 
however,  must  be  meant  to  apjjly  to  other 
pleas  of  the  same  matter;  see  Rowley  v. 
Eccles,  1  S  &  S.  511,  513,  where  Sir  John 
Leach  V.  0.  iippe;irs  to  have  held,  that 
after  a  [ilea  is  overruled,  a  defendant  can- 
liot  put  in  a  second  plea  without  leave  of 
the  Court. 


AMENDING   PLEAS,    AND    PLEADING    DE    NOVO. 


703 


actions  prior  to  the  agreement,  accompanied  by  an  answer  as  to  Cn.  XV.  §  9. 
the    circumstances   of   fi-aud    and    duress,   this   was   held    to   be 


irrecruJar. 


Section  IX.  —  Amending  Pleas,  and  Pleading  de  novo. 

It  sometimes  happens,  that  where  there  is  a  material  ground  of 
defence  disclosed  in  the  plea,  but  owing  to  some  evident  slip  or 
mistake,  the  plea  has  not  been  correctly  framed,  the  Court,  in  this 
respect  following  the  Courts  of  Law,  will  exercise  a  discretion  in 
allowing  the  plea  to  be  amended.^  Thus,  where  a  plea,  which 
in  substance  showed  a  defect  of  parties,  instead  of  stating  that 
additional  parties  were  necessary  and  naming  them,  prayed  judg- 
ment whether  the  defendant  ought  to  be  called  upon  for  further 
answer.  Lord  Erskine,  upon  the  argument,  instead  of  overruling 
the  plea,  on  the  ground  of  informality,  gave  the  defendant  leave  to 
amend  it.^  And  so,  where  an  error  in  a  plea  of  outlawry  was 
occasioned  by  the  Clerk  of  the  Outlawries,  who,  instead  of  a  copy 
of  the  record  of  the  outlawry,  or  of  the  capias  utlagatum,  gave  a 
certificate  of  the  outlawry,  which  was  annexed  to  the  plea,  the 
Court  allowed  the  defendant  to  amend  liis  plea,  by  annexing  to  it 
a  copy  of  the  exigent,  or  record  of  the  outlawry.*  And  so,  where 
the  Court  of  Exchequer  thought  that  tlie  negative  averments  in  a 
plea  were  too  special  and  precise,  the  same  matter  being  also 
denied  by  the  answer  in  support  of  the  plea,  they  gave  the  defend- 
ant leave  to  amend  his  plea  by  striking  out  the  special  averments.^ 
It  has,  however,  been  heM,  that  leave  to  amend  a  plea  should  not 
be  given  when  it  is  supported  by  an  answer.®  A  short  time  is 
generally  limited,  within  which  the  amendment  must  be  made. 

It  has  also  hapi»ened,  that  where  a  plea  has  offered  a  substantial 
defence,  but  lias  been  so  informally  pleaded  that  it  would  l)e  dif- 
ficult or  impossil>le  to  amend  it,  the  Court,  instead  of  allowing 
the  defendant  to  amend  his  plea,  has  given  him  leave  to  withdraw 
it  altogether,  and  plead  de  novo  within  a  given  time.'' 


When 
permitted 


Not  where 
supported  by 
answer. 
Time 
allowed. 

Pleading  de 
novo. 


'  Krceland  t'.  .Johnson,  1  Anst.  270;  2 
Anst.  407. 

■^  HcHiiies  on  I'Iciis,  321 ;  see  Meeker  v. 
Mar.sli,  1  Suxtoii  (N.  J.),  198;  New).  (Jh. 
I'r.  121;  I.t^avcrat't  v.  Deinpsi-y,  4  I'ai^e, 
126;  15. 11  v.  Woi,(lwnr.|,42  N.  II.  181,  I'.Hi; 
Storv  Vj\.  ri  §§  8'j4-8!if;;  Suiitli  v.  I5ah- 
o  ck",  3  NumiiiT,  f.83;  1  Sinitli  Cli.  I'r.  (2d 
Am.  I'd.)  2:ix,  'I'.i'J;  Newman  r.  Wullls,  2 
Hro.  C.  C.  (I'l-ikiiiH's  e'l.)  147,  note  (c), 
and  cascH  cited.  Amcnilment»  are  in  tlie 
discretion  of  the  Court.  .Smith  r.  Uabcock, 
3  .Sumner,  hKi;  but  their  dincretioti,  in 
this  rcHpect,  is  regulated  by  rules  known 


in  the  Courts;  .leffer.ion  v.  Cullis,  4  Dana, 
467;  and  depends  upon  the  p>od  faith  and 
re:isonabienes8  of  the  orij^mal  case,  iind 
the  et|uitablencss  of  the  jiropo.sed  nmcnd- 
nient.  See  Graham  I'rac.  (2d  ed.)  049- 
070. 

8  Merrewether  v.  Mellish,  13  Ves.  436; 
Serf;rove  v.  Mavliew,  2  M.  &  G.  97,  99. 

*  Waters  v.  Mayhew,  1  S.  &  S.  220,224; 
antv,  \).  G88. 

6  I'ope  V.  Ifish,  1  Anst.  59. 

<>  'riiomp>on  I'.  Wild,  0  Mad.  82. 

7  Nohkissen  v.  Il«!?tings,  2  Ves.  ,).  84, 
87;  4  iiro.  C.  C.  258;  Watkins  v.  Stone,  2 


704 


PLEAS. 


Cn.  XV.  §  0. 


Leave  to 
amend  in 
what  manner 
obtained. 


Not  per- 
mitted, after 
plea  has 
been  once 
amended. 


Costs. 


T.nxM'tv  to  nnunul,  or  (o  plead  de  fioi^o^  however,  will  only  be 
oi-anti'il  ill  casi's  wIutc  tliciv  is  an  a])i)aront  good  ground  of 
iK't'iMUH'  disclosed  by  tlu-  plea,  but  owing  to  some  accident  or  mis- 
take, it  lias  been  iiifornially  jileaded  :  where  ;i  substantial  ground 
of  defence  has  been  omitted,  such  ])ermission  will  not  be  given. 
Thus,  in  J'Vcchoid  v.  Johfiso7i,^  wliere  the  bill  sought  to  set  aside 
an  agreement  and  release,  stating  circumstances  of  imposition  and 
equitable  duress  in  obtaining  them,  and  the  defendant  put  in  a 
plea  of  the  agreement  and  release  to  the  whole  bill,  without 
denying  the  fraud  or  duress,  either  by  averments  or  by  answer, 
the  Court  of  P^xchequer  refused  to  give  the  defendant  leave  to 
amend. 

Although,  where  the  error  is  very  palpable,  the  Court  will  give 
the  defendant  leave  to  amend  at  the  argument  of  the  plea,  the 
most  usual  course  is  for  the  defendant  to  move  subsecjuently  for 
leave  to  amend  his  plea.  This  form  of  proceeding  is  rendered 
necessary  by  the  circumstance,  that  the  Court  always  requires  to 
be  told  precisely  what  the  amendment  is  to  be,  and  how  the  slip 
happened,  before  it  will  allow  the  amendment  to  take  place;  and 
this  must,  in  general,  be  done  by  affidavit  in  support  of  the 
motion.^  In  The  Nabob  of  Arcot  v.  The  East  India  Con^mny,^ 
Lord  Thurlow  refused  to  entertain  the  question,  whether  the  plea 
might  be  amended  or  not  upon  the  argument,  because  no  motion 
had  been  made  on  the  subject;  and  he  said  that  he  should  expect 
that,  Avhenever  such  a  motion  should  be  made,  the  form  of  the 
plea  intentled  to  be  put  in  should  be  laid  before  the  Court:  for 
;imendments,  when  moved,  ought  to  be  stated,  that  the  Court 
may  see  whether  it  is  material  that  the  cause  should  be  delayed 
for  the  ])urpose  of  admitting  them.  It  is  to  be  remarked,  that  at 
a  subsequent  period,  after  the  plea  in  the  above  case  had  been 
overruled,  the  defendants  ai)plied  by  motion  for  leave  to  amend 
the  plea,  or  to  j)lead  anew,  but  that  the  Lord  Chancellor  refused 
the  motion  on  the  ground,  as  appears  from  the  marginal  note  of 
one  of  the  reporters,  that  the  plea  had  been  amended  before.^ 

With  respect  to  the  costs  to  be  paid  by  the  plaintiflf,  upon  the 


S  &  S.  &C0,  573.  On  overriilin<?  a  pica, 
leave  wa»  given  to  defendant  to  plead  de 
novo,  and  p  aintitF  to  amend  liis  hill.  Cliad- 
wick  V.  IJroiidwodd,  3  HeMV.  310.  A  de- 
fenilimt  in  a  Inll  ot'  revivor  cannot  jjlead 
to  the  original  bill  a  ple:i  which  has  been 
pleadt^d  l>y  the  original  det'iMidant  und 
overruled.  Dows  v.  McMichael,  2  Paige, 
245;  Souzer  v.  iJeMever,  2  Paige,  574; 
but  if  a  plea  hii.s  been  put  in,  and  the 
original  ^tlefer]d;int  has  died  before  argu- 
nii-iit,  the  defendant  to  a  bill  of  revivor 
may  ple:id  the  sume  matter  de  novo.     1 


Barl>.  Ch.  Pr.  125;  1  IIofF.  Ch.  Pr.  389;  1 
Smith  (Jh.  Pr.  (2d  Am   ed.)  229. 

1  1  Anst.  27t);  2  Anst.  407,  411;  and 
see  Hewitt  v.  Hewitt,  11  W.  R.  t!49,  V. 
C.  K. 

2  Newman  v.  Wallis,  2  Bro.  C.  C.  143, 
147;  VV van's  P.  1{.  340;  Wood  v.  Strick- 
land, 2  V.  &  li.  150, 157 ;  Jackson  v.  Kowe, 
4  Kuss.  514,  524. 

3  3  Bro.  C.  C.  292.  300;  S.  C  nom.  The 
Nabob  of  the  (Jarnatic  v.  The  Kast  India 
Company,  1  Yes  .1.  371,  388. 

*  1  Vcs.  J.  372,  393. 


AMENDING   PLEAS,    AND    PLEADING   DE    NOVO.  705 

allowance  of  an  amended  plea,  Sir  James  Wigram  V.  C.  decided,  Cn.  XV.  §  9. 
in  the  case  of  Clayton  v.  Meadows^  that  the  defendant  is  not 
entitled  to  the  costs  of  correcting  his  own   mistake,  but   he  is 
entitled  to  the  costs  which  he  would  have  had,  if  the  plea  which 
was  allowed  had  been  the  plea  which  was  first  filed. 

1  2  Hare,  26,  33. 


45 


CHAPTER   XVI. 


DISCLAIMERS. 


What  a  dis- 
claimer is. 


In  what  cases 
proper. 


Costs,  if  not 
put  in,  in 
proper  case. 


Must  in 
general  be 
accompanied 
by  an  answer. 


Defendant 
cannot  dis- 
claim a 
liability. 


A  DISCLAIMER  IS,  whevG  a  defendant  denies  that  lie  has  or  claims 
any  right  to  the  thing  in  demand  by  the  ph^intiff' s  bill,  and  dis- 
claims, that  is,  renoimces,  all  claim  thereto.-^ 

It  has  been  before  stated,  that  Avhere  a  person  who  has  no  in- 
terest in  the  subject-matter  of  the  suit,  and  against  whom  no  relief 
is  prayed,  is  made  a  party,  the  proper  course  for  him  to  adopt,  if 
he  Avishes  to  avoid  the  discovery,  is  to  demur,  unless  the  bill  states 
that  he  has  or  claims  an  interest :  in  which  case,  as  a  demurrer, 
which  admits  the  allegations  in  the  bill  to  be  true,  will  not  of 
course  hold,  he  should,  except  in  cases  of  partial  discovery  (to 
which,  as  will  be  presently  shown,  he  may  object  by  answer),  avoid 
putting  in  a  full  answer,  by  plea  or  disclaimer.^  Therefore,  where, 
instead  of  disclaiming  he  supported  the  plaintiff's  case,  but  was 
held  not  entitled  to  any  part  of  the  relief  given  to  the  plaintiff,  he 
was  left  to  bear  his  own  costs.^ 

A  disclaimer,  however,  cannot  often  be  put  in  alone  :  for  although, 
if  a  plaintiff,  from  a  mistake,  makes  a  person  a  party  to  a  suit  who 
is  in  no  way  interested  in  or  liable  to  be  sued  touching  the  matters 
.  in  question,  a  simple  disclaimer  by  such  person  might  be  good, 
yet,  as  it  is  possible  that  the  defendant  may  have  had  an  interest 
which  he  may  have  parted  with,  the  plaintiff  has  a  right  to  require 
an  answer,  sufficient  to  ascertain  whether  that  is  tlie  fact  or  not ; 
and  if  a  defendant  has  had  an  interest  which  he  has  parted  with, 
an  answer  may  also  be  "necessary  to  enable  the  plaintiff  to  make 
the  pro]:)er  person  a  party,  instead  of  the  defendant.* 

A  defendant  cannot  shelter  himself  from  answering,  by  alleging 
that  he  has  no  interest  in  the  matter  of  the  suit,  in  cases  where, 
though  he  may  have  no  interest,  others  may  have  an  interest  in  it 


1  Wyatt's  P.  R.  175;  Story  Eq.  PI. 
§  8-38  et  seq. ;  Bentley  v.  Cowman,  6  Gill 
&  J.  152. 

2  Ante,  p.  284.  A  defendant  may  also, 
in  a  suit,  disclaim  by  his  counsel  at  the 
bar.  Teed  v.  Carruthers,  2  Y.  &  C.  C.  C. 
31,  38;  6  Jur.  987.  It  seems  doubtful 
whether  he  can  by  such  a  disclaimer,  in 
the  case  of  a  petition  under  the  statutory 


jurisdiction,  divest  himself  of  an  estate  in 
"lands;  see  Re  ElHson,  2  .Jur.  N.  S.  (J2,  V. 
C.  W. ;  Poster  v.  Dawber,  1  Dr.  &  Sm. 
172. 

8  Rackham  v.  Siddall,  1  M'N.  &  G.  G07, 
625. 

4  Ld.  Red.  318;  Oxenham  v.  Esdaile, 
M'L.  &  Y.  540. 


DISCLAIMERS. 


707 


against  him :  he  cannot  dischiim  his  liability ;  ^  therefore,  a  party 
to  an  account  cannot,  by  (.lisclainiing  an  interest  in  the  account, 
protect  himself,  by  such  disclaimer,  from  setting  out  the  account.- 
Nor,  when  the  bill  seeks  to  charge  the  defendant  with  the  costs  of 
the  cause,  can  he,  by  disclaiming  all  interest  in  the  subject  of  the 
suit,  evade  giving  a  discovery  of  those  facts  by  which  the  plaintiff 
seeks  to  substantiate  his  charge.^  So,  if  fraud  is  charged  against 
the  defendant  seeking  to  disclaim,  and  interrogatories  have  been 
filed,  a  disclaimer  alone  is  insufficient,  and  an  answer  must  be  given 
to  the  imputed  fraud ;  *  and  it  seems  that,  in  such  a  case,  although 
no  personal  decree  can  in  general  be  made  against  a  married 
woman,  still  she  must  answer  fully  :  though  it  does  not  seem  clear 
how  far  her  answer  can  ultimately  be  used  as  evidence  against  her.^ 

It  is  to  be  observed  also,  that  a  disclaimer  by  one  defendant 
cannot,  in  any  case,  be  permitted  to  prejudice  the  plaintiff's  right 
as  against  the  others ;  and,  therefore,  where  a  bill  was  filed  against 
the  lessees  of  tithes,  under  a  parol  demise,  for  an  account,  and  the 
lessor,  who  was  made  a  defendant  thereto,  disclaimed,  the  dis- 
claimer of  the  lessor  was  not  permitted  to  pr(yudice  the  rights  of 
the  plaintiff  against  the  lessees,  and  a  decree  was  made  against 
them :  although  the  plaintiff  had,  upon  the  disclaimer  coming  in, 
himself  dismissed  the  bill  against  the  lessor  with  costs.^  Where  a 
defendant  claims  any  rights  against  his  co-defendants,  though  not 
against  the  plaintiff,  he  should  reserve  such  rights  by  his  dis- 
claimer :  for  if  his  disclaimer  is  absolute,  the  Court  will  only  de- 
termine the  rights  and  interests  of  the  other  parties  ;  and  will  not 
considfr  any  question  wliich  may  arise  between  him  and  his  co- 
defendants." 

Though  a  disclaimer  is,  in  substance,  distinct  from  an  answer, 
yet  it  is,  in  point  of  form,  an  answer,  containing  simply  an  asser- 
tion that  the  defendant  disclaims  all  right  and  title  to  the  matter 
in  demand  ;  and  in  order  to  entitle  the  defendant  to  be  dismissed 
with  costs,  the  disclaimer  should  state  that  the  defendant  "  does 
not  and  never  did  claim,  and  that  he  disclaims,  all  right  and  title 
in  the  subject-matter  of  the   suit.""      Lord   Redesdale  observes, 


Ch.  XVI. 


Disclaimer 

insufficient, 

where  fraud 

charged, 

thouuli 

det'ciulant  a 

married 

woman. 


Disclaimer 
by  one 
defendant 
cannot  preju- 
dice right 
against 
others; 


and  where  he 
claims  rights 
against  co- 
defendants, 
he  should 
reserve  them 
bv  his  dis- 
claimer. 


Form. 


1  A  defendant  cannot  by  disclaiming 
dej)rive  the  iiiuinliff  r.f  the  right  forc(|uire 
a  lull  an«wcr  Irom  iiini,  iiiilcss  it  is  evident 
that  the  dctlndant  should  not,  atter  the 
discluiiniT,  be  continued  a  party  to  the 
Buit.     Lllsworth  v.  Curtis,  10  I'aige,  lO.j. 

2  filassington  v.  Thwaites,  2  Huss.  458, 
462;  l)e  beuuvoir  v.  Rhodes,  cited  3  M.  & 
C.  04.t. 

*  (irahnm  »'.  f'oape,  3  M.  &  C.  C38, 
(543;  !)  Sim.  !)3,  103. 

*  JJuikcley  /•.  Dunbar,  1  Anst.  37. 

«  Whiting  r.  Hush,  2  V.  &  C  Kx.  540, 
5.52;  I'emherton  v.  M'Ciill,  1  .lur.  N.  S. 
1045,  V.  C.  W. ;  and  see  Silcock  v.  IJoy- 


non,  2  Y.  &  C.  C.  C.  370;  7  Jur.  548;  and 
ante,  p.  185. 

C  Williams  v.  Jones,  Younge,  252,  255. 

^  JoUv  V.  Arbuthnot,  4  De  0.  &  .1.  224; 
5  Jur.  >}.  S.  08!) ;  20  lieav.  283;  5  Jur.  N. 
S.  80. 

8  Vale  V.  Merideth,  18  Jur.  092,  V.  C. 
W.  A  defendant  liaviug  tlie  same  interest 
as  the  plaintitf,  should,  if  he  disapprove  of 
the  suit,  distinetiv  repudiate  it:  olherwi.se, 
the  hill  luav  be  dismissed  as  agaiu.xt  liim, 
willioul  costs,  and  with  costs  as  against 
the  other  defendant.s.  Wiiilhrop  v.  Mur- 
ray, 14  Jur.  302,  V.  C.  Wigrani. 


•08 


DISCLAIMERS. 


(11.  \VI. 


Other 
requisites. 


Exceptions  to 
disclaimer. 


Plaintiff 
should  lint 
reply  to  dis- 
claimer, but 
may  to  plea 
or  answer 
coupled 
with  it. 


th:it  ill  some  instaiu'os,  troiu  tlie  iinluiv  of  the  case,  a  sini))le  dis- 
claimei-  may  iierliaps  lie  suffieient,  Imt  that  the  forms  given  in  the 
books  of  practice  are  all  of  an  answer  and  disclaimer.^ 

A  disclaimer  may,  by  order,  be  filed  without  oath,  but  not  with- 
out oath  and  signature.  The  order  is  obtained  on  motion  or  pe- 
tition of  course.'^  If  the  defendant  applies  by  motion,  the  consent 
of  counsel  for  the  i)laintifl:'  is  necessary,  and  if  the  defendant  pe- 
titions, the  -written  consent  of  the  plaintifl*  must  be  subscribed 
thereto.'  Where  the  plaintiff  applies,  whether  by  motion  or 
petition,  no  consent  by  the  defendant  is  required.*  The  application 
by  a  defendant  is  usually,  if  not  invariably,  made  by  petition. 
Where  the  disclaimer  is  put  in  without  oath,  the  signature  of  the 
defendant  must  be  attested  by  some  jierson  competent  to  be  a 
witness.^ 

The  disclaimer  must  be  signed  by  counsel ; "  and  it  must  be 
sworn,  filed,  and  printed,  and  an  office  copy  taken  in  the  same 
manner,  and  within  the  same  time,  as  an  answer.'' 

If  a  defendant  puts  in  a  disclaimer  where  he  ought  to  answer, 
or  accompanies  his  disclaimer  by  an  answer  which  is  considered 
insufficient,  the  plaintiff  may  take  the  ojiinion  of  the  Court  upon 
its  sufficiency,  by  taking  exceptions  to  it,  in  the  same  manner  as 
to  an  answer.^  If,  however,  instead  of  applying  in  the  first  in- 
stance to  the  Court,  by  motion,  to  take  the  disclaimer  oft*  the  file, 
the  plaintiff  delivers  exceptions,  he  will  be  precluded  from  after- 
w\ards  moving  for  that  purpose.^ 

Where  a  defendant  i)uts  in  a  general  disclaimer  to  the  whole 
bill,  the  plaintift"  ought  not  to  reply  to  it:^"  for  then  the  defendant 
may  go  into  evidence  in  support  of  it."  In  a  case  where  the 
plaintiff  replied,  the  defendant  was  allowed  to  have  his  costs  taxed 
against  the  plaintiff  for  vexation.^^  It  is  otherwise,  however,  where 
the  disclaimer  is  to  part,  and  there  is  an  answer  or  plea  to  another 
part  of  the  same  bill :  in  such  cases,  there  may  be  a  replication  to 
Buch  plea  or  answer." 


.1  Ld.  Red.  319;  see  forms  in  Vol.  III. 
A  disclaimer  should  be  full  and  explicit  in 
all  respects.  AVorthington  v.  hee,  2  Bland, 
678. 

2  For  form  of  order  on  motion,  see  Paw- 
son  V.  Smith,  (-ited  Seton,  1254. 

3  Braithwaite's  I'r.  47,  57.  For  forms  of 
motion  jiaper  and  petition,  see  Vol.  III. 

4  Braithwaite's  Pr.  47,  57. 

6  Jb.  48.  For  form  of  attestation,  see 
Vol.  III. 

6  Ord.  VIII.  1. 

7  See/)0(!<,  Chap.  XVII.  §  3,  Answers; 
Braithwaite's  Pr.  57,  491. 

8  Glassin^ton  v.  Thwaites,  2  Paiss.  458, 
403;  Bulkelcv  i'.  Dunbar,  1  Anst.  37; 
Graliam  v.  Coape,  3  M.  &  C.  038 ;  9  Sim. 


90,  103.  But  it  has  been  held  that  where 
a  sim))Ie  disclaimer  is  filed,  a  plaintiff  who 
is  entitled  to  an  answer  must  move  to  take 
the  disclaimer  off  the  files,  and  he  cannot 
except;  l)ut  if  the  disclaimer  is  accom- 
panied by  an  insufficient  answer,  the 
plaintiff  .sliould  except  to  the  answer. 
Ellsworth  V.  Curtis,  10  Paige,  105. 

'J  (JIassington  v.  Thwaites,  ubi  supra, 
401. 

1"  Spofford  V.  Manning,  2  Edw.  Ch. 
350. 

11  See  the  observations  of  Sir  John 
Ifoniily  M.  K.  in  Ford  v.  Lord  Chester- 
field, lOBoav.  .520. 

12  Williams  V.  Longfellow,  3  Atk.  582. 

13  Ibid. 


DISCLAIMERS. 


709 


The  course  to  be  pursued  by  the  plaintiff,  after  a  disclaimer  to 
the  whole  bill  has  been  filed,  is  either  to  dismiss  the  bill  as  against 
the  party  disclaiming  with  costs,  or  to  amend  it ;  or,  if  he  thinks 
the  defendant  is  not  entitled  to  his  costs,  he  may  set  the  cause 
down  upon  the  answer  and  disclaimer,  and  bring  the  defendant  to 
a  hearing.^ 

Where  a  defendant  had  occasioned  the  suit,  in  consequence  of  a 
claim  to  the  fund  set  uj)  by  himself,  which  he  refused  to  release  or 
to  verify,  and  afterwards  put  in  a  disclaimer,  stating  in  his  answer 
the  facts  upon  which  he  had  supposed  himself  to  be  entitled,  as  a 
ground  for  his  not  being  ordered  to  pay  the  costs  of  the  suit,  which 
were  j^rayed  against  him,  in  consequence  of  which  the  plaintiff  ex- 
amined a  great  number  of  witnesses  to  falsify  such  statement,  but 
no  witnesses  were  examined  by  the  defendant :  Sir  Lancelot  Shad- 
well  V.  C.  ordered  him  to  pay  the  whole  costs  of  the  suit,  as  well 
the  plaintiff's  costs  as  the  costs  Avhich  the  plaintiff  was  ordered  to 
pay  to  the  co-defendants.^ 

It  is  to  be  remarked,  that  a  defendant  cannot,  by  answer,  claim 
that  to  which,  by  his  disclaimer,  he  admits  he  has  no  right ;  and 
if  a  disclaimer  and  answer  are  inconsistent,  the  matter  will  be  taken 
most  strongly  against  the  defendant  on  the  disclaimer.'' 

If  a  defendant  puts  in  a  disclaimer,  and  afterwards  discovers 
that  he  had  an  interest,  which  he  was  not  apprised  of  at  the  time 
he  disclaimed,  the  Court  Avill,  upon  the  ground  of  ignorance  or 
mistake,  permit  him  to  make  his  claim.  It  will  not,  however,  allow 
a  defendant  to  do  so  at  the  hearing  of  the  cause :  he  must,  in  order 
to  get  rid  of  the  effect  of  his  disclaimer,  make  a  distinct  application, 
Bupi>orted  by  affidavit,  setting  forth  the  fact  in  detail  on  which  he 
founds  his  claim  to  such  an  indulgence;*  and  it  seems  that  the 
Court  will  expect  a  strong  case  to  be  made  out,  before  it  Avill  grant 
the  ai)plicati()n.^ 

If  the  defendant  takes  no  steps  to  get  rid  of  the  effect  of  the 
disclaimer,  he  will  be  for  ever  barred  :  because  it  is  matter  of 
record.^ 

Questions  of  some  nicety  arise  in  suits  for  foreclosure,  and  in 
other,8uits  of  a  similar  descri].tioii,  for  establishing  equitable  claims 
or  demands  against  real  or  personal  estate,  as  to  the  right  to  costs 
of  persons  made  defendants  in  conse(]uence  of  rights  or  interests 
which  they  might  have  in  the  estate,  subject  to  those  of  the  plain- 
tiff, so  that  his  title  cannot  be  complete  without  their  co-operation, 


Cn.  XXI. 


Defendant 
ordered  to 
pay  the  v,'hole 
costs  of  the 
suit. 


When 
answer  and 
disclaimer 
inconsistent. 


Of  withdraw- 
ing a  dis- 
claimer. 


Disclaimer 
an  absolute 
bar. 


Costs  of  dis- 
claiming de- 
fendants, in 
foreclosure, 
and  other 
suits:  when 
allowed; 


1  Cash  r.  IVlchcr,  1  Hare,  .IIO,  31.'); 
nailey  r.  Lambert,  5  Hare,  ITS;  10  .lur. 
10!);  VVi>;giiiglou  v.  I'alcmaii,  12  .)ur.  SI), 
V.  C.  Iv;  Wyiitfs  1'.  K.  J7fJ;  Ilinde,  20!). 

2  Deacon  i'.  l)eacoii,  7  Sim.  '•'>~H,  .'tS-i; 
Dec  Hutchinsuii  v.  Ueed,  1  lloll'.  Ch.  ;jl;j. 


3  L<1.  Red.  .320. 

■•  Sidden  V.  Lediard,  1  R.  &  M.  110. 
6  Seton  I'.  Sladi^,  7  Ves.  20.'^,  207. 
e  Wood  V.  Taylor,  :j  \V.  li.  321;  3  Eq. 
Rep.  5i;J,  V.  C.  K. 


10 


DISCLAIMERS. 


Til.  XVI. 


■when  not 
allowed. 


Allowed, 
where  false 
statement  of 
application 
in  bill. 


Costs  of 
ssiffnees. 


l)\it  wliich  riijlits  or  iiitcrrsts  llicv  nbsoltitcly  disclaiin.  Wlicn  :i 
(Irti'uilaiit  state's  in  his  discl.-iiiiu'i-  that  lie  iicviT  had,  and  never 
claimed,  any  right  or  interest  in  the  subject-matter  of  the  suit  at 
or  at\er  the  filing  of  the  hill,  he  is  entitled  to  be  dismissed  with 
costs.^ 

"Where  a  defendant  simjdy  states  that  he  does  not  claim  any 
right  or  interest,  he  will  bo  dismissed  without  costs  ;^  but  if,  before 
biU  fded,  he  ofters  to  release  his  claim,  or,  after  bill  filed,  to  release 
his  claim,  and  consent  to  the  bill  being  dismissed,  as  against  him, 
without  costs,  he  will,  if  the  oiFer  be  refused,  and  the  plaintiff  still 
retain  him  as  a  party  to  the  record,  be  entitled  to  be  dismissed 
Avith  his  costs,  incurred  subsequently  to  the  offer.^  And  it  seems 
that  the  ])laintiflf  is  bound  to  bear  tlie  expense  of  the  release.^ 

Where  the  plaintiff  stated  in  his  bill  that,  before  the  institution 
of  the  suit,  he  had  applied  to  the  defendant  to  release  his  claim, 
but  the  defendant  refused  to  do  so,  and  the  defendant  disclaimed 
and  denied  that  any  such  ajjplication  was  made  to  lum,  and  stated 
that  if  it  had  been  made,  he  would  have  released  his  interest.  Sir 
John  Stuart  V.  C.  held  that  he  was  entitled  to  his  costs.^ 

It  may  be  here  observed,  that  in  questions  of  this  description, 
there  is  no  difference  between  the  right  of  an  assignee  in  bank- 
ruptcy and  that  of  the  party  whose  interest  he  represents.'' 


1  Silcock  V.  Roynon,  2  Y.  &  C.  C.  C. 
37G;  7  Jur.  548;  Iliorns  y.  Iloltoni,  IG  Jur. 
1077,  1080,  M.  11. ;  Gabriel  v.  Sturgis,  5 
Hare,  97,  100;  10  Jur.  215;  Teed  v.  Car- 
ruthers,  2  Y.  &  C.  C.  C.  31,  41;  G  Jur. 
987;  Benbow  v.  Davies,  11  Beav.  3G9; 
Glover  v.  Rogers,  11  Jur.  1000,  M.  R^; 
Higgins  V.  frankis,  15  Jur.  277,  V.  C.  K. 
B.;  Vale  v.  IMerideth,  18  Jur.  992,  V.  C. 
W. ;  Ford  v.  Lord  Chesterttuid,  IG  Beav. 
516,  520;  see,  contra,  Buchanan  «.  Green- 
way,  11  Beav.  58.  Where  disclaiming 
defendant,  a  satisfied  judgment  creditor, 
had  not  entered  up  satisfaction,  he  was  not 
allowed  his  costs.  Thompson  v.  Hudson, 
34  Beav.  107.  For  forms  of  decree  against 
disclaiming  defendants,  in  foreclosure  suits, 
see  Seton,  395. 

2  Cash  V.  Belcher,  1  Hare,  310,  312; 
Tipping  V.  Power,  ib.  405;  Grigg  v.  Stur- 
gis, 5  Hare,  93,  9G;  10  Jur.  133;  Ohrlv  v. 
Jenkins,  1  I)e  G.  &  8.  543;  11  Jur.  1001; 
Gibson  V.  Nicol,  9  Beav.  403,  40G ;  10  Jur. 
419;  Ford  v.  Lord  Chesterfield,  i'i!'/ .''"y'.  ; 
Appleton  V.  Sturgis,  10  \V.  R.  312,  V. 
C.  S. ;  Vale  v.  Meredith,  vbi  sup.;  Fnr- 
ber  V.  Furbcr,  30  ]5eav.  523;  Durham 
I'.  Crackles,  8  Jur.  N.  S.  1174,  V.  C.  W. 
Where  the  dr'fi-ndant  was  not  content 
simply  to  disclaim,  but  put  in  an  answer 


and  appeared  for  the  purpose  of  claiming 
his  costs,  it  was  held  that  he  was  not  enti- 
tled to  any  costs.  Maxwell  v.  Wightwick, 
L.  R.  3  Eq.  210. 

3  Ford  V.  Lord  Chesterfield,  ubi  sup. ; 
Lock  V.  Lomas,  15  Jur.  1G2,  V.  C.  K.  B. ; 
Talbot  V.  Kemshead,  4  K.  &  J.  93 ;  Bel- 
lamy V.  Brickenden,  ib.  G70;  Bradley  v. 
Borlase,  7  W.  R.  125,  V.  (,:.  K.;  Ward 
v.  Shakeshaft,  1  Dr.  &,  Sm.  2(;9;  Dillon  v. 
Ashwin,  10  Jur.  N.  S.  119;  12  W.  II.  3GG, 
V.  C.  K. ;  Ridgway  v.  Kyunersley,  2  11. 
&  M.  505;  Howkins  »\  Bunnet,  ih.  5G7,  n.; 
Fogg  V.  James,  ib.  5G8,  n. ;  Clarke  v.  Raw- 
lins, 1  W.  N.  332,  V.  C.  W. ;  Maxwell  v. 
Wightwick,  1  ^V .  N.  379,  V.  C.  VV. ;  but  see 
(Jowing  «.  Mowl)errv,  9  Jur.  N.  S.  844; 
11  W.  R.  851,  V.  C".  S. ;  Davis  v.  Whit- 
more,  28  Beav.  G17;  G  Jur.  N.  S.  880. 

4  Furber  v.  Furber,   30   Beav.  523,  525. 
6  Gurney  v.  Jackson,   1  Sm.  &  (J.  97; 

17  Jur.  204;  see,  however,  observations  of 
the  M.  R.  on  tliis  case,  in  Ford  v.  Lord 
(Jhesterfield,  ubi  sup.  ■ 

«  Grigg  V.  Sturgis,  5  Hare,  93,  9G;  10 
Jur.  133;  see  also  (.'ash  v.  Belcher,  1  Hare, 
310,  312;  Appleby  v.  Duke,  1  I'hil.  272, 
275;  7  Jur.  985;  Clarke  v.  Wilmot,  1 
I'liil.  276;  Staffurth  v.  Pott,  2  De  G.&  S. 
571. 


CHAPTER    XVII. 


ANSWERS. 


Section  I.  —  General  Nature  of  Answers. 


The  ans-svcr  of  a  defendant  consists  of  such  statements,  material 
to  liis  case,  as  he  may  think  it  necessary  or  advisable  to  set  forth ;  ^ 
and,  if  interrogatories  have  been  filed  for  Lis  examination,  of  his 
answers  to  them ;  ^  or,  if  he  has  put  in  a  demurrer  or  plea,  to  such 
of  them  as  relate  to  the  parts  of  the  bill  not  covered  by  such  de- 
murrer or  plea.  If  no  interrogatories  have  been  filed,  the  answer 
is  called  a  voluntary  answer.^ 

This  twofold  character  of  an  answer  is  peculiar  to  pleadings  in 
Equity,  and  is  not  found  even  in  those  that  are  formed  on  the  same 
model  in  the  Civil  and  Ecclesiastical  Courts:  the  answer  which 
the  defendant  is  required  to  make,  upon  oath,  to  the  allegation 
and  articles  being,  in  those  Couits,  a  wholly  distinct  instrument 
from  the  responsive  allegation  which  contains  the  defence.* 


An  answer 
consists  of 
statements 
material  to 
det'endant's 
case  and  his 
answer  to 
plaintiff's  in- 
terrogatories, 
if  any. 

Twofold 
character  of 
answers, 
peculiar  to 
Equity. 


1  15  &  16  Vic.  c.  8G,  §  1-i. 

2  Jbi/I.;  see  Story  Eq.  PI.  §  850;  Ld. 
Red.  U),  JO. 

3  An  answer  is  the  most  usual  method 
of  defence  to  a  bill  in  Chancery.  It  may 
be  put  in  to  the  whole  bill,  or  to  such  parts 
of  it  as  are  not  covered  by  plea  or  de- 
murriT.  As  it  is  capable  of  embracinf^ 
more  circumstanecs  than  a  plea,  it  may  for 
this  reason  be  used  with  much  j^reater  pro- 
priety in  cases  where  the  defendant  is  not 
anxious  to  prevent  a  discoverv,  although 
the  plea  nii;;ht  be  a  complete  bar.  Hut 
■where,  by  introduciii;^  adililional  circum- 
stances, he  has  a  ^ooil  opportunity  of 
exliibitin;;  his  case  in  a  more  favorable 
lifjht,  the  answer  is  the  best  mode  of 
defence.  1  Harl).  Ch.  I'r.  I'M;  see  Youle 
V.  Richards,  Saxton  (N.  .1.),  b'-ii.  When 
a  defenilani  makes  his  defence  by  answer 
he  mu^t  set  up  all  the  various  Knnnid.s  of 
defence  uipon  which  he  intends  to  rely. 
Warren  i".  Warren,  '■>(>  \'l  .O.'JO. 

In  New  namp>liire,  liy  IJule  5  of  ('han- 
rery  I'ra<'tice,  :',H  N.  II.  (iOO,  "Answers 
shall  he  entitled  with  tlie  county  in  the 
margin;  flie  style  of  the  Court;  the  title 
of  the  cause,  that  is,  the  name  of  the  first 


plaintiff,  '&  a,'  if  more  than  one;  and  the 
name  of  the  first  defendant,  '&  a,'  if  more 

than  one:  and  'the  answer  of ,'  the 

party   making  it, — in   substance  as  fol- 
lows :  — 

"R ,  ss.     In  the  Supreme  Judicial 

Court. 

A.  B.  &  a.  V.  C.  D.  &  a. 
"The  answer  of  C.  D." 

"The  clause  in  answers,  reserving  ex- 
ceptions, and  the  protestations  in  answers, 
and  the  connnon  concluding  clause  in 
answers,  denying  combination,  and  the 
general  traverse,  shall  be  omitted.  Rule 
C  of  (Jhancery  rractice  in  N.  Uam]>.  And 
the  "idle  repetitions,  'lliis  d(  fendant 
further  answering,  saitb,'  and  the  likt?  in 
answers,  shall  be  omitted.  Where  the 
names  ot'  [parties  jdefeiidanls]  are  omitted 
tliev  shall  be  referred  to  as  di/'cu'latils." 
Rule  7. 

I'or  forms  of  answer,  see  Vol.  III. 

*  Hare  on  Disc.  22'i\  ii  l!la.  Com.  IOO. 
A  defendant  cannot  pray  any  thing  in  his 
answer  but  to  be  dismissed  lln'  Court. 
Miller  v.  Gregory,  1  C.  E.  Green  (N.  J.), 
274. 


ANSWERS. 


C.  XVIT.  $  1. 


Statoiiu'iit  o( 

det'oinlaut's 

case. 


Old  rule  is 
imich  re- 
l:\xed,  where 
no  answer 
required  or 
put  in. 

Defence  of 
Statute  of 
Frauds,  or  of 
Limitations, 
allowed  to  be 
set  up  by 
evidence,  or 
orally  at  the 
hearing; 
but  defence  of 
purchaser  for 
value,  with- 
out notice, 
rejected  at 
hearing, 
where  not  set 
up  in  answer 
to  interrog- 
atories. 

Defendant  is 
not  bound  to 
state  the  con- 
clusions in 
Law  deduci- 
ble  from  facts 
set  out; 
but  cannot 
use  facts  to 
establish  a 
different 


AltliouLrli  an  answer  li;is,  in  goncral,  the  twofold  ))ro))orty  above 
stated,  it  is  seldom  jiossible,  in  Iraining  one,  to  keep  the  ))arts  sep- 
arate iVom  each  other:  though,  when  it  is  i)raetieable  to  do  so, 
such  a  course  is  generally  desirable.  It  is,  however,  of  great  im- 
portance to  the  pleader,  in  preparing  an  answer,  to  bear  in  mind 
that,"  besides  answering  the  plaintiff's  case  as  made  by  the  bill,  he 
should  state  to  the  Court,  ujion  the  answer,  all  the  circumstances 
of  which  the  defendant  intends  to  avail  himself  by  way  of  defence  : 
for  a  defendant  ought  to  api)rise  the  plaintiff,  by  his  answer,  of  the 
nature  of  the  case  he  intends  to  set  up,  and  that,  too,  in  a  clear, 
unambiguous  manner;  and,  in  strictness,  he  cannot  avail  himself 
of  any  matter  in  defence  which  is  not  stated  in  his  answer,  even 
though  it  should  appear  in  his  evidence.^  The  last-mentioned 
rule  was  formerly,  when  an  answer  was  required  in  every  case, 
strictly  enforced.  Under  the  present  practice,  however,  by  which, 
if  the  defendant  has  not  been  required  to  answer,  and  has  not  an- 
swered, he  will  be  considered  to  have  traversed  the  case  made  by 
the  bill,"-^  the  rule  has  been  much  relaxed  in  cases  where  no  answer 
has  been  required,  and  none  has  been  jDut  in. 

In  such  a  case,  the  defendant  has  been  permitted  to  set  up  the 
Statutes  of  Frauds,'^  and  of  Limitations,*  by  his  evidence,  and  orally 
at  the  hearing,  and  not  been  compelled  to  put  in  a  voluntary  an- 
swer for  that  purpose.  Where,  however,  he  had  been  interrogated, 
it  was  held,  that  he  ought  to  have  set  up  the  defence  of  being  a 
purchaser  for  valuable  consideration  without  notice,  by  his  answer, 
and  he  was  not  allowed  to  raise  it  at  the  hearing.^  Where  the 
facts  were  put  in  issue  and  proved,  a  defence  was  allowed,  although 
it  was  not  distinctly  raised  on  the  pleadings.^ 

A  defendant  is  not  bound  to  state,  upon  his  answer,  the  con- 
clusions in  Law  which  he  intends  to  deduce  from  the  facts  he  has 
set  out :  ■^  that,  as  has  been  before  stated,^  would  be  contrary  to  the 
principles  of  good  pleading.  Indeed,  the  most  correct  method  of 
jileading  is,  merely  to  state  the  facts  intended  to  be  proved,  and 
to  leave  the  inference  of  Law  to  be  drawn  from  them  upon  the 
argument  of  the  case ;  but  the  established  rule  is,  that  if  the  de- 
fendant states  upon  his  answer  certain  facts  as  evidence  of  a  par- 
ticular case,  w^hich  he  represents  to  be  the  consequence  of  those 


1  Stanley  v.  Kol)inson,  1  H.  &  M.  .527, 
529;  Harrison  t'.  liorwell,  10  Sim.  a82;  4 
Jur.  245;  Hodgson  v.  Thornton,  1  Eq.  Ca. 
Ab.  228,  pi.  5;  Burnham  v.  Dalling,  3  C. 
E.  Green  (N.  J.),  132;  Moors  ».  Moors,  17 
N.  H.  481. 

2  l.u  cV  16  Vic.  c.  86,  §  20. 

1  Lincoln  v.  Wright,  4  De  G.  &  J.  16 ; 
5  Jur.  N.  S.  1142;  Jackson  v.  Oglander, 
2  H.  &  M.  465. 

*  Green  v.  Snead,  30  Beav.  231;  S.  C. 


nom.  Snead  v.  Green,  8  Jur.  N.  S.  4;  con- 
tra, Holding  V.  Barton,  1  Sm.  &  G.  Ap. 
25. 

s  Phillips  V.  Phillips,  3  Giff.  200;  7  Jur. 
N.  S.  1094;  8  id.  145;  10  W.  K.  230, 
L.  C. 

6  Ormes  v.  Bcadel,  2  De  G.,  F.  &  J.  333; 
6  Jur.  N.  S.  1103,  1104. 

V  Jbid. 

8  Ante,  p.  371. 


GENEKAL  NATURE  OF  ANSWERS. 


713 


facts,  and  upon  which  he  rests  his  defence,  he  will  not  be  permitted 
afterwards  to  make  use  of  the  same  facts,  for  the  purpose  of  estab- 
lisliiug  a  different  defence  from  that  to  which,  by  his  answer,  he 
has  drawn  the  plaintiff's  attention.^ 

A  defendant  may,  by  his  answer,  set  up  any  number  of  defences, 
as  the  consequence  of  the  same  state  of  facts,  which  Ms  case  will 
allow,-  or  the  ingenuity  of  his  legal  advisers  may  suggest ;  thus, 
in  setting  up  an  immemorial  payment  in  lieu  of  tithes,  a  defendant 
has  been  allowed  to  rely  upon  it,  either  as  a  modus,  or  as  a  com- 
position real  existing  from  time  immemorial,  or  as  a  composition 
undetermined  by  notice.^  In  none  of  these  cases  were  any  facts 
stated  in  the  answers  which  were  inconsistent  with  any  of  the  de- 
fences set  up,  and  the  evidence  to  prove  them  was,  in  either  case, 
the  same. 

Although  a  defendant  may  be  permitted  to  set  up,  by  his  answer, 
several  defences  as  the  consequence  of  the  same  state  of  facts,  or 
of  fiicts  which  are  consistent  with  each  other,  a  defendant  cannot 
insist  upon  two  defences  which  are  inconsistent  with  each  other,  or 
are  the  consequence  of  inconsistent  facts.^  And,  in  the  applica- 
tion of  this  rule,  it  makes  no  difference  whether  the  inconsistent 
defences  are  each  substantially  relied  ujion,  or  are  set  ujj  in  the 
alternative ;  "  that  answer  is  bad  which  either  contains  inconsistent 
defences,  or  an  alternative  of  inconsistent  defences."  **  Thus,  al- 
though a  defendant,  in  a  tithe  suit,  might  set  up  a  payment,  either 
as  a  modus,  or  as  a  com])osition  real  existing  from  time  immemorial, 
he  could  not  set  up  the  same  payment,  either  as  a  modus  or  as  a 
composition  real  not  alleged  to  be  immemorial.*^ 

From  the  cases  of  Jesus  College  v.  Gihhs  and  Leech  v.  Bailey, 
above  referred  to,  it  is  to  be  collected,  that  where  a  (k'fendant  sets 
uj),  by  his  answer,  two  inconsistent  defences,  the  result  will  be  to 
dejjrive  him  of  the  benefit  of  either,  and  to  entitle  the  plaintiff'  to 
a  decree.''  Sometimes,  indeed,  the  Court  will,  where,  from  redun- 
dant expressions-  or  other  verbal  inaccuracy,  a  defence  has  been 
rendercfl  inconsistent,  though  evitlently  not  intended  to  be  so, 
either  rtyect   tlie  redundant  expressions  as  sur])lusage,*  or  direct 


C.  XVII.  §  1. 


defence  to 
that  set  up 
as  their  con- 
sequence. 

May  set  up 
several  de- 
fences if  not 
inconsistent. 


Inconsistent 
defences  not 
allowed, 


whether 
alternative 
or  not. 


When 
defences 
inconsistent, 
plaintiff 
entitled  to 
a  decree; 


but  verbal  in- 
accuracy may 
be  rejected. 


1  IJennett  r.  Ncale,  Wigiitw.  321. 

2  Slory  K(|.  I'l.  §  851.  The  defendant 
may  set  u|),  in  his  answer,  matters  which 
liave  orciirred  since  the  lilin),'  of  the  liili. 
Ia-ous  ?'.  IJrooks,  2  l':dw.  Cli.  111). 

''  Atkyn.s  v.  L(;r<l  WiHoiif^iiby  de 
ISrooke.  2  Anst.  ;i!)7;  Atkins  v.  Ilatton,  Uj. 
.Wi;  \Volh-v  V.  IJrowtihill,  Al'Ixl.  317; 
Bishop  I',  ('hj.h.'ster,  3  (iwili.  131(;. 

*  A  dei'enilant  may  bolii  li'Miy  the 
charj^es  in  the  hill,  and  set  up  distinct 
defences,  so  they  he  not  wholly  inconsist- 
ent with  such  dwnial.  Hopper  v.  Hotiper, 
11  I'aigc,  4C. 


5  Per  Alderson,  B.,  in  1  Y.  &  C.  Ex. 
KiO. 

0  JesiLs  College  v.  Gibbs,  1  Y.  &  C.  E.x. 
145,  KiO;  and  see  Leech  v.  Bailcv,  (!  Tri. 
504. 

^  But  see  Nagle  v.  Edwards,  3  Anst. 
702.  and  the  observations  upon  that  case, 
in  .lesuH  College  v.  Gibb.s,  1  Y.  &  C.  iC.\. 
103. 

8  Ellis  V.  Saul,  1  Anst.  332,  341 ;  .Icnkin- 
son  V.  lioyston,  5  I'ri.  495;  .s(!(miIso  Uhthotf 
r.  Loril  liiinliiiglield,  1  I'ri.  237. 


14 


ANSWERS. 


(\  x\  II.  5  1. 


I  >otoii(lant 
may  sot  up 
two  fon.-ist- 
ciit  delouccs. 


Of  the 

certainty 

required  in 

statins 

defendant's 

case. 


Of  insisting 
upon  the 
same  benefit 
as  if  defend- 
ant had 
pleaded  or 
demurred. 


(hem  to  bo  struck  dill  : '  siicli  iii(hili;c'ii('(\  liowcvof,  is  confiiUMl  to 
cases  of  vofbal  iuacciiracv  only,  which  woiiM  not  liave  eniljarrassed 
tlio  plaiiitiir  in  tlu'  contlin't  of"  liis  case. 

Althoiiuh  a  (h'tl'iidant  cannot,  by  his  answer,  set  n|),  in  o])])osi- 
tion  to  the  phiintiirs  title,  two  inconsistent  defences  in  tlie  altei'- 
native,  he  will  not  be  jjrecluded  from  denying  the  j)laintiff 's  general 
title,  and  also  insisting  that,  in  case  the  plaintiif  establishes  his  title, 
he  is  precluded  from  recovering  by  some  other  cinuimstance  which 
would  equally  serve  to  preclude  him,  or  any  other  person  in  whom 
the  title  might  be  actually  vested.  Thus,  in  a  tithe  suit,  the  de- 
fendant might  have  denied  the  plaintiff's  title  as  rector  or  vicar, 
and  at  the  same  time  have  set  up  a  modus? 

In  stating  a  defendant's  case,  it  is  only  necessary  to  use  such  a 
degree  of  certainty  as  will  inform  the  plaintiff  of  the  nature  of  the 
case  to  be  made  against  him;®  it  is  not  requisite  that  the  same^ 
degree  of  accuracy  should  be  observed  in  an  answer  as  is  required 
in  a  bill. 

If  the  defence  which  can  be  made  to  a  bill  consists  of  a  variety 
of  circumstances,  so  that  it  is  not  ])roper  to  be  offered  by  way  of 
plea,  or  if  it  is  doubtful  whether  a  plea  will  hold,  the  defendant 
may  set  forth  the  whole  by  way  of  answer,  and  pray  the  same 
benefit  of  so  much  as  goes  in  bar,  as  if  it  had  been  ])leaded  to  the 
bill.*  Thus,  a  defendant  insisting  upon  the  benefit  of  the  Statute 
of  Limitations  by  way  of  answer,  may  at  the  hearing,  have  the  like 
benefit  of  the  statute  as  if  he  had  pleaded  it.^  So  also,  if  a  defend- 
ant can  offer  a  matter  of  j^lea  which  would  be  a  complete  bar,  but 
has  no  reason  to  protect  himself  from  any  discovery  sought  by  the 
bill,  and  can  offer  circumstances  which  he  conceives  to  be  favorable 
to  his  case,  and  which  he  could  not  offer  together  with  a  plea,  he 
may  set  forth  the  whole  matter  in  the  same  manner."  Thus,  if  a 
purchaser  for  a  valuable  consideration,  clear  of  all  charges  of  fraud 
or  notice,  can  offer  additional  circumstances  in  his  fiivor  which  he 
cannot  set  forth  by  way  of  plea,  or  of  answer  to  support  a  plea,  as 
the  expending  a  considerable  sum  of  money  in  improvements  with 
the  knowledge  of  the  plaintiff,  it  may  be  more  prudent  to  set 
out  the  whole  by  way  of  answer,  than  to  rely  on  the  single  defence 


1  Jesus  College  v.  Gibbs,  1  Y.  &  C.  Ex. 
145,  157. 

2  Carte  v.  Ball,  3  Atk.  496,  499. 

3  See  Cummings  v.  Coleman,  7  Rich. 
Eq.  (S.  C.)509. 

••  Ld.  Red.  308. 

5  Norton  v.  Turvill,  2  P.  Wms.  144. 
The  same  strictness  is  not  requisite  in  an 
answer  to  a  bill  in  Equity,  where  the  Stat- 
ute of  Limitations  is  relied  on  as  a  defence, 
a.s  in  a  plea.  Maury  v.  Mason,  8  Porter, 
213.    And  see,  as  to  effect  of  answer  insist- 


ing   on    Statute    of   Frauds,   Jackson  v. 
Oglandor,  2  II.  &  M.  41)5. 

**  But  it  is  said  by  Mr.  Justice  Story, 
that  "it  is  very  far  from  being  generally 
true,  as  is  sometimes  alleged  in  the  books, 
that  a  defendant  may,  l)y  answer,  avail 
himself  of,  and  insist  upon,  every  ground 
of  defence,  which  he  could  use  by  way  of 
demuiTer,  or  of  iilea,  to  the  bill."  Story 
E(|.  PI.  §  847,  and  notes;  Portarlington  v. 
Soulby,  7  Sim.  28. 


GENERAL  NATURE  OF  ANSWERS. 


715 


by  way  of  plea ;  unless  it  is  material  to  prevent  disclosure  of  any 
circumstance  attending  his  title.^ 

Where  the  same  benefit  has  been  claimed,  by  answer,  that  the 
defendant  would  have  been  entitled  to  if  he  had  demurred  to  the 
bill,  or  pleaded  the  matter,  alleged  in  his  answer,  in  bar,  it  is  only 
at  the  -hearing  of  the  cause  that  any  such  benefit  can  be  insisted 
upon;  and  then  the  defendant  Avill,  in  general,  be  entitled  to  all 
the  same  advantage  of  this  mode  of  defence  that  he  would  have 
had,  if  he  had  adopted  the  more  concise  mode  of  defence,  by  de- 
murring or  pleading.'^  In  the  case,  however,  of  multifariousness, 
if  the  defendant  does  not  take  the  objection  in  limine,  the  Court, 
considering  the  mischief  as  already  incurred,  will  not,  except  in  a 
special  case,  allow  it  to  prevail  at  the  hearing:  although  it  may 
protect  the  defendant  from  the  costs  incurred,  if  it  should  appear 
.that  he  had  been  improperly  subjected  to  thera.^ 

We  now  come  to  the  consideration  of  the  manner  in  which  the 
interrogatories  (if  any)  must  be  answered. 

Under  the  old  practice  of  the  Court,  it  was  necessary  that  the 
defendant  should  answer  all  the  statements  and  charges  in  the  bill, 
wliether  specially  interrogated  thereto  or  not;  but  he  was  not 
bound  to  answer  any  interrogatories  which  Avere  not  founded 
upon  the  statements  or  charges  contained  in  the  bill :  *  though, 
if  he  did  so,  he  thereby  put  them  in  issue.  Under  the  present 
practice,  a  defendant  may  be  required  to  answer  any  interroga- 
tories which  are  pertinent  to  the  case  made  by  the  bill,  although 
tliey  are   not  founded  on    specific    charges   or  statements   in   the 

1  Ld.  Red.  309.     A  party  setting  up  a 
Ir-ffal   right,    in  his  answer  to   a   bill    in 


C.  XYII.  §  1. 


Objection  of 
multifarious- 
ness should 
be  taken 
ill  limine. 


Answer  to  the 
plaintiff's  in- 
terrogatories : 

defendant 
bound  to 
answer  inter- 
rogatories, 
pertinent  to 
ease  made  by 
bill,  although 
not  founded 
on  specific 
statements 
therein. 


liiiuity,  is  Hot  bound  to  deny  notice  of 
suuscfiucnt  lien  or  interest,  unless  the  bill 
alleges  notice.  King  v.  McVikar,  3  Sandf. 
Ch.  1!»2. 

•i  Wrav  V.  Hutchinson,  2  M.  &  K.  235, 
238,  iii-  .see  also  Milligan  v.  Mitchell,  1 
M.  &  (J.  433,  447. 

a  B.tison  V.  Iladfield,  4  Hare,  32,  39; 
r'a^li.ll  V.  Kelley,  2  Dr.  &  War.  181; 
Hatf.ty  r.  King,  1  Keen,  001,  003;  and 
see  '(«/(',  p.  346. 

■•  .Jerrard  v.  Saunders,  2  Ves.  J.  ibi, 
4.-)8;  i;iais<lell  V.  Bowers,  40  Vt.  120,  130; 
Miller  V.  Saunders,  17  (ieo.  02;  Grim  v. 
U'heclir,  3  Kdw.  (Jh.  334;  Mechanics' 
I'.aiik  I?.  Levy,  3  I'aige,  COO;  Story  Eq.  I'l. 
§§  3'i,  37  ft  is  sutlicicnt,  however,  if  the 
interrogaturv  is  founded  upon  a  statement 
in  the  1)111,  wliii-h  is  insurleii  therein  merely 
as  evidence  m  siipiiort  of  the  mam  charges. 
Mechanics'  Hank  v.  Li^vy,  3  I'aige,  (iOfi. 
Where  a  tact  is  st;ilerl  in  a  bill  by  way  of 
reiital  miTcly,  without  atiy  interrogatory 
calling  liir  an  answer  as  to  that  fact,  the 
defendant  is  not  bound  4-ilher  to  admit 
or  to  deny  the  s«me.     Mechanics'  Bank  v. 


Levy,  3  Paige,  606 ;  Newhall  v.  Hobbs,  3 
Cush.  274,  277.  The  general  interrogatory 
or  request  in  a  bill  "that  the  defendant 
may  full  answer  make,  to  all  and  singular 
the  premises,  fully  and  particularly,  as 
though  the  same  were  repeated,  and  he 
specially  interrogated,"  ifcc  ,  is  sufficient 
to  entitle  the  plaintiff  to  a  full  disclosure 
of  the  whole  subject-matter  of  the  bill, 
equally  as  if  he  had  specially  interrogated 
the  defendant  to  every  fact  stated  in  the 
bill,  with  all  the  material  circumstances. 
Method.  K|jis.  Church  v.  Jaques,  1  John. 
Ch.  65,  75,  76;  Neale  v.  Hagthorp,  3 
Bland,  551;  see  Story  Eq^.  I'l.  §§  35- 
38.  Special  interrogatories  m  a  bill  seem 
not  to  be  al)solulely  necessary.  Story  Eq. 
I'l.  §  38;  .Meth.  Epis.  Church  );.  Jaques,  1 
John.  Ch.  65.  By  the  40th  E(iuily  Itule 
of  the  United  Slates  Courts,  it  i>  provided, 
that  "  a  defendant  shall  not  be  bound  to 
answer  any  statement  or  charge  in  the  bill, 
unh'ss  specially  and  particularly  inter- 
rogated thereto";  and  a  defendant  shall  not 
be  bound  to  answer  aTiv  interrogatory  in 
the  bill,  except  those  interrogatories  which 
such  defendant  is  recpiired  to  answer,"  &c. 
See  Story  E(i.  PI.  §  847,  note. 


ir> 


ANSWERS. 


C.  XVll.§i.  bill:'  l>nt  lio  is  not.  bouml  to  answer  Miiy  slnteinont  or  chiirgc  in 
the  bill,  unUss  specially  and  particularly  intcrrogattHl  tlioreto ; 
nor  is  ho  bound  to  answer  any  of  the  interrogatories  except  tliose 
wliielj  lie  is  rocpiired  to  answer.'-  A  defendant  is  not,  however, 
prohibited  from  answering  any  statement,  charge,  or  interrogatory 
Avhich  he  may  consider  it  necessary  to  his  defence  to  answer ;  and 
he  is  left  at  com2)lete  liberty,  in  this  respect,  to  act  in  such  man- 
ner as  may  be  tliought  advisable  :  subject  to  the  restriction  tliat 
if  he  answer  any  statement  or  cliarge  in  the  bill  to  which  he  is  not 
interrogated,  only  by  stating  his  ignorance  of  the  matter  so  stated 
or  charged,  such  answer  will  be  deemed  impertinent.* 

The  j)laintiff 's  right  to  discovery  is  not  extended,  by  the  present 
practice;  so  that  all  the  objections  which  could  formerly  have 
been  urged  by  the  defendant,  to  protect  himself  from  a  discovery 
of  any  portion  of  the  matter  of  the  bill,  can  now  be  urged  against 
a  discovery  of  that  concerning  which  the  defendant  is  specially 
interrogated;  and  there  have  always  existed  certain  special  rea- 
sons upon  which  the  defendant  might  object  to  the  discovery 
sought  by  the  plaintiff:  either  because  the  discovery  might  sub- 
ject him  to  pains  and  penalties,  or  to  a  forfeiture,  or  to  something 
in  the  nature  of  a  forfeiture  ;  *  or  because  it  was  immaterial  to  the 
relief  prayed  ;  ^  or  because  it  might  lead  to  a  disclosure  of  matter, 
the  subject  of  professional  confidence;®  or  of  the  defendant's  own 
title,  in  cases  where  there  is  not  a  sufficient  privity  between  him 
and  the  plaintiff  to  warrant  the  latter  in  requiring  a  disclosure  of 
it.'  In  all  these  cases,  although,  as  we  have  seen,  the  defendant 
may  protect  himself  from  discovery  by  plea  or  demurrer,  yet  he 
has  always  been  permitted  to  decline,  by  his  answer,  giving  the 
objectionable  discovery,  and  to  state,  in  that  form,  the  grounds 
upon  Avhich  he  claims  protection;  and  he  still  retains  the  same 
privilege.**     He  must,  however,  swear  to  his  belief  in  the  validity 


not,  however, 
by  stating  his 
ignoriuu-e  of 
the  matter. 

Defendant 
may,  b^' 
answer, 
object  to  dis- 
covery sought 
by  interrog- 
atories. 

Special 
objections  to 
discovery 
which  may 
be  raised  by 
answer. 


Defendant 
must  swear  to 
his  belief  in 
their  validity. 


1  Ante,  p.  483;  Perry  v.  Turpin,  Kay 
Ap.  49;  Mansell  v.  Feeney,  2  J.  &  H.  313, 
318:  Law  v.  London  Indisputable  Society, 
10  Hare  Ap.  20;  Barnard  v.  Hunter,  1 
Jur.  N.  S.  10(!5,  Y.  C  S.;  INIarsh  v.  Keith, 
1  Dr.  &  Sm.  .342;  6  Jur.  N.  S.  1182;  Hud- 
son V.  Grenfell,  3  Giff.  388;  8  Jur.  N.  S. 
878. 

2  Ord.  XV.  3. 

3  Ord.  XV.  3;  see  Treadwcll  v.  Cleave- 
land,  McLean,  283.  'I'he  alxivc  nrdcr  has 
been  adopted  by  the  Supreme  Court  of 
the  United  States.  See  20th  Equity  Uule 
of  the  United  States  Courts,  January  Term, 
1842. 

^  Ante,  p.  562.  But  the  defendant  can- 
not object  to  answer,  if  the  period  fixed  by 
law  within  which  he  could  be  prosecuted 
for  the  oft'ence  or  the  forfeiture,  has  elapsed 
before   the   answer   is    filed.     Dwinal    v. 


Smith,    25    Maine,    379;    Story    Eq.    PI 
§  589 ;  ante,  594,  595,  and  notes. 

5  Ante,  p.  570. 

6  Ante,  570. 

7  A7ite.  p.  579 ;  and  see  Cooke  v.  Turner, 
14  Sim.  218,  221 ;  8  Jur.  703.  The  jilain- 
tiff  is  not  entitled  to  discovery  of  the 
defendant's  case,  avte,  579,  580,  notes; 
Hoffman  v.  Postill,  L.  li.  4  Ch.  Ap.  073. 
Allegations  of  fraud  in  a  bill  must  be 
answered,  and  a  (IciiHirrer  to  a  bill,  con- 
taining such  al]('i;atiiiiis  and  strong  cir- 
cumstances of  e(|uity,  must  be  overruled. 
Burnley  v.  Jeffersonvillc,  3  McLean,  330. 
Such  allegations  nnist  be  denied  in  the 
plea  as  well  as  in  the  answer.  Lewis  v. 
13aird,  3  McLean,  56. 

"  A  defendant  may  in  some  cases  answer 
in  part,  and  by  his  answer  state  reasons 
why  he  should  not  be  ccHnpelled  to  make 


GENERAL  NATURE  OF  ANSWERS. 


717 


of  such  grounds ;  ^  and  the  Court  must  be  satisfied,  from  the  cir- 
cumstances of  the  case,  and  the  nature  of  the  discovery  which  he 
is  called  upon  to  giA^e,  that  the  case  falls  within  the  above-men- 
tioned grounds  of  objection.^ 

The  principle  upon  which  the  Court  proceeds,  in  exempting  a 
defendant  from  a  discovery  imder  any  of  the  above  circumstances, 
has  been  fully  discussed,  in  considering  the  grounds  upon  which  a 
defendant,  although  he  does  not  object  to  the  relief,  provided  the 
plaintiff  makes  out  a  case  which  may  entitle  him  to  it,  may  demur 
to  the  discovery  sought ;  it  is  only  necessary,  therefore,  to  repeat  in 
this  place  what  has  been  before  stated,  that  if  a  defendant  objects  to 
any  particular  discovery,  upon  any  of  the  grounds  above  stated, 
lie  may,  even  though  the  grounds  upon  which  he  may  object 
appear  upon  the  bill,  decline  making  such  discovery,  by  submission 
in  his  answer.^ 

It  may  be  observed  here,  that  the  only  difference  occasioned  by 
this  method  of  objecting  to  the  discovery  is,  that  if  the  objection 
be  taken  by  demurrer  or  plea,  the  validity  of  it  is  at  once  decided 
by  the  Court,  upon  argument  of  the  plea  or  demurrer ;  Avhereas, 
if  the  objection  be  taken  by  answer,  the  validity  of  it  can  only 
come  before  the  Court  in  the  form  of  exceptions  to  the  answer, 
which  is  certainly  a  more  circuitous  and  expensive  mode  of  trjang 
the  question  than  that  afforded  by  demurring.  It  has,  however, 
been  held,  that  where  the  ground  of  objection  is,  that  the  discovery 
would  render  the  defendant  liable  to  pains  and  penalties,  the 
]. roper  course  is  to  submit  the  point  by  answer:  because,  by  de- 
murring, the  defendant  admits  the  facts  to  be  true.* 

It  is  a  general  rule,  that  the  defendant  is  only  required  to  an- 
swer to  those  points  which  are  necessary  to  enable  the  Court  to 
make  a  decree  against  him;^  and  the  objection  arising  from  want 
of  materiality  is  one  that  the  defendant  has  always  been  allowed 
to  raise  by  answer.'^ 


C.  XVII.  §  1. 


Principle  on 
which  (Jourt 
proceeds. 


Difference  be- 
tween taiving 
objection  by 
answer,  and 
by  plea  or 
demurrer. 


Objection  for 
immntcri- 
ality  always 
raisable  by 
answer. 


further  answer.  Hunt  v.  Gookin,  G  Vt. 
4(i2;  Adams  v.  Fisiier,  .3  M.  &  C  52G; 
Wij,'ram,  Discov.  (Am  ed.)  90  el  seq.  \i\. 
l.Vi,  &c.;  (Jiiyler  i'  IJoKert,  3  l'aif,'e,  108; 
Bfc  Wci.Hman  i\  Mining  Co.,  4  Jones  I'-ti- 
112. 

IJiif  if  a  defendant  rest  himself  upon  a 
fart,  as  an  objectinn  to  further  discovery, 
if  ou^ht  to  be  such  a  fact,  as,  if  (rue, 
would  at  once  l)e  a  clear,  decided,  and 
iiuvilablc  bar  to  the  plaintiff's  dcniaml. 
Method.  I'^pis.  Cliurch  v.  .lafjues,  1  .lohn. 
Ch.  ().').  If  it  riearly  apjicars  that  the 
case  is  not  of  Ivpiity  co;;iiizauic,  the  an- 
swer, ri'ipiircd  only  for  the  purposes  of 
the  particular  suit,  would  avail  nothin;;, 
and  IS  not  iic< -o.-arv.  M<irlon  r.  (irenada 
Acad<'mies,  8  Sm   <ji.  M.  7711. 

»  Scott  r.  Mill^-r  (No.   2),   John.    328; 


.5  .lur.  N.  S.  858;  see  Balguy  v.  Broad- 
hurst,  1  Sim.  N.  S.  111. 

2  Sidebottoni  r.  Adkins,  3  Jur.  N.  S. 
631;  b  W.  II.  743,  V.  C.  S.;  see  also  Heg. 
V.  IJovcs,  1  I{  &  S.  311;  7  Jur.  N.  S. 
ll.")H;"l5unii  i:  IJunn,  12  W.  R.  5(jl,  L.JJ.; 
Tavlor  on  Kvi.i.  §  1311. 

■i  Ante,  p   582;'  Ld.  Red.  200,  .307. 

*  iloiu'vwood  f.  Sehviu,  3  Atk.  276;  see 
Attorncv-fieneral  v.  Liu'as.  2  Hare,  560, 
5(1'.);  7  ".lur.  1080;  Earl  of  l.ichlield  v. 
IJond,  0  Hcav.  88,  03;  7  Jur.  20!(. 

6  Per  Sir  Thomas  I'lumer  V.  ('.,  in 
Agar  r.  Kegeut's  Canal  Company,  (i. 
Coop.  212,  214;  s(!e  also  Wood  r.  Ilitch- 
iiigs,  3  Ueav.  .504,  510. 

«  The  defendant  is  not  bound  to  answer 
any  all<-gati(»us  in  the  plaiutilf 's  bill,  which 


718 


ANSWERS. 


(\  XVII.  §  1. 


In  cases  of 
account, 
where  execu- 
tor admits 
assets; 


TIu'  n|>plii';itioii  of  this  ruli'  Iins  been  before  diseussod,  in  troat- 
iiiii"  <*l  ilcniurrers  to  discovery,  on  tlie  ground  of  want  of  mate- 
riality.' It  may  not  be  useless,  however,  in  addition  to  the 
ijistanees  already  referred  to,  to  mention  one  or  two  cases  wliere 
the  defenihint's  right  to  exem]it  liinisclf  from  answering  to  such 
])arts  of  the  bill  has  been  recognized  by  the  Court,  upon  excep- 
tions. In  Codrington  v.  Godrington^  a  bill  was  file<l  by  a  ])erson 
claiming  under  tlie  limitations  of  a  settlement,  to  set  aside  an 
a]>pointment,  by  Avhicli  his  title  was  defeated,  on  tlic  ground  of 
fraud ;  and  npon  an  answer  being  put  in  denying  tlie  fraud,  the 
]»laintiff  amended  his  bill,  by  inserting  certain  inquiries  as  to  the 
manner  in  which  the  appointment  was  attested,  in  order  to  show 
that  it  was  not  executed  in  the  manner  required  by  the  settlement. 
These  inquiries  the  defendant,  by  his  answer,  declined  answeiing; 
and  npon  the  question  coming  before  the  Court,  Sir  Lancelot 
Shadwell  V.  C.  held,  that  the  defendant  was  not  bound  to  ansAver 
the  interrogatories  in  the  amended  bill :  because  the  plaintiff, 
having  by  his  bill  set  up  a  case  of  fraud,  the  fact,  whether  the 
appointment  was  executed  in  conformity  with  the  power  or^^not, 
was  immaterial  to  the  case  so  set  up. 

Upon  the  same  principle,  the  Court  holds  that,  where  a  bill  is 
filed  by  a  creditor  or  legatee,  or  other  person  claiming  a  definite 
sum  out  of  the  personal  estate  of  a  deceased  person,  against  an 
executor  or  administrator,  if  the  defendant  admits  assets  in  his 
hands  sufficient  to  answer  the  plaintiff's  demands,  he  need  not  set 
out  an  account  of  the  estate,^  or  set  out  a  schedule  of  the  docu- 
ments in  his  possession  relating  to  the  estate :  *  because  the  admis- 
sion by  the  defendant  that  he  has  assets  in  his  hands  to  answer 
the  plaintiff's  demands, ^is  sufficient  to  giA^e  the  plaintiff  all  the 
relief  he  can  require,  and  any  discovery  would  be  useless  and 
ir]-ele\ant.^  So,  also,  the  Court  refused  to  compel  discovery, 
where  tlie  executor  of  an  executor  admitted  assets  of  the  oriainal 


are  not  material  to  be  answered.  Utica 
Ins.  Co.  V.  Lvnch,  3  Paige,  210;  Butler  r. 
Cottin-,',  1  Koot,  310;  Davis  v  Mapes,  2 
Paiijf,  10.") ;  Ilafjthorpe  v.  Hook,  1  Gill  & 
J.  270:  .Mccliani(;s'  Bunk  n.  Levy,  3  Paif^c, 
fi.'jfl:  Ilanlcnian  v.  Harris,  7  How.  U  S. 
720;  Hotlinan  v.  Postill,  L.  R  4  Ch.  Ap. 
C73.  But  see  Iloprencanip  «.  Ackennan,  2 
Stockt.  (X.  J.)  207;  Wootten  v.  Burcli,  2 
Md.  Ch.  Dec.  100.  A  defendant  cannot  be 
called  upon  to  answer  a  mere  arithnietical 
proposition.  Mclntyre  «.  Tnistcesof  Union 
CoileRe,  0  Paige,  239.  As  to  this  point  of 
niaterialitv  and  the  tests  of  it,  .^ee  Story 
Ef).  PI.  §§'853,  8.53  «,  853  J,  853  c;  Kuy- 
pers  V.  Reformed  Dutch  Church,  G  Paige, 
570. 

"  It  must  be  borne  in   mind  that  it  is 
almost  impo.ssibIe  for  the  Court,  in  a  pre- 


liminary stage  of  the  proceedings,  to  deter- 
mine what  propositions  will  be  material  to 
the  case  of  one  or  other  of  the  parties.  A 
certain  latitude  must  always  be  allowed  in 
seeking  discoverv."  Sir  (J.  J.  Selwyn  L. 
J.  in  Hollinan  v.  Postill,  L.  K.  4  Ch.  Ap. 
G73,  G78. 

1  Ante,  p.  570. 

2  3  Sim.  51!},  524. 

3  Agar  V.  Regent's  Canal  Company,  uhi 
sup.  * 

4  Forlies  v.  Tanner,  9  Jur.  N.  S.  455; 
11  W.  R.  414,  V.  (!.  K. 

s  Pullen  V.  Smith,  5  Ves.  21,  23.  To  a 
bill  for  discovery  of  assets  and  relief,  an 
answer  controverting  the  claim,  without 
answering  as  to  the  assets,  is  insuflicient. 
Carneal  v.  Wilson,  3  Litt.  80. 


GENERAL  NATURE  OF  ANSWERS. 


719 


testator  came  to  the  hands  of  his  testator;  ^  and  so,  discovery  was 
not  enforced  where,  in  a  suit  by  the  holder  of  a  policy,  the  direc- 
tors of  an  insurance  society  admitted  assets  sufficient  to  pay  the 
claims  on  the  policy.- 

The  Court  will  not,  in  general,  allow  the  circumstance  of  a 
plahitiff  having  a  claim  upon  a  defendant,  to  be  used  for  the  pur- 
pose of  enabling  the  plaintiff  to  investigate  all  the  private  affairs 
of  the  defendant ;  ^  thus,  a  vendor,  in  a  bill  for  specific  perform- 
ance, cannot  interrogate  the  vendee  as  to  his  property  :  *  even 
though  the  bill  should  charge  that  the  defendant  was  insolvent.^ 
In  order  to  entitle  a  plaintiff  to  an  answer  to  such  an  inquiry,  he 
must  show  some  specific  lien  upon  the  defendant's  property,  and 
pray  some  relief  respecting  it ;  ®  and  the  Court  will  not,  even 
then,  compel  the  defendant  to  make  such  discovery,  where  the 
interest  which  the  plaintiff  may  have  in  it  is  very  remote  in  its 
bearings  upon  the  real  point  in  issue,  and  would  be  an  ojipressive 
inquisition^ 

The  above  cases,  and  those  before  cited,  point  out  in  Avhat  in- 
stances the  defendant  may  decline  to  make  a  particular  discovery, 
when  it  is  irrelevant  to  the  general  scope  and  object  of  tlie  bill. 
A  discovery  may,  however,  be  material  to  the  plaintiff's  general 
case,  if  made  by  one  of  the  defendants,  which  Avould  be  Avholly 
irrelevant  if  made  by  another :  in  such  cases,  the  defendant  from 
whom  the  discovery  would  be  immaterial,  is  not  obliged  to  make 
it ;  and,  in  general,  a  defendant  is  only  obliged  to  answer  such  of 
the  interrogatories  as  are  necessary  to  enal)le  the  ])laintiff  to  ob- 
tain a  comj)lete  decree  against  him  individually.  ^N^here,  how- 
ever, the  defendant  is  involved  in  the  whole  case,  and  in  that 
sense  relief  is  asked  against  him,  he  must  answer:  though  the 
interrogatory  might  seem  to  be  immaterial  to  the  relief  asked 
against  him.' 

With  reference  to  the  objection  of  inimateriality,  it  must  ])c 
understood  that  the  defendant  is  only  recjuired  to  answer  as  to 
matters  which  are  well  pleaded;  tliat  is,  to  the  facts  stated  and 
charged.  To  matters  of  law,  or  inferences  of  law  drawn  fioiii  tlic 
facts,    lie    need    not   answer."      Thus,    a    defciKlant    must    answer 


C.  XVII.  §  1. 


Or  where 

quci^tions 

relate  to 

defendant's 

private 

aflairs. 


Defendant 
need  only 
answer  what 

atieets 
himself. 


Where  he  is 
involved  in 
the  Avhole 


IShitler.s  of 
law  need  not 
be  answered. 


1  Lander  v.   Weston,   13  Jur.  877,   V. 

C.  !•:. 

2  I'rieliard  r.  Murray,  12  Jur.  CM,  V. 
C.  E. 

*  See  Mayer  v.  Gallucliut,  C  Rich.  Ivi. 

(S.  (;.)i. 

*  FranciH  r.  Wiczell,  1  Mad.  2',»,  200. 

6  See  Sniall  v.  All  wood,  as  reported  in 
Wi(;nini  on  Disc.  I(i8. 

*  I'rancis  v.  Wij,'zell,  uln  sup. 

"^  Wij^raui  on  iJisc.  1C5;  l3os  Santos  r. 
Frietas,  ciU-d  ibid. ;  Webster  v.  Threlfall,  2 


S.  &  S.  190,  VX-i\  see  also  .lanson  v.  So- 
lart.',  2  Y.  &  C.  Ex.  ];J2,  VM\. 

8  Marsli  V.  Keilli,  1  Dr.  &  Sni.  342;  C 
Jur.  N.  S.  1182.  On  tiie  sulijcel  ol'ininia- 
tcrialily,  see  also  IJlcckley  )•.  ItyiniT,  4 
Drew.  248;  Newton  v.  Uhnes,  3  .lur.  N. 
S.  rjH3,  V.  (,'.  W. 

"  Story  K(|.  ri.  §  840.  In  detcnniniii;; 
whether  a  fpiestion  is  one  of  liicl,  and, 
tlien^fore,  to  be  answered,  it  niake.s  no 
diO'crenre  that  it  is  ask('d  with  reference 
to  a  writte?!  diiciinii'nt.  ILotrnian  v.  I'ostill, 
L.  U.  4  Ch.  Ap.  073. 


720 


ANSWERS. 


Where  these 

iihjei'tioiis 

iiiapplieahle, 

(leteiidaiit 

mu<l  answer 

lully. 


(\  X\'ll.§  1.    wlu'tlior  :i  will,  oxociitod  l)c>lorc  tlic  AVills  Acl,^  wns  j)ul)lislic(l  by 

'^ > tlio  testator  in  the  jn-esence  of  three  witnesses;  but  lie  need  not 

answer  to  an  intcrroL^atory  requiring  him  to  say  whether  the  pub- 
lication Avas  such  as  by  hiw  is  recpiired  to  pass  freeliolds  by  devise. 
Sometimes  a  defendant,  instead  of  answerino^  such  interroi^atories, 
sultmits  the  ]>oint  to  the  judgment  of  the  Court;  but  it  is  not 
necessary  to  do  so. 

All  tlie  objections  to  discovery  that  have  hitherto  been  consid- 
ered, are  of  a  kind  that  the  defendant  lias  always  been  allowed  to 
raise  by  answer,  upon  the  principle  that  the  Court  does  not  oblige  a 
defendant  to  answer  such  questions,  even  Avhen  the  right  to  relief  is 
admitted ;  but  where  these  objections  do  not  apjjly,  it  must  be 
remembered  that  "  there  is  no  principle  more  clearly  established 
in  the  Court  than  this :  that,  when  a  party  answers,  he  is  bound  to 
answer  fully,  and  for  this,  among  other  reasons,  that  if  a  defence 
Avhich  a  party  sets  up  by  his  answer  should  be  decided  against 
him,  it  is  of  the  utmost  importance  that  all  consequential  matters 
which  are  material  for  the  purpose  of  the  decree,  should  receive  an 
answer."  ^ 

This  rule  is  applicable  to  all  cases  where  the  defence  intended  to 
be  set  up  by  the  defendant  extends  to  the  entire  subject  of  the 
suit :  such,  for  instance,  as  that  the  plaintiff  has  no  right  to  equi- 
table relief —  or  has  no  interest  in  the  subject  —  or  that  the  defend- 
ant himself  has  no  interest  in  the  subject  —  or  that  he  is  a 
purchaser  for  a  valuable  consideration^  —  that  the  bill  does  not 
declare  a  purpose  for  which  Equity  will  assume  jurisdiction  to 
compel  discovery  —  or  that  the  plaintiff  is  under  some  personal 
disability,  by  which  he  is  incapacitated  from  suing.^     In  all  these 


Instances 
where  de- 
fendant must 
answer  fullv. 


1  7  Will.  IV.  &  1  Vic.  c.  26. 

2  Per  ]»rd  Lyndhurst,  in  Lancaster  «. 
Evors,  1  Phil.  3.51,  352;  8  Jur.  133;  Hare 
on  Disc.  255,  256 ;  Thorpe  v.  Macaulcy,  5 
Mad.  218,  229;  Faulder  r.  Stuart,  11  Ves. 
2iiG,  301 ;  Mazarredo  v.  Maitland,  3  IMad. 
66,  70;  Swinhonie  v.  Nelson,  16  Beav. 
41(i:  Potter  v.  Waller,  2  De  G.  &  S.  410; 
Aniljler,  ed.  Blunt,  353  (n);  Reade  r. 
Woodrooft'e,  24  Hcav.  421;  Leif^h  i'.  Birch, 
32  Beav.  :i<M:  'J  .Fur.  N.  S.  1265;  Swabey 
V.  Sutton,  1  II.  &  M.  514;  9  Jur.  N.  S. 
1321;  Phillips  r.  Prevost,  4  John.  Ch. 
205;  Whitu.-v  i:  Belden,  1  Edw.  Ch.  386; 
(J'^dm  r.  (}j};(\ci),  1  Bland,  288;  Kuypers 
V  Kef.  Dutch  Church,  6  Paifjc,  570;  Hal- 
mon  r.  (ylafr^ctt,  3  Bland,  125;  <'uylcrr. 
Bofjert,  3  Paif,'e,  386:  Ilaj^thorp  v.  Hook, 
1  Gill  &  J.  272:  Murray  v.  Co.ster,  4 
Cowen,  640:  Xewhall  r.  Ilobbs,  3  Cush. 
274.  277;  Hill  r.  Crary.  2  Enpli.'^h,  .536; 
I'tica  Ins.  Co.  r.  Lvuch.  3  Paige,  210; 
Mansfield  r.  (ianibril,  1  (Jill  &  J.  .503; 
St^)r>'  Eq.  PI.  §§  606,  609,  846,  846  ri,  847, 
and    notes.      The    party,    submitting    to 


answer,  must  answer  the  whole  of  the 
statements  and  charges  in  the  bill,  and  all 
the  interrogatories  properly  founded  upon 
them,  at  least,  so  far  as  they  are  necessary 
to  enable  the  plaintiff  to  have  a  complete 
decree  against  him  in  case  he  succeeds  in 
the  suit.  Bank  of  Utica  v.  ]\Icssereau,  7 
Paige,  .517;  I'erkinson  v.  Trousdale,  3 
Scam.  380;  Patterson  v.  Ferguson,  1  Barb. 
490;  Laugdon  v.  Goddard,  3  Story,  13. 
The  above  is  the  general  rule,  subject, 
however,  to  the  exceptions  named  in  the 
text  and  in  the  notes  below.  See  Story 
Iv).  PI.  §  847,  and  notes;  Bank  of  Utica 
V.  Mcssereau,  7  Paige,  .517. 

In  answering  interrogatories  filed  by  a 
defendant  for  the  examination  of  the  plain- 
tiff, the  general  rule  applies  that  he  who 
is  biiund  to  answer  must  answer  fully, 
llofinian  v.  Postill,  L.  K.  4  Ch.  Ap.  673. 

'■*  See  Cuyler  v.  Bogert,  3  Paige,  186; 
Method.  Epis.  Church  v.  .laque.s,  1  John. 
Ch.  fj.5. 

4  (Jilbert  V.  Lewis,  1  De  G.  J.  &  S.  38 ; 
9  Jur.  N.  S.  187. 


GENERAL  NATURE  OF  ANSWERS. 


721 


cases,  a  defendant  who  does  not  avail  himself  of  the  objection  to  C  xvii.  §  i. 
answering,  either  by  demurrer  or  plea,  but  submits  to  answer, 
must  answer  fully .^  Nor  is  a  denial  of  the  i)laihtifl''s  title  a  reason 
for  refusing  to  set  out  accounts  required  by  the  interrogatories  ;  - 
nor  a  denial  of  fraud  a  reason  for  refusing  to  discover  the  facts 
which  are  alleged  to  show  it.^  In  some  cases,  however,  where  it 
has  appeared  that  the  discovery  was  not  necessary  to  enable  the 
plaintiif  to  obtain  a  decree,  and  where  the  information  could  be 


1  Hare  on  Disc.  256 ;  Newhall  v.  Hobbs, 
3  Cush.  274,  277.  The  general  rule  of 
pleading  in  Chancery  is,  that  the  defend- 
ant cannot  by  answer  excuse  himself  from 
answering.  Bank  of  Utica  v.  Messereau, 
7  I'aige,  517.  It  is  said  by  Jlr.  Justice 
Story  to  be  far  from  universally  true,  as 
is  sometimes  alleged,  that  a  defendant 
answering  can  take  every  ground  of 
defence,  which  he  might  insist  on  by  way 
of  demurrer  or  plea  to  the  bill.  Story  Eq. 
ri.  §  8-17.  Thus,  although  it  was  formerly 
thought  otherwise,  it  is  now  settled,  that  a 
defendant  to  a  bill  for  discovery  and  relief 
must  avail  himself  of  the  protection  of 
being  a  bund  Jidt  purchaser  for  a  valuable 
consideration  witliout  notice,  by  way  of 
plea,  —  and  that  he  cannot  make  this 
defence  by  answer,  f(jr,  if  he  answers  at 
all,  he  must  answer  fully.  Jbkl.  and  note ; 
Portarlington  v.  Soulby,  7  Sim.  28;  see, 
however,  the  countervailing  rule  of  the 
Supreme  Court  of  the  L'nited  States, 
stated  in  note  to  ante,  715. 

There  are,  however,  a  few  admitted 
exceptions  to  the  above  rule  that  a  defend- 
ant cannot  by  answer  excuse  himself  t'roni 
answering,  which  furnish  special  grounds 
for  objecting  by  answer  to  the  discover^' 
sought.  Some  of  these  exceptions  will  be 
found  in  the  te.xt.  As,  where  an  answer 
would  tend  to  criminate  the  defendant,  or 
suliject  him  to  a  penalty,  forfeiture,  or 
punishment,  lirockway  v.  Copp,  3  Paige, 
o3:j;  Skinner  v.  Judson,  8  Conn.  528; 
Livingston  f.  Harris,  3  I'aige,  528;  l.eg- 
gelt  r.  I'ostley,  2  I'aige,  5!JU.  So,  where 
an  answer  would  involve  a  violation  of 
professional  conlidcnce.  Anif,  570  el  fC/., 
anil  notes*,  715,  and  notes.  The  defeinlant 
may  by  answer  refuse  to  make  discovery 
on  the  ground  of  innnateriality  of  the  fact 
of  which  the  fliscoveiy  is  sought.  Kuy- 
pcrs  r.  IJff.  Dutch  (  linrch,  ti  I'aige,  570; 
I  (avis  V.  .Majies,  2  I'aige,  105.  So,  the 
ililcndant  is  not  bound  to  answer  maUcrs, 
which  arc  ]iurcly  scandalous,  or  impcrti- 
niMit  or  irrelevant.  Story  E(|.  I'l.  §  84<i. 
The  Slalnte  of  limitations  and  lajtse  of 
time  iiuiy  be  relied  ujion  as  a  dcfcni'c  by 
answer,  as  well  as  b\'  |)lca  and  ilcmiirnr. 
//>.  §  751;  Van  Hook  >:  \Vhitl.«i<,  7 
Taige,  373;  .Maury  v.  Mason,  H  I'drlcr, 
213.  I'or  other  ca-cs  in  which  exceplious 
to  the  aliove  rule  have  been  taken  and 
sustained,  and  the  grounds  of  such  excep- 
tions, the  learned  reader  is  referri;il  to  the 
authorities,  in  which  they  are  stated  and 

VOL.  I. 


explained.  French  t'.  Sliotwell,  6  John. 
Ch.  235 ;  Murray  v.  Coster,  4  Cowen,  64 1 ; 
Phillips  V.  PreVost,  4  John.  Ch.  205; 
McDowl  V.  Charles,  6  John.  Ch.  137; 
Smith  V.  Fisher,  2  Desaus.  275 ;  Morris  v. 
Parker,  3  John.  Ch.  2U7;  Hunt  c.  Gookin, 
16  Vt.  462. 

In  Desplaces  v.  Goris,  1  Edw.  Ch.  352, 
353,  it  was  said,  that  "although  it  has 
been  laid  down  as  a  principle,  that  if  the 
defendant  denies  some  substantial,  leading 
tact,  which,  if  admitted,  would  entitle  the 
plaintiff  to  relief,  until  the  truth  of  that 
tact  is  disposed  of,  no  further  answer  shall 
be  compelled,  Cooper  Eq.  PI.  161;  yet 
this  appears  to  be  confined  to  the  case 
of  a  bill  for  an  account  of  j)artnersliip 
transactions  where  the  detendant  denies 
the  fact  of  partnership,  as  in  Drew  «'. 
Drew,  2  V.  &  B.  15'J;  and  even  in  such 
a  case  if  the  bill  should  charge  that 
the  existence  of  the  partnership  would 
appear  by  certain  documents  in  the  pos- 
session of  the  defendant,  of  which  a  dis- 
covery is  prayed,  the  defendant  cduld  nut 
avoid  answering  as  to  such  particular 
charges  by  a  general  denial."  See  Bank 
of  Ltica  V.  Messereau,  7  Paige,  517.  The 
plaintitf  is  entitled  to  an  answer  to  every 
tact  charged  in  the  bill,  the  admission  or 
proof  of  which  is  material  to  the  relief 
sought,  or  is  necessary  to  substantiate  his 
proceedings  and  make  them  regular. 
Davis  V.  Mapes,  2  I'aige,  105.  it  may  be 
taken  as  a  general  rule  that  if  the  charge 
in  the  bill  embraces  several  particulars, 
the  answer  should  be  in  the  disjunctive, 
denying  each  ]>arlicular;  or  admitting 
some  and  denying  the  others,  according  to 
the  fact.     ///('/. 

Wlierc  suspicious  circumstances,  gross 
fraud,  and  collusion,  are  charge<l  in  a  bill, 
a  flelendant  will  be  held  to  a  strict  rule  in 
answering.  Not  only  his  motives,  but  his 
.si'cret  designs,  his  "  unutteivd  thoughts," 
must  be  e.\posed.  Mechanics"  Bank  v. 
Levy,  1  Edw.  Ch.  316. 

•^  "DoU  v.  lloyes,  15  Sim.  .372;  U)  Jur. 
628;  (ireat  Lu.xembourg  liaihvay  (  om- 
liiinv  I'.  Magnay,  23  Beav.  (i46;  Brookes  v. 
Bou'cher,  8  Jur.  N.  S.  (i3'.t;  10  W.  K.  708; 
V.  ('.  \V.;  Leigh  v  Uircli,  and  .SwalMrv  i'. 
Siitlon,  vin  iup. ;  Kob.son  v.  Flight,  33 
Beav.  268. 

•'  I'adley  r.  Lincoln  WaliT  Works  Com- 
pany, 2  ftPN.  &  (i.  68,  72;  14  Jur.  2'M; 
V.  Harrison,  4  Mad.  252. 


46 


7-->: 


ANSWERS. 


t  .  XVII.  5  1. 


(il)t:iiiu'il  in  tlio  ]>nH'00(liiigs  under  the  decree,  a  i'ull  answer  has 
not  hvvw   I'litorcod.' 

A  delendant  may,  liowever,  as  we  have  seen,-  by  answer  decline 
answering  any  interronatory,  or  part  of  an  interrogatory,  from 
answering  wliieh  he  miglit  formerly  have  protected  himself  by  de- 
murrer; and  he  may  so  decline,  notwithstanding  he  answers  other 
parts  of  such  interrogatory,  or  other  interrogatories  from  which  he 
might  have  protectetl  hiniself  by  demurrer,  or  other  ])arts  of  the 
bill  as  to  which  he  is  not  interrogated;"  but  he. cannot  decline  an- 
swering a  ])articular  interrogatory  on  the  ground  that  the  whole 
bill  is  demurrable;*  nor  can  he  protect  himself  from  discovery  by 
raising  by  answer  a  defence  which  he  might  have  pleaded.*^ 

A  defendant  must  answer  as  to  his  knowledge,  remembrance, 
information,  or  belief     Where,  however,  a  special  cause  is  shown, 


1  De  la  Rue  v.  Dickinson,  3  K.  &  J. 
388;  Swinl)unic  v.  Nelson,  refd.  to  ib. 
38!);  Cle{j;g-  r.  Edmonson,  3  Jur.  N.  S. 
2'J9,  L.  .].).  And  see  Lett  v.  Parry,  1  11. 
&  M.  517 ;  Lockett  v.  Lockett,  L.  R.  4 
Ch.  Ap.  33G.  But  a  defendant  cannot 
excuse  himself  from  answering  fully  on 
the  ground  that  the  giving  the  discovery 
sought  would  anticipate  the  decree,  such 
discovery  being  the  same  as  that  which 
would  tie  ordered  at  the  hearing  if  the 
plaintiff  obtained  a  decree.  Chichester  i\ 
Marquis  of  Donegal,  L.  R.  4  Ch.  Ap.  410. 

2  Ante,  p.  583. 

8  Ord.  XV'.  4;  Padlev  v.  Lincoln  Water 
Works  Company,  2  M'N.  &  G.  08,  71;  14 
Jur.  299;  Baddeley  v.  Curwen,  2  Coll.  151, 
155;  Fairthorne  v.  Western,  3  Hare,  387, 
391,  393;  8  Jur.  353;  Molcsworth  v. 
Howard,  2  Coll.  145,  151;  see,  however, 
Tipping  V.  Clarke,  2  Hare,  383,  392; 
Drake  v.  Drake,  ib.  047;  8  Jur.  642;  Kaye 
V.  Wall,  4  Hare,  127;  Ingilby  v.  Shafto, 
33  Beav.  31;  9  Jur.  N.  .S.  1141.  The 
44th  Ivpiity  Rule  of  the  United  States 
Courts  adopts  in  terms  this  English  order, 
and  the  39tli  Equity  Rule  of  the  United 
States  Courts  proceeds  further,  and  pro- 
vides, that  "the  rule,  that  if  the  defend- 
ant submits  to  answer,  he  shall  answer 
fully  to  all  the  matters  of  the  bill,  shall  no 
longer  ajiply,  in  ca.ses  where  he  might  by 
plea  protect  himself  from  such  answer  and 
dii^covery.  And  the  defendant  shall  be 
entitled  in  all  cases,  by  answer  to  insist 
upon  all  matters  of  defence  (not  being 
matters  of  abatement,  or  to  the  character 
of  the  parties,  or  matters  of  form)  in  bar 
of  or  to  the  merits  of  tiie  ijili,  of  which  he 
may  be  entitled  to  avail  himself  by  a  plea 
in  bar; 'and  in  such  answer  he  shall  not  bo 
compellable  to  answer  anv  other  matters 
than  he  would  be  com])ellable  to  answe-r 
and  discover  upon  fding  a  [ilea  in  bar,  and 
an  answer  in  support  of  such  plea,  touch- 
ing the  matters,  set  forth  in  the  bill  to 
avoid  or  repel  the  bar  or  defence.  Thus, 
for  example,  a  bund  fide  purchaser  for  a 


valuable  consideration,  without  notice, 
may  set  up  that  defence  by  way  of  answer 
instead  of  plea,  and  shall  be  entitled  to 
the  same  protection,  and  shall  not  be  com- 
jjcllable  to  make  any  further  answer  or 
discovery  of  his  title  than  he  would  be  in 
any  answer  in  support  of  such  plea." 

"•  Mason  v.  Wakeman,  2  i'hil.  516; 
Fisher  I'.  Price,  11  Beav.  194,  199;  Marsh 
V.  Keith,  1  Dr.  &  Sm.  342,  350;  0  Jur.  N. 
S.  1182;  Bates  v.  Christ's  College,  Cam- 
bridge, 8  De  G.,  M.  &  G.  720;  3  Jur.  N. 
S.  348,  L.  J  J. ;  Leigh  v.  Birch,  32  Beav. 
399 ;  9  Jur.  N.  S.  1205. 

5  Lancaster  v.  Evors,  1  Phil.  349,  351; 
8  Jur.  133;  Swabey  v.  Sutton,  1  H.  &  M. 
514;  9  Jur.  N.  S.  1321,  V.  C.  W. ;  antt, 
720  note. 

<<  Tradesmen's  Bank  v.  Hyatt,  2  Edw. 
Ch.  195;  Bailey  v.  Wilson,  1  Dev.  &  Bat. 
Ef).  187;  Norton  v.  Warner,  3  Edw.  (Jh. 
100;  see,  to  this  point,  Storv  Etj.  PI. 
§  854  tt  scq. ;  Miles  v.  Miles,  27  N.  11.  447 ; 
see  Hall  v.  Wood,  1  Paige,  404;  Sloan 
V.  Little,  3  Paige,  103;  Pierson  v.  Meaux, 
3  A.  K.  Marsh.  6;  Woods  v.  Morrell,  1 
John.  Ch.  103;  Devereaux  v.  Cooper,  11 
Vt.  103;  Pitts  V.  Hooper,  16  Geo.  442; 
Diiismore  v.  Ilazelton,  22  N.  H.  535;  Kit- 
tredge  v.  Claremont  Bank,  3  Story,  590. 
On  a  bill  tiled  charging  usury,  an  answer 
that  the  defendant  does  not  remember  the 
terms  on  which  the  money  was  lent,  will  be 
considered  evasive,  and  tantamount  to  an 
admission  of  usury.  Scotts  v.  Hume,  Litt. 
Sel.  Ca.  379.  So,  where  the  bill  directly 
charged  upon  the  defendant  that  he  had 
made  and  entered  into  a  certain  agree- 
ment, it  was  held  that  a  simple  denial  by 
the  defendant  in  his  answer,  "according 
to  his  recollection  and  lielief,"  was  insuffi- 
cient, and  ought  to  be  treated  as  a  mere 
evasion.  Taylor  v.  Luther,  2  Sumner, 
228.  But  where  the  facts  are  such  that  it 
is  probable  that  the  defendant  cannot 
recollect  them  so  as  to  answer  more  posi- 
tively, a  denial  of  the  facts  according  to 
his   "knowledge,    recollection,   and   belief, 


GENERAL  NATURE  OF  ANSWERS. 


723 


80  positive  an  answer  maybe  dispensed  with :  ^  and  in  Hall  v. 
Bodly-  it  is  said,  that  the  defendant  liaving  sworn  in  his  answer 
that  he  had  received  no  more  than  a  certain  sum,  to  liis  remem- 
brance, it  was  allowed  to  be  a  good  answer.  As  to  foots  which 
have  not  happened  within  his  own  knowFedge,  the  defendant  must 
answer  as  to  his  infoiTuation  and  beliefj  and  not  as  to  his  informa- 
tion merely,  without  stating  any  belief  either  the  one  way  or  the 
other.'*  It  is  not,  however,  necessary  to  make  use  of  the  precise 
words,  "as  to  his.  infonnation  and  belief:"  the  defendant  may 
make  use  of  any  expressions  which  are  tantamount  to  them  ;  thus, 
to  say  that  the  defendant  cannot  answer  to  facts  inquired  after,  as 
to  his  belief  or  otherwise,  is  generally  considered  a  sufficient  de- 
nial ;  *  for,  though  the  word  "  infornuition "  is  not  used,  the  ex- 
pression "  belief  or  otherwise,"  is  held  to  include  it.  And  so, 
where  an  answer  was  in  this  form :  "  And  this  defendant  further 
answering  saith,  it  may  be  true  for  any  thing  he  knows  to  the  con- 
trary that,"  and  after  going  through  the  several  statements,  it  con- 
cluded thus :  "  but  this  defendant  is  an  utter  stranger  to  all  and 
every  such  matters,  and  cannot  form  any  belief  concerning  the 
same,"  Sir  .John  Leach  V.  C.  was  of  opinion,  that  the  defendant, 
in  stating  himself  to  be  an  utter  stranger  to  all  and  every  the 
matters  in  (piestion,  did  answer  as  to  his  iulbrmation,  and  did,  in 
effect  deny  that  he  had  any  information  respecting  them.^  It  may 
be  collected  from  the  above  case,  that  a  defendant  cannot,  by 
merely  saying  "that  a  matter  may  be  true  for  any  thing  ho  knows 


C.  XVTI.  §  1. 


Effect  of 
words  "  be- 
lief or  other- 
■\vise." 


will  be  sufficient.  Hall  v.  Wood,  1  Paige, 
■104;  see  also  Utica  Ins.  Co.  v.  L3'ncli,  6 
Tai^^e,  210;  lirooks  v.  15yam,  1  Story,  2D(i; 
Story  li(|.  I'l.  §  804,  and  notes.  Whether 
the  tacts  are  chargccl  in  a  hill  as  bcin;;  tlie 
acts  of  the  dt^ti-mlaiit,  or  witliin  iiis  own 
personal  knowledf^e,  he  is  bound  to  admit 
or  deny  the  facts  cliarged,  either  positively 
or  accordinj;  to  his  belief,  whether  they 
occurred  within  seven  years,  or  at  a 
greater  distanci;  of  time.  Sloan  v.  Litlli;, 
;j  I'aip-,  10.1;  Hall  v.  Wood,  1  I'aige,  404. 

1  Wyatt's  r.  k.  13. 

2  1  Vern.  470;  and  see  Nelson  v.  I'ons- 
ford,  4  IJeav.  41,  43. 

3  Coop.  Va{.  ri.  ;J14. 

*  S<:e  Hall  ».  Wood,  1  Paige,  404;  Sloan 
V.  I.iule,  ;j  Paige,  UW;  Wooils  w.  .Morrell, 
1  .lohn.  Ch.  10;i;  IJolton  v.  (;ardiier,  .J 
I'aige,  273;  Brooks  v.  P.yani,  1  Story,  2:J<!; 
Kittredge  v.  Clareniont  jiank,  3  Story,  h'.M. 
Kittredge  v.  (JIareniont  Hank,  1  Wim)i1.  & 
M.  244;  King  v.  Kay,  11  Paige,  'IM); 
If  till-  di'li'iidant  answers,  that  he  has 
not  any  knowledge,  or  inl'ornialion  of  a 
fact  charged  in  the  bill,  he  is  not  bound 
to  declan-  his  belief  one  way  or  the  other. 
Morris  v.  Parker,  3  .(ohn.  Ch.  2:i7.  If  he 
denies  all  knowledge  of  a  fact  charg4-d  in 
the  bill,  but  udniiut  tiid  belief  us  to  the  fact 


charged,  it  is  not  necessary  for  him  to 
deny  any  information  on  the  subject. 
Davis  V.  Mapes,  2  Paige,  105.  liut  if  he  ■ 
has  any  intbrination  otner  than  such  as  is 
derived  from  the  bill,  he  must  answer  aa 
to  such  information,  and  as  to  his  belief  or 
disbelief  of  the  facts  charged.  Utica  Ins. 
Co.  V.  Lynch,  3  Paige,  210;  Devereaux  v. 
Cooper,  11  Vt.  103.  It  is  not  suthcient  to 
answer  to  certain  specific  facts  charged  in 
the  bill,  "that  they  may  be  true,  &e.,  but 
the  (U'lendant  lias  no  knowledge  of,  but  is 
a  stranger  to  the  fbregcnng  lacts,  and 
leaves  the  plaintiff  to  ])rove  the  same." 
Smith  V.  Lasher,  5  .lohn.  Ch.  247.  Nor  is 
it  suliicient  to  say  that  "  the  defendant  ho-s 
not  any  knowledge  of  the  foregoing  tacl.s, 
but  trom  the  stalenuMit  thereof  m  llie  bill." 
Ihiil.  Nor  is  a  denial  l)^'  a  defendant  "ac- 
cording to  his  recollection  and  belief" 
suliicient,  where  the  tiict  is  directly 
charg(?d,  as  within  his  knowledge.  Tay- 
lor V.  Luther,  2  Sunnier,  22H.  IJut  where 
the  defendant  stales  that  In;  is  "  utterly 
and  entirely  ignorant"  as  to  the  tintt  to 
which  he  is  interrogated,  it  is  suliicient. 
Morris  r.  I'arker,  3  .lohn.  Ch.  297;  Norton 
V.  Warner,  3  Kdw.  Ch.  lOli. 

&  Ainhurst  V.  King,  2  S.  &  S.  IH3;  Utica 
Ins.  Co.  V.  Lynch,  3  I'aige,  210. 


■•2i 


ANSWERS. 


C.  XVII.  §  1. 


Oi'l'i'iulaiit 
must  usi' 
dilif^i'iice  to 
aa|uire 
inkirniatiou. 


As  to  setting 
out  accouuts, 


Where  de- 
fendant has, 
since  bill 
tiled,  ceased 
to  be  entitled 
to  access  to 
documents. 

What 
accounts 
defendant 
ni^iy  refer  to, 
instead  of 
scheduling. 


to  the  coiilrary,"  avoid  staling  what  his  recollection,  information, 
or  belief  with  reference  to  it  is,  or  saying  tliat  lie  has  no  recollec- 
tion or  information,  or  that  he  cannot  form  any  belief  at  all  con- 
cerning it;  cither  in  these  Avords,  or  in  eciuivalont  expressions. 

Where  defendants  ha\\>  in  their  i)Ower  the  means  of  aeciuiring 
the  information  necessary  to  enable  them  to  give  the  discovery 
called  for,  they  are  bound  to  make  use  of  such  means,  whatever 
])ains  or  trouble  it  may  cost  them ;  ^  therefore,  where  defendants, 
tilling  the  character  of  trustees,  are  called  upon  to  set  out  an  ac- 
count, they  cannot  frame  their  answer  so  as  merely  to  give  a 
suflicient  ground  for  an  account ;  they  are  bound  to  give  the  best 
account  they  can  by  their  answer :  not  in  an  oppressive  way,  but 
by  referring  to  books,  &c.,  sufficiently  to  make  them  ])arts  of  their 
answer,  and  to  afford  the  plaintiff  an  o])portunity  of  inspection,  in 
order  that  he  may  be  able  to  ascertain  whether  that  is  the  best 
account  the  defendants  can  give.^ 

Where,  however,  the  defendant  has,  since  the  filing  of  the  bill 
lost  his  interest  in  the  suit,  and  has  no  longer  access  to  the  docu- 
ments, he  will  not  be  required  to  refer  to  them,' 

AVhere  defendants  are  required  to  set  out  accounts,  they  may, 
for  the  purpose  of  rendering  their  schedules  less  burdensome, 
instead  of  going  too  much  into  particulars,  refer  to  the  original 
accounts  in  their  possession  in  the  manner  above  stated;*  but 
when  it  is  said  that  a  defendant  may  refer  to  accounts  in  his  pos- 
session, it  must  not  be  understood  as  authorizing  him  to  refer,  by 
his  answer,  to  accounts  made  out  by  himself  for  the  purposes  of 
the  case,  but  only  to  accounts  previously  in  existence.'^ 


1  See  Taylor  v.  Rundell,  C.  &  P.  104, 
113;  5  Jiir.  1129;  Earl  of  Glengall  v. 
Frazer,  2  Hare,  99,  103;  6  Jur.  1081; 
Stuart  V.  Lord  Bute,  12  Sim.  4G0;  Attor- 
nej--General  v.  Kees,  12  Beav.  50,  54; 
M'lntosh  V.  Great  Western  Kaihvay,  4 
De  G.  &  Sm.  502;  Inglessi  v.  Spartali,  29 
Beav.  504;  Attorney-General  v.  Burgesses 
of  East  Ketford,  2  M.  &  K.  35,  40;  and 
seepust,  (,'hap.  XLII.,  Producikm  of  Dvcu- 
mentx ;  2  Lindlev  I'artn.  (1st  Eng.  ed.) 
814,  815;  Story  Eq.  I'l.  §  85ti  note;  Davis 
V.  Mapes,  2  I'aige,  105 ;  Kittredge  v.  Clare- 
mont  Bank,  1  Wood.  &  M.  244,  247;  Swift 
V.  Swift,  13  Geo.  140.  But  a  defendant 
ought  not  to  be  required  to  obtain  informa- 
tion so  as  to  meet  the  plaintiff's  wishes, 
and  thereby  become  his  agent  to  jirocure 
testimony.  Morris  v.  Parker,  3  .John.  (Jh. 
301.  In"  Kittredge  v.  Clareniont  Bank,  1 
Wood.  *:  iM.  244,  Woodbury  .J.  said,  that 
the  oHicers,  answering  for  the  bank  sued, 
if  the\-  are  not  the  same  persons  who  were 
in  office  at  the  time  of  the  transaction 
inquired  alwut,  ought  to  go  not  only  to 
the  records,  liooks,  and  lilis,  tor  informa- 
tion, but  to  the  former  officers,  if  living, 
and  ascertain,   as  near  as  may   be,   the 


truth  of  the  matters  about  which  they  are 
interrogated. 

2  White  V.  Williams,  8  Ves.  193,  194. 
A  partner  bound  to  account,  must  give  a 
clear,  distinct,  and  intelligible  statement 
of  the  results  of  the  business,  referring 
also  to  particular  books,  and  to  the  page, 
if  necessary,  so  that  a  party  entitled 
thereto  may  inquire  into  and  investigate 
its  correctness.  A  reference  to  the  books 
of  the  concern,  generally,  and  to  fbnner 
accounts,  is  not  sufticient.  Gordon  v. 
Ilamniell,  4  C.  E.  Green  (N.  J.),  216. 

a  Ellwand  v.  M'Donnell,  8  Beav.  14. 

4  White  V.  Barker,  5  'De  G.  &  S.  746; 
17  Jur.  174;  Major  v.  Arnott,  2  Jur.  N.  S. 
387,  V.  C.  K. ;  Drake  v.  Symes,  Johns. 
647;  Telford  v.  Ruskin,  1  Dr.  &  Sm.  148; 
Christian  v.  Taylor,  11  Sim.  401;  Bally  v. 
Kenrick,  13  Pri.  291;  Eockett  v.  Lockett, 
E.  k.  4  (h.  Ap.  336. 

5  Telford  V.  Ruskin,  1  Dr.  &  Sm.  H8; 
ari/Uf7ii/<i  Alsager  v.  Johnson,  4  Ves.  224. 
If  the  bill  requires  the  defendant  to  state 
an  account  between  the  parties,  the  account 
so  stated  is  responsive  to  the  bill.  Bellows 
V.  Stone,  18  N.  H.  465.  Where  a  defend- 
ant,  having   stated   an    account   in   hia 


GENERAL  NATURE  OF  ANSWERS. 


725 


To  sticli  of  the  interrogatories  as  it  is  necessary  and  material  for 
the  (lefenilant  to  answer,  he  must  speak  directly  and  without  eva- 
sion ;  ^  and  any  interrogatory  not  intended  to  be  admitted,  ought 
to  be  traversed  with  accuracy.^  Where  a  fact  is  alleged,  with 
divers  circumstances,  the  defendant  must  not  deny  or  traverse  it 
literally,  as  it  is  alleged  in  the  bill ;  but  must  answer  the  point  of 
substance,  positively  and  certainly ;  ^  thus,  if  a  defendant  is  interro- 
gated whether  he  has  in  his  possession,  custody,  or  power  books, 
papers,  or  writings,  a  statement  in  his  answer  that  there  are  certain 
books,  papers,  or  writings  in  the  West  Indies,  the  particulars  of  which 
he  is  unable  to  set  forth,  without  any  answer  as  to  the  fact  whether 
they  are  in  the  defendant's  possession,  custody,  or  power,  will  be 
insufficient :  for  if  the  defendant  admits  the  books  and  writings  to 
be  in  his  possession,  custody,  or  power,  the  plaintiff  may  call  upon 
the  defendant  to  produce  them ;  Avhich  the  Court  will  order  within 
a  reasonable  time.''  The  reference  in  the  answer  must  describe  the 
books  or  documents  with  such  accuracy  as  to  enable  the  ])laintifF 
to  move  for  their  production :  otherwise,. the  answer  will  be  open 
to  exceptions  for  insufficiency.^ 

Where  a  defendant  stated  in  his  answer  that  he  had  not  certain 
books,  papers,  and  writings  in  his  ])OSSCSsion,  custody,  or  power, 
because  they  were  coming  over  to  tliis  country,  Lord  P^ldon  held, 
that  they  were  in  his  poAver,  and  that  the  defendant  ought  to  have 
so  stated  in  his  answer.®  Wiiere  books,  papers,  or  writings  are  in 
the  custody  or  hands  of  the  defendant's  solicitor,  tliey  are  consid- 
ered to  be  in  the  defendant's  own  custody  or  power,  and  should  be 
stated  to  be  so  in  his  answer. 

If  a  defendant  is  called  upon  to  set  out  a  deed  or  other  instru- 
ment, in  the  words  and  figures  thereof,  he  should  do  so,  or  give 
soine  reason  for  not  C(jmi)lying  with  the  requisition:''  he  may, 
however,  avoid  tliis  by  admitting  that  he  has  the  deed  or  instru- 
ment in  his  possession,  and  offering  to  give  the  plaintiff  a  copy  of 
it.*  Where  a  defendant  sets  out  any  deed  or  other  instrument  in 
his  answer,  wlietlier  in  hiPC  verba,  or  by  way  of  recital,  it  is  always 
a  jtroper  ]»recaution  to  crave  leave  to  refer  to  it :  as,  by  so  doing. 


C.  XVII.  §  1. 


Answer  must 
be  direct. 


As  to  posses- 
sion of  docu- 
ments, where 
they  are 
abroad. 


Description 
of  documents. 


When  con- 
sidered to  be 
in  defend- 
ant's power; 


as  whore  in 

solicitor's 

hands. 


Where  docu- 
ments to  be 
set  out  in 
hcBc  verba. 


Craving 
leave  to  refer. 


answer,  dies  during  tlie  pendency  of  the 
unit,  and  the  nialters  iiiVDJvrd  In  the 
aceoiuit  are  of  lunj^  Htaiidilit;,  if  thr-re  is 
evidi'riec-  tendiiif,'  to  support  the  account, 
the  Court  may  (lirect  tiiat  thi'  aci'cumt  he 
taken  UM  /iriiiiii  /'ncie  evidence,  irrespective 
of  thi-  (pie?.iioii  whether  it  is  responsive  to 
the  l>ill.  Hi'llows  t'.  Stone,  vbi  sup.  ;  Ciial- 
mer  >:  IJra.llev.  IJ.  &  W.  G5. 

1  l.d.  I'.ed.  "lit)!). 

2  Patrick  f.  niackwell,  17  .lur.  803,  V. 
C.  W.;  Karp  p.  LIov<1,  4  K.  &  .1.  W. 

8  Ord.  .\V.  2;  Ld.  Red.  30!);  Haliy  v. 


Kenrick,  13  I'ri.  291;  Tipping  i'.  Clarke, 
2  Hare,  383,  390. 

■*  l''ar(|uharson  r.  Halfour,  T.  &  K.  190. 

5  liini.iii  r.  Whitley,  lUeav.  r)48;  I'helpa 
1'.  Olive,  i/j.  549  n.,  where  Lord  ( 'otten- 
ham  iM.  It.  refused  to  order  production 
of  docinuents  described  as  "a  bmidlc  of 
papers  marked  (i." 

«  l'"anpduirson  i>.  Halfour,  iilii  svp. 

"  Wyatt's  P.  It.  204.  As  to  liu-  caso.s 
in  wliicli  it  niiiy  he  prudent  to  s('t  out 
documents  in  liiec  vtrlm,  sec  an(e,  |>.  303. 

»  llarr.  by  Newl.  185. 


72(; 


ANSWERS. 


('.  XMI.§  1. 


A  poiipral 
deniiil  must 
bo  accoiu- 
panit'd  by 
answer  to 
particular  cir- 
cu  uistances. 


Answer  to 
plaintirt"'?  in- 
terrogatories. 


(lio  (lorondniit   iii:ikes  it  a  part  of  his  answer,  aiul  relieves  liiniself 
tVoiii  any  cliar^e  in  case  it  should  be  erroneously  set  out.^ 

If  the  defendant  deny  a  fact,  he  must  traverse  or  deny  it 
directly,  and  not  hy  way  of  negative  pregnant^  as,  for  example, 
where  he  is  interrogated  whether  he  has  received  a  sum  of  money, 
he  nmst  deny  or  traverse  that  he  has  received  that  sum,  or  any 
j)art  thereof,  or  else  set  forth  what  part  he  has  received.* 

Where  the  defen  lant  is  interrogated  as  to  particular  circum- 
stances, a  general  denial  must  be  accompanied  by  an  answer  as  to 
such  circumstances:*  for  although  it  is  true  that  the  general 
answer  may  include  in  it  an  answer  to  the  particular  inquiry,  yet 
such  a  mode  of  answering  might,  in  some  cases,  be  resorted  to,  in 
order  to  escape  from  a  material  discovery ;  ^  and,  therefore,  a 
general  denial  is  not  enough,  but  there  must  be  an  answer  to 
sifting  inquiries  upon  the  general  question.®  The  advantage 
of  this  rule  is.  strongly  illustrated  by  the  circumstance  referred 
to  in  Jlihbert  v.  Ihirant?  In  that  case,  the  defendant  was  in- 
terrogated whether  he  liad  not  received  certain  sums  of  money, 
specified  in  the  bill,  in  the  character  of  a  ship's  husband ;  in  his 
answer,  he  swore  that  he  had  not  received  any  sums  of  money 
whatever,  except  those  set  forth  in  the  schedule  to  his  answer,  in 
which  schedule  the  sums  specified  in  the  bill  were  not  comprised, 
but  he  did  not  otherwise  answer  the  interrogatory.  On  the  ques- 
tion of  the  sufficiency  of  the  answer.  Lord  Thurlow  said,  that  a 
man  could  not  deny,  generally,  particular  charges  which  tended 
to  falsify  such  general  denial,  and,  therefore,  held  the  answer 
insufficient ;  and  it  appears  by  a  note  of  the  reporter,  that  it 
turned  out  in  point  of  fact,  that  the  defendant  afterwards  rec- 
ollected the  receipt  of  the  particular  sums,  and  admitted  them  by 
his  further  answer.  But,  although  the  Court  requires,  that  all 
the  particular  inquiries  should  be  answered,  as  well  as  the  general 
question,  it  will  be  no  objection  to  the  answer  to  the  particular  in- 
terrogatory, that  the  defendant  has  not  answered  it  so  particularly 


1  See  New  v.  Bame,  .3  Sandf.  Ch.  19]. 

2  IliKli  V.  I'.atte,  10  Yerger,  385;  Robin- 
son ?■.  \\'o(idpite,  .■!  Edw.  Cli.  422:  King 
V.  Hav.  11  I'aige.  2:i5;  Walker  r.  Walker, 
.3  Kelly,  :i02;  Woods  v.  Morrell,  IJohn. 
Ch.  103;  ]Morris  v.  Barker,  3  John.  Ch. 
297;  Smith  v.  Lasher,  5  John.  Ch.  247; 
Pettit  V.  ("andler.  3  Wend.  f!18;  Ston'  Eq. 
PI.  §  8.52;  Thompson  v.  Mills,  4  Ired".  l^i- 
390.  An  answer  to  an  interrogatory  must 
be  positive  and  direct,  and  not  argumen- 
tative. New  England  Bank  v.  Lewis,  8 
Piek.  113,  119;  Manning  v.  Manning,  8 
Ala.  138. 

8  Ord.  XV.  2. 

4  Ld.  Bed.  .309;  Story  Yj\.  PI.  §  8.52, 
note.  But  a  general  answer  of  denial  to  a 
general  allegation  in  a  bill,  without  speci- 


fying the  facts  upon  which  it  is  founded,  is 
sufficient.  Cowles  v.  Carter,  4  Ired.  Eq. 
(N.  v..)  105. 

5  Wharton  v.  Wharton,  1  S.  &  S.  235; 
Tipping  V.  Clarke,  2  Hare,  383,  389;  Duke 
of  Brunswick  v.  Duke  of  (,'ambridge,  12 
Beav.  281;  Jodrell  v.  Slanev,  10  Beav. 
225;  Patrick  v.  Jilackwell,  17  Jur.  803,  V. 
C.  W.;  Earp  v.  Lloyd,  4  K.  &  J.  58;  see 
also  Anon.,  2  Y.  &  C.  Ex.  310;  Bridgcwater 
V.  l)e  Winton,  9  Jur.  N.  S.  1270;  12  W. 
K.  40,  V.  C.  K. 

6  Per  Lord  Eldon,  in  Mountford  v.  Tay- 
lor, G  Ves.  792. 

T  Cited  in  Prout  v.  Underwood,  2  Cox, 
135;  Hepburn  v.  Durand,  1  Bro.  C.  C. 
503;  Ld.  Bed.  310. 


GENERAL  NATURE  OF  ANSWERS.  727 

as   to   meet   it    in  all   its  terms,   provided   it   is,  with   reference  C.  XVII.  §  i. 

to  the  object  of  the  bill,  fairly  and  substantially  answered.^  "■ y- ' 

It  is,  however,  the  general   practice,  where  the  defendant  is  Schedules 

required  to  set  forth  a  general  account,  or  to  answer  as  to  moneys  to  set  forth 

received,  or  documents  in  his  possession,  to  set  forth  the  account  general  ac- 

^  .  counts,  or  hsts 

or   list  of   the  sums,  or    documents,  in  one  or  more  schedules  ofdocuments, 

annexed  to  the  answer,  which  the  defendant  prays  may  be  taken 

as  part  of  his  answer ;  and  such  practice  is  very  convenient,  and 

in    many  cases    indispensable.     The    defendant    must,  however, 

be  careful  to  avoid  any  inconsistency  between  the  body  of  the 

answer  and  the  schedule  :  for  if  there  is  any,  the  answer  will  be 

insufficient,  and  the  defendant  may  be  required  to  put  in  a  further 

answer,^     The  defendant  may  also  resort  to  a  schedule  for  the  or  in  aid  of 

purpose  of  showing  the  nature  of  his  own  case,  or  of  strengthening   ^.^^^^ 

it :  even  though  there  is  nothing  in  the  interrogatories  which  may 

render  a  schedule  necessary.^ 

In  general,  a  defendant  must  be  careful  not  to  frame  liis  When 
schedule,  in  a  manner  which  may  be  burdensome  and  oppressive  ^e  dcemecT^ 
to  the  plaintiff:  otherwise,  it  will  be  considered  impertinent.-  impertinent. 
Thus,  where  a  bill  was  filed  for  an  account,  containing  the  follow- 
ing interrogatory,  "  whether  any  and  what  sum  of  money  was  due 
from  the  house  of  A.  to  the  house  of  B.,  and  how  the  defendant 
made  out  the  same  ?  "  and  the  defendant,  by  his  answer,  set  forth 
a  long  schedule,  containing  an  account  of  all  dealings  and  trans- 
actions between  the  two  houses,  the  answer  was  held  to  be  im- 
pertinent, and  the  Court  said  the  defendant  ought  merely  to  have 
answered,  that  such  a  sum  was  due,  and  that  it  was  due  upon  the 
balance  of  an  account.*^  In  the  last  case,  although  there  was  an 
inquiry  how  the  defendant  made  out  that  there  was  a  balance, 
there  were  no  particular  inquiries  in  the  bill  as  to  the  items, 
constituting  the  account,  from  which  the  defendant  made  out 
that  there  was  a  balance  duo  to  him ;  and  even  where  there  has 
been  such  an  inquiry,  the  Court  has  gone  the  length  of  saying, 
that  a  schedule  containing  such  items  will  be  impertinent,  if  the 
items  are  set  out  with  a  minuteness  not  c.illed  for  by  the  nature 
of  the  case.  Thus,  where  the  bill  called  upon  a  defendant  to  set 
forth  an  account  of  all  and  every  the  quantities  of  ore,  metals, 
and  minerals  dug  in  particular  mines,  and  the  full  value  ihcrcof, 
and  the  costs  and  expenses  of  working  the  mines,  and  the  clear 
profits  made  thereby,  and  the  defendant  i)Ut  in  a  schedule  to  liis 

1  Rally  t'.  Kinrick,  l-'i  I'ri.  2111 ;  see  also  r>70 ;  Sforv  Kq.  PI.  §  Sr.O,  and  notes.     Aa 

Rcadc  r.  Wo.idn.ollc-,  24  l'..av.  421.  to  the  production  ol'do(  iinicnls  and  papers, 

'^  lirid^'cwatir  r.  !)<•  Winton,  !)  .lur.  N.  and   IIk;   proper  mode  of  diseoverv   a.H  to 

S.  1270;   12  \V.  l:.  40,  V.  C.  K.  them,  see  Story  K(|.  I'l.  §§  8:.H-«i;(")  <i. 

8  I'arker  v.  rairiie,  T.  &  ]l.  .(02;  1  S.  &  *  Ah  to  imperliiienec,  see  imti;  p.  326. 

8.  21)5;  Lowe  v.  \\  illiauis,  2  S.  &  S.  574,  6  Irencli  v.  Jacko,  1  Mur.  357,  n. 


728 


ANSWERS. 


0.  XVI1.§1.  aiiswor,  comprising;  .'vl.'U  folios,  wlieivin  wcM'o  sot  forth  all  tlie 
particular  iliaiis  of  every  tradesinairs  bill  connected  with  the 
mines,  the  Court  heUl  the  schetliile  to  be  impertinent.^  In  like 
manner,  it  seems  that  in  the  case  of  an  executor  called  upon  to 
account  for  his  disbursements,  it  is  not  necessary  to  set  out  every 
separate  item.-  It  is  ditlicult,  however,  to  point  out  any  precise 
rules  with  regard  to  what  will  l)e  considered  impertinent  in  a 
schedule ;  mnch  must  depend  upon  the  nature  of  each  case,  and 
the  purposes  for  which  the  discovery  is  required.  The  cases  above 
referred  to,  and  the  others  which  may  be  found  in  the  books  show, 
however,  that  even  though  the  plaintiff,  by  the  minuteness  of  his 
in<iuiries,  in  some  measure  affords  an  excuse  for  the  defendant 
setting  forth  a  long  and  burdensome  scliedule,  the  Court  will  not, 
unless  in  instances  in  which,  from  the  nature  of  the  case,  great 
minuteness  is  required,  permit  a  defendant  to  load  the  record  with 
useless  and  impertinent  matter,  even  though  the  introduction  of 
such  matter  might  be  justified  by  the  terms  of  the  interrogatories. 
On  the  other  hand,  it  is  to  be  observed,  that  the  Court  will  not, 
where  the  defendant,  in  com|)lying  with  the  requisitions  in  the  bill, 
has  bona  fide  given  the  information  required,  though  in  a  manner 
rather  more  prolix  than  might  perhaps  be  necessary,  consider  the 
answer  as  impertinent :  for,  although  prolixity  sometimes  amounts 
to  impertinence,^  whether  the  Court  will  deal  with  it  as  such  de- 
pends very  much  upon  the  degree  in  which  it  occurs.* 


1  Nonvaj'  v.  Howe,  1  Mer.  347,  356 ;  see 
also  M'Morris  v.  Elliot,  8  Pri.  674;  Slack 
V.  Evans,  7  Pri.  278,  n.;  Alsager  v.  John- 
son, 4  Ves.  217,  225;  Byde  v.  Masterman, 
C.  &  P.  205,  272;  5  Jur.  643;  Marshall  v. 
Mellersli,  6  lioav.  558;  Tench  v.  Cheese,  1 
Beav.  571,  574;  3  Jur.  708. 

2  Norway  v.  Uovve,  ubi  sup. 

*  Slack  r.  Evans,  vbi  sup. 

*  Gompertz  v.  Best,  1  Y.  &  C.  Ex.  114, 
117.  As  to  impertinence  in  an  answer, 
see  Story  K(|.  PI.  §  863.  Impertinence  in 
pleading  consists  in  setting  forth  what  is 
not  necessary  to  he  set  forth;  as  stuthnj? 
the  pleadings  with  useless  recitals  and 
long  digressions  about  immaterial  matters. 
Hood  V.  Inman,  4  John.  Ch.  437.  It  was 
said  1)V  Jlr.  Chancellor  Kent,  in  Woods  v. 
Morre'll,  1  Joiin.  Ch.  KKi,  that,  iMMliajis 
the  best  rule  to  ascertain  whether  matter 
be  impertinent,  is  to  see  whether  tiie  sub- 
ject of  the  alh'gation  could  be  put  in  issue, 
or  be  given  in  evidence  between  the  par- 
ties. Where  in  the  answer  to  a  1)111  in 
Equity,  an  allegation  was  made  im])<ach- 
ing  the  bana  Ji'les,  and  validity  of  a 
codicil  to  a  will,  which  had  been  alrcaily 
a[)proved  and  allowed  by  a  ( 'ourt  having 
competent  and  exclusive  jurisdiction  ovit 
the  probate  thereof,  it  was  ordered  that  tlie 
allegation  be  expunged  as  being  imperti- 
nent and  immaterial.  Langdon  v.  (ioddard, 
3  Story,  13.     In  reference   to   the   above 


allegation,  Mr.  Ju.stice  Story  said,  "It 
is  not  a  matter  which  can  be  filed  in  con- 
troversy, or  admitted  to  proof."  3  Story, 
23.  If  the  matter  of  an  answer  is  relevant, 
that  is,  if  it  can  have  any  influence  what- 
ever in  the  decision  of  the  suit,  either  as 
to  the  subject-matter  of  the  controversy, 
the  particular  relief  to  be  given,  or  as  to 
the  cost,  it  is  not  impertinent.  Van  Rens- 
selaer V.  Brice,  4  Paige,  174;  Wood  v. 
Mann,  1  Sumner,  579 ;  Price  v.  Tyson,  3 
Bland,  392.  hong  recitals,  stories,  con- 
versations, and  insinuations  tending  to 
scandal,  are  impertinent.  Woods  v.  Mor- 
rell,  1  John.  Ch.  103;  Langdon  v.  (iod- 
dard,  3  Story,  13.  A  short  sentence  is 
said  not  to  be  impertinent,  although  it 
contains  no  fact  or  material  matter,  and 
may  lie  inserted  in  an  answer  only  from 
altiindant  caution.  A  statement  in  an 
answer  introduced  to  show  the  temper 
with  which  a  bill  is  filed,  and  the  ofl'ensive 
<-ourse  pursued  bj'  the  plaintiff,  is  not 
im|icrtineiit;  it  may  have  an  effect  on  the 
costs.  Whatever  is  called  for  by  the  bill 
or  will  be  material  to  the  defenc<%  with 
reterence  to  the  order  or  decree  that  may 
be  made,  is  proper  to  he  retained  in  an 
answer.  Desplaces  v.  Gori.s,  1  Edw.  (Jh. 
3.50;  Monrov  ?'.  Monroy,  ib.  383;  Bally 
V.  Williams,  "l  M'Cld.  &"  Y.  334;  Wood  v. 
Mann,  1  Sumner,  579. 
An  exception  to  an  answer  for  imperti- 


FORM   OF  ANSWERS. 


729 


Answer  to 
amended  bill.- 


In  answering  an  amended  bill,  the  defendant,  if  he  has  answered  C.  xvn.  §  2 
the  original  bill,  should  answer  those  matters  only  which  have 
been  introduced  by  the  amendments.  In  flict  the  answer  to  an 
amended  bill  constitutes,  together  with  the  answer  to  the  original 
bill,  but  one  record  ;  ^  in  the  same  manner  as  an  original  and  an 
amended  bill ;  hence,  it  is  impertinent  to  repeat,  in  the  answer 
to  the  amended  bill,  what  appears  upon  the  answer  to  the  original 
bill,  unless  by  the  repetition  the  defence  is  materially  varied.^ 


Section  II.  —  Form  of  Answers. 


Two  or  more  persons  may  join  in  the  same  answer;  and  where 
their  interests  are  the  same,  and  they  appear  by  the  same  solicitor, 
they  ought  to  do  so.^  The  Court  will  not,  however,  before  the 
hearing,  and  at  a  time  when  it  cannot  be  known  how  the  defence 
shoidd  be  conducted,  visit  the  defendants  with  costs  as  a  penalty 
for  not  joining  in  their  answer;  and  it  is  only  at  the  hearing, 
when  all  danger  of  prejudice  to  the  parties  is  over,  that  the  Court 


Joint  or 
separate. 


nence  will  be  overruled,  if  the  expunging 
of  the  matter  excepted  to  will  leave  the 
residue  of  tiie  clause,  which  is  not  covered 
by  tiie  exception,  either  false  or  wholly 
uninteiligiliie.  M'lntyre  r.  Trustees  of 
Union  College,  6  Paige,  240.  The  plain- 
tiff cannot  except  to  a  part  of  the  defend- 
ant's answer  as  impertinent,  which  refers 
to  and  explains  the  meaning  of  a  schedule 
annexed  to  such  answer,  without  also 
excepting  to  the  schedule  itself  as  imper- 
tinent. Ibid.  If  a  l)iil  against  executors 
calls  specifically  and  particularly  for 
accounts  in  all  their  various  details,  a 
very  voluminous  schedule,  containing  a 
copy  from  the  hooks  of  account,  specifying 
ea<-ii  item  of  deljt  and  credit,  will  not  be 
impertinent.  Scudder  r.  IJogert,  1  Kdw. 
(,'h.  ;J72.  If  tlie  jdaintitf  put  impertinent 
fiuestions,  he  must  fake  the  answer  to 
tliem.  thougli  it  be  impertinent.  Woods 
r.  Morrell,  1  .John.  Cli.  lO:).  Hut  it  seems 
it  would  have  been  impertinent  if  the  bill 
had  not  thus  called  for  it.  tbi'l.  ('ojiiesof 
receipts  taken  by  the  (hft'cndant  for  moneys 
paid  and  cliarged  in  account  and  making 
an  in)men«e  schedule  to  an  answer,  are 
impertinent.  Scudder  v.  IJogert,  1  Kdw. 
t'h.  ■'!72.  An  executor  in  si'tting  forth  in 
his  answer  the  account  and  inventory  fif 
the  estate  which  came  to  his  hands,  shoulil 
not  adrl  copies  of  the  np|iraiser's  anrl  execu- 
tor's oaths,  aufl  of  the  surrogate's  certili- 
catc.  .Such  matter  will  be  impertinent. 
Jolly  »'.  Carter,  2  Kdw.  Ch.  2()!». 

An  exception  for  impertin<-nce  must  hn 
fup^iorteil  i/i  litln,  or  it  will  fail  altogether. 
W  HL'-tafT  v.  I'.ryan.  1  1{.  &  M.  'm\  Tench 
I-.  Checue,  I  l?cav.  h~\\  Van  Itcnssclaer  v. 
IJricc,  4  I'aige,  174. 


When  an  exception  was  taken  to  the 
jurisdiction,  in  the  answer,  it  was  properly 
struck  out,  on  reference  to  a  ^Master,  for 
impertinence.  Wood  v.  Mann,  1  Sumner, 
57!);  but  see  Teague  r.  Dendy,  2  M'Cord 
Ch.  207,  210.  As  to  impertinence,  see 
further.  Story  Eq.  PI.  §  8G;J:  Jolly  v.  Car- 
ter, 2  Edw.  Ch.  200 ;  Somers  i'.  Torrey,  5 
Paige,  .54.  As  to  scandal  in  an  answer, 
see  Storj'  Eq.  PI.  §§  801,  802.  As  in  a  bill, 
so  in  an  answer,  nothing  relevant  can  be 
deemed  scandalous.  Story  ]''(|.  PI.  §  862; 
Jolly  V.  Carter,  2  Edw.  Ch.  200.  Separate 
exceptions  to  the  same  answer,  one  for 
scandal  and  the  other  for  inij)ertinehce, 
will  not  lie  allowed:  as  nothing  in  a  plead- 
ing can  be  considered  as  scandalous  which 
is  not  also  impertinent.  Jl'Intyre  v.  Trus- 
tees of  Union  College,  0  Paige,  240. 

1  Ld.  Ked.  318;  Hildyard  v.  Cressy,  3 
Atk.  ;{o;j. 

•■2  Smith  V.  Serle,  14  Ves.  41.5. 

8  Where  twfi  defendants  answer  jointly, 
and  one  speaks  positively  for  himselt',  the 
other  may,  in  I'ases  where  he  is  not  charged 
with  any  thing  upon  his  own  knowledge, 
s.av,  that  he  perused  the  answer  and 
believes  it  to  be  true;  l)iit  it  is  otherwise 
where  the  defendant  answers  separately. 
1  liar.  18.5,  ed.  Newl.  A  defe?idant  may 
sutli<'icutly  iinswer  by  adopting  the  answer 
of  his  co-defendant.  Hinnev's  Case,  2 
Pland.  00;  Warlield  r.  Hanks,'  I  1  Cill  ^:  J. 
98.  Ihit  an  answer  siin|ily  averring  that 
the  facts  stated  in  a  jiapcV  [)ur[.orting  to 
be  tlie  answer  of  another  defendant  in  tho 
cause,  "are  substantially  correct  as  far  as 
these  (b'fendants  are  concerned,"  is  for- 
mallvand  substantiallv  defective.  Carr  u. 
Weld,  3C.  E.  Green  (N.  J.),  41. 


7;?o 


ANSWERS. 


('.  XVII.  §  -2. 


S('|>;irato 

fili'il  hv  same 
bolii'itor: 


wliore 
allowed. 


"Whore  one 
pot  of  costs 
onlv  allowed : 


trustees ; 


cestui  que 
trusts ; 

other 
instances. 


Where  costs 
of  separate 
defences  by 
trustees 
allowed. 

Who  en- 
titled, where 
only  one  set 
of  costs. 


w  ill  make  .•iiiy  ordi-r  uixm  the  subjoct.^  Whcro  the  siuiie  solicitor 
lias  boon  employed  for  two  or  more  defendants,  and  separate 
answers  have  been  filed,  or  other  })roccedings  had  by  or  for  two 
or  more  of  such  defendants  separately,  the  Taxing  Master  will 
consider,  in  the  taxation  of  such  solicitor's  bill  of  costs,  either  V)ctwcen 
party  and  i)arty,  or  between  solicitor  and  client,  whether  such  sei)a- 
rate  answers  or  other  proceedings  were  necessary  or  j^roper;  and  if 
lie  is  of  opinion  that  any  part  of  the  costs  occasioned  thereby  has 
been  unnecessarily  or  improperly  incurred,  the  same  will  be  dis- 
allowed.'- No  general  rule  can  be  laid  down,  determining  when 
defendants,  appearing  by  the  same  solicitor,  may  sever  in  their 
defence ;  ®  practically,  the  Taxing  Master  has  to  exercise  his 
discretion  in  each  particular  case. 

Where  defendants  have  a  joint  interest  only,  they  will  not,  in 
general,  be  allowed  to  sever  in  their  defence ;  and  there  are  many 
cases  where  only  one  set  of  costs  has  been  allowed  by  the  Court 
to^two  defendants,  whose  interest  was  so  far  joint  as  to  have  made 
a  severance  of  their  defence  unnecessary.  Thus,  trustees  will  not, 
in  general,  be  allowed  costs  consequent  upon  their  separate  defences, 
unless  some  of  them  have  a  beneficial  interest,  or  there  is  some 
special  reason  for  their  severance.*  So,  trustees  and  cestui  que 
trusts,  if  they  have  no  conflicting  interests,  will,  in  general,  be 
only  allowed  one  set  of  costs.^  The  same  princii)le  a])j)lics,  as 
between  a  husband  and  his  wife,®  a  bankrupt  and  his  assignees,® 
and,  in  an  administration  suit,  between  an  assignor  and  his 
assignee.'  The  severance  will,  however,  be  justifiable  where  the 
suit  is  against  two  trustees,  one  of  whom  only  is  charged  with  a 
breach  of  trust ;  *  and,  in  some  cases,  where  they  reside  at  a 
distance  from  each  other.^ 

Where  only  one  set  of  costs  is  allowed,  the  Court  does  not,  gen- 
erally, declare  to  whom  it  is  to  be  given  ; '°  but  where  one  trustee 


1  Vansandan  v.  Moore,  1  Russ.  441, 
454;  2  S.  &  S.  509,  512;  and  see  Woods 
V.  AVoods,  5  Hare,  230;  Story  Eq.  PI. 
§809. 

2  Ord.  XL.  12;  Woods  v.  Woods,  5 
JIare,  229.  231.  By  the  G2d  Equity  Rule 
of  the  United  States  Courts,  it  is  provided, 
that  in  such  a  case  "costs  .shall  not  be 
allowed  for  such  separate  answers  or  other 
proceedinfjs,  unless  a  Master,  upon  refer- 
ence to  him,  shall  certify,  that  such  sepa- 
rate answers  and  other  proceedings  were 
necessary  or  proper,  and  ought  not  to 
have  been  joined  together." 

3  Greedv  v.  Lavender,  11  Bcav.  417, 
420;  Remnant  t'.  Hood  (No.  2),  27  Reav. 
613. 

*  Gaunt  V.  Tavlor,  2  Beav.  340;  4  .Tur. 
IGO;  Dudgeon  i-.'Corlev,  4  Dr.  &  War.  158; 
Tarbuck  v.  Woodcock,  3  Beav.  289;  Hod- 
Bon  V.  Cash,  1  Jur.  N.  S.  8G4,  V.  C.  W.; 


Course  v.  nuni{)hrey,  20  Bcav.  402;  5  Jur. 
N.  S.  015;  Rrinee  v.  Hino,  27  Beav.  345; 
Attorney-General  v.  Wyvillo,  28  Beav. 
404;  and  .see  Morgan  &  Davcy,  87;  and 
jjosl,  Ciiap.  XXXL,  §  2,  C'sls. 

s  Woods  V.  Woods,  ubl  sup. ;  Farr  v. 
Sheriflc,  4  Hare,  528;  10  Jur.  G30;  Rem- 
nant V.  Hood,  iil)i  sup. 

6  Garoy  v.  Wliittingham,  5  Beav.  268, 
270;  G  Jur.  545. 

"  Remnant  v.  Hood  (No.  2),  27  Beav. 
013;  Greedy  v.  Lavender,  11  Beav.  417, 
420. 

8  AVebb  V.  Webb,  10  Sim.  55. 

9  Aldridge  v.  Wostbrook,  4  Beav.  212; 
Wiles  V.  (.'ooper,  'J  Beav.  298;  ('onimins  v. 
Brownfield,  3  Jur.  N.  S.  057,  V.  C.  W. 

1"  Course  v.  Humphrey,  20  Beav.  402; 
5  Jur.  N.  S.  G15;  Attorney-General  v. 
Wyville,  28  Beav.  464. 


FORM    OF    ANSWERS. 


731 


only,  in  obedience  to  an  order,  paid  a  sura  of  money  into  Court,  he 
was  held  entitled  to  the  whole  of  the  costs.^ 

If  the  defendants  are  permitted  to  sever,  they  will  be  allowed 
the  costs  of  separate  counsel,  though  they  take  the  same  line  of 
defence.^ 

An  answer  must  be  divided  into  paragraphs,  numbered  con- 
secutively, each  paragraph  containing,  as  nearly  as  may  be,  a  sep- 
arate and  distinct  statement  or  allegation.^  It  must  not  refer  to 
another  document,  not  on  the  files  of  the  Court,  as  containing  the 
statement  of  the  defendant's  case.* 

An  answer  must  be  intituled  in  the  cause,  so  as  to  agree  with 
the  names  of  the  parties  as  they  appear  in  the  bill,  at  the  time  the 
answer  is  filed.^  A  defendant  may  not  correct  or  alter  the  names 
of  the  parties  as  they  appear  in  the  bill ;  if  there  is  a  mistake  in  his 
own  name,  he  must  correct  it  in  the  part  following  the  title  of  the 
cause,  thus  :  "  The  answer  of  John  Jones  (in  the  bill  by  mistake 
called  AVilliam  Jones)."  ® 

An  answer  is  headed:  "The  answer  of  A.  B.,  one  of  the  above- 
named  defendants,  to  the  bill  of  complaint  of  the  above-named 
plaintiff."  If  the  bill  has  been  amended  after  answer,  the  heading 
states  that  the  answer  is  "to  the  amended  bill  of  complaint  of  the 
above-named  plaintiff."^  If  two  or  more  defendants  join  in  the 
same  answer,  it  is  beaded  :  "  The  joint  and  several  answer  ; "  but 
if  it  be  the  answer  of  a  man  and  his  wife,  it  is  headed  "  The  joint 
answer."  If  a  female  defendant  has  married  since  the  filing  of  the 
bill,  but  before  ansAvering,  she  must  cither  obtain  an  order  for  leave 
to  answer  separately,  or  answer  jointly  with  her  husband,  who,  al- 
though not  named  on  the  record  as  a  defendant,  may  join  in  the 
answer  :  in  which  case,  the  answer  should  be  headed  "The  answer 
of  A.  B.  and  C.  his  wife,  lately  and  in  the  bill  called  C.  D.,  spinster 
(or  widow,  as  the  case  may  be)."  ^  The  answer  of  an  infant,  or 
other  person  answering  by  guardian,  or  of  an  idiot  or  lunatic  an- 
swering by  his  committee,  is  so  headed.^ 

Any  defect  occurring  in  the  lieading  of  an  answer,  so  that  it 
does  n(;t  appear  distinctly  whose  answer  it  is,  or  to  what  bill  it  is 
an  answer,  is  a  ground  for  taking  it  off  the  file  for  irregularity. 
Thus,  where  an  answer  was  intituled  "the  joint  and  several  answer 
of  A.  B.  and  C.  D.,  defendants,  E.  F.  and  G.  II.,  coniplainants," 
omitting  the  words,  "to  the  l»ill  of  compliiint,  of,"  it  was,  on  motion, 


C.  XVII.  §  2. 


Title. 


Correction  of 
misnomer. 


Heading  of 
answer: 
to  original 
bill; 

to  amended 
bill; 

of  several 
defendanti; 

of  husband 
and  wife ; 

of  female 
defendant, 
married  since 
filing  of  bill; 


b}'  guardian. 


"Wliore  a  de- 
fcH't  appears 
in  licaiiing, 
plaintid'  may 
move  to  have 
answer  taken 
off  the  file; 


I  rrinc('  r.  Iline,  27  Heav.  345;  and  see 
Mor^'iin  &  Duvcy,  87,  88. 

-  llain))rigge  i).  Mohs,  3  Jur.  N.  S.  107, 
V.  ('.  \V. 

8  l.'i  &  10  Vic.  c.  80,  §  U;  Ord.  XV. 
1;  fvi:  forms  of  answcTs  in  Vol.  III. 

*  I'lilkhiiirl  IslundH  Coinpuny  v.  Lafone, 
3  K.  &  J.  207. 


''  liniilliwiiitc's  Pr.  44. 

"  //)i(/.;  Alloriii'V-(i('n('ral  v.  Worcester 
Corporation,  1  C.  \'.  ('ooj).  t.  Cott.  18. 

7  liigby  V.  Higl.v,  9  ikav.  311,  313; 
ace  forms  in  Vol.  111. 

•*  iJniillnvailc's  I'r.  4fi. 

"  I'or  fonus  of  heudiugs  of  answcrB,  boo 
Vol.  III. 


ANSWERS. 


r.  XVII.  §  2. 


or  defendant 
may  put  in 
a  proper 
answer. 


Where 
answer  not 
sworn  by  all 
the  defend- 
ants for 
whom  it  was 
prepared. 


Must  be 
signed  by- 
counsel, 
and  be  per- 
used by  him ; 


or.li'r(>il  to  be  taken  oW  tlic  lilc  lor  irroL!;ularity.^  So  also,  where 
tlie  ])I:iintitV  was  luisiiaiiu'd  in  the  Iiculinsx,  an  order  was  made  to 
take  the  aii.swer  ott"  tlie  tile,  and  tor  process  of  conteni])t  to  issue  ;'' 
and  so,  wliere  the  bill  was  tiled  by  six  persons,  and  the  <locunicnt 
filed  purported  to  be  an  answer  to  the  bill  of  five  only,  the  answer 
was  ordered  to  be  taken  off  the  file.^  If,  however,  it  is  clear  to 
whose  bill  it  is  intended  to  be  an  answer,  this  course  will  not  now 
be  followed.*  The  notice  of  motion,  in  such  a  case,  sho\ild  not 
describe  the  document  as  the  answer  of  A.  B.,  &c.,  but  as  a  certain 
]ia]icr  writing,  purporting  to  be  the  answer.''  An  answer  with  a 
defect  of  this  sort  in  the  title  is,  in  fact,  a  nullity,  and  may  be 
treated  as  su(!h  ;  and  although  a  defendant  may,  if  he  pleases,  ap- 
ply to  the  Court  for  leave  to  take  the  answer  oft'  the  tile  and  re- 
SAvear  it,  it  is  not  necessary  that  he  should  do  so,  but  he  may  leave 
the  answer  upon  the  file,  and  put  in  another.® 

Where  an  answer  has  been  prepared  for  five  defendants,  it  can- 
not be  received  as  the  answer  of  two  only;''  and  where  such  an 
answer  had  been  filed,  it  was,  \ipon  the  motion  of  the  })laintifij 
ordered  to  be  taken  off"  tlie  file.*  In  an  earlier  case,  hoAvever,  be- 
fore the  same  Judge,  where  a  joint  and  several  answer  included  in 
the  title  the  names  of  persons  who  refused  to  join  in  it,  the  answer 
was  ordered  to  be  received  as  the  answer  of  those  defendants  Avho 
had  sworn  to  it,  without  striking  out  the  names  of  those  who  had 
not.®  And  an  answer,  which  had  been  prepared  as  the  answer  of 
several  defendants,  but  only  sworn  to  by  some  of  them,  may,  by 
special  order,  be  directed  to  be  filed  as  the  answer  of  those  de- 
fendants only  who  have  sworn  to  it ;  and  an  order  may  be  subse- 
quently made,  that  a  defendant  who  has  not  sworn  to  it  (he  being 
out  of  the  jurisdiction  when  the  answer  was  filed)  be  sworn  to  it 
by  the  Record  and  Writ  Clerk,  without  the  answer  being  taken  oiF 
the  file,  and  that  such  answer,  when  so  sworn,  be  treated  as  the 
joint  answer  of  all  the  defendants  whose  answer  it  purports  to  be,^° 

An  answer  must  be  signed  by  counsel ; "  and  no  counsel  is  to 
sign  any  answer  unless  he  has  perused  it ;  and  he  must  take  care 


1  PictfTs  V.  Thompson,  G.  Coop.  249. 

'-  (Irilliths  V.  Wood,  11  Ves.  02;  Fry  v. 
Mantel!,  4  Heav.  48-5;  S.  C.  nom.  Fry  v. 
Martel,  5  Jur.  1194;  Upton  v.  Sowten,  12 
Sim.  45;  S.  C.  nom.  Upton  v.  Lowten, 
6  Jur.  818. 

8  Cope  V.  Parry,  1  Mad.  83.  As  to 
scandal  and  impertinence  in  the  heading 
of  an  answer,  see  Peck  v.  Peck,  Moss.  4.5. 

4  i;abl)eth  v.  Squire,  10  Hare  Ap.  .'5. 

5  See  11  Ves.  04.  For  form  of  notice  of 
motion,  see  Vol.  III. 

6  Grifliths  V.  Wood,  vbi  sup. 

7  Harris  «.  .Tames,  3  Pro.  C.  C.  399. 

8  Cooke  V.  Westall,  1  Mad.  205. 


9  Done  V.  Read,  2  V.  &  B.  310. 

W  Lyons  v.  Head,  4  and  15  Nov.,  1856, 
cited  Iiraitliwaite's  Pr.  51,  52;  and  see 
Hay  ward  v.  Roberts  (1857,  II.  1.52),  6 
March,  1858;  and  Lane  v.  London  Bank 
of  Scotland  (1804,  L.  128),  10  March, 
1805,  in  wiiich  like  orders  were  made;  the 
latter  on  i)ctition  of  course,  by  consent  of 
the  plaiiitili'. 

11  t  )nl.  VIII.  1 ;  Wall  v.  Stubbs,  2  V.  & 
B.  358;  Brown  v.  Bruce,  2  Mer.  1;  Bishop 
V.  Willis,  5  Beav.  83  n. ;  but  see  Sears  v. 
Hyer,  1  Paige,  483.  There  is  no  objection 
to  the  same  counsel  signing  the  separate 
answers  of  co-defendants. 


FORM   OF   ANSWERS. 


733 


that  the  documents  are  not  unnecessarily  set  out  therein  in  hcsc 
verba  ;  but  tluit  so  much  of  them  only  as  is  pertinent  and  material 
is  set  out  or  stated,  or  that  the  substance  of  so  much  of  them  only 
as  is  pertinent  and  material  be  given,  as  counsel  may  deem  advis- 
able ;  and  that  no  scandalous  matter  ^  be  inserted  therein.- 

The  signature  of  counsel  is  usually  put  to  the  draft  of  the  an- 
swer, and  thence  copied  on  to  the  engrossment  or  print ;  and  if 
not  affixed  either  to  one  or  the  other,  the  plaintifl'  may  apply,  by 
motion,  with  notice  to  the  defendant,  that  the  answer  may  be 
taken  off  the  file  ;  '^  but  the  Court  will  not  direct  such  a  course  to 
be  adopted  where  the  interest  of  the  plaintiff  may  be  prejudiced 
by  the  proceeding.''  Where,  by  inadvertence,  an  answer  has  been 
sworn  or  filed  without  the  name  of  counsel  being  put  to  it,  and  the 
plaintiff  has  not  served  a  notice  of  motion  to  take  the  answer  off 
the  file  for  irregularity,  an  order  may  be  obtained,  on  motion  of 
course,  or  on  petition  of  course  at  the  Rolls,  to  amend  the  answer 
by  adding  the  name.^ 

An  answer  must,  also,  be  signed  by  the  defendant  or  defendants 
putting  it  in,^  unless  an  order  has  been  obtained  to  take  it  without 
signatureJ  Where  an  answer  is  put  in  by  guardian  or  committee, 
the  signature  of  such  guardian  or  counnittee  is  alone  required  ; 
and  if  such  guardian  is  also  a  defendant,  and  puts  in  an  answer  in 
that  character  as  well  as  in  that  of  guardian,  he  need  only  afiix  his 
signature  to  the  answer  once.^  It  is  prudent,  though  not  essential, 
to  sign  each  sheet  of  the  answer.  Where  there  are  any  schedules, 
each  schedule  should  be  signed  also."     If  the  answer  is  put  in  upon 


C.  XVII.  §  2. 


proceeding 
when 

omitted. 


Sif^nature  of 
defendant; 

or  of  guar- 
dian, or 
committee. 


Sis" 'it  ""'P  to 
schedules. 


1  As  to  scandal,  see  a»t<e,  p.  34G. 

2  Ord.  VIII.  2. 

8  See  Wall  v.  Sfubbs,  vbi  sup.  A  party 
has  a  right  to  suppo.se,  that  the  pleading 
served  on  him  is  a  correct  copy  of  that 
tiled;  and  where  the  co])y  of  an  answer 
contains  neither  the  signature  of  solicitor 
or  counsel,  nor  has  a.  jurat,  the  ])laintiti° 
may  ajiply  to  take  the  answer  off  the  files 
for  irregularity.  Littlejohn  i'.  Munn,  'i 
Taigi-.  28U.  Where  the  an.-.wer  was  put 
in  wiMiout  th(!  defendant's. signature,  it  was 
orrlin-d  to  he  taken  off  the  tilts  tor  irregu- 
larity. Denison  v.  Hassford,  7  I'aige,  ;J70. 
Jdr  liiriii  of  notice  of  motion,  .m-c  Vol.  III. 

*  liull  r.  (JrilKn,  2  An.st.  UiV.i. 

^  IJraithwaite's  I'r.  48;  and  .see  Harrison 
V.  Delniont,  1  I'ri.  108. 

6  Ord.  XV.  5;  see.  Rule  7  of  Maine 
(Jhaiucry  I'ra<ti<e;  'M  .Maine,  UW.  'I'lie 
answer  must  Im;  signed  liy  the  defendant, 
though  the  oath  he  waived.  Kimball  v. 
Wanl,  Walk.  ( 'h.  W.).  I5ut  it  i.s  not  neces- 
sary ill  all  (•a.-es  that  an  individual  de- 
fendant .''lioulil  write  his  own  name  to  an 
answrr.  Supi-rvisors,  <S:c.  r.  Mississip|ii, 
&c.  U.K.  (  ...,  21  111.  ;W8;  Hatch  v.  Kusta- 
Iihievc,  1  Clarkr,  (i.j. 

On  a  bdl  against  hu.sband  and  wife,  tlic 


husband  is  bound  to  enter  a  joint  appear- 
ance, and  put  in  a  joint  answer,  unless  tor 
sufficient  rea.son,  as  that  the  wife  refuses  to 
join  or  to  swear  to  a  plea,  he  is  permitted 
by  the  Court  to  answer  separately.  l>eavitt 
V.  (Jruger,  1  I'aige,  421 ;  C'ollard  v.  Smith, 
2  Ikasiiy  (N.  .1.),  4-J,  44.  4.j. 

Defendants  may  answer  jointly,  orjointly 
and  severally  or  separately,  but  in  either 
ca.sc  each  defendant  must  swear  to  his 
answer,  or  it  will  be  no  an.swer  as  to  him. 
Binnev's  case,  2  Hland,  'JiJ. 

~  I'iilton  Bank  v.  lieach,  2  I'aige,  306. 
Although  an  oath  is  not  retpiired.  Deni- 
son  V.  IJasslord,  7  I'aige,  IJ70;  Story  E(|. 
I'l.  §  875.  The  signature  may  be  waived 
by  the  plaintiff;  and  the  tiling  of  a  re])li- 
calion  is  evidence  of  such  waiver  of'  the 
signature.  I'ullon  Hanky.  Beach,  2  I'aige, 
30(i;  Collard  v.  Smith,  2  liea.sley  (N.  J.), 
43,  45. 

The  answer  of  a  corporation  should  be 
signed  by  tin;  principal  ollicer.  A  secre- 
tary, or  cashitT,  in  case  of  a  bank,  I're- 
tjuently  signs  it  also.  1  Holf.  <'li.  I'r.  2:(!t; 
Supervisors,  &c.  v.  Mississijipi,  &e.  U.K. 
Co.,  21  111.  :i;i8. 

<*  Anon.,  2,  .1.  &  W.  553. 

»  IJraithwaite's  I'r.  45,  342,  n. 


731 


ANSWERS. 


C.  XVII.  5  2. 


Ill  what  cases 
signature  dis- 
pt'iisoii  with. 


Sif!7iature 
must  be 
aflixed  to  the 
engrossment 
or  print. 


Answer  must 
be  upon  oath ; 


ontli,  the  si<j;iialuro  Tiiiist  hv  airixcd,  or  acknowledged,  in  tlio  pres- 
ence of  the  jierson  bi'tore  wlioni  it  is  sworn  ;  '  and  he  ulso  must 
sign  each  seheihile,  as  well  as  the  jurnt.- 

Sonietinies  the  Court  lias,  inider  spi'cial  circumstances,  directed 
an  answer  to  be  received,  though  it  has  not  been  signed  by  the 
defendant ;  as,  where  a  defendant  went  abroad,  forgetting,  or  not 
having  had  time,  to  ])ut  in  his  answer;^  and  where  a  defendant 
had  gone  or  Avas  resident  abroad,  and  had  given  a  general  power 
of  attorney  to  defend  suits.*  Where  an  answer  was  put  in  under 
the  authority  of  a  power  of  attorney,  the  Court  thought  it  better 
to  take  the  answer  without  any  signature,  than  that  the  person  to 
whom  the  power  is  given  should  sign  it  in  the  name  of  the  de- 
fendant ;  the  poAver  of  attorney  should  be  recited  in  any  order 
authorizing  the  answer  to  be  put  in  under  it.^ 

The  signature  of  the  defendant  must  be  affixed  to  tha  engross- 
ment or  print,  and  not  to  the  draft :  the  object  in  requiring  it  being 
to  identify  the  instrument,  to  which  the  defendant  has  given  the 
sanction  of  his  oath,  for  the  purpose  of  rendering  a  conviction  for 
perjury  more  easy.*' 

IJuless  the  Court  otherwise  directs,  the  answers  of  all  persons 
(except  persons  entitled  to  the  privilege  of  peerage,  or  corporations 
aggregate)  must  be  put  in  upon  the  oath  of  the  parties  putting,  in 
the  same,'  w^iere  they  are  not  exempted  fi-om  taking  an  oath  by 


1  Onl.  XV.  5. 

2  Braithwaile's  Pr.  342,  n. ;  and  see  post, 
p.  740,  u. 

3 V.  Lake,   6  Ves.  171;   v. 

Gwillim,  ib.  285;  10  Ves.  442;  Dumond  v. 
Magee,  2  John.  Ch.  240. 

•»  i3ayley  v.  l)e  Walkiers,  10  Ves.  441 ; 
Harding  v.  Harding,  12  Ves.  159. 

5  IJaylev  v.  De  \\'alkiers,  ubi  sup. 

a  HaVr.'by  Newl.  170. 

'  An  answer  should  be  regularly  signed 
and  sworn  to.  Fulton  Bank  v.  Ikaoh,  2 
Paige,  307;  S.  C.  6  Wend.  3C;  Truniluill 
V.  Gibbons,  Halst.  Dig.  172;  Salmon  v. 
Claggett,  3  Bland,  125;  liogers  v.  Cruger, 
7  John.  Ch.  557;  Van  Valtenburg  r.  Al- 
berry,  10  Iowa  (2  With.),  2G4;  Story  Eij. 
PI.  §  874;  Kule  7  of  jiaine  Chancery 
Practice.  This  rule  in  Jlaine  gives  the 
sub.stancc  of  the  oath  to  be  administered; 
and  it  provides  that  the  certilicate  of  the 
magistrate  must  state  the  oath  adminis- 
tered.    37  Maine,  583. 

"Answer.","  in  New  Hampshire,  "un- 
less required  by  the  bill  to  be  under  oath, 
need  not  be  sworn  to,  and  they  will  then 
be  regarded  only  as  pleadings,  and  no 
excci)tion  lor  insufficiency  can  be  taken 
thereto."  Kule  9  of  (Jhanccry  Practice. 
See  Uorn  v.  Bayer,  16  Md.  J44;  Jlahaney 
V.  i^ozier,  10  Md.  0!J;  Shcjjard  v.  lord,  JO 
Iowa  (2  With.),  .502;  Blakemore  v.  Allen, 
10  Iowa  (2  With.),  5.50. 

A  defendant  has  a  right  to  put  in  his 


answer  under  oath,  although  not  required 
by  the  plaiiitiH'.  White  v.  Hampton,  9 
Iowa(l  With.),  181. 

The  59th  Equity  Rule  of  the  United 
States  Courts,  declares,  "Every  defendant 
may  swear  to  his  answer  before  any  jus- 
tice or  judge  of  any  Court  of  the  United 
States,  or  before  any  commissioner  ai>- 
pointed  by  any  Circuit  Court  to  take  testi- 
mony or  depositions,  or  before  any  Master 
in  Chancery  appointed  by  any  Circuit 
Court,  or  before  any  Judge  of  any  Court 
of  a  State  or  Territory." 

In  New  Jersey,  an  answer  must  be  sworn 
to  before  a  Master  of  the  Court  or  before  a 
commissioner  authorized  for  that  purpose; 
and  an  answer  sworn  to  before  a  rfotarj' 
public,  of  the  State  of  Connecticut,  was 
considered  irregular,  as  filed  without  oath. 
Trumbull  v.  Gibbons,  s^ipra.  In  Mary- 
land, an  answer  sworn  to  before  a  justice 
of  the  peace,  in  another  State  or  in  the 
District  of  Columbia,  who  is  certified  to 
be  a  justice  of  the  peace  at  the  time,  is  re- 
ceived as  sufficient.  Chapline  v.  Beatty, 
1  Bland,  397;  Lingan  v.  Henderson,  1 
Bland,  240;  Gibson  v.  Tilton,  1  Bland, 
352.  As  to  New  York,  see  1  Barb.  (Jh. 
i'r.  145,  140.  As  to  New  Hampshire, 
Chancery  Kule,  30,  38  N.  II   Oil. 

A  detcndant  prepared  an  answer  admit- 
ting the  allegations  of  the  plaintiff's  bill, 
and  it  was  certilied  as  sworn  to;  but  the 
person  certifying  did  not  style  himself  in 


FORM   OF   ANSWERS. 


735 


any  statute  in  that  behalf.^  Persons  entitled  to  the  privilege  of  C.  XVII.  §  2. 
peerage  answer  upon  protestation  of  honor ;  and  corporations 
aggregate  put  in  their  answer  under  their  common  seal.'-  The 
Secretary  of  State  for  India,  and  the  Attorney-General,  respec- 
tively sign,  but  do  not  swear  to  their  answers ;  and  such  answers 
are  received  and  filed  without  an  order  dispensing  with  the  oath.^ 

The  oath,  when  administered  to  a  person  professing  the  Christian 
religion,  is  upon  the  Holy  Evangelists.*     But  persons  who  do  not  where  de- 
beheve  the  Christian  oath,  must,  out  of  necessity,  be  put  to  swear  ^  christian.' 
according  to  their  own  notion  of  an  oath ;  °  therefore,  a  Jew  may 
be  sworn  upon  the  Pentateuch  with  his  hat  on ;  ^  and  a  Heathen 


the  certificate  a  justice  of  the  peace,  nor 
was  he  otherwise  proved  to  be  a  magis- 
trate empowered  to  administer  oaths;  the 
defendant  died,  and  this  paper  so  certified 
was  at'terwatds  tiled  in  the  clerk's  office, 
and  it  was  held  not  to  be  the  answer  of  the 
party,  nor  evidence  in  the  cause.  ISitliug- 
ton  v.  Brown,  7  Leigh,  271. 

1  See  Stat.  7  &  8  WUl.  III.  c.  34,  §  1 ; 
8  Geo.  I.  c.  6,  §  1;  22  Geo.  H.  c.  30,  §  1; 
ib.  c.  40,  §  36 ;  'J  Geo.  IV.  c.  32,  §  1 ;  3  &  4 
Will.  IV.  c  4'J;  ib.  c.  82;  1  &  2  Vic.  c.  77; 
and  see  ib.  c.  105.  Parties,  if  conscien- 
tiously scrupulous  of  taking  an  oath,  may, 
in  lieu  thereof,  make  solemn  atlirmation 
to  the  tnith  of  the  facts  stated  by  them, 
in  the  U.  S  Courts.  Equity  Rule,  al.  So 
in  Mas.«achusetts,  and  other  States,  either 
by  statute  or  rule  of  Court.  It  is  to  be 
observed,  that  an  allirmation  cannot  be 
taken  under  a  commission  autiiorizing 
the  commissioners  to  take  an  answer 
upon  oath.  I'arke  v.  Christy,  1  Y.  &  J. 
533. 

•^  Ord.  XV.  0.  The  answer  of  a  corpo- 
ration is  put  in  without  oath,  under  the 
corporate  seal.  1  lloff.  Ch.  Pr  23'J;  see 
Vermilyea  v.  I'liltoii  liaiik,  1  Paige,* 37; 
Fulton  Bank  r.  N.  V.  &  Sharon  Canal  Co., 
1  Paige,  311;  P.altimore  &  Ohio  U.K.  Co. 
V.  City  of  Wheeling,  13' (jratt.  40;  1 
Grant  Ch.  Pr.  J2U;  Angi-ll  &  Ames  Corp. 
§  (jii.O  el  seq. ;  Ilaight  v.  Prop,  ol  jMorris 
Aqueduct,  4  Wa>h  C.  C.  OUl ;  Champlin 
V.  <Jori)oration  of  New  York,  3  Paige, 
573.  An  answer  of  a  corporation,  put  in 
without  their  seal,  was  sujipres.sed  as  ir- 
ri-;^iilar,  in  Uan.^oni  v.  Stonington  Savings 
Hank,  2  IJeasl.-y  (N.  .J.),  212.  liut  it  wa.H 
held  in  til";  same  case  that  the  corporation 
may  a<lopt  and  use  any  .'■eal,  — a.s  a  bit  of 
l>ap<r  attached  by  a  water, — //ru  Ikic 
ri<i\  ibid.;  Mill  Dam  Foundry  t).  Hovey, 
21  i'ick.  417  If  the  seal  is  disjjensed 
with,  it  .Hlioiild  be  by  leave  of  the  (Jourt 
]ireviously  obtained  and  for  good  cause 
.shr.wii.  Viansom  v.  Stonington  Savings 
Hank,  ubi  »<ipra.  The  i>laiiitilf  I'annot 
conipi'l  the  ollicers,  even  tliose  who  have 
signed  it,  to  swear  to  it.  1  Holf.  Ch.  Pr. 
2-'U);  Unimlv  r.  The  Westchester  Manuf. 
So.,  1  .John.  Ch.  .WJ;  see  Kittredge  v. 
Claremont  Hank,  1  Wood.  &  M.  241.    Hut 


where  it  is  the  object  of  the  corporation  to 
obtain  the  dissolution  of  an  injunction,  it 
is  necessary  to  have  the  answer  verilied  by 
the  oath  of  some  of  the  corporators,  or 
officers  of  the  corporation,  who  are  ac- 
quainted with  the  tacts;  as  the  injunction 
cannot  be  dissolved  upon  an  answer  with- 
out oath,  denying  the  equity  of  the  bill. 
Fulton  Bank  v.  New  York  and  Sharon 
Canal  Co.,  1  Paige,  311. 

Individual  members  of  a  corporation 
may  be  called  upon  to  answer  to  a  bill  of 
discovery  under  oath ;  but  in  that  case  the 
individuals  must  be  named  as  defendants 
in  the  bill.  Brumly  v.  Westchester  Manuf. 
So.,  1  John.  Ch.  300;  Bulbrd  v.  Kucker,  4 
J.  J.  Marsh.  551;  Vermilyea  v.  Fulton 
Bank,  1  Paige,  37.  As  to  making  officers 
and  members  of  corporations  parties  tor 
discovery,  see  ante,  135,  notes.  The  an- 
swer of  a  corporation,  under  its  seal,  is 
something  more  than  a  pleading,  and 
where  it  negatives  the  bill,  warrants  the 
dissolution  of  an  injunction,  llogan  v. 
Branch  Bank  of  Decatur,  lU  Ala.  485.  A 
foreign  corporation  cannot  be  compelled 
to  hie  an  answer;  and  the  want  of  an 
answer,  where  it  was  not  needed  for  the 
purposes  ol'  discovery,  was  held  no  good 
objection  on  a  motion  to  dissolve  an  injunc- 
tion. Bait.  &  Ohio  R.K.  Co.  v.  City  of 
Wheeling,  13  Gratt.  40. 

It  is  desirable,  though  not  essential,  that 
the  alii.xing  of  the  seal  should  be  atte.'^ted 
by  some  official  of  the  corporation.  Braith- 
waite's  Pr.  53.  For  forms  of  oath,  affirm- 
ation, and  attestation,  .see  Vol.  ill.  Coale 
V.  Chase,  1  Bland,  137;  Gibson  v.  Tilton, 
1  Bhind,  355. 

3  For  form  of  special  attestation  to  the 
signature  of  the  Secretary  of  State,  see 
Vol.  111. 

■•  I'>xcept  in  cases  within  the  stat.  1  &  2 
Vic.  c.  105,  ;>Oii/,  p.  740.  Where  that  Act 
is  inapplicable,  a  Christian,  in  making 
oath,  holds  the  book  in  his  right  hand,  the 
lianil  being  uncovered,  and,  in  the  case  of 
a  male  perxm,  the  head  being  inicovered 
also.     IJrailliwaile's  Pr.  34-(. 

6  Omy.hund  v.  Barker,  1  Atk.  21,  40. 

0  llinde,  228;  see  'i'ryatt  v.  Liiido,  3 
Kdw.  Ch.  23'J.  But,  though  the  liead  be 
covered,  tlie  right  hand  in  which  the  book 


73G 


ANSWERS. 


t\  XVii.  §  -2.  may  bo  sworn  in  the  manner  most  binding  on  bis  conscience.  In 
Jxanikissinsmt  y.JiarArr,^  Mlicre  the  ({elindant  to  :i  cross-bill  was 
resident  in  tlie  East  Indies,  and  ])rotc'ssed  tbe  (ientoo  religion,  tbe 
Court  directed  a  commission  to  tbe  East  Indies,  and  empowered 
the  commissioners  to  administer  tbe  oatb  in  tbe  most  solemn  man- 
ner as  in  tbeir  discretion  should  seem  meet,  and,  if  they  a<lminis- 
tered'any  other  oath  than  the  Christian,  to  certify  to  the  Court 
what  was  done  by  them. 

Sometimes  an  answer  is  put  in  without  oath,  or  without  oath  or 
signature,  and  this  practice  is  frequently  resorted  to  in  amicable 
suits;'-  such  an  answer,  however,  cannot  be  received,  unless  an 
order  to  that  effect  has  first  been  obtained.  This  order  may  bo 
obtained  upon  motion,^  or  upon  petition  of  course  at  the  Rolls ;  * 
the  application  is  usually  made  by  petition.  If  the  answer  is  to 
be  put  in  without  oath,  and  the  plaintitf  ai)plies  for  the  «order,  no 
consent  is  necessary ;  but  if  the  defendant  ajjplies,  the  plaintiff's 
solicitor  must  instruct  counsel  to  consent  to  the  motion,  or  must 
subscribe  his  own  consent  to  the  petition,  as  the  case  may  be.'^     If 


(lath  or  sig- 
iKituri'  may 
bo  ilisiit'iised 
with,  bj'  or- 
der. 


is  held,  must  be  uncovered.  A  Jew  may, 
if  he  pleases,  be  sworn  while  his  head  is 
uncovered.     Braithwaite's  i'r.  o43. 

1  1  Atk.  19,  20.  For  Ibnn  ol' jurat  in 
the  case  of  a  Hindoo,  see  Braithwaite's 
Oaths  in  Chan.  85. 

2  An  answer  maj^  by  consent  of  the 
plaintiti"  be  received  without  being  sworn 
to.  Contee  v.  Dawson,  2  Bland,  2(i4; 
Fulton  Bank  v.  Beach,  2  Baige,  307 ;  Bil- 
lingslea  v.  Gilbert,  1  Bland,  507 ;  see  Heed 
V.  Waruer,  5  Baige,  650.  And  in  New 
York  the  tiling  of  a  replication  is  evidence 
of  such  consent.  Fulton  Bank  v.  Beach, 
2  Paige,  307.  But  it  is  otherwise  in  Kew 
Jersey;  Trumbull  v.  Gibbons,  lialst.  Dig. 
172 ;  and  in  Maryland,  Nesbitt  v.  Dellani, 
7  Gill  &  J.  4'J4. 

3  Hinde,  228. 

4  Braithwaite's  Pr.  47.  For  form  of 
order  on  motion,  see  Seton,  1254,  No.  2; 
and  for  forms  of  motion  paper  and  peti- 
tion, see  Vol.  HI. 

"  Wliere  the  parties  agree,  that  the  an- 
swer may  be  received  without  oath  or  sig- 
nature, it  is  of  course  for  the  Court  so  to 
order.  Fulton  Bank  v.  Beach,  2  Paige, 
307;  S.  C.  G  Wend.  36;  Trumbull  v.  Gib- 
bons, Halst.  Dig.  172;  Billingsleu  v.  Gil- 
bert, 1  Bland,  567. 

It  is  provided  by  statute  in  Massachu- 
setts, that  an  answer  .sliall  be  supported 
by  oath,  unless  waived  by  the  adverse 
party.  Genl.  Sts.  c.  113,  §  5.  And  the 
rule  of  Court  is  that,  "when  a  bill  shall 
be  filed  oth.er  than  for  discovery  only,  the 
plaintitf  may  waive  the  necessity  of  the 
answer  behig  made  on  the  (jath  of  the  de- 
fendant;  and,  in  such  cases,  the  answer 
may  be  made  without  oath,  and  shall  have 
no  other  or  greater  force  a.s  evidence  than 
the  bill.     No   exception  for  iusulliciency 


can  be  taken  to  such  answer."  Kule  8. 
Answers  in  New  Hampshire  need  not  be 
sworn  to  unless  an  oath  is  required  by  the 
bill ;  if  not  sworn  to  they  will  be  regarded 
only  as  pleadings,  and  no  exception  for 
insuthciency  can  be  taken  thereto.  Kule 
y  of  Chancery  Practice;  38  N.  H.  606. 
This  provision,  autliorizing  the  plaintiff  to 
waive  an  answer  on  oath  Irom  the  del'end- 
ant,  has  introduced  a  new  principle  into 
the  system  of  Fcpiity  pleading,  'lliis  jjro- 
vision  was  intended  to  leave  it  optional 
with  the  plaintitf  to  compel  a  discovery 
from  the  defendant  in  aid  of  the  suit,  or  to 
waive  the  oath  of  the  detendant,  if  the 
plaintitf  was  unwilling  to  rely  upon  his 
)ion#sty,  and  chose  to  establish  his  claim 
by  other  evidence  alone.  He  has  no  right, 
therefore,  to  call  upon  the  defendant  lor  a 
discovery  as  to  a  jiart  of  the  matters  of  his 
bill,  and  to  deprive  the  defendant  of  the 
benelit  <>(  his  answer  on  oath,  as  responsive 
to  other  matters  stated  in  the  bid.  He 
must  waive  an  answer  on  oath  as  to  every 
point  of  the  bill,  or  to  no  part  thereof. 
And  alter  the  defendant  has  put  in  an  an- 
swer on  oath  as  to  the  whole  or  any  part 
of  the  bill,  it  is  too  late  for  the  plaintilf  to 
get  rid  of  the  consequences  of  a  denial 
upon  oath  of  all  or  any  of  the  matters  of 
the;  bill.  An  amendment  in  that  stage  of 
the  suit,  waiving  an  answer  on  oath,  is 
irregular  ami  cannot  be  allowed.  If  the 
plaintiff  is  unwilling  to  rely  upon  an  an- 
swer on  oath  to  the  amendments,  his  only 
remedy  is  to  dismiss  the  bill,  and  com- 
uieiice  a  new  suit,  in  which  suit  he  can 
waive  an  answer  on  oath.  Burras  v. 
Looker,  4  Paige,  227;  1  Hoff.  (;ii.  Pr. 
234,  235;  Bingham  v.  Yeomans,  10  Cush, 
58;  Chace  v.  Holmes,  2  Gray,  431. 
The  plaintiti',  who  has  waived  an  an- 


FORM    OF    ANSWERS. 


737 


tlie  answer  is  to  be  put  in  without  oath  or  signature,  the  consent 
of  the  party  not  applying  is  requisite.^  It  is  usual  for  the  plain- 
tiff's soUcitor  to  require  to  see  the  draft  or  a  copy  of  the  proposed 
answer,  before  he  applies  or  consents  to  the  defendant's  applica- 
tion, in  order  that  he  may  be  satisfied  that  it  is  sufficient :  -  as  no 
exceptions  can  be  taken  to  an  answer  jjut  in  without  oath  or  sig- 
nature, or  attestation  of  honor.^ 

If  the  answer  is  i)ut  in  by  a  guardian  ad  litem,  or  committee, 
the  order  should  express  that  tlie  answer  is  to  be  put  in  without 
the  oath  or  signature  of  such  guardian  or  committee ;  and  the 
order  wil\  not  be  acted  uj)on,  if  it  bears  date  antecedently  to  the 
order  appointing  the  guardian.'*  So,  likewise,  an  order  to  file 
the  separate  answer  of  a  married  woman,  without  oath  or  signa- 
ture, will  not  be  acted  on,  if  dated  previously  to  the  date  of  the 
order  giving  her  leave  to  answer  separately.^ 

The  Court  will  not  permit  the  answer  of  a  defendant,  rejjresented 
to  be  in  a  state  of  incajiacity,  to  be  received  without  oath  or  sig- 
nature, though  a  mere  trustee  and  without  interest:  the  proper 


C.  XVII.  §  2. 


swer  on  oath,  cannot  apply  to  have  the 
answer  taken  oti'  the  lile  on  the  ground 
that  the  defendant  knows  it  to  be  wholly 
untrue.  Denison  v.  liassford,  7  Paige, 
370.  All  material  allegations  of  the  bill 
may  be  proved  as  if  tliey  had  been  dis- 
tinctly put  in  issue  by  tlie  answer;  and  if 
no  replication  is  filed,  the  matters  of  de- 
fence set  up  will  be  considered  as  admitted 
by  the  plaintitl',  as  in  the  case  of  a  sworn 
answer.  1  Holf.  Ch.  I'r.  2'}5.  Although 
the  plaintiff  in  an  injunction  bill  waive  an 
answer  on  oath,  the  defendant  may  lile  it 
on  oath  for  the  purpose  of  moving  to  dis- 
solve the  injunction,  or  discharge  a  ne 
exml.  1  llotf.  Ch.  Pr.  2:J5;  Dougrey  r. 
Topping,  4  Paige,  !J4;  Mahaney  v.  Lazier, 
10  Aid.  G'J.  In  such  case,  the  unsworn 
answer  is  no  evitlence  on  which  to  dissolve 
an  injunction.  Kaincy  r.  Uainey,  'Att  Ala. 
282;  .Mahaney  I'.  Lazier,  tibi  siijirn.  Where 
the  defenduiits  are  not  jointly  interested  in 
respect  to  tin;  claim  made  against  them  by 
the  bill,  tin;  [ilaintilf  may  waive  an  an- 
Bwcr  on  oath  as  to  some  of  them  and  not 
as  to  the  others.  Uulkley  r.  Van  Wyck, 
6  Paige,  .'>;j(J;  iMor.se  r.  Ilovev,  1  IJarb. 
rh.  404;  S.  C.  I  Sandf.  ('.'  187  ;  see 
Stephenson  r.  ,Ste])henson,  (i  Paige,  -i^i'-i. 

The  defen<lant  ha-*  been  held  entitled  to 
an.swer  under  ojitli,altliiiugli  tip- bill  waived 
a  sworn  answer.  White  r.  Hamilton,  1(( 
Iowa  (2  With.),  2;J8;  S.  C.  1)  Iowa  (1 
With.),  181. 

Alth(Mi;;|i  wlu-re  an  answer  on  oath  is 
waived,  it  is  not  evidence  in  favor  of  the 
defendant  for  any  purpuse  at  the  hiuiring, 
even  when  actually  sworn  to,  vet,  as  a 
pleading,  the  plaiiitiir  may  avail  liimself 
of  admissions  niid  allegations  made  then  in, 
whieh  e^fubli^h  the  case  made  by  his  Ull ; 
bartlett  V.  Gale,  4  Paige,  504;"Moore  v. 
VOL.  I. 


Hunter,  1  Oilman,  317;  see  Story  Et).  PI. 
§  875;  Miller  r.  Averv,  2  Barb.'Ch.  582; 
Wilson  V.  Towle,  36  X.  li.  12:J;  and  lor 
the  purpose  of  ascertaining  what  points 
are  at  issue.  Dorr  v.  lioyer,  IG  Md.  144; 
Durfee  v.  McClurg,  6  Mich.  223;  Smith  v. 
Potter,  3  Wis.  432;  Union  Bank  of  George- 
town V.  Geary,  5  Peters,  Ui),  110,  112; 
Story  Kq.  PI.  §  875  a,  and  note.  It  seems 
to  be  doubted  by  Mr.  Justice  Story, 
whether  the  ])laintilf  should  have  the 
power  to  deprive  the  defendant  of  the 
elfect  of  his  answer  by  dispensing  with 
the  oath,  and  at  the  same  time  use  the 
answer  for  the  benelit  of  his  own  case. 
Story  K(i.  PI.  §  875  a. 

1  Braithwaite's   Pr.   47;   and   see  

I'.  Lake,  (j  Ves.  171;  v.  (iwilliin,  ib. 

285;  Baylev  v.  l)e  Walkiers,  10  Ves.  441 ; 
Codner  v.  Hersev,  18  Ves.  4(i8.  It  would 
seem  t'rom  the  language  of  some  of  the 
books,  that  if  tlie  plaintllf  chooses  to  dis- 
pense with  the  oath,  the  Court,  upon  his 
motion,  will  reijuire  the  defendant  to  an- 
swer without  oath,  even  without  the  con- 
sent of  the  dcteiidant.  Cooper  Eq.  PI. 
32.');  Story  Ei|.  I'l.  §  874.  liiit  in  all  such 
cases  the  disi)(iis.'itioii  is  sii|i)iose<l  to  be 
made  for  the  convenience  of  the  defendant, 
and  upon  his  e.xpres.sed  or  presumed  con- 
sent. The  ujj|>lication  may  be  made  on 
the  part  of  the  ]ilaiiitiff  or  of  the  detend- 
aiil.  but  the  order  will  only  Im'  made  where 
boili  parties  consent,  and  not  against  the 
will  of  either.  Itrowii  v.  ISiilklev,  1  M'"- 
Cait.T(N'.  .).),  301!;  Hinde,  228;  Codner  v. 
Hersev,  iihi  mi/irit. 

-  Braithwaite's  Pr.  48. 

»  Hill   (.'.  Earl  of  Bute,  2  Fowl.  Kk.  Pr. 
10. 

Braithwaite's  Pr.  47. 

6  Jb„l. 


Answer  by 
guardian  ad 
litem,  or 
committee. 


Separate 
answer  of 
married 
woman. 


Answer  of 
imbecile  de- 
fendant, not 
to  betaken 
without  oath 
or  signature. 


47 


738 


ANSWERS. 


r.  XVII. 5  .•?. 


Attostati.mol 
honor  may 
be  ilisiicnsod 
with,  by 
onler. 

AtU'Station 
ot'fiijriiatiire 
lu'iossarv  to 
answer  with- 
out oath. 

Answer  witli- 
out  oatii,  i^e., 
rejranled, 
witii  respect 
to  it.s  con- 
tents, as  it"  on 
oath ; 

but  cannot  be 
excepted  to. 


eonrso,  in  sucli  case,  being  for  the  Court  to  ajipoint  a  guardian  by 
wltoni  the  defendant  may  answer.^ 

The  method  of  dis))ensing  with  tlic  attestation  of  honor  of  a 
peer  or  ])eeress  putting  in  an  answer,  is,  muUdis  mutandis^  the 
same  as  tlie  method  adopted  for  disj)ensing  witli  tlie  oath  of  a 
commoner.'^ 

The  signature  to  an  answer  taken  without  oath  must  be  attested 
by  the  defenthmt's  soUcitor,  or  by  some  person  com])ctent  to  be  a 
Avitness:  otherwise,  the  answer  cannot  be  filed.  The  attestation 
is  written  on  the  left-hand  side  of  the  signature.' 

An  answer  put  in  without  oath  or  attestation  of  honor  or  signa- 
ture, and  accepted  without  either  of  those  sanctions,  gives  the  same 
autliority  to  the  Court  to  look  to  the  circumstances  denied  or  ad- 
mitted in  the  answer  so  put  in,  for  the  purpose  of  administering 
civil  justice  between  the  parties,  as  if  it  was  put  in  upon  attesta- 
tion of  honor  or  iipon  oath.*  No  excei)tions,  however,  as  we  have 
seen,  can  be  taken  to  an  answer  so  put  in.* 


Section  III.  —  Swearing,  Filing,  and  Printing  A^iswers. 


Time  for 
answering,  if 
interrogated : 


Amended 
bill. 


answf-rmf^ 
amendments 
and  excep- 
tions to- 
gether. 

Consequences 
of  not  an- 
swering the 
same. 


A  defendant  required  to  answer  a  bill,  whether  original  or 
amended,  must  put  in  his  plea,  answer,  or  demurrer  thereto,  not 
demurring  alone,  wathin  twenty-eight  days  from  the  delivery  to 
him,  or  his  solicitor,  of  a  copy  of  the  interrogatories  wliich  he  is 
required  to  answer.^  If  the  plaintiff  amends  his  bill,  after  interrog- 
atories to  the  original  bill  have  been  served,  but  before  answer, 
the  twenty-eight  days  will  be  computed  from  the  service  of  the 
amended  or  new  interrogatories ;  or  if  no  such  interrogatories  are 
served,  then  from  the  service  of  a  copy  of  the  amended  bill.'' 
Where  a  defendant  is  required  to  ansAver  amendments  and  excep- 
tions together,*  he  must  put  in  his  further  answer,  and  his  answer 
to  the  amendments  of  the  bill,  within  fourteen  days  after  he  shall 
have  been  served  with  interrogatories  for  his  examination,  in  an- 
swer to  the  amended  bill.^  If  he  does  not,  and  procures  no  en- 
largement of  the  time  allowed,  he  will  be  subject  to  the  following 
liabilities :  — 


1  Wilson  V.  Grace,  14  Ves.  172;  Matter 
of  Barber,  2  .John.  Ch.  235;  and  see  Order 
YII.  3;  antt,  p.  17(i. 

■i  Hinde,  228. 

3  Bruithwaite's  Pr.  47,  48.  For  form  of 
attestation,  see  Vol.  III. 

*  Per  Lord  Kldon,  in  Curling  v.  Mar- 
quis 'J'ownshend,  I'J  Ves.  G28,  G;iO. 

5  Hill  V.  Earl  of  Bute,  2  Fowl.  Ex.  I'r. 
10. 


6  Ord.  XXXVir.  4;  15  &  16  Vic.  c.  86, 
§  i;j;  (intf,  p.  485. 

"  llraitliwaite's  Manual,  150.  Where 
the  (Iclcndant  is  served  abroad,  the  times 
are  regulated  by  the  special  order  direct- 
ing such  service.     Anlt,  p.  452. 

«  Ante,  p.  413. 

9  Ord.  XXXVII.  6. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


739 


1.  An  attachment  may  be  issued  against  him.^  C.  xvii.  §  3. 

2.  He  may  be  committed  to  prison,  and  brought  to  the  bar  of 
the  Court.^ 

3.  The  plaintiff  may  file  a  traversing  note ;  or  proceed  to  take 
the  bill  pro  confesso  against  him.- 

If  the  defendant,  not  being  in  contempt,  submits  to  exceptions 
to  his  answer  for  insufficiency  before  they  are  set  down  for  hearing, 
he  has  fourteen  days  fi'om  the  date  of  the  submission  within  which 
he  must  put  in  his  further  answer.^  If,  not  being  in  contempt,  he 
submits  to  the  exceptions  after  they  are  set  down  for  hearing,  or 
the  Court  holds  his  first  or  second  answer  to  be  insufficient,  he 
must  j^ut  in  his  further  answer  within  such  time  as  the  Court  may 
appoint.*  If  he  does  not  answer  Avithin  the  above  periods,  or  ob- 
tain further  time  and  answer  within  such  fuilher  time,  the  plaintiff 
may  sue  out  process  of  contempt  against  him.^ 

If  a  defendant  is  not  required  to  answer  a  bill,  he  may  put  in  a 
plea,  answer,  or  demurrer,  not  demurring  alone,  within  fourteen 
days  after  the  expiration  of  the  time  within  which  he  might  have 
been  served  with  interrogatories  for  his  examination,  in  answer  to 
Buch  bill ;  ®  but  not  afterwards,  without  leave  of  the  Court.''  It 
follows  from  these  rules,  that  if  a  defendant,  served  within  the 
jurisdiction  of  the  Court,  appears  Avithin  the  time  limited,  he  has 
thirty  days  from  the  service  of  the  bill,^  or,  if  he  does  not  appear 
within  the  time  limited,  twenty-two  days  from  the  time  of  his 
actual  appearance,^  within  Avliieh  he  may  put  in  a  voluntary 
answer. 

If  the  plaintiff  amends  his  bill,  without  requiring  an  answer  to  amended  bill. 


WTiere  ex- 
ceptions are 
submitted  to 
before  the^' 
are  set  down ; 

or  after  thej' 
are  set  down, 
or  after  first 
or  second 
answer  held 
insufficient. 

Consequences 
of  default. 


Time  for 
answering,  if 
not  interro- 
gated : 

original  bill ; 


1  Ante,  Chap.  X.  §  1.  If  the  defendant 
is  a  peer,  M.  P.,  corporation  aggregate,  or 
non  loiii/iiig,  or  the  Attorney-General,  the 
process  is  of  a  difl'erent  kind;  mtle.  Chap. 
X.  §  2. 

'■*  /bill.;  see  nnff,  pp.  514,  .518.  In  Massa- 
chusetts, "  if  the  defendant  shall  not  a|*iicar 
and  file  his  answer,  plea  or  demurrer,  witliin 
one  niontli  after  the  day  of  ajijicarance, 
tlie  plaintift' may  enter  an  ordi-r  to  take  his 
bill  for  confessed,  and  the  matter  thereof 
shall  be  decreed  acconlingl}',  unless  good 
cause  sliall  appear  to  the  contrary."  Kule 
9  of  the  Iliiles  lor  I'raclire  in  Clumcer}'. 

As  to  the  rour.>-e  of  practice  in  tiie.  Court 
of  ( 'liancery,  heretofore  existing  in  New 
York,  in  regard  to  the  time  of  tiling  an- 
swers, and  applications  for  the  extension 
of  time,  see  1  Mod.  Ch.  Pr.  228;  1  IJarh. 
Ch.  I'r.  I4fi,  147.  A  defendant  may,  on 
motion,  obtain  further  time  to  answer, 
(-'arroll  r.  l'arson«,  1  Uland,  ]2').  After  a 
demurrer  overruled,  an  order  for  furliier 
time  to  answer  merely,  can  be  obtained 
only  bv  a  i-pecial  application.  'I'rim  i". 
Harker"  T.  &  K.  2.").3.  After  a  plea  pver- 
ruled,  an  order  for  further  time  to  answer, 


obtained  as  of  course,  is  irregular.  Fcr- 
rand  v.  I'elham,  T.  &  K.  404.  A  notice 
of  an  application  for  time  to  answer,  and 
an  affidavit  filed  in  support  of  it,  accord- 
ing to  the  Irish  practice,  prevent  all  further 
proceedings  by  the  plaintiff,  until  the  no- 
tice is  regularly  disposed  of  In*  the  Court. 
Ormsbv  »".  Pahner,  1  Hogan,  lUl;  sec 
Bun-alt  r.  Kaineteaux,  2  Paige,  .'J.'Jl;  Hunt 
V.  Wallis,  6  Paige,  371;  Ilurd  v.  Haines, 
0  Paige,  (i04.  After  an  order,  allowing 
further  time  to  answer,  it  is  in'Cgular  for 
the  defendant  to  dennir.  Davenport  v. 
Snifl'en,  1  Parb.  22;i;  Lakens  v.  lielden, 
11  Paige,  044;  Uedcll  r.  IJe.lcIl,  2  liarb. 
Ch.  !)!>. 

3  Ord.  XVI.  t). 

*  Ord.  XVI.  14.  If  the  defendant  is  in 
contempt,  on  the  allowance  of  e.xcentions, 
lie  cannot  ap|)Iy  for  further  time.  \\'hcat 
V.  (iraliam,  ■>  Sim.  'uU. 

0  Ont.  XVI.  15. 

0  Ord.  .XX.WII.  5. 

'    ir,  \  Ki  Vic.  0.  80,  §  1.*}. 

8  Ord.  X.;i;  Ord. XI.  5;  Ord.  XXXVII. 
6. 

9  JOUl. ;  Braithwaite's  Manual,  156. 


740 


ANSAVERS. 


V.  XVII.  5 


Where  de- 
toiulant  has 
been  dis- 
charijed  from 
custody,  not 
haviiif,'  been 
broug:ht  to 
the  bar  in  due 
time. 


Answer  can- 
not, except 
by  leave,  be 
tiled  after 
service  of 
traversing 
note. 
Separate 
answer  of 
married 
woman. 

Pending  the 
giving  secu- 
rity for  costs, 
time  not 
reckoned. 

Judge  may 
enlarge  the 
time  to 
answer. 


Extension  of 
time:  how 
obtamed. 


tho  ainoiulinonts!,  :i  defendMiit  wlio  has  answered,  or  has  not  been 
required  to  answer,  tlie  original  bill,  but  desires  to  answer  the 
amended  bill,  must  })ut  in  his  answer  thereto  within  fourteen  days 
after  the  expiration  of  the  time  within  which,  if  an  answer  had 
been  required,  he  mitiht  have  been  served  with  interrooatories  for 
his  examination  in  answer  to  such  amended  bill,  or  within  such 
further  tinie  as  the  Judge  may  allow ;  in  this  case,  therefore,  the 
defendant  has  thirty  days,  from  the  service  of  the  amended  Inll, 
within  which  he  must  })ut  in  his  voluntary  answer.^ 

AVhere  an  attachment  for  Avant  of  answer  has  been  executed 
against  a  defenchint,  but  he  has  been  discharged  from  prison  or 
from  the  custody  of  the  sergeant-at-arms,  or  messenger,  because  he 
was  not  brought  up  to  the  bar  of  the  Court  Avithin  the  proper 
time,"  he  must  put  in  his  answer  Avithin  eight  days  after  such  dis- 
charge ;  and  if  he  does  not  do  so,  a  neAV  attachment  for  Avant  of 
ansAver  may  be  issued  against  him.^ 

After  a  traversing  note  has  been  filed  and  served,  a  defendant 
cannot  put  in  his  answer  Avithout  special  leave  of  the  Court.*  In 
such  a  case,  the  defendant  should  move  to  take  the  traversing  note 
off  the  file,  Avith  leave  to  put  in  an  answer.'' 

A  married  Avoman  answering  separately,  under  an  order,  has  the 
full  time  from  the  date  of  the  order  to  do  so.® 

The  day  on  Avhich  an  order  that  the  plaintiff  do  give  security 
for  costs  is  served,  and  the  time  thenceforAvard,  until  and  including 
the  day  on  Avhicli  such  security  is  given,  are  not  reckoned  in  the 
computation  of  time  alloAved  a  defendant  to  plead,  answer,  or  de- 
mur, or  otherAAdse  make  his  defence  to  the  suit.^ 

If  a   defendant,   using  due   diligence,  is   unable   to  put  in   his 

■  ansAver  to  a  bill  Avithin  the  time  alloAved,  the  Judge,  on  sufficient 

cause  being  shoAvn,  may,  as  often  as  he  shall  deem  right,  allow  to 

such  defendant  such  further  time,  and  on  such,  if  any,  terms  as  to 

the  Judge  shall  seem  just.* 

Applications  for  further  time  to  ansAver  are  made  by  summons  at 


1  Ord.  XXXVII.  7;  Cheeseborough  v. 
Wright,  28  Beav.  173  ;  Braithwaite's 
Manual,  156. 

2  See  ante,  pp.  400,  494. 

3  Ord.  XII.  2,  3. 

*  Ord.  XIII.  7;  ante,  p.  515. 

6  Towne  v.  Bonnin,  1  De  G.  &  S.  128; 
ante,  p.  516.  For  form  of  notice  of  mo- 
tion, see  Vol.  III. 

6  Ante,  p.  183;  Braithwaite's  Manual, 
11,  12;  Jfackson  v.  Ilaworth,  1  S.  &  S. 
161. 

■  Ord.  XXXVII.  14. 

8  Ord.  XXXVII.  8;  15  &  16  Vic.  c.  86, 
§  13.  A  defendant  has  the  whole  of  the 
last  day,  specified  Ln  the  order  to  answer, 


in  which  to  serve  his  answer.  Hoxie  v. 
Scott,  1  Clarke,  457.  And  after  the  time 
of  answering  has  expired,  the  defendant 
may  serve  an  answer  at  any  time  before 
an  order  to  take  the  bill  as  confessed  is 
actually  entered  with  the  clerk.  Hoxie  v. 
Scott,  1  Clarke,  457.  But  the  Court  may, 
in  its  discretion,  receive  or  reject  an  an- 
swer tiled  after  the  regular  time  for  answer- 
ing has  passed,  and  the  motion  tor  leave 
to  tile  it  and  the  decision  should  appear  in 
the  record.  Lindsey  i'.  Stevens,  5  Dana, 
185;  see  Scales  v.  Nichols,  3  Ilavw.  2-)0; 
Fisher  v.  Fisher,  4  Hen.  &  M.  iHi;  Daly 
V.  Duggan,  1  Irish  Fq.  315;  Va.ssar  v. 
Hill,  1  Hayes,  355. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS.  741 

Chambers;^  and  should  be  supported  by  affidavit,  that  due  diU-  C.  XVII.  §  3. 

gence  has  been  used,  and  that  fiirther  time  is  necessary.'^    If  the    "^ y ^ 

defendant  has  not  been  interrogated,  he  or  his  solicitor  must  also   Affidavit  in 
swear,  that  he  is  advised  and  believes  that  it  is  necessary,  for  the   *"PP'*'^ 
purposes  of  his  defence,  that  he  should  put  in  an  answer,  and  that 
the  application  is  not  made  for  the  purjjose  of  delay.^ 

The  summons  must  be  served  on  the  solicitor  for  the  plaintiff  Sen-ice  of 
two  days  before  the  return  thereof,  exclusiA'e  of  Sunday,*  unless  a   ®^"*™°°s- 
shorter  return  be  granted,  by  special  leave,  on  issuing  the  sum- 
mons ;  and  a  printed  copy  of  the  bill,  and  the  interrogatories,  if  Hearing  of 
any,  to  be  answered,  must  be  produced  at  the  hearing  of  the  ap-  ^^^  "^^  ' 
plication.^      An  affidavit  in  opposition    to   the    application  may 
be  filed,  and  either  party  may  use  any  affidavit  previously  filed. 
Notice  of  the   intention  to  use  an  affidavit  must,  however,  be 
given.®     If  the  plaintiff's  solicitor  is  not  in  attendance  when  the 
summons  is  called  on,  an  order  may  be  made  in  his  absence,  on  a 
case  for  further  time  being  shown,  and  subject  to  the  production 
of  the  office  copy  of  an  affidavit  of  service  on  him  of  the  sum- 
mons.''    This   affidavit    should,  in  strictness,  be  produced  to  the 
Chief  or  Junior  Clerk,  before  the  Chambers  close  on  the  day  the 
application  is  heard. 

The  order  on  the  summons  is  drawn  up  in  Chambers,  and  must   Order. 
be  entered  at  the  entering  seat  in  the  Registrar's  Office.* 

The  written  consent  of  the  plaintiff's  solicitor  to  further  time  Consent  to 
being  given  will  be  acted  on  at  Chambers,  without  his  attendance ; 
but  care  should  be  taken,  in  drawing  up  an  order  thereon,  that  the 
tenns  of  the  consent  are  strictly  jnirsued;  thus,  a  consent  to  fur- 
ther time  "to  answer,"  will  not  justify  an  order  being  drawn  up 
for  time  "  to  plead,  answer,  or  demur."  ^ 

The  Judge  is  expressly  empowered  to  impose  terms,  on  an  ap- 
j>lication  for  further  time  :  ^**  and,  as  a  general  rule,  the  costs  of  the   Costs. 
first  api)lication  will  be  made  costs  in  the  cause,  but  those  of  sub- 
sequent apj)lications  will  be  ordered  to  be  paid  by  the  defendant. 
It  may  also  be  here  observed,  that  if  any  person  who  has  obtained 

'  15  &  16  Vic.  c.  80,  §  2G.    Under  some  6  RofC"'lnti"ns,  8  Aug.,  1857,  r.  2. 

upcfial  circumstances  tlieajiplicationsliould  *  Ord.  X XXV'.  27.     For  form  of  notice, 

hi'  made  to  tlie  (Jourt.     Mancli('stcr  and  see  Vol.  III. 

Slii-llicld   Kaihvav  ('om|janv   c.   Worksop  "  l-'or  form  of  afTidavit,  see  Vol.  III. 

Board   ..f    Hcaltfi,   2  K.    l<i  J.   25.      I'or  8  ()rd.    XXXV.   :)2\    Ord.    I.    18.    No 

fonns  of  summons,  see  Vol.  III.  servire  of  an  order  for  time  is  now  neces- 

2  liroun  r.  I.t-e,  II  Heav.  102;  12  .Tur.  sary.     2  Smitli's  I'r.  131. 

687.     In  [iracticc,  howfver,  further  tinu' is  '•'  Aiifv,   p.  (JilO;  Newman  v.   W'hho,  16 

usually  (jranti'd,  on  the  first  application,  Heav.  4;  and  sec  Hunter  v.  Nockolds,  2 

without  an  atfidavit.    For  fonn  of  affidavit,  I'liil.  .')40;    12  .lur.  14!). 

ttec  Vol.  III.  1"  Ord.  XXX  VII.  8.     Sec  on  this  point, 

'  For  form  of  affidavit,  see  Vol.  III.  Zidueta  r.  \'inent,  15  IJeav.  5".");  see  also, 

*  Ord.   XXXV.  7;  Ord.  XXXVII.   II.  I.ec  r.    Read,    5    Heav.    .181.  Mr,;    6  .lur. 

Tlie  summons  must  be  served  hefore  two  102(i;  2.'t  ( »rd   Dec,  18.'t.') ;  Sand  Ord.  781; 

o'clock  on  a  Saturday,  and  before  seven  Ueav.  Ord.  51;  Ord.  X.\.\ V.  01 

o'clock  on  any  other  day.  Ord.  XXXVII.  2.  • 


742 


ANSWERS. 


('.  xvn.5 ;!. 


Time  granted 
on  couiisol's 
certilicute. 


Return  of 
summons. 


Attachment 
irregular, 
pending 
decision  on 
application. 

Application 
irregular, 
alter  attach- 
ment issued. 


No  motion 
for  decree;, 
pending  time 
to  answer. 

Engrossment 
or  printing  of 
answer. 


any  Jocroe  or  onlor  upon  t'ondition,  does  not  perform  or  comply 
with  sueh  condition,  he  will  be  considered  to  have  waived  or  aban- 
doned such  order,  so  far  as  tlie  same  is  beneficial  to  himself;  and 
any  other  person  interested  in  the  matter  may,  on  breach  or  non- 
performance of  the  condition,  take  either  such  ))n)cee<lin<j;s  as  the 
order  may  in  such  case  warrant,  or  such  proceeilings  as  might  have 
been  taken  if  no  such  order  had  been  made,  unless  the  Court 
otherwise  directs.^  Under  the  old  practice,  when  a  defendant 
obtained  further  time,  or  permission  for  any  other  thing  upon  a 
condition,  if  he  neglected  to  perform  the  condition,  he  lost  all 
benefit  of  the  permission ;  but  the  Couit  could  not  compulsorily 
direct  the  performance  of  the  condition.'-^ 

"Where  the  a])plication  for  further  time  came  on  in  open  Court, 
and  counsel  certified  that  he  required  further  time,  it  was  given." 
The  necessity  of  the  defendant  being  enabled  to  state  his  own 
defence,  as  well  as  give  the  discovery  required  by  the  plaintiff,  will 
be  taken  into  consideration.* 

The  summons  for  further  time  to  put  in  the  answer  should  be 
ma<le  returnable  before  the  expiration  of  the  time  which  the  de- 
fendant ali-eady  has  for  that  purpose :  ^  for,  if  returnable  after  such 
time,  an  attachment  may  be  issued,  even  though  the  summons  has 
been  served,®  An  attachment,  however,  which  has  been  issued 
after  the  hearing  of  an  application  for  further  time,  and  pending 
the  decision  upon  it,  is  irregular,  and  will  be  discharged.'' 

The  defendant  cannot,  in  strictness,  apply  for  further  time  after 
an  attachment  has  actually  been  issued  against  him,  for  he-  is  then 
in  contempt;  *  but  Avhere  an  application  in  such  case  is  entertained, 
and  an  extension  of  time  is  granted,  it  should  appear  by  the  order 
that  it  is  made  "without  prejudice  to  the  attachment  issued  against 
the  said  defendant  for  Avant  of  answer." 

If  the  Court  grants  any  further  time  to  any  defendant  for  ])lead- 
ing,  answering,  or  demurring  to  the  bill,  the  ])laintiff's  right  to 
move  for  a  decree  is,  in  the  mean  time,  suspended,^ 

The  answer  having  been  drawn,  or  perused  and  settled  by  coun- 
sel, must  be  written  bookwise,^"  or  printed,^^  on  paper  of  the  same 
size  and  description  as  that  on  which  bills  are  printed.^^    Any 


1  Ord   XXIII.  22. 

2  Ileiilcv  V.  Stone,  4  Beav.  392,  394; 
Judd  V.  Wartnaby,  2  M.  &  K.  813,  816. 

3  Byng  V.  Clark,  13  Hcav.  92 

4  York  and  North  Midland  Railway  v. 
Hudson,  ib   09. 

6  See  Ord.  XXXVII.  18. 

6  IJraithwaite'.s  Pr.  56. 

''  Davis  V.  Tollemache,  2  Jur.  N.  S.  564, 
V.  C.  S.  ;  see  also  Taylor  v.  Fisher,  6 
Sim.  566;  Barritt  v.  Barritt,  3  Swanst. 
395,  397. 


8  Wheat  V.  Graham,  5  Sim.  570,  de- 
cided on  the  Sill  Ord.  of  3  April,  1828; 
Sand.  Ord   714;  Beav.  Ord.  7. 

»  15  &  16  Vic.  c.  86,  §  13;  see /jos<, 
Chap.  XX.,  Afulionfo?'  Decree. 

1"  Ord.  0  Jlarch,  1860,  r.  1. 

11  Jh.  r.  5;  as  to  printing  answers,  see 
post,  pp.  755,  750. 

12  As  to  such  paper,  see  Ord.  IX.  3,  ante, 
p.  361 ;  but  an  answer  not  so  written  has 
been  allowed  to  be  filed,  under  special  cir- 
cumstances'; the  application  in  such  case 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


743 


schedules  or  documents  annexed  to  the  answer  must  be  written  on 
paper  of  the  same  kind  as  the  answer  itself.^  Dates  and  sums 
occurring  in  the  answer  should  be  expressed  by  figures,  instead  of 
words.- 

The  Clerk  of  Records  and  Writs  may  refuse  to  file  an  answer  in 
which  there  is  any  knife  erasure,  or  Avhich  is  blotted  so  as  to  oblit- 
erate any  word,  or  which  is  improperly  written,  or  so  altered  as  to 
cause  any  material  disfigurement ;  or  in  which  there  is  any  inter- 
lineation :  unless  the  person  before  whom  the  answer  is  sworn  duly 
authenticates  such  interlineation  with  his  initials,  in  such  manner 
as  to  show  that  it  Avas  made  before  the  answer  was  swoi'n,  and  so 
to  mark  the  extent  of  such  interlineation.*^  Where  the  answer  is 
sworn  before  one  of  the  Clerks  of  Records  and  Writs,  and  is  there- 
upon left  in  his  custody,  he  does  not  usually  authenticate  the 
interlineations;*  and  where,  in  the  case  of  a  joint  answer,  it  is 
intended  to  haA^e  it  sworn  by  some  of  the  defendants  at  the  Record 
and  Writ  Clerks'  Office,  and  by  others  elsewhere,  it  is  the  practice 
to  have  it  sworn  by  such  other  defendants  first :  if  this  is  not  done, 
and  the  answer  is  taken  away  from  the  Record  and  Writ  Clerks' 
Office  before  it  is  filed,  it  must  be  resAvorn  by  the  defendants  Avho 
were  sworn  to  it  at  that  office,^ 

If,  after  the  ansAver  has  been  SAVorn,  there  is  discovered  any 
defect  in  the  formal  parts,  such  as  tlie  title  or  jurat,  or  any  un- 
authenticated  alteration  or  interlineation,  the  answer  must  be 
resAvorn,  unless  the  plaintiff'  w\\\  consent  that  the  ansAver  be  filed 
notAvithstanding  such  defect."^  The  consent  may  be  indorsed  by 
the  plaintiff  or  his  solicitor  on  the  ansAver  itself;  or  an  order  of 
course,  may,  Avith  his  consent,  be  obtained  at  the  Rolls,  on  a  peti- 
tion of  course,  alloAving  the  answer  to  be  filed  ;  but  the  defect 
must  be  s]»ecified  in  the  consent  or  order.''  The  giving  such  con- 
sent will  not  waive  the  right  to  except  to  the  ansAver  for  scandal 
or  insufficiency ;  but  as  it  might  affect  an  indictment  for  perjury, 
the  plaintiff's  solicitor  should,  as  a  general  rule,  see  the  ansAver 
before  the  consent  is  given. ^ 

Tlie  ansAver  must,  as  has  been  before  stated,®  unless  an  order  has 
been  oljtained  to  file  it  Avithout  oath,  or  Avithout  oath  or  signature, 
be  signed  and  sworn  by  the  defendant.^"     Under  the  old  i)ractice, 


c.  xvir.  §  3. 


Alterations 
to  be  authen- 
ticated ; 


except  where 
sworn  before, 
and  left  with, 
Kecord  and 
Writ  Clerk. 
Practice, 
where  answer 
joint. 


Re-swearing : 

when 

necessary. 


When  dis- 
pensed with, 
hy  consent. 


Consequences 
of  consent. 


How  swonj. 


must  always  be  made  to  the  ( 'ourt.  Harvey 
V.  lira.llcv,  10  W.  U.  70.^),  M.  U. ;  Whale 
V.  (Jrillitl'is,  10  \V.  It.  .^71.  L.  .1.1.:  Mor- 
ris V.  Iloneycoinbe,  2  N.  K.  IC,   V.  C.  AV. 

1  Whale  V.  (irillitliH,  ufn  sup.  ;  under 
special  circumstances,  schedules  not  so 
written  were  allowed  to  be  filed:  S.  C. 

'■^  Onl.  0   .March,   18(!(),  r.  ;);  Ord.  IX.  .3. 

3  Ord.  I.  ;tfj;    I.J  &  J(i  Vic.  c.  80,  §  25. 

*  Braithwaite's  I'r.  52. 


''  /hid.  ;  ,\ttornev-(Jeneral  r.  Hudson,  9 
Hare  A]).  C,.'!;    17  .h'lr.  '205. 

*  See  Sittin^ton  v.  Brown,  7  I-eigh, 
271  ;  mile,  p.  7't4  note. 

T  Bniilhwaile's  Pr.  48;  but  see  I'ilking- 
ton  V.  Himsworth,  1  Y.  &  C.  K.x.  fil2. 
For  forms  of  consent  and  petition,  sec  Vol. 
HI. 

"  Braithwaite's  Pr.  48. 

»  Ante,  p.  7;}4. 
1"  Atite,  pp.  734,  7.35  and  notes.  For  New 


744 


ANSWERS. 


C.XVIl.  S  .1. 


Commissions, 
within  juris- 
diction, 
aboiisbpil. 


liefore  whom 

sworn : 

in  Ihij;land. 


Commis- 
sioners to 
administer 
oaths  in 
Chancery. 


Out  of  Ens- 
land,  but 
within  the 
dominions  of 
the  Queen : 


it  w;is  jiocessary,  avIu'vc  tlio  answer  was  upon  o.atli,  and  was  intcnfl- 
0(1  to  be  sworn  beyond  twenty  miles  from  London,  that  a  commis- 
sion should  issue  for  the  purjiose  of  taking  it.  Now,  however,  the 
practice  of  issuing  commissions  to  take  pleas,  answers,  and  dis- 
claimers, in  causes  jiending  in  the  Court,  has  been  abolished  with 
respect  to  pleas,  answers,  and  disclaimers  taken  within  the  jurisdic- 
tion of  the  Court;  and  any  such  plea,  answer,  or  disclaimer  may 
be  filed,  without  any  further  or  other  formality  than  is  required  in 
the  swearing  and  tiling  of  an  affidavit.^ 

Where  the  answer  is  SAvorn  Avithin  the  jurisdiction,  it  must,  if 
taken  in  London,  or  within  ten  miles  of  Lincoln's  Inn  Hall,  be 
sworn  before  a  Clerk  of  Records  and  Writs,^  the  Clerk  of  Enrol- 
ments in  Chancery,"  or  a  Lotidon  Commissioner  to  administer  oaths 
in  Chancery;^  and,  if  taken,  in  any  ])lace  in  ICngland  or  Wales, 
ten  miles  or  more  from  Lincoln's  Inn  Hall,  before  a  Commissioner 
to  administer  oaths  in  Chancery  in  England.*  The  Commissioners 
to  administer  oaths  in  Chancery  in  London  and  England  are 
aj^pointed  by  the  Lord  Chancellor,  and  are,  in  practice,  solicitors 
of  ten  years'  standing.^  The  London  Commissioners  have  power 
to  administer  oaths  at  any  place  within  ten  miles  of  Lincoln's  Inn 
Hall,®  and  the  Country  Commissioners  at  all  other  places  in 
England  and  Wales.'' 

Where  the  answer  is  taken  in  Scotland,  Ireland,  the  Channel 
Islands,  the  Isle  of  Man,^  or  in  any  place  in  foreign  parts  under 
the  dominion  of  her  Majesty,^  it  may  be  sworn  before  any  judge, 
Court,  notary  public,  or  person  legally  authorized  to  administer 
oaths  in  such  country  or  })lace  respectively ;  and  the  Couit  of 
Chancery  will  take  judicial  notice  of  the  seal  or  signature  of  such 
judge,  Court,  notary  public,  or  person  attached  or  subsciibed  to 
the  answer.^"     In  the  case  of  an  answer  taken  in  the  Channel 


Hampshire,  see  38  N.  II.  611,  Chancery 
Rule,  30.  In  the  United  States  Courts, 
every  defendant  may  swear  to  his  answer 
before  any  justice  or  judge  of  any  Court  of 
the  United  States,  or  before  any  commis- 
sioner appointed  by  any  Circuit  Court  to 
take  testimony  or  depositions,  or  before 
any  Master  in  Chancery  appointed  liy  any 
Circuit  (Jourt,  or  before  any  judye  of  any 
Court  of  a  State  or  Territory.  Equity 
Rule,  59. 

1  15  &  16  Vic.  c.  80,  §21.  The  form  of 
oath  to  lie  administered  to  the  defendant 
is  not  ahered  In'  this  enactment.  Attorney- 
General  V.  Hudson,  9  Hare  Ap.  63;  17 
Jur.  205. 

2  Ord  I.  39. 

8  16  &  17  Vic.  c.  78,  §  2. 

4  J/j.  §  1;  Ord.  IV.  'ihe  fcllowiuK  fees 
are  payal)le  to  the  person  takin;^^  an  an- 
swer: Ijel'ore  an  otiiier  of  the  (ciurt.  Is. 
6c/.,  payable  in  stamps,   but  nothing   for 


marking  exhibits;  before  a  London  com- 
missioner. Is.  6'/.,  and  Is.  for  marking 
each  exhibit;  and  l)efore  a  country  com- 
missioner, 2s.  6(/.,  and  Is.  for  each  exhibit; 
16  &  17  Vic.  c.  78,  §  2;  Regul.  to  Ord. 
Sched.  2,  4. 

s  16  &  17  Vic.  c.  78.  For  the  course  of 
procedure  to  obtain  sucli  appointment,  see 
Braithwaite's  Oaths  in  (^han.  4-11. 

«  16  &  17  Vic.  c.  78,  §  2;  Jte  Record 
and  Writ  Clerks,  3  De  ().,  IM.  &  G.  723; 
18  Jur.  499;  Hill  v.  Tollit,  3  De  G.,  M.  & 
G.  725,  n. 

7  16  &  17  Vic.  c.  78,  §§  1,  5;  Ord.  IV. 

8  See  16  &  17  Vic.  c.  78,  §6. 

9  For  a  list  of  tliese  places,  see  Braith- 
waite's Oaths  in  Chan.  18-20;  and  jm$L 
Vol.  III. 

10  15  &  16  Vic.  c.  86,  §  22.  This  section 
is  retros])e<tive;  Bateman  r.  (,'ook,  3  De 
G.,  M.  &  G.  39;  and  see  Haggett  w.  Iiiiff, 
5  De  G.,  M.  &  G.  910;  1  Jur.  N.  S.  49. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


745 


Islands,  or  the  Isle  of  Man/  or  in  Scotland,  or  Ireland,^  it  may  also 
be  sworn  before  Commissioners  apjjointed  by  the  Lord  Chancellor 
to  act  in  such  places,  respectively. 

Where  the  answer  is  taken  in  any  place  out  of  the  dominions  of 
her  Majesty,  it  may  be  sworn  before  any  British  ambassador, 
envoy,  minister,  charge  d'affaires,  or  secretary  of  legation  or  of  em- 
bassy, exercising  his  functions  in  any  foreign  country,  or  before 
any  British  consul-general,  or  consul,  vice-consul,^  acting  consul, 
pro-consul,  or  consular  agent  exercising  his  functions  in  any  for- 
eign place,*  whose  seal  or  signature,  affixed,  impressed,  or  sub- 
scribed on  or  to  the  answer,  is  admissible  in  evidence,  without 
proof  of  such  seal  or  signature  being  the  seal  or  signature  of  the 
person  whose  seal  or  signature  it  purports  to  be,  or  of  the  official 
character  of  such  person.^ 

An  answer  may  also  be  sworn  abroad  before  commissioners 
specially  appointed  for  that  purpose,  according  to  the  former  jii'ac- 
tice  of  the  Court,  as  hereafter  explained.® 

If  the  defendant  is  an  invalid,  and  resident  at  any  place  within 
ten  miles  from  Lincoln's  Inn  Hall,  one  of  the  Clerks  of  Records 
and  Writs  will,  upon  a  memorandum  in  wiiting  bespeaking  his 
attendance  being  left  with  him,  and  upon  his  necessary  expenses 
being  i)aid,  attend  upon  such  defendant,  for  the  purpose  of  taking 
his  answer.''  It  is,  however,  noAV  more  usual  to  procure  the 
attendance  of  a  London  Commissioner.* 

In  order  to  relieve  persons  in  prison  from  the  expense  of  pro- 
curing the  attendance  of  a  Commissioner  to  take  their  answer  or 
affidavit,  the  Lord  Chancellor  may  appoint  the  Warden,  Keeper, 
or  other  chief  officer  of  every  prison  within  the  city  of  London  or 
the  bills  of  mortality,  and  their  deputies,  to  be  Commissioners,  for 
the  purpose  of  taking  and  receiving  such  affidavits  and  answers 
as  any  person  or  jicrsons,  within  any  such  prison,  shall  be  willing 
and  desirous  to  make,  and  for  no  other  purpose.^ 

The  jurat  to  an  answer  should  be  written,  citlicr  at  the  end  of 
the  answer  or  of  the  schedule  thereto  ;"  it  is  usually  placed  at  the 
right-hand  corner  of  the  end  of  the  answer."     It  may  be  written 


1  Ifi  &  17  Vic.  e.  78,  §§  3,  C. 

2  f;  &  7  Vic.  0.  82.  §  1. 

3  !.-»&  10  Vic.  c.  80,  §22. 

■•  (!  U<-o.  IV.  c.  87,  §  20;  18  &  19  Vic. 
r.  42,  §  1.  Tlicsc  Acts  (lo  not  inc'iition  an- 
swers, Itiit  tliiTc  can,  it  is  conceived,  bono 
doulit  ttwit  flii'V  .ippls-  to  tiieni. 

6  1.5  &  U;  Vic.  c.  iiV,,  §  22;  18  &  19  Vic. 
c.  42.  §  .{. 

0  See  post,  pp.  747-7.52. 

''  liraitinvaite'H  I'r.  .514.  The  rnemo- 
rnndnm  must  bear  a  10^.  (cc  fiinil  stamp; 
Rc^ul.  to  Onl.  Si'lied.  4.  Heasonnble  pay- 
ment for  travelling  expenses  will  be  4l- 


lowcd ;  Braitliwaitc's  Oaths  in  Than.  27. 
For  form  of  niemoraiiduin,  sec  Vol.  III. 

8  If  a  coninii.ssioner  attends  elsewhere 
than  at  his  own  oflice  to  adn\inister  an 
oath,  he  is  cntitleil  to  reasonable  ])av'ment 
for  bis  travcllin^j  expenses;  but  lliere  is  no 
fixed  fee  for  his  attendance.  l{raithwaile'.s 
I'r.  .Uil. 

"  1  Will.  IV.  c.  .30,  §  15,  r.  20;  10  &  17 
Vic.  c.  78,  §§  1,  .5;  and  see  23  &  24  Vic. 
c.  149,  §  ;t;  2.5  &  20  Vic.  c.  104;  and  ante, 
j.p.  .5(11,  .502. 

1"  Hraitbwaitc's  Pr.  .142,  n.  (n). 

1'  See  Whelpley  t>.  Van  Kpps,  9  Paige, 
332. 


C.  XVII.  §  3. 


Out  of  the 
dominions  of 
the  Queen: 
before  a 
British  repre- 
sentative ; 


before  special 
commis- 
sioners. 


Attend.ance 
on  invalid 
defendant 
within  ten 
miles  of  Lin- 
coln's Inn. 


Prisoners. 


Jurat: 


74G 


ANSWERS. 


C.  XVII.  §  X 


Tinio  (iiul 
place. 

Siiruaturc. 


Schedules  to 
be  siffued. 


Oath. 


Where  de- 
fendant a 
peer,  corpo- 
ration aggre- 
gate, or 
Quaker,  &c. ; 


or  blind,  or  a 
marksman. 


Foreigner, 
answering 
in  foreign 
language. 


on  oithor  side  oi"  (lio  p:it;o,  or  on  tlio  nmrgin  ;  l)iit  not  on  a  page 
npon  Avliic'h  no  i>:irt  of  tlie  statements  in  the  answer  appears.  If 
there  are  many  defendants  who  are  sworn  together,  one  jurat  is 
sufficient.  If  tlie  defendants  are  sworn  at  diiferent  times,  there 
must  be  separate  jurats  for  each  defendant,  or  each  set  of  defend- 
ants swearing.  The  jurat  must  correctly  e.xj)ress  tlie  time  when, 
and  the  phice  where,  the  answer  is  sworn.^  The  defendant  must 
sign  his  name,  or  put  his  mark,  at  the  side  of  the  jurat :  not 
underneath  it ;  ^  and  the  person  before  whom  the  answer  is  sworn 
must  sign  his  name  at  the  foot  thereof;  to  which  must  be  added 
his  full  official  character  and  description:^  not  necessarily,  how- 
ever, in  his  own  handwriting.  Any  schedules  should  be  signed, 
•both  by  the  defendant  and  the  person  before  whom  the  answer  is 
sworn.^  The  oath  must  be  administered  in  a  reverent  manner,* 
and,  if  not  administered  in  the  usual  form,  the  autliority  for  the 
form  in  which  it  is  administered  should  appear  in  the  jurat.^ 

The  answer  of  a  person  entitled  to  the  privilege  of  peerage  is 
taken  npon  his  protestation  of  honor ;  ®  that  of  a  corporation 
aggregate,  under  their  common  seal ; '  that  of  a  Quaker,  Moravian, 
ex-Quaker,  ex-Moravian,  or  Separatist,  upon  his  solemn  affirma- 
tion.^ 

If  the  defendant  be  blind,  or  a  marksman,  the  answer  must  be 
first  truly,  distinctly,  and  audibly  read  over  to  him,  either  by  the 
person  before  whom  it  is  sworn  or  some  other  person  :  in  the  first 
case,  it  must  be  expressed  in  the  jurat  that  the  answer  was  so  read 
over,  and  that  the  signature  or  mark  of  the  defendant  was  affixed 
in  the  presence  of  the  person  taking  the  answer;  in  the  second 
case,  such  other  person  must  attest  the  signature  or  maik,  and 
must  be  first  sworn  that  he  has  so  read  Over  the  answer,  and  that 
the  signature  or  mark  was  made  in  his  presence ;  and  this  must  be 
expressed  in  the  jurat.® 

In  the  case  of  a  foreigner,  not  sufficiently  versed  in  the  English 
language  to  answer  in  that  tongue,  and  desiring  to  answer  in  a 
foreign  language,  an  order  of  course  to  do  so  must  be  obtained, 
on   motion,  or  on  petition   at  the  Rolls.      The  answer  must  be 


1  Bid. ;  18  &  19  Vic.  c.  134,  §  15;  Ord. 
IV.  The  jurat  to  a  bill  is  not  rendered 
defective  by  the  absence  of  a  statement  of 
the  county  where  the  bill  was  sworn  to. 
Barnard  v.  Darling,  1  Harb.  Ch.  218;  see 
Smith  Ch.  Pr.  (M  ed.)352. 

2  Anderson  v.  Slather,  9  Jur.  1085. 

3  Braithwaitc's  Pr.  342.  This  has  been 
held  to  be  unnecessary,  where  the  answer 
is  sworn  before  the  (Jlerk  of  Knrolments; 
Wilton  V.  Clifton,  2  Hare,  535;  7  Jur. 
215;  and  is  omitted  by  the  Record  and 
Writ  Clerks,  where  answers  are  sworn  be- 
fore them. 

*  Ord.  XIX.  14. 


5  1  &  2  Vic.  c.  105;  see  Braithwaitc's 
Oaths  in  Chan.  25 ;  and  forms,  rwsf,  Vol. 
III. 

6  Ord.  XV.  6;  ante,  pp.  734,  735;  see 
form.  Vol.  III. 

"i  Ord.  XV.  6 ;  ante,  p.  735  and  note. 

8  Ord.  XV.  G;  and  statutes  cited  ante, 
pp.  734,  735.  As  to  the  answer  of  the  Sec- 
retary of  State  for  India,  or  of  the  At- 
torney-General, sec  ante,  p.  735.  For 
forms,  see  Vol.  III. 

3  The  attestation  may  be  written  near 
the  jurat.  Braithwaitc's  Pr.  380,  396;  and 
see  Wilton  v.  Clifton,  2  Hare,  535;  7  Jur. 
214.     For  forms,  see  Vol.  III. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


747 


engrossed  on  paper,  iu  the  foreign  language  ;  and  the  defendant,  C.  XVII.  §  3 
together  with  an  interpreter,  must  then  attend  before  a  person 
authorized  to  administer  oaths  in  Chancery ;  the  interpreter  is 
first  sworn  in  English  that  he  well  understands  the  foreign  lan- 
guage, and  that  he  Avill  truly  interpret  the  oath  about  to  be 
administered  to  the  defendant ;  and  the  ordinary  oath  is  next  ad- 
ministered to  the  latter.^  The  defendant  must  previously  sign  his 
name  opposite  the  jurat ;  and  the  interpreter  should  do  the  same. 
Before  the  answer  can  be  filed,  it  is  necessary  to  obtain  an  order 
of  course,  either  on  motion,  or  on  ])etition  at  the  Rolls,-  appointing 
the  interpreter  or  another  person  to  make,  and  swear  to  the  truth 
of,  a  translation  thereof,  and  directing  the  answer  to  be  filed,  with 
such  translation  annexed.^  The  translator  must  then  attend  with 
tlie  answer,  translation,  and  order  before  a  person  authorized  to 
administer  oaths  in  Chancery,  and  be  sworn  to  the  truth  of  the 
translation ;  *  after  which,  the  answer  and  ti-anslation  will  be  filed 
at  the  Record  and  Writ  Clerks'  Oflice,  on  production  of  the  order.^ 

A  foi'eigner  may  also  answer  in  English,  although  ignorant  of 
that  language.^  No  order  to  do  so  is  necessary ;  but  where  the 
defendant  is  not  sufliciently  versed  in  English  to  understand  the 
language  of  the  answer,  and  of  the  oath,  the  answer  must  be  inter- 
preted to  him  by  some  person  skilled  in  a  language  understood  by 
both  ;  after  which,  both  must  attend  before  a  person  authorized  to 
administer  an  oath  in  Chancery.  The  interpreter  must  first  be 
Bworn  that  he  well  understands  the  foreign  language ;  that  he  has 
truly,  distinctly,  and  audibly  interpreted  the  contents  of  the  an- 
swer to  the  defendant ;  and  that  he  will  truly  interpret  the  oath 
about  to  be  administered  to  him  ;  after  which,  the  ordinary  oath  is 
administered  to  the  defendant,  through  the  interpreter.''  The 
defendant  must,  and  the  interpreter  should,  first  sign  the  answer, 
opposite  the  jurat.' 

In  all  the  above  cases,  the  jurat  must  express  that  the  necessary   Special  jurat, 
formalities  have  been  observed." 

Formalities  of  a  similar  nature,  by  which  it  may  appear  that  the 
defendant  fully  understands  the  contents  of  his  answer  before  he 
is  sworn  to  it,  must  be  ado[)ted  where  the  defendant  is  deaf,  or 
deaf  and  duml),  and  in  every  like  case.^°  In  a  case,  however, 
wliic'li   occurred   in    the   ISth  Geo.  II.   (174;')),   a  different    course 


Foreigner, 
answering  in 
English. 


Deaf,  doaf 
ami  (lumli,  or 
blind  person. 


^  For  forms  of  oath  and  jural,  sec  Vol. 
III. 

*  For  forms  of  motion  paper  and  petition, 
gee  Vol.  III. 

^  Siinmonds  v.  I)u  Harr*'-,  3  Hro.  C.  C. 
203;  Lord  IJelmore  v.  Anderson,  4  Hro.  C. 
C.  90. 

*  For  form  of  jurat,  see  Vol.  III. 

'  Kraithwaitc's  I'r.  45.  • 

*  llayes  c-  Deguin,  1  Hogan,  274. 


'  St.  Kathcrine  Dock  Company  v. 
Mant/.gu.  1  Coll,  04;  8Jur.  237;  Uraith- 
waitc's  I'r.  45,  38'J.  For  forms  of  oaths, 
see  Vol.  III. 

•*  For  forms  of  jurats,  .see  Vol.  III. 

1"  Iteynolds  v.  Jones,  Trin.  Term,  1818; 
Uraithwaifc's  I'r.  383,  395;  sec  Vol.  III., 
for  forms  of  jurats. 


748 


ANSWERS. 


c.  xvn.§  ;i. 


Irrepularity 
in  Jurat  iiiiist 
bo  expressly 
waived. 


Accidental 
cancellation 
of  jurat. 

When  com- 
mission to 
take  answer 
is  necessary. 


Commission 
must  be 
grounded  on 
an  order: 
Order,  how 
obtained. 
Commis- 
sioners how 
nominated; 


a]»]H\'irs  to  liave  boon  a(lo})to(I :  for  tliorc  llic  Court,  on  motion  (tlie 
(.lofondaiit  being  deaf,  and  incapable  of  giving  instructions  for  his 
answer),  ordered  a  coiniiiission  for  taking  the  answer  to  issue  in 
the  old  way  with  the  bill  annexed,  in  order  that  the  connnissioners 
themselves  might  endeavor  to  take  the  answer.^ 

It  is  an  universal  principle,  in  all  Courts,  that  any  irregularity  in 
a  jurat  may,  unless  expressly  waived,  be  objected  to  in  any  stage 
of  a  cause.  This  does  not  depend  upon  any  objection  which  the 
parties  in  a  particular  cause  may  waive,  but  upon  the  general  rule 
that  tlie  document  itself  shall  not  be  brought  forward  at  all,  if  in 
any  respect  objectionable  with  reference  to  the  rules  of  the 
Court ;  ^  and  therefore  a  motion  to  take  an  answer  off  the  file,  on 
the  ground  of  such  an  irregularity  was  allowed,  notwithstanding 
the  plaintiff  had  taken  an  office  copy  of  the  answer.'  If,  by  any 
accident,  the  jurat  is  cancelled,  the  answer  must  be  resworn,  and  a 
new  jurat  added.* 

As  we  have  seen,  the  practice  of  issuing  commissions  for  the 
pur])ose  of  taking  answers  is  now  abolislied,  in  all  cases  where  the 
answer  is  to  be  sworn  within  the  jurisdiction  of  the  Court;*  and 
the  variou,s  enactments,  iinder  which  answers  may  be  sworn  out 
of  the  jurisdiction,  have  been  considered ;  ®  but,  if  no  person  can 
be  found  who  is  authorized,  under  such  enactments,  to  administer 
the  oath,  a  commission  under  the  old  practice  is  still  necessary ; ' 
and,  consequently,  the  mode  of  jiroceeding  in  such  case  must  be 
stated. 

A  commission  to  take  an  answer  abroad  will  only  be  issued  upon 
an  order ;  ®  which  may  be  obtained,  as  of  course,^  on  motion  or 
petition.^"  After  the  order  has  been  obtained,  the  defendant's  so- 
licitor must  give  notice  in  writing  to  the  plaintiff's  solicitor,  to  fur- 
nish him  with  the  names  of  commissioners  to  see  the  answer  taken, 
on  the  plaintiff's  part." 


1  Gregory  v.  Weaver,  2  Mad.  Prac.  363. 

2  PilkiiiKton  V.  Himswortli,  1  Y.  &  C. 
Ex.  612,  616;  see  Barnard  v.  Darling,  1 
Barb.  Ch.  218. 

8  Jbir/.,  and  see  ante,  p.  743. 

*  Attorney-General  v.  Hudson,  9  Hare 
Ap.  63 ;  S.  ('.  num.  Attorney-General  v. 
Henderson,  17  Jur.  205;  and  see  Attorney- 
General  V.  Donnington  Hospital,  17  Jur. 
206,  V.  C.  W. 

6  15  &  16  Vic.  c.  86,  §  21 ;  ante,  p.  744. 

6  Ante,  pp.  744,  745;  and  see  6  Geo.  IV. 
c.  87,  §  20;  6  &  7  Vic.  c-  82;  15  &  16  Vic. 
c.  86,  §  22;  16  &  17  Vic.  c."78,  §  6;  18  & 
19  Vic.  c.  42,  §  1. 

7  When  the  defendant  is  absent  from 
the  country,  the  oath  to  his  answer  may 
be  taken  under  a  commission.  Trumbull 
«.  Gibbon,  Halst.  iJig.  225;  Head  v.  Con- 
gequa,  4  Wash.  ('.  C.  335 ;  Stotesbury  v. 
Vail,    2  Beasley  (N.  J.),    390,  394.      An 


answer  by  a  defendant  bej'ond  sea,  must 
be  taken  and  sworn  to  before  a  commis- 
sioner, under  a  dedimus  issued  by  the 
Court  in  which  the  case  is  pending,  direct- 
ing him  to  administer  the  oath  in  the  most 
solemn  forms  observed  by  the  laws  and 
usages  of  the  country  where  the  answer  is 
taken.  Read  v.  Consequa,  4  Wash.  C.  C. 
335.  In  New  York,  an  answer  in  Enuity, 
must,  if  made  by  a  person  out  of  the  State, 
be  sworn  to  before  a  judge  of  some  Court 
having  a  seal.  A  Master  extraordinary, 
in  tile  Knglish  Court  of  ('hancery,  had  not 
the  authority  to  administer  such  oath. 
Lahens  v.  Fi(;lden,  1  Barb.  (Jh.  52. 

8  Baron  de  Feucheres  v.  Dawes,  5  Beav. 
144. 

9  Veal's  Pr.  52. 

1"  For  forms  of  motion  paper  and  petition, 
see  Vol.  III. 
11  For  fonn  of  notice,  see  Vol.  III. 


SWEARING,    FILING,    AND    PRINTING   ANSWERS. 


749 


The  plaintiff's  solicitor  thereupon,  if  he  intends  to  join  in  the 
commission,  should  send  the  names  of  two  or  more  commissioneis 
to  the  defendant's  solicitor,  and  inform  him  to  which  of  them  the 
defendant  is  to  give  notice  of  executing  the  commission.  The 
defendant  adds  to  these  commissioners  the  names  of  two  or  more 
on  his  own  part ;  ^  the  names  of  all  of  them,  or  of  the  four  agreed 
upon,  are  inserted  in  the  commission :  the  defendant's  commission- 
ers being  placed  first  in  order.-  Two  on  each  side  are  usually 
named.^  If  the  plaintiff's  solicitor  omits  to  give  his  commissioners' 
names,  within  a  reasonable  time,  and  will  not  consent  to  the  com- 
mission being  directed  to  the  defendant's  commissioners  only,  it 
seems  the  defendant  should  obtain  an  order  of  course  on  motion, 
or  on  petition  at  the  Rolls,*  requiring  the  plaintiff  to  name  com- 
missioners within  two  days  after  notice  of  the  order,  or,  in  default, 
that  the  defendant  may  issue  the  commission  directed  to  his  own 
commissionei-s.*  The  order  must  be  served  on  the  plaintiff's 
solicitor ;  and  if,  within  the  time  prescribed,  the  plaintiff  does  not 
furnish  commissioners'  names,  the  commission  is  made  out  in  favor 
of  the  defendant's  commissioners  only. 

None  of  the  commissioners  need  be  professional  men;  and  it  has 
been  held  that  the  defendant's  own  solicitor  may  be  a  commis- 
sioner to  take  his  answer.^  It  is  no  objection  to  a  commissioner 
that  he  is  under  twenty-one  years  of  age,  provided  he  is  of  suffi- 
cient age  to  take  an  oath." 

Care  must  be  taken  to  have  the  commission,  with  the  answer, 
returned  before  the  time  limited  for  filing  the  answer  has  expired.^ 

The  commission  is  prepared  by  the  defendant's  solicitor,  and  is 
sealed  by  the  Clerk  of  Records  and  Writs,  u})on  a  prmcipe  being 
left  with  him.* 

Where  the  defendant  is  entitled  to  the  jnivilege  of  peerage,  the 
words,  "  upon  liis  jjrotestation  of  honor  "  arc  inserted  in  the  com- 
mission, instead  of  the  words,  "on  his  corporal  oath  upon  the  Holy 
Evangelists."  " 

Where  the  defendant  is  a  (Quaker,  Moravian,  Separatist,  or  other 


C.  XYII.  §  3. 


where  plain- 
tift"  joins; 


where  plain- 
tiff does  not 
join. 


1  Hinde,  231;  1  Turn.  &  Yen.  542;  Ord. 
III.  1. 

•i  Veal's  I'r.  51. 

3  1  Turn.  &  Yen.  542;  Yeal'.s  I'r.  51. 

*  For  forms  of  motion  pajwr  and  peti- 
tion, fieo  Vol.  III. 

6  Hinde,  22;);  Ilarr.  by  Newl.  171;  1 
Turn.  &  Yen.  542. 

6  IJird  r.  I'.ranckcr,  2  S.  &  S.  \W^\  see 
Conli'i,  as  to  sw<'aritiK  attidavits  witiiin  the 
jnri'^dictioii  before  tiie  dcfionent's  own  .'io- 
Ii<itor,  or  lii.s  clerk,  Jii'  llo^an,  3  Atk.  813; 
Ilopkin  I',  llonkin,  10  Hare  Ap.  2;  Wood 
V.  Harpur,  3  ISeav.  290;  Foster  r.  Harvey 
(1),  11  W.  U.  8!i9,  V.  C.  W.;  3  N.  IJ.  98, 
L.  JJ. 


V   Wyatt's  P.  R.  117. 

8  See  Hiifjlies  v.  AN'illiams,  5  Hare,  211. 
Issiiinj;  the  eommission  does  not,  pn- se, 
e.\tend  the  time  for  an.^werinj.;;  and  fliere- 
fore  the  plaintiff,  thoiij^h  he  lias  joined  in 
the  eommission,  niav  issue  an  attacliment 
for  want  of  answer,  Iiefore  the  return  of  the 
eommission,  if  the  time  for  aiiswerin;?  ha.s 
ex[)ired.  Hoxhctti  v.  Tower,  8  IJeav.  180; 
Huf^hes  V.  Williams,  uhi  sup. 

'■>  Ord.  III.  1;   Ord.  I.  37;    for  forms  of 
prmiipe,  eommission,  and  inilorsement,  see 
Veal's  I'r.  52,  57;  auA  posl,  Vol.  III. 
i»  Hinde,  239,  n. 


^Tio  may 
be  commis- 


Return  of 
commission. 

How  pre- 
pared. 


Where  dc-     ^ 
fendant  is  a 
peer. 


Whore  de- 
fendant is 
entitled  to 
atlirui; 


750 


ANSWERS. 


C.  XVII.  ^3. 


or  is  a  Jew, 


or  a  Paijan. 


Terms  of  com- 
mission must 
be  strictly 
adhered  to. 


How  com- 
mission 
executed. 


Notice,  when 
necessary. 


Costs  in 
default  of 
attendance. 


Notice,  when 
unnecessary. 


person  exempted  from  taking  an  oath  by  statute,  the  writ  should 
direct  the  commissioners  to  take  the  answer  on  his  solemn  dechira- 
tion  or  aflirmalion.' 

AVliL're  the  detenthint  is  a  Jew,  the  words,  "  u])on  the  Holy  Evan- 
gehsts,"  may  be  left  out  of  the  form  of  the  oath  mentioned  in  the 
commission. 

And  where  a  defendant  was  a  Gentoo,  and  the  answer  was  to 
be  taken  in  Calcutta,  the  commission  was  directed  to  be  in  a 
special  form,  authorizing  the  commissioners  to  administer  the  oath 
in  the  most  solemn  manner,  as  in  their  discretion  should  seem 
meet ;  or,  if  they  should  think  proper,  to  administer  another  oath, 
certifying  to  the  Court  what  they  did.^ 

The  above  distinctions  in  the  form  of  commissions  are  necessary 
to  be  attended  to,  because  a  commission  to  take  an  answer  in  one 
form,  will  not  authorize  the  commissioners  taking  it  in  another ; 
thus,  commissioners  will  not,  under  an  authority  to  take  an  answer 
upon  oath,  be  empowered  to  take  the  affirmation  of  a  Quaker ;  and 
where  it  appeared  by  the  caption  of  the  answer  tliat  they  had  done 
so,  the  answer  was  oi'dered  to  be  taken  off  the  file.^ 

The  commission  may  be  sent  to  some  pi'ofessional  person  in  the 
foreign  country,  to  take  care  that  it  is  j)roperly  executed.  Though 
the  foreign  country  be  at  war  with  this  country,  it  must  be  exe- 
cuted there ;  in  which  respect,  a  commission  to  take  an  answer 
differs  from  a  commission  to  examine  Avitnesses  :  which  it  seems 
may  be  executed  at  the  nearest  neutral  port.*  The  manner  of  ex- 
ecuting the  commission  is  as  folloAvs :  When  the  plaintiff  has  named 
commissioners,  notice  in  writing,  of  the  time  and  place  of  execut- 
ing the  commission,  signed  by  two  of  the  defendant's  commis- 
sioners, must  be  served  upon  the  plaintiff's  acting  commissioner, 
six  days  before  the  day  ai)pointed  for  executing  the  commission.^ 
If  this  notice  be  given  on  a  Sunday,  the  commission  may  be  exe- 
cuted on  the  Saturday  following. "^ 

If  the  party  Avho  lias  the  carriage  of  the  commission  gives 
notice  of  executing  it,  but  neither  countermands  it  in  due  time 
(as  three  or  four  days  before  the  time,  or  as  the  distance  of  the 
place  may  require),  nor  executes  it  at  the  time,  the  Court,  on 
motion,  will  order  costs  to  be  taxed  for  the  adverse  party's  attend- 
ance." 

Where  the  plaintiff  has  not  named  commissioners,  no  notice 
need  be  given,  and  the  commission  may  be  executed  by  the  com- 
missioners named  in  the  writ,  ex  parte} 


1  Sec  statutes  cited,  ante,  pp.  7-34,  7.35  n. 
and  form  of  commission.  Vol.  III. 

2  Kamkissenscat  v.   liarkcr,   1  Atk.  19, 
20;  ante,  pp.  7-3."),  736. 

3  Parke  v.  Christy,  1  Y.  &  J.  533. 


*  V.  Romncy,  Amb.  62. 

6  For  form  of  notice,  see  Vol.  III. 
c  Wvatt's  I'r.  110. 

«  Ilinde,  234;  1  Turn.  &  Ven.  544. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS.  751 

On  the  day  ai^pointed,  the  commissioners  are  to  meet,  and  if  one    C.  XVII.  §  3. 

only  attends  on  each  side  it  will  be  sufficient ;  but  in  case  none  of   ■* y ' 

the  plaintiif's  commissioners  attend,  the  defendant  must  have  two  Twocommis- 
commissioners  present :  because  no  fewer  than  two  can  take  his  be  presenr*^ 
answer,  and  return  the  writ.^ 

It  seems,  that  where  there  is  a  joint  commission,  and  the  com-   How  long 
missioners  of  one  party  only  attend,  the  commissioners  in  attend-  ^^aiti""the 
ance  may,  after  waiting  till  six  o'clock  in  the  evening,  proceed  to   others. 
take  the  answer.- 

When  the  commissioners  are  ready  to  proceed,  the  answer  or  Form  of 
plea,  properly  written,  as  before  explained,^  is  produced  to  the  airaiiswir." 
commissioners,  and  the  defendant  attends  for  the  purpose  of  swear- 
ing it ;  Avhereupon  one  of  the  commissioners,  having  opened  the 
commission,  interrogates  the  defiendant  in  the  following  manner  :  * 
"  Have  you  heard  this  your  answer  read  ?  and  do  you  exhibit  it  as 
your  answer  to  the  bill  of  complaint  of  A.  B.  ?"  upon  which,  the 
defendant  answering  in  the  affinuative,  the  commissioner  proceeds 
to  administer  to  him  the  oath,  or  affirmation,  or  attestation  of 
honor  (as  the  case  may  be),  in  the  same  form  as  when  the  answer 
is  sworn  in  England.^ 

It  is  said,  tliat  conmiissi oners  may  refuse  to  execute  the  commis- 
sion, unless  they  are  allowed  to  read  the  answer ;  ^  and  where  a  -^^},g„  ^jg. 
commission  to  take  a  defendant's  answer  only  has  been  issued,  and  fendant 
the  defendant  tenders  a  demurrer  to  the  commis.sioners,  and  re- 
fuses to  answer  upon  oath,  they  must  return  such  his  refusal,  and 
the  reason  thereof,  together  Avith  the  demurrer,  and  leave  the  same 
to  the  con.sideration  of  the  Court.' 

Before  the  defendant  is  sworn,  as  above  stated,  he  must  sign  his   Signature  of 
answer  and  each  schedule  thereto,  in   the  presence  of  the  com-   ''''**-""'^*°'^- 
missioners  ;  *  and  the  answer  thus  taken,  together  with  the  sched- 
ules (if  there  are  any),  are  to  be  annexed  to  the  commission,  and 
the  commissioners  must  then  write  and  sign  the  caption  at  the   Caption. 
foot  of  tlie   answer,^     Any  alterations  made   in   the   answer   or 
schedules,  jirevious  to  the  taking  thereof,  must  be  authenticated  by 
the  commissioners,  according  to  the  practice  in  use  with  respect  to 
affidavits.!" 

This  caption  must  l)e  varied  according  to  the  nature  of  the  case  ;   Caption  must 
thus,  ill  the  case  of  a  peer,  it  must  state  the  answer  to  liave  been   I'^conVi'iJ  ,„ 

the  nature  of 

1  Wyalf.s   I'.    It.    lift;    Ilinde,  2.^5;    1  7  Wyjiifs  ]>.  |;.  |  |H.  thecaHc; 
Turn.  &  Ven.  644.                                                      s  0^1.  XV.  5.     Wiicrc  flic  flefen<lant  i« 

2  Wyail's    r.    K.    110;    ."^cc   Griggs   v.       blind,  or  (icaland  diinil),  or  a  (on^igiiiT,  or 
Stapl.-c,  11  .lur.  020,  V.  C.  K.  B.  a  marksman,  (lie  directions  lu'lorc  given  in 

8  Aiili',  p.  74;j.  these  respects,  must  of  eoinse  lie   attended 

••  Ilinile,  2.'i.5;  1  Turn.  &  Van.  544.  to,  and  tlie  .aiilion  varied  accordingly. 

6  Jlii'l.  ;    iiitiK,    p.   G88.      For  forms,  see  «  For  form  of  cuplion,  see  Vol.  111. 

Vol.  III.  10  15  &  i(j  Vic.  c.  8(J,  §  25;  aule,  p.  743. 
»  Ilarr.  hy  Newl.  17G. 


7.)  2 


ANSAVERS. 


C.  xvil.  §  :\. 


and  must 
aLcri'i-  with 
till"  powers  of 
the  conuiiis- 
iioa. 


Return. 


Second  com- 
mission not 
issued  without 
special  order. 


Costs,  when 
second  com- 
mission 
issued. 


Commission 
after  insuffi- 
cient answer. 


takon  'Mij)on  tho  attc'statuni  of  honor ;  "  in  tlu'  case  of  a  Quaker  or 
jMoravian,  or  other  person  exempted  from  taking  an  o;itli  by  statute, 
it  must  be  expressed  to  have  been  taken  u])on  the  "  solenm  afliim- 
ation;"  and  the  date  when,  and  the  phice  where,  it  was  taken 
must  also  aj)poar  in  tlie  caption.  Care  must  also  be  taken  to  ex- 
press correctly  whether  the  document  be  an  ansMer,  or  an  answer 
coupled  with  a  plea  or  demurrer.^  The  commissioners  should 
also  be  i>articular,  when  the  answer  is  by  two  or  more  defendants, 
to  state  that  they  are  all  sworn  :  because,  where  the  caption  of  the 
joint  and  several  answer  of  two  defendants  exjuvssed  only  that  it 
was  sworn,  Avithout  stating  that  the  defendants  were  both  sworn, 
the  answer  was  suppressed." 

The  ansAver  and  schedules,  with  the  caj^tion,  being  thus  annexed 
to  the  writ,  the  return  must  be  indoi'sed  upon  the  writ,  and  be 
signed  by  two  commissioners.^  All  these  documents  should  then 
be  folded  together,  in  a  convenient  size  and  form,  and  bound  round 
with  tape  or  string:  at  the  crossings  of  which  the  seals  of  the  com- 
missioners should  be  affixed  ;  they  should  then  sign  their  names  in 
the  vacant  S2)aces,  near  their  resjtective  seals,  enclose  the  whole  in 
an  envelope,  and  direct  and  return  the  same  to  the  defendant's 
solicitor,  to  be  filed.  The  oath  of  a  messenger  is  not  now  re- 
quired/ 

By  the  old  practice  of  the  Court,  no  second  commission  could 
be  granted  without  the  special  order  of  the  Court,  upon  good 
reason  to  induce  the  same,  or  upon  the  plaintiff's  own  assent ;  ^ 
and  it  does  not  appear  that  any  alteration  has  been  made  in  this 
respect.  If,  therefore,  a  commissioner  dies,  application  must  be 
made  to  the  Court  for  a  new  conmiission  :  preparatory  to  wliich, 
it  seems  that  the  usual  course  is  for  the  solicitor  to  name  two 
more  commissioners,  one  oT  whom  must  be  struck  by  the  solicitor 
of  the  adverse  party,  and  the  Court  must  then  be  moved  for  a  new 
commission,  with  the  new  commissioner  added  to  those  who  are 
living.^ 

It"  by  the  fault  of  the  party  who  has  the  carriage  of  the  first 
commission,  the  other  is  put  to  iinnecessary  charges,  the  Court  will 
order  his  costs  to  be  taxed,  and,  ujion  cause  shown,  direct  the  })arty 
in  fault  to  give  security  to  pay  them  before  he  has  a  second  com- 
mission ;  and  if  he  has  the  carriage  of  the  second  commission,  to 
pay  the  costs  upon  that  also,  if  he  again  fails.® 

After  an  answer  has  been  reported  insufficient,  no  new  commis- 
sion  will  be  issued,  oxce])t  by  order  made  on  affidavit  showing 


1  ITinde,  230;  1  Turn.  &  Ven.  545. 

2  Anon.,  Mos.  2:!8. 

3  Hinde,  230;  Turn.  &  Ven.  545. 
form  of  return,  see  Vol.  III. 


For 


4  15  &  16  Vic.  c.  80,  §25. 

5  Wyatt's  P.  It.  115. 
«  Jh.  116. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


Too 


some  good  reason,  and  payment  of  the  costs  of  the  insufficient 
answer.^  A  new  commission  may,  however,  be  issued,  upon  the 
consent  of  the  plaintiffs  solicitor  :  which  is  seldom,  if  ever,  refused. 
It  seems  that,  if  the  return  of  a  commission  be  delayed,  it  may 
be  hastened  by  motion.  It  seems,  also,  that  an  attachment  and 
other  process  of  contempt  may  issue  against  the  commissioners, 
for  not  returning  the  commission  with  the  answer.^  Where,  how- 
ever, it  appeared  that  the  omission  to  make  a  return  arose  from 
the  circumstance  of  one  of  the  plaintiif 's  commissioners  refusing  to 
join  with  one  of  the  defendant's,  to  take  the  answer,  the  attach- 
ment was  discharged,  upon  payment  of  the  ordinary  fees,  and  a 
new  commission  was  granted  to  diiferent  commissioners  named  by 
the  defendant.^ 

Where  any  irregularity  has  taken  place  in  the  execution  of  a 
commission,  the  proper  course  appears  to  be,  to  move,  after  the 
return,  that  the  commission  and  answer  may  be  quashed,  or  that 
the  answer  may  be  taken  off  the  file. 

Where  the  friends  of  an  intant  wish  to  defend  the  suit  on  his 
behalf,  an  order  appointing  a  guardian  ad  litem  may,  as  Ave  have 
seen,*  be  obtained  on  motion  of  course,  or  on  petition  of  course  at 
the  Rolls  ;  ^  and  where  the  defence  of  the  infant  is  by  an  answer 
or  plea  requiring  to  be  upon  oath,  the  plea  or  answer  must  be 
swora  to  by  the  guardian,*'  unless  an  order  has  been  obtained  to 
take  it  without  oath.  The  guardian,  however,  only  swears  to  his 
belief  in  the  truth  of  the  defence  of  the  infant.'  The  order  ap- 
pointing the  guardian  must  be  produced  at  the  time  the  answer 
is  sworn  ;  and  the  jurat  must  express  that  the  answer  is  sworn 
pursuant  to  it.* 

We  have  before  seen,  that  a  person  who  has  been  fouiul  a  luuaLic 
by  inquisition,  answers  by  his  committee,  and  that,  in  such  case,  it 
is  not  necessary  that  there  should  be  any  order  appointing  a  guar- 
dian, unless  there  be  a  conflict  of  interest  between  the  committee 
and  the  lunatic  :  in  which  case,  a  guardian  ad  litem  should  be  ap- 

Jolin.  581;  and  the  infant  is  not  bound  by 
it,  if  he  dissents  within  a  projK-r  time. 
James  v.  .lames,  4  I'aif^e,  115;  rrutzman 
V.  Pittsell,  ;i  llair.  &:  .1.  77;  Mills  v.  Den- 
nis, 3  John.  ('h.  ;ttj7 ;  Winston  r.  ('ani])- 
bell,  4  lien.  &  M.  777;  Mason  v.  Deliow, 
2  llayw.  178.  Sueh  answer  eannot  be  read 
af^ainst  the  infant.  Ste|>licns()n  v.  Stejilnn- 
non,  G  \'i\\'^(%  35.').  Nor  is  it  eviilem'e  m  his 
favor,  though  it  be  res|)<)nsive  to  the  bill 
and  sworn  to  by  the  ^fuarilian  '"/  lilnn. 
Hulkle}'  V.  Van  Wyik,  5  TaiK^'i  •''■*'•; 
Ste[(hensoii  ?'.  Stephenson,  C  I'aiye,  :t5;J. 

f  Uraithwaitc's  Vr.  303;  sec  form  of 
oath.  Vol.  III. 

8  Ord.  VII.  4;  15raithwaite'.s  I'r.  393. 
For  form  of  jurat,  see  Vol.  III. 


C.  XVII.  §  3. 


Attachment 
to  enforce 
return. 


Irregularities 
in  return,  how 
remedied . 


Infant  defend- 
ant :  defends 
by  guardian. 

Answer  or 
plea  is  sworn 
to  by  guar- 
dian. 


Lunatic  de- 
fendant foiihil 
lunatic  by 
in(iuisiti<in. 
defends  by 
committee; 


1  Beames's  Ord.  183;  IFarr.  bv  Newl. 
202. 

■i  Wvatt's  P.  li.  IIG. 

3  IhU. 

*  Ante,  p.  KiO. 

6  In  the  United  States  Court.s,  guardians 
ad  litem  to  defend  a  suit  may  be  afipointed 
by  the  (Jourt,  or  by  any  Judge  thereof,  for 
infants  or  other  persons,  who  are  uiiiler 
guardianshi[>,  or  otherwise  in('a|)able  to  sue 
for  themselves;  all  infants  and  other  prv- 
Bons  80  incapable,  may  sue  by  their  guai^ 
dians,  if  any,  or  by  their  pruchtin  ami, 
Bubject,  however,  to  such  orders  as  the 
Court  may  direct  for  the  protection  of  in- 
fant.s  and  other  persons.     r>|uity  liule,  87. 

0  And  it  is  termed  his  answer,  and  not 
that  of  the  infant.  liogers  v.  Cruger,  7 
VOL.  I.  48 


•.u 


ANSWERS. 


c.  XVII. ^ 


not  M>  roiiiul. 
(lofciuls  In- 
{jiiiirdian. 

Answer  or 
jili'ii  is  swoni 
to  by  j^uar- 
ilian. 


Married 
wimian 
(Iffi-ndant ; 


where  she  is 
an  infant. 


riistinctive 
marks. 

Answer  to  be 
filed  at  Hec- 
fird  and  Writ 
<lerks' Office. 

Indorsement 
lit'  name  of 
solicitor  or 
party  filing 


lH>intO(l.^  A  porsmi  of  weak  or  uiisoimd  iiHiul,'- not  so  found  by 
in«juisitioii,  answers  by  his  guardian,  who  is  appointed  in  the  same 
manner  as  the  guardian  ad  litem  of  an  infant  defendant;^  and,  as 
in  tlie  ease  of  infants,  tlie  guardian  only  swears  to  his  belief  in  the 
trutli  of  the  defenee,  where  an  oath  is  required,''  and  the  order  ap- 
pointing the  guardian  must  be  produced  at  the  time  the  answer  is 
sworn;  and  the  jurat  must  express  that  the  answer  is  sworn  pur- 
suant to  it.^ 

With  respect  to  married  women,  we  have  before  seen,^  that 
where  a  husband  and  wife  are  defendants  to  a  bill,  neither  of  them 
can  regularly  put  in  an  answer  Avithout  the  other,  except  under  an 
order  granted  for  that  purpose,''  Where,  however,  the  wile  is 
defendant  to  a  bill  filed  by  her  husband,*  or,  being  judicially  sepa- 
rated, or,  having  obtained  a  protection  order,  is  sued  as  a  feme 
sole,^  no  order  is  requisite.  Where  she  answers  separately,  under 
an  order,  her  time  for  answering  runs  from  the  date  of  the  order,^° 
Where  the  answer  is  filed  under  such  an  order,  the  jurat  should 
state  that  the  answer  is  sworn  pursuant  to  the  order,"  and  the 
order  should  be  produced  at  the  time  the  answer  is  sworn  :  other- 
wise, the  order  must  be  produced  when  the  answer  is  presented 
for  filing.-^^ 

Where  a  married  woman  is  an  infant,  her  answer  cannot  be 
taken,  either  jointly  or  separately,  until  a  guardian  has  been  as- 
signed to  her/^ 

An  answer  is  filed  in  the  Record  and  Writ  Clerks'  Office,  in  the 
same  manner  as  an  affidavit ; "  and  is  not  considered  of  record 
until  filed. ^^  The  year,  letter,  and  number  by  which  the  cause  is 
distinguished  in  the  Record  and  Writ  Clerks'  Books,'^  and  the  date 
of  the  filing,  must  be  written  or  printed  on  the  first  page." 

The  name  and  place  of  business  or  i-esidence,  as  the  case  may 
be,  of  the  solicitor  or  party  filing  the  answer,  and  his  address  for 
service,  if  any,  must  be  indorsed  thereon,  as  in  the  case  of  other 


1  Ante,  p.  175. 

2  Superannuated  persons,  on  proof  of  im- 
becility, may  appear  and  answer  Ijy  guar- 
dian. "  Matter  of  Barber,  2  John.  Ch.  235; 
see  Murkle  v.  Murklc,  4  John.  Ch.  168. 

3  ylnte,  p.  17b;  Braithwaite's  Pr.  393,  n. 
*  For  form  of  oath,  see  Vol.  III. 

6  For  form  of  jurat,  see  Vol.  III. 

6  Ante,  pp.  IbO,  IbZ. 

■?  A  joint  answer  of  husband  and  wife 
must  be  sworn  to  by  both,  unless  the 
plaintiff  consents  to  receive  such  answer 
upon  the  oath  of  the  husband  only.  New 
York  Chemical  Co.  v.  Flowers,  «  Paige, 
654;  Leavitt  V.  Cruger,  1 1'aige,  422. 

«  Ante,  p.  179;  Earl  v.  Ferris,  19  Beav. 
67;  1  Jur.  N.  S.  5. 

^  Ante,  p.  178. 
w  Ante,  pp.  183,  740;    Jackson  v.  Ha- 


worth,  1  S.  &  S.  161;  Braithwaite's  ^Man- 
ual,  11,  12. 

11  If  not  so  verified,  the  answer  will  be 
suppressed  for  irregularity.  But  the  in-egu- 
larity  will  be  waived  by  the  plaintiff's 
filing  a  replication.  Fulton  Bank  v.  Beach, 
2  Paige,  307 ;  S.  C.  6  Wend.  30 ;  Collard 
V.  Smith,  2  Beasley  (N.  J.),  43,  45;  see 
Leavitt  v.  Cruger,  1  Paige,  432;  Ferine  v. 
Swaine,  1  John.  Ch.  24;  Smallwood  v. 
Lewin,  2  Beasley  (N.  J.),  123,  125. 

1'^  Braithwaite's  Pr.  45,  397,  n. 

13  Colman  v.  Northcote,  2  Hare,  14'r;  7 
Jur.  528.  For  petition  to  assign  guardian, 
and  affidavit  in  support,  see  Vol  III. 

14  15  &  16  Vic.  c.  86,  §§  21,  25;  Ord.  I. 
35. 

15  Ord.  VIII.  3. 
10  Ord.  I.  48. 

17  Ord.  I.  45. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS. 


755 


Where  an- 
swer may 
be  filed  with- 
out order, 
though  out 
of  time. 


When  order 
necessary. 


pleadings  and  proceedings.^  If  the  answer  is  put  in  without  oath  C.  XVTI.  §  3. 
or  signature,  the  order  must  be  produced  at  the  time  the  answer  is 
presented  for  filing,  and  the  record  is  inscribed  "  Without  oath 
(or,  without  oath  or  signature,  as  the  case  may  be),  by  order  dated 
the day  of . "  '^  Where  the  answer  is  put  in  by  a  guar- 
dian, and  the  order  appointing  the  guardian  has  not  been  previously 
entered  at  the  Record  and  Writ  Clerks'  Ofiice,  it  must  also  be 
produced  when  the  answer  is  presented  for  filing.^ 

Unless  the  plaintiiF  has  taken  some  step  which  prevents  its  re- 
ception, an  answer  will  be  filed  by  the  Record  and  Writ  Clerk, 
after  the  expiration  of  the  time  for  putting  it  in,  where  it  is  put  in 
by  a  defendant  who  has  been  required  to  answer  the  bill,  whether 
original  or  amended,  or  where,  the  jilaintiff*  having  amended  his 
bill  without  requiring  an  answer,  it  is  put  in  by  a  defendant  who 
has  already  answered  or  pleaded  to  the  bill.*  In  all  other  cases, 
an  answer  Avill  not  be  received,  after  the  expiration  of  the  time 
within  which  it  ought  to  have  been  put  in,  except  under  the 
authority  of  an  order :  which  must  be  produced  at  the  time  the 
answer  is  presented  for  filing.^  Such  order  must  be  api^lied  for  by 
summons.* 

As  an  answer  is  not  strictly  reputed  such  until  filed,''  it  ought 
not  to  be  tiled  until  the  costs  of  contempt  for  not  answering,  if 
incurred,  are  paid.  It  is  frequently,  however,  the  practice  to  file 
the  answer  before  the  costs  of  contempt  have  been  paid,  and  in 
such  case,  the  plaintiff*  must  be  careful  not  to  take  an  office  copy 
of  the  answer,  or  do  any  other  act  Avhich  may  be  construed  into 
an  acceptance  of  the  answer:  for,  if  he  does,  he  will  waive  the 
contempt.*  The  certificate  of  the  Record  and  Writ  Clerk  is 
conclusive  evidence  as  to  the  time  at  which  the  answer  was 
filed.' 

Notice  of  the  filing  of  the  answer  must  be  served  on  the  solici- 
tor of  the  ])laintifti  or  on  the  plaintitf  lumself  if  he  acts  in  person, 
before  seven  o'clock  in  the  evening  of  the  same  day  that  the  an- 
swer is  filed:  except  on  Saturday,  when  it  must  be  served  before 
two  o'clock  in  the  afternoon.^"  The  omission  to  give  due  notice  of 
having  filed  the  answer  will  not,  however,  render  the  latter  inop- 
erative :  thus,  it  will  not  de]»rive  the  defendant  of  his  right  to 
move  to  dismiss  the  bill  for  want  of  prosecution,  at  the  expiration 
of  the  period  allowerl  for  that  purpose,  from  the  date  of  filing  the 


Answer  not 
a  record  till 
filed. 

Contempt, 
how  waived. 


Record  and 
Writ  Clerk's 
certificate 
conclusive,  as 
to  time  of 
filing. 

Notice  of 
filing. 


Effect  of 
omission  to 
give  notice. 


1  Ord.  III.  2,  .5;  "nte,  pp.  453,  464. 

2  I'lraithwaite's  Vr.  47. 

3  llnJ. 

*   ///.  r,h,  50. 
«   lb.  50. 

6  For  form  of  summons,  sec  Vol.  III. 

7  Ord.  VIII.  :j.  An  answer  to  a  I. ill  in 
equity,  (■(im]]|clc  in  every  r(;s[)('rt,  c-annot 
be  treated  as  an  answer,  until  the  jiarty 


has  filed  it.  Giles  v.  Eaton,  54  Maine,  186. 
If  the  defendant  dies  before  filing  iiis  an- 
swer, it  cannot  be  tiled  by  his  solicitor  as 
au  answer.     (Jiles  i'.  Eaton,  ubi  supra. 

»  Anlt,  p.  50!). 

0  IJeavan  v.  Burgess,  10  Jur.  63,  V.  C. 

'i»  Ord.  III.  0:  XXXVII.  2. 


75(3 


ANSWEllS. 


('.  XVII.  §  ;i. 


Printing 
answers: 

copy  for 
printer,  how 
authenti- 
oatod ; 

within  what 
time  readv. 


How  printed. 


( V'rtilied 
print  to  he 
left,  within 
four  days  of 
tiling  an.swer; 


otherwise,  de- 
fendant liable 
as  if  no 
answer  filed. 

Where  an- 
swer in  a 
foreign 
language. 


nnswor.^  It  would  scoiu  tli:it,  in  such  a  case,  the  time  allowed  tlie 
j)laintitF  for  taking  the  next  step  in  tlie  cause  will,  on  liis  motion, 
be  extended,  so  as  to  give  hitn  the  benefit  of  the  time  he  would 
otherwise  have  lost  in  consequence  of  the  omission,- 

If  the  defendant  files  a  written  answer,  he  must,  at  the  time  he 
does  so,  leave  a  copy  thereof  (without  the  schedules,  if  any,  of 
accounts  or  documents).^  This  copy  Avill  then  be  examined  and 
corrected  with  the  ansM'er  tiled,  and  be  returned,  when  so  exam- 
ined, by  the  Clerks  of  Records  and  Writs,  with  a  certificate  there- 
on that  it  is  correct,  and  proper  to  be  printed.*  The  certified  copy 
is,  generally,  ready  for  the  defendant's  solicitor  the  day  after  the 
answer  is  filed ;  and  the  Court  will  not  disi)ense  with  the  printing 
of  the  answer  merely  because  the  ])arties  to  the  suit  are  poor,  and 
to  save  expense.^ 

The  defendant  must  then  cause  his  answ^er  to  be  printed  from 
such  certified  copy,  on  paper  of  the  same  size  and  description,  and 
in  the  same  tyjje,  style,  and  manner  on  and  in  Avhich  bills  are  re- 
quired to  be  printed  ;  '^  and,  before  the  expiration  of  four  days 
from  the  filing  of  his  answer,  must  leave  a  printed  copy  thereof 
with  the  Clerks  of  Records  and  Writs,  with  a  written  certificate 
thereon  by  the  defendant's  solicitor,  or  by  the  defendant  if  defend- 
ing in  person,''  that  such  print  is  a  true  copy  of  the  copy  of  the 
answer  so  certified  by  the  Clerk  of  Record  and  Writs ;  and  if  such 
printed  copy  is  not  so  left,  the  defendant  will  be  subject  to  the 
same  liabilities  as  if  no  answer  had  been  filed.^ 

Under  the  former  practice,  where  an  answer  taken  in  a  foreign 
language  was  filed  with  a  translation  annexed,  it  was  only  required 
that  an  oflice  copy  should  be  taken  of  the  translation,®  It  is  pre- 
sumed, therefore,  that  now,  a  fair  copy  of  the  translation  only  need 
be  left,  and  that  such  translation  only  need  be  printed. 


1  Jones  V.  Jones,  1  Jur.  N.  S.  8G3 ;  3  W. 
R.  G38,  V.  C.  S. ;  and  see  Lowe  v.  Wil- 
Uams,  12  Beav.  482,  484. 

2  Wright  V.  Angle,  G  Hare,  107,  109; 
Lord  Sutiield  v.  13ond,  10  Beav.  140,  153 ; 
Lowe  V.  Williams,  and  Jones  v.  Jones,  ubi 
sup. ;  Lloyd  V.  Solicitors'  Life  Assurance 
Company,  3  W.  K.  640,  V.  C.  W. ;  see, 
however,  Matthews  v.  Chichester,  5  Hare, 
207,  209;  overruled  on  appeal,  11  Jur.  49, 

8  Ord.  6  March,  1800,  r.  2.  A  copy  of  a 
former  hill  for  the  same  matter  may  be 
printed  as  a  schedide.  Wright  v.  Wilkin, 
9  Jur.  N.  S.  195;  11  W.  K.  253,  V.  C.  K. 
In  practice,  where  the  schedule  to  an  an- 
swer is  very  short,  it  is  not  unfrequently 
printed  with  the  body  of  tlie  answer;  in 
such  case,  the  fair  copy  should  of  course 
include  the  schedule. 

4  Ord.  G  March,  18G0,  r.  2.  For  form  of 
certificate,  see  Vol.  111. 


5  Meux  V.  Watkins,  7  N.  S.  704;  9  W. 
R.  779,  V.  C.  W. ;  but  the  answers  of  par- 
ties suing  or  defendant  in  forma  pauperis, 
are  excluded  ft-om  the  orders  as  to  print- 
ing; see  Ord.  6  March,  18G0,  r.  15,  pest, 
p.  758. 

0  Ord.  G  March,  18G0,  r.  3;  as  to  such 
paper,  see  Ord.  IX.  3,  ante,  p.  396;  see 
also,  ante,  p.  742. 

'  For  form  of  certificate,  see  ibid. 

8  Ord.  6  March,  1860,  r.  3;  Bloxam  v. 
Chichester,  11  Jur.  N.  S.  48;  13  W.  R. 
285,  L.  JJ.;  34  Beav.  76;  S.  C.  now. 
Bloxsome  v.  Chichester,  2  De  G.,  J.  &  S. 
444.  An  attachment,  for  not  leaving  the 
printed  copy,  is  usually  issued  in  such  a 
case. 

y  Braifhwaite's  Pr.  491.  An  ofifice  copy 
of  the  whole  might,  however,  be  taken,  if 
desired.    Ibid. 


SWEARING,    FILING,    AND    PRINTING    ANSWERS.  757 

A  defendant  may,  however,  if  he  dcsh-es  it,  swear  and  file  a  C.  XVii.  § ;). 

printed,  instead  of  a  written,  answer ;  ^  although  this  course,  in   ' y ' 

consequence  of  the  inconveniences  attending  it,  is  rarely  adopted.  Defendant 

On  recei^dng  notice  of  the  filing  of  the  answer,  the  plaintiff  J^f/fiie^JT'^ 
should  demand  in  writing,  from  the  defendant's  solicitor,  or  the   printed 
defendant  himself  if  acting  in  person,'^  an   ofticial   and   certified   ^^ 

^  ^  .    .  Demand  by 

printed  copy  of  the  answer ;  and  on  receiving  such  demand,  the  piaintitr  of" 
defendant  must  get  a  printed  copy  of  the  answer  examined  by  the  °   ^*'^  *]"^'-^' 
Clerks  of  Records  and  Writs  with  the  answer  as  filed,  and  stamp  copy  is 
such  copy  with  a  Chancery  stamp  for  5s.,  and  the  Clerks  of  Pec-  a"thenti- 
ords  and  Writs,  on  finding  that  such  copy  is  duly  stamped  and 
correct,  will  certify  thereon  that  the  same  is  a  correct  copy,  and 
mark  the  same  as  an  office  copy,®  on  a  prcBcipe  being  left.* 

The  defendant  must  have  this  official  and  certified  printed  copy  Within  what 
of  the  answer  ready  for  delivery  to  the  jdaintiff",  at  any  time  after  '^'"^*'" 
the  expiration  of  four  days  from  the  filing  of  the  answer,  and 
within  forty-eight  hours  after  the  receipt  of  the  demand  for  the 
same ;  ^  and  must,  on  demand,  deliver  it  to  the  plaintiff":  who,  on  At  whose 
the  receipt  thereof,  is  to  pay  the  defendant  the  amount  of  the  utshed.*^  "'^' 
stam]t  thereon,  and  at  the  rate  of  4f?.  per  folio  for  the  same.^ 

The  Clerks  of  Records  and  Writs  are  not  to  certify  or  mark  any  No  •m-itten 
printed  copy  of  an  answer  which  has  any  alteration  or  interlinea-  fnteHhl',.-'  "^ 
tion  in  writing.''     Where,  however,  some  very  slight  typographical  tion  usually 
errors  had  been  so  corrected,  they  were  directed  to  certify  the  printed  copy. 
official  copy,  and  to  alter  the  copy  left  with  them,  so  as  to  agree 
with  the  written  answer  on  the  file.* 

The  plaintiff"  is  entitled  to  demand  and  receive  from  the  defend-   riaintifr 
ant  any  additional  number  (not  exceeding  ten)  of  })rintcd  copies  of  t"/'^'|(f/°  ^ 
the  answer,  on  payment  for  the  same  at  the  rate  of  one  halfpenny  copies,  on 
per  folio ; '  and  after  all  the  defendants  who  are  required  to  an-  P'"*^'™"^"  ' 
Bwer  have  filed  their  answers,  a  co-defendant  is  entitled  to  demand   defendant  is, 
and  receive  from  any  other  defendant,  any  number  of  printed   ^'iter  all  have 

.    •'       .  .  'J  J  answered, 

copies  (not  exceeding  six)  of  his  answer,  on  payment  after  the  entitled  to  six 
same  rate.'"  It  may  be  here  mentioned,  that  before  the  practice  of  payment" 
printing  answers  was  introduced,  any  defendant  might  take  an 
office  copy  of  tlie  answer  of  a  co-defeudant,  as  soon  as  he  had  filed 
his  own  answer,  or,  if  he  had  not  been  required  to  answer,  after 
the  expiration  of  the  time  within  wliich  he  might  have  put  in  a 
voluntary  answer  ; "  but  it  is  presumed  the  former  practice  is  now 

1  Ord.  C  March,  ISr.O.  r.  5.  «  Lee  v.  Dawson,  1  J.  &  11.  .17. 

2  For  form  of  demand,  sec  Vol.  \\\.  •»  Ord.  (i  March,  18(;0,  r.  H;  and  see  At- 
8  Ord.  (1  March,    I.SilO,    rr.   4,   G.       For       torney-Ceneral  i'.  Ktlieridgc,  1 1  W.  li.  927, 

form  of  rerliticatc,  see  Vol.  IM.  V.  (;.   K. 

«  For  form  of  /meripe,  se<'  \<,\.  III.                  m  Ord.  C  March,  ISflO,  r.  0. 

6  Ord.  (i  March,  18(J0,  r.  4.  n   I'owvs  v.   Mlagrave,  18  .liir.  4G2,  404; 

•  /<»•  r.  7.  2  lv|.  Kcp.,  475  V.  C.  W. ;  and  ace  Braith- 

1  Ord.  0  March,  18G0,  r.  12.  wailc's  I'r.  4'Jl. 


758 


ANSWERS. 


(".  XVII.  « 


Office  copies 
i>f  schedules: 
how  ob- 
tained. 

Where 
schedule 
printed  by 
mistake. 


Rules  as  to 
printinj?  an- 
swers, apply 
to  answer  of 
a  plaintiff  to 
interroga- 
tories. 

Costs  of 
written  brief 
of  answer. 

Orders  as  to 
printing  an- 
swers do  not 
apply  to 
paupers. 


abroo-atotl,  aiul  that  no  (IcH'udaiit  can  require  to  be  luniislied  with 
ooj>ios  of  a  co-defendant's  answer  till  all  the  defendants  required 
to  answer  have  answered,  and  till  the  time  allowed  the  others  to 
file  voluntary  answers  has  exj)ired. 

Office  copies  of  schedules  to  answers  of  accounts  or  documents 
continue  to  be  made  in  the  Record  and  Writ  Clerks'  Office.* 
Where,  however,  by  mistake  a  j^rinted  schedule  has  been  attached 
to  a  printed  answer,  the  answer  was  allowed  to  be  filed,  and  a 
printed  copy  of  the  answer,  with  a  written  office  copy  of  the 
scheilule,  to  be  issued,  on  the  solicitor  for  the  defendant  under- 
takincc  not  to  charge  his  client  with  the  costs  of  printing  the 
schedule.^ 

Wliore  a  plaintiff  is  required  to  answer  interrogatories,^  he  must 
file  his  answer  thereto,  and  get  it  printed,  and  furnish  printed 
copies  thereof,  in  the  same  manner  as  a  defendant  is  required  to 
do  with  respect  to  his  answer.^ 

No  costs  will  be  allowed,  either  as  between  party  and  party,  or 
as  between  solicitor  and  client,  for  any  written  brief  of  an  answer, 
unless  the  Court  directs  the  alloAvance  thereof.^ 

The  orders  of  6th  March,  1860,  do  not  apply  to  answers  filed  by 
defendants,  or  by  plaintiffs,  defending  or  suing  in  forma  paujyeris, 
except  the  first  of  them,  which  directs  that  an  answer  is  to  be 
written  on  paper,  instead  of,  as  formerly,  on  parchment.® 


Section  IV.  — Exceptions  to  Answers. 

Exceptions  If  the  plaintiff,  upon  an  examination  of  the  answer,  finds  that 

may  "  i  e  ,    .     g^jj-j^jjjjjg  gcandalous   matter,  or  that    it    does   riot  sufficiently 

for  scandal  or  .  '  ,  .  •' 

insufficiency;   answer  the  interrogatories,  he  may  file  exceptions  to  it.''     Excep- 


1  Ord.  C  March,  1860,  r.  10. 

2  Watt  V.  Watt,  8  Jur.  N.  S.  878;  10  W. 
R.  308,  V.  C.  AV.  Where,  hi)wever,  the 
schedule  is  very  short,  it  is  often  printed 
with  the  answer.    Ante,  p.  756,  n. 

8  This  practice  was  introduced  by  15  & 
16  Vic.  c.  86.  §  ID,  and  is  a  substitute  for 
a  cross-bill  of  discovery;  see  jHist,  Chap. 
XXXIV.  §  },  Cross  Bills;  see  post,  Evi- 
dence, Ailmissioiis ;  Genl.  Sts.  Mass.  c. 
129,  §§  46  et  seq. ;  St.  Mass.  1862,  c.  40. 

i  Ord.  6  March,  1860,  r.  11. 

6  Ord.  6  March,  1860,  r.  13.  As  to  the 
fees  to  which  solicitors  are  to  be  entitled, 
in  the  case  of  printed  answers,  see  ib.  r. 
14,  and  sched. ;  and  Attornev-General  v. 
Etheridge,  11  W.  R.  927,  V."  C.  K.;  see 
also/»a??,  Vol.  III. 

»  Ord.  6  March,  1860,  r.  15;  ante,  p. 
756. 

'  No  demurrer  lies  to  an  answer  in 
Equity.     Travers  v.  lioss,  1  McCarter  (N. 


J.),  254,  258;  Stone  v.  Moore,  26  111.  165; 
nnte,  p.  542,  note.  Under  the  practice  in 
New  Hampshire,  Massachusetts,  and  some 
other  States,  an  answer  is  open  to  excep- 
tions which  omits  to  notice  material  chargers 
in  the  liill,  under  the  general  interrogatory, 
although  no  special  interrogatory  is  thereto 
directed.  Miles  r.  Miles,  27  N.  H.  440; 
Tucker  w.  Ciiesliire  U.i;.  Co.,  21  N.  H.  29; 
ante,  pp.  376,  377,  note ;  Story  Eq.  PI.  §  38 ; 
Methodist  Ei)is.  Church  %\  .Jaques,  1  John. 
Ch.  05;  Hagthorpr.  Hook,  1  Gill  &  J.  270; 
Salmon  v.  Claggett,  3  Bland,  125;  Rank 
of  Utica  V.  Messereau,  7  Paige,  517;  Park- 
inson V.  Trousdale,  3  Scam.  380;  Cuyler  v. 
Rogert,  3  Paige,  186;  see  Pitts  v.  Hooper, 
16  Geo.  442;  Jordan  v.  Jordan,  16  Geo. 
446.  In  Maine,  "  exceptions  to  an  answer 
siiould  be  drawn  and  signed  by  counsel 
and  filed  with  the  clerk,  and  notice  thereof 
given  within  tliirty  days  after  the  answer 
is  filed."     Rule  8,  Chancery  I'ractice,  37 


EXCEPTIONS    TO    ANSWERS. 


759 


tions  are  allegations  in  writing,  stating  the  particular  points  or 
matters  with  respect  to  which  the  plaintiif  considers  the  answer 
scandalous,  or  those  interrogatories  to  which  he  thinks  there  is 
not  sufficient  answer  given.^ 

Formerly,  exceptions  coidd,  in  like  manner,  be  taken  for  im- 
pertinence; but  this  practice  has  been  abolished,  and  there  is 
the  same  remedy  for  impertinence  in  answers  as  for  impertinence 
in  bills,  and  other  proceedings.^ 

The  nature  of  scanchil  and  impertinence  in  pleadings  has  been, 
before,  so  fiilly  gone  into,  that  it  is  now  only  necessary  to  inform 
the  reader,  that  the  same  rules  which  are  there  laid  down  for  dis- 
tinguishing scandal  or  impertinence,  when  comprised  in  a  bill, 
apply  to  pleadings  in  general,  and  consequently  to  answers.^ 
The  practice  of  the  Court,  also,  with  regard  to  exceptions  to 
answers  on  account  of  scandal,  is  the  same,  mutatis  mutandis,  as 
that  already  described  with  respect  to  exceptions  to  bills  on  the 
same  grounds.* 

It  has  before  been  stated,  that  a  bill  may  be  excepted  to  for 
scandal  at  any  time.^  In  like  manner,  it  seems  that  there  is  no 
precise  limit  to  the  time  during  which  an  answer  may  be  excepted 
to  for  scandal ;  ®  and  therefore,  where  the  defendant  became  bank- 


C.  XVII.  $  3. 


but  not  for 
impertinence 


Rules  as  to 
scandal  and 
impertinence 
in  bills,  apply 
to  answers 


Answer  may 
be  excepted 
to  for  scandal, 
at  anv  time. 


Maine,  583;  see,  forilassachusetts.  Rule  17 
of  <  'hancery  Practice :  and  for  the  form  of 
such  exceptions,  in  Langdon  v.  Goddard, 
3  Storv,  18,  I'J;  Kittredge  v.  Claremont 
Bank,  "3  Story,  GOS-OOiJ. 

1  Sec  Woods  V.  Morrell,  1  John.  Ch. 
103. 

2  15  &  16  Vic.  c.  86,  §  17;  Dufaur  v. 
Sigel,  4  De  G.,  M.  &  G.  520;  see  ante, 
p.  326,  n. 

3  Ante  pp.  346-349. 
*  Ante,  i)p.  351-353. 
6  Ante,  p.  3.'i4. 

6  The  introduction  of  scandalous  and 
imyiertint'iit  matter  into  a  bill  does  not 
authorize  nor  jiistKy  similar  matter  in  an 
answer  to  meet  such  improper  allegations 
in  the  bill.  I'fKin  excejitidn  taken  to  such 
answer,  the  f'fiurt  will  order  it  to  be  ex- 
punged. If  the  defendant  would  object  to 
such  matter  in  the  bill,  it  should  be  by 
way  of  exception.  Langdon  r.  rickeriug, 
19  .Maine,  214;  Lan^dcui  r.  (b.ddard,  3 
Story,  13;  Hurr  r.  Hurton,  18  Ark.  215. 

Separate  exceptinns  to  the  same  answer, 
one  tor  scandal  and  the  otiier  for  imperti- 
nence, will  not  be  allowed,  as  nothing  in 
tjje  pleading  can  l)e  considiTed  jis  scanda- 
lous, which  is  ntft  al-o  impertinent.  M'ln- 
tyre  i'.  Trustees  of  Union  ('ii||e(;e,  (i  I'aige, 
240.  An  exception  for  imf>erlinence  will 
be  overruled,  if  the  expunging  of  the  mat- 
ter excepted  to  will  leave  the  residue  of  the 
clause,  which  is  not  covered  l)y  the  exce[)- 
tion,  either  false  or  whollv  unintelligible. 
M'Intyre  w.  Trustees  of  I'njou  I  olle^;!-,  fi 
Paige,  240;  see  lialcom  v.  New  York  Life 


Ins.  &  Trust  Co.,  U  Paige,  454;  Norton  v. 
Woods,  5  Paige,  260;  Franklin  v.  Kceler, 
4  Paige,  382;  Tucker  t>.  Cheshire  MM.  Co., 
21  N.  II.  36,  37.  The  Court,  in  cases  of 
impertinence,  ought,  before  exjiunging  the 
matter  alleged  to  be  impertinent,  to  be 
especially  clear,  that  it  is  such  as  ought  to 
be  struck  out  of  the  record,  for  this  reason, 
that  the  error  on  one  side  is  irremediable, 
on  tlie  other  not.  See  Davis  v.  Crijips,  2 
Y.  &  ('.  (X.  K.)  443;  Story  Hq.  PI.  §267; 
Tucker  v.  Cheshire  R.R.  Co.,  21  N.  11.  38; 
Woods  V.  Morrell,  1  .John.  Ch.  106.  Ex- 
ceptions for  scandal  or  impertinence  nuist 
describe  the  particular  pas.sages  wliich  are 
alli'ged  to  be  scandalous  or  impertinent. 
Wliitmarsh  v.  ('am])licll,  1  Paige,  645; 
Franklin  v.  Keeler,  4  Paige,  382.  An  ex- 
ception for  impertini'tice  imist  be  supported 
in  toto,  or  it  will  fail  altog(;ther.  'Icnch  v. 
Cheese,  1  IJeav.  571;  Story  Kq.  PI.  §  266; 
.see  Kalcom  v.  New  York  Life  Ins.  &  Trust 
Co.,  II  Paige,  4.54. 

If  the  nuitler  of  an  answer  is  relevant, 
that  is,  if  it  can  have  any  intiuence  what- 
ever in  the  decision  of  the  suit  in  reference 
to  any  point  to  be  considered  in  it,  it  is  not 
im[)erlinent.  Tucker  r.  Cheshire  IJ.R.  Co., 
2^  N.  II.  38,  3'J:  Van  Kensselacr  r.  Hruce, 
4  Paige,  177;  Ilawley  v.  Wolverlon,  5 
Paige,  .522. 

It' a  j)laint iff  wishes  to  refer  an  an.swcr 
for  insulhciency  as  well  as  for  impertinence, 
he  must  procure  the  reference  for  imnerli- 
nence  first :  for  it  has  been  decided,  that  a 
reference  for  imiHTlinence  can  nev(T  Im 
conten)p<jrancous  with  exceptions  for  iiisiU- 


7(U) 


ANSWERS. 


lor  iiisulH- 


C.X\1I.§4.  ,.j,j,|  .-,j-f^,,.  puttino;  in  ]iis  ;iiiswor,  ;iiul  tlie  iilaiiitifT",  before  tlie 
Mssioiieos  were  brouiilit  before  tlie  Court,  obtained,  under  the  old 
]»raetiee,  an  order  to  refer  the  answer  for  scandal  and  impertinence, 
the  order  Avas  held  to  have  been  regularly  obtained.^ 

If  a  jilaintiff  conceives  an  answer  to  interrogatories  to  be  in- 
sutiit'icnt,  he  should  take  exce])tions  to  it :  ^  stating  such  parts  of 
the  interrogatories  as  he  conceives  are  not  answered,  and  praying 
that  the  defendant  may,  in  such  resj>ect,  put  in  a  full  answer.^ 
where  answer  It"  h()\\i'\er,  tlie  answer  is  one  which  accompanies  a  plea,  or  a 
irpu'aor""'*  demurrer,  to  ]»art  of  'the  bill,  he  must,  unless  he  intends  to  admit 
the  validity  of  the  plea  or  demurrer,  wait  till  it  has  been  argued  : 
for  his  exceptions  would  operate  as  an  admission  of  its  validity.* 
Tills  rule,  however,  will  not,  as  we  have  seen,  apply  to  cases  where 
the  defendant  demurs,  or  pleads  to  the  relief  only,  and  not  to  the 
discovery.^  And  where  a  demurrer  and  answer  to  interrogatories 
were  put  in,  and  the  plaintiff,  mistaking  the  practice,  excepted  to 
the  answer  before  he  set  down  the  demurrer  for  argument,  he  was 
pei'mitted,  -upon  payment  of  costs,  to  withdraw  his  exceptions, 
without  prejudice  to  his  filing  them  again  after  the  argument  of 
the  demurrer.®  ■> 


(Icmurror  to 
|):irt  <.fl)ill; 


ficiencv.  Raphael  v.  Birdwood,  1  Swanst. 
229;  Story  Eq.  PI.  §  87G;  Livingston  v. 
Livingston,  4  Paige,  IIL  But  by  the 
practirf,  under  the  former  New  York  Chan- 
cery System,  exceptions  for  scandal  or  im- 
pertinence, and  exceptions  for  insutficiency, 
Avere  to  be  taken  at  the  same  time  and  in 
the  same  manner.  Livingston  v.  Livings- 
ton, 4  Paige,  111;  Woods  v.  Morrell,  1 
John.  ( 'h.  103.  After  a  reference  for  insuf- 
ficiency, or  any  other  step  taken  in  the 
cause,  an  answer  cannot    be  referred  for 

impertinence.     Pellew  v. ,  6  Vcs.  458 

ary. ;  Beavan  v.  Waterhouse,  2  Beav.  58 ; 
but  it  may  be  for  scandal.  Story  Eq.  PI. 
§  876. 

1  Booth  V.  Smith,  5  Sim.  639. 

2  If  the  answer  is  evasive,  it  must  be 
excepted  to;  all  defects  in  the  answer  must 
be  supplied  by  taking  exceptions.  Blais- 
dell  I'.  Stephens,  10  Vt.  179;  secTravers  v. 
Ross,  1  iMcCarter  (N.  J.),  254.  The  an- 
swer of  a  defendant  is  to  be  taken  as  the 
testimony  of  any  other  witness;  if  not  ex- 
plicit, ♦he  defendant  must  be  pressed  by 
exceptions  until  he  is  so.  Blaisdell  v. 
Stephens,  ubi  $uprn. 

In  Massachusetts,  when  an  oath  is 
waived,  and  in  New  Hampshire  when  an 
oath  is  not  required,  to  an  answer,  no  ex- 
ception can  be  taken  to  it  for  insutticiency. 
Rule  8  of  ('hancerv  Practice  in  Massachu- 
setts; Rule  9  in  New  Hampshire. 

An  answer  to  which  the  oath  of  the  de- 
fendant is  waived  cannot  be  excepted  to 
for  insuthciency;  l)ecause  such  answers  are 
not  evidence.  1  Barb.  Ch.  Pr.  177;  liart- 
lett  f.  Oalc,  4  Paige,  504;  McCormick  v. 
Chamberlin,  11  Paige,  543;  Rules  for  Chan. 


Pr.  in  Mass.  8.  Exceptions  will  not  lie  to 
the  answer  of  an  infant  for  insufficiency. 
Ante,  109,  n.  As  to  the  answer  of  a  cor- 
poration, see  Wallace  v.  Wallace,  Halst. 
Dig.  173. 

<*  Where  the  interrogatories  are  substan- 
tially, though  not  technically,  answered, 
exceptions  will  not  be  encouraged.  Read 
V.  Woodroofi'e,  24  Beav.  421.  Exceptions 
should  not  now  be  taken  for  want  of  an- 
swer to  the  interrogatory  as  to  books  and 
papers.  Law  n.  London  Indisputable  Soci- 
ety, 10  Hare  Ap.  20;  Baniard  v.  Hunter, 
1  Jur.  N.  S.  1005,  V.  C.  S. ;  Kidger  v. 
Worswick,  5  Jur.  N.  S.  37,  V.  C.  W. ;  see 
however,  Hudson  v.  Grenfell,  3  Giff.  388; 
8  Jur.  N.  S.  878.  An  exception  to  an  an- 
swer for  insufficiency  should  state  the 
charges  in  the  bill,  tlie  interrogatory  ap- 
plicable thereto,  to  which  the  answer  is 
responsive,  and  the  terms  of  the  answer, 
verbatim,  so  that  the  Court  may  see,  wheth- 
er it  is  sufhcient  or  not.  Brooks  v.  Byam, 
1  Story,  2!J0.  Exceptions  to  answers  for 
insufficiency  can  only  be  sustained  where 
some  material  allegation,  charge,  or  inter- 
rogatory in  the  l)ill  is  not  fully  answered. 
Where  the  matter  of  the  bill  is  fully  an- 
swered, and  the  defendant  sets  up  new 
matter  wliiili  is  irrelevant,  and  forma  no 
sufficient  grounds  of  defence,  tlie  plaintiff 
may  exce|)t  to  the  answer  for  impertinence, 
but  he  cannot  except  to  it  for  insufKciency. 
Stafford  V.  Brown,  4  Paige,  88.  For  form 
of  exceptions,  see  Vol.  HI. 

*  Ante,  pp.  589,  091. 

6  Ante,  pp.  590,  691. 

6  Boyd  V.  Mills,  13  Ves.  85 ;  Story  Eq. 
PI.  §  806. 


EXCEPTIONS    TO    ANSWERS.  761 

If  a  plea  or  demiuTer  to  the  whole  bill  is  overruled,  the  defend-  ^-  xvrr.  §  4. 

ant  must,  if  interrogatories  have  been  filed,  answer,  without  the   ' > ' 

plaintiff's  being  driven  to  except ;  but,  where  a  partial  plea  or  ^"iie""*^  P'^a  or 

demurrer  is  overruled,  the    plaintiff  must    except :    because    an  overruled; 

answer  being  on  the  file,  the  defendant  is  not  bound  to  answer 

further  till  excejations  have  been  taken .^     Where  the  plaintiff  had 

not  excepted,  and  the  defendant  put  in  a  further  answer,  leave 

was  given  to  the  plaintiff  to  file  exceptions  thereto,  although  he 

had  filed  none  to  the  original  answer,^ 

A  plaintiff  may  also,  where  a  partial  demurrer  is  allowed,  ex-  after  partial 
cept  to  the  answer  to  such  of  the  interrogatories  as  are  not  covered   gfi""?'^^';'^ 
by  the  demurrer ;  he  must  not,  however^  except  to  those  which 
are  covered  by  the  demurrer. 

In  the  case  also  of  a  plea,  which  is  accompanied  by  an  answer  or  plea. 
to  the  interrogatories,  the  plaintiff  may,  upon  the  allowance  of 
the  plea,  except  to  the  answer,  as  he  may  if  a  partial  plea  is 
overruled ;  and  the  rule  that  a  plaintiff  must  except  to  the  an- 
swer as  insufficient,  ap])lies  even  where  the  plea  or  demurrer  is 
accompanied  by  an  answer  as  to  a  single  fact.^  Where  a  ])lea  is 
ordered  to  stand  for  an  answer,  with  liberty  to  except,  the  plain- 
tiff may  file  exceptions  to  the  answer,  or  to  that  part  of  it  to  which 
he  is,  by  the  order,  permitted  to  except,  but  where  the  plea  is 
ordered  to  stand  for  an  answer  without  liberty  to  except,  expressly 
given  by  the  order,  the  plaintiff  cannot  except.* 

A  plaintiff  cannot  except  to  an  answer  to  an  amended  bill,  on  Answer  to 

the  ground  that  the  defendant  has  not  answered  matters  inquired  cannot  be 

after  in  the  interrogatories  to  the  original  bill.^     In    Glassinqtoii  fx^epted  to 
p       .  ,  ^  m  respect  of 

V.  Thicaites,^  this  rule  appears  to  have  been  departed  from ;  but  nuiitters  con- 
the  circumstances  of  that  case  were  peculiar,  and  the  Court  made  or'i''mal"biih 
a  special  order,  that  the  Master,  in  considering  the  exceptions 
taken  by  the  [tlaintiff  to  "the  thing"  called  an  answer  and  dis- 
claimer to  the  amended  bill,  should  be  at  liberty  to  allow  excep- 
tions as  to  matters,  not  answered  to,  contained  in  the  amended  bill, 
notwithstanding  the    same    matters  were  stated   in  the  original 
bill,  and  no  exceptions  were  taken  to  the  answer  to  the  original 
bill.     Where,  after  a  defendant  had  answered,  the  ])laintiff  amend-   unlops  new 
ed  his  bill,   by   stating  an   entirely  new   case,  it   Avas  held,   that   amendiueut!^ 
exceptions  would  lie,  although   somi;  of  the  interrogatories  cm- 
braced  in  them  were  contained  in  the  original  bill.''  ^ 

1  Ante,   pp.   fiOfI,  m\\    see  Kuypers  ».        AVich  v.  Parker,  22  Heav.  59;  2  Jur.  N. 
Ref.  Dutcli  f'liiircli,  r)7(),  571.  S.  UHi;  Denis  v.  Hocinisson,  4  Jur.  N.  S. 

2  Altoriiev  (ieneral    v.    Corporation  of       2'J8,  V.  C.  W. 
London,  12  'Heav.  217,  219.  6  2  Kuss.  4.'j8,  4G4. 

8  Cotos   c.   Turner,    JJunb.  123;    Storj-  T  Mazarredo   v.    Maitlaiid,    3  Mad.  66, 

I>>i.  ri.  §  aw.  72;    I'ar(ri<l-e  I'..  Ilavenirt.    11  Ves.  .•',70, 

*  Ante,  p.  700.  5H1;  see  al.«o,  Kavc  v.  Wall,  4  Hare,  128; 

6  Overy  v.  Leighton,  2  S.  &  S.  234;  Duncombe  v.  Davis,  1  Hare,  184,  193. 


G2 


ANSWERS. 


C.  XVII.  §4. 


Wlioro  ile- 
I'l'iuiimt,  liy 
lii.s  aiiswor  to 
aiiu'iuK'il  liill, 
iviulors  his 
tormcr 
answer 
iiisutlicieut. 


Amendment 
of  bill,  a 
waiver  of 
exceptions ; 


Secus,  where 
the  anienrt- 
ment  formal, 
and  requires 
no  answer. 


Exceptions 
•  not  waived, 
by  moving 
upon  ad- 
missions in 
the  answer. 


And  SO,  -wlierc  tlte  iiitorroiratorics  to  the  original  hill  voquired 
the  defendants  to  state  certain  particulars  as  to  some  goods 
alleged  to  liave  been  purchased  by  the  defendants  (such  as,  the 
])ersons  from  whom,  and  by  whom,  and  at  what  ])rice,  and  in 
whose  presence  they  were  purchased),  and  the  defendants  put  in 
an  answer  in  the  terms  of  the  interrogatories,  whereu])on  the 
]>laintiif  amended  the  bill,  and  the  defendants  availed  themselves 
of  the  o]iportunity  afforded  by  their  being  called  upon  to  answer 
the  amended  bill,  to  state  that,  since  putting  in  their  answer  to 
the  original  bill,  they  recollected  that  a  parcel  of  the  goods  in- 
quired after  had  been  purchased  of  an  individual  not  named  in 
the  former  answer,  but  without  stating  from  whom,  or  at  what 
price,  or  in  whose  presence,  the  same  had  been  purchased,  and 
the  plaintiff  excepted  to  the  answer  for  insufficiency,  in  not  setting 
out  those  circumstances :  the  Court  of  Exchequer  was  of  opinion, 
that  the  plaintiff  ought  not  to  be  precluded,  by  the  general  rule 
above  stated,  from  an  opportunity  of  obtaining  a  sufficient  answer 
as  to  the  point  excepted  to :  but  held  that,  before  delivering  his 
exceptions,  the  plaintiff  ought  to  have  made  a  special  application 
to  the  Court  for  leave  to  do  so.^ 

The  reason  of  the  rule  that  a  plaintiff,^if  he  does  not  except  to 
the  answer  to  the  original  bill,  cannot  afterwards  except  to  the 
answer  to  an  amended  bill,  on  the  ground  that  the  defendant  has 
not  answered  matters  which  were  contained  in  the  original  bill, 
is,  that,  by  amending  his  bill,  the  plaintiff  has  admitted  the 
answer  to  it  to  be  sufficient.  Upon  the  same  ground  it  has  been 
held,  that  where  a  plaintiff,  after  excepting  to  an  answer,  amends 
his  bill  without  Avaiting  for  the  decision  upon  the  exceptions,  he 
must  be  considered  as  having  waived  his  exceptions.^  The 
principle,  however,  will  not  be  applied  to  cases  in  which  the  amend- 
ment of  the  bill  extends  only  to  the  addition  of  another  party, 
requiring  no  answer  from  the  other  defendants :  ^  and  where 
a  plaintiff,  after  answer  to  the  original  bill,  changed  his  name, 
and  then  amended  his  bill  by  substituting  his  new  name  for  his 
old  one,  and  adding  another  defendant,  and  afterAvards  took  ex- 
ceptions to  the  answer,  a  motion  to  take  the  exceptions  off  the  file 
was  refused.'* 

Some  doubt  was  formerly  entertained,  whether  a  plaintiff  did 
not,  by  moving,  upon  admissions  in  an  answer,  either  for  payment 
of  money  into  Court,  or  for  the  production  of  papers,  waive  his 
exceptions,  if  already  taken,  or  his  right  to  exce])t,  if  he  had  not 
already  excepted  ;  and,  in  consequence  of  this  doubt,  a  practice 
prevailed  of  making  such  motions,  "without  prejudice."     In  the 


1  Irvine  v.  Viana,  M'Cle.  &  Y.  563. 

2  De  la  Torre  v.  Bernales,  4  Mad.  396. 


8  Taylor  v.  Wrench,  9  Ves.  315. 
4  Miller  v.  Wheatley,  1  Sim.  296. 


EXCEPTIONS    TO    ANSWERS.  763 

case  oi  Lane  v.  Paul^  however,  Lord  Laiigdale  M.  R.  decided  C.  XVII.  §4. 

that  the  plaintiiF's  right  to  except  for  insufficiency,  was  not  waived   "" y ^ 

by  his  moA'ing  for  the  production  of  documents,  and  that  it  was 
not  material  that  the  notice  of  motion  should  be  made  exjiressly 
without  prejudice  to  the  right  to  exce])t. 

Exceptions  to  an  answer  for  insufficiency  must  be  in  writing,^  Form  of 
and  must  be  signed  by  counsel ;  ^  and  if  they  do  not  appear  to 
hjive  been  so  signed,  they  may  be  ordered,  on  motion,  with  notice   Signature  of 
to  the  plaintiiF,  to  be  taken  off  the  file :  even  though  the  defendant 
has  taken  a  copy  of  them,  and  the  plaintiff  has  set  them  down  for 
hearing.*     They    must  also  specify,  that  the  answer  complained  Exceptions 
of  was  an  answer  to  the  bill.^     They  are  intituled  in  the  cause,   answer  was 
and  care  must  be  taken  that  they  are  properly  described  in  the  ^^  ^^^  '^'''• 
heading :  otherwise,  they  may  be  suppressed  or  taken  off  the  file  Heading. 
for  irregularity.     Thus,  where,  exceptions  having  been  allowed  to 
an  answer,  the  plaintiff  obtained  the  usual  order,  that  he  might 
be  at  liberty  to  amend  his  bill,  and  that  the  defendant  might 
answer  the  amendments  and   exceptions  at  the  same  time,  and 
amended  his  bill,  whereupon  the  defendant  put  in  a  second  answer, 
upon  which  the  plaintiff  took  exceptions  to  the  second  answer, 
and  described  them  as  exceptions  to  the  further  answer  to  the 
original  bill,  and  to  the  answer  to  the  amended  bill,  the  exceptions 
were  held  to  be  irregularly  described,  and  were  ordered  to  be 
taken  off  the  file :  because  new  exceptions  cannot  be  taken  to  a 
further  answer  to  an  original  bill.®     The  present  practice,  however, 
in  such  a  case,  appears  to  be,  to  allow  the  plaintiff  to  amend  on 
payment  of  costs.'' 

Formerly,  exceptions  for  insufficiency  appear  to  have  set  forth  Body, 
the  tenor  or  scope  of  the  bill,  and  the  substance  of  the  answer, 
and  then  to  have  proceeded  to  point  out  particularly  in  what  re- 
spect the  answer  Avas  considereil  defective  ;^  but,  according  to  the 
modern  practice,  the  tenor  of  the  bill  and  substance  of  the  answer 
are  omitted,  and  the  plaintiff  proceeds  at  once  to  point  out,  specifi- 
cally, the  interr(>g;itories  or  parts  of  the  inteiTOgatories  which  are 
unanswered,  by  sejjarate  exce})tioiis,  a]ii)licable  to  each  part.°    Thus, 

1  .3  Rpav.  W,  00.  ■  "  Williams  v.   DavioR,   1  S.  &  S.  426; 

2  HcainoM,  78,  181;  Woods  v.  Morrrll,  1       and  m;c  posl,  pp.  769,  770. 

John.  Cli.  1(13.  '  Karl    of  I.irlilicld   v.   Bond,    5  Boav. 

3  Ord.  XVI.  1.     Exfoptions  for  insiifli-        51.T;  6  .Iiir.  1070;  Bradstock  v.  Whatley, 
ciency,  as  well  as  fliosf;  for  iiiipiTtiiicncc,        (j  Bcav.  01. 

must  have  thr  siffnatiiH' of  coimscl.  Ilii)ii),^li  *'  Hoc  2  Prax.  Aim.  508  et  seq. ;  Curs, 

thfire   is   no   positivt^    order   rcipiirinf;   it.  Cane.  137  et  seq. 

Yates  V.   Hardy,  .far.  223;  Story  Ivp  T'l.  "  On    exropfions   for   insuflicienoy,   tlio 

§  864;  Mitford  l>|.  I'l.  \>y  .Icreniy,  313.  particular   points  or    matters   in   the   l)ill 

*  Yates  r.  Hardy,  .lac.  223.     For  form  which  remain   unanswerorl,  or  which  uro 

of  notice  of  motion,  see  Vol.  III.  imperfectly  answered,  should  he  stated  in 

6  Earl    of  Lichlield    v.    Bond,    5    Bcav.  the    exceptions.      Stafl'ord    r.     Brown,    4 

513,  ."iU;  0  .Tur.  1070.    For  form  of  cxccp-  Pai^e,  88;    Mitford   I",!!.    PI.   hv  .lereniy, 

lions,  see  Vol.  III.  315;  Cooper  Eq.  PI.  319;  Luhe  Eq.  Pi.  87; 


'(54 


ANSWERS. 


(  .XVII.  §  4. 


!Mav  be 
partially 
allowed. 

In  what 
cases  excep- 
tions may  be 
aiueuded. 


Separate 
exceptions 
required  to 
separate 
answers. 

How  en- 
grossed, and 
signed  by 
counsel. 


wlioro  sovoral  questions  :ire  comprised  in  one  niniibcred  interrog- 
atory, tlie  unanswered  questions  only  should  be  included  in  the 
excei>tions ;  ^  and  -where  a  plaintiff  complains  that  a  particular  in- 
terrogatory to  his  bill  has  not  been  answered,  he  must  state  the 
interrogatory  in  its  terms,  and  not  throw  upon  the  Court  the 
trouble  of  determining  whether  the  expressions  of  the  exceptions 
are  to  be  reconciled  with  the  interrogatory.^  It  is  not,  however, 
necessary  that  the  excejition  should  follow  the  very  Avords  of  the 
interrogatory,^  l)rovided  that  it  plainly  points  out  the  interrogatory 
to  which  it  refers,''  and  does  not  vary  therefrom  in  any  important 
particular.^ 

An  exception  for  insufficiency  may  be  allowed  as  to  part,  and 
overruled  as  to  part.^ 

Care  must  be  taken,  in  drawing  exceptions,  that  no  mistakes 
happen  therein :  for,  after  they  have  been  delivered,  no  new  excep- 
tion can  regularly  be  added.''  Cases,  however,  have  occurred, 
where  the  amendment  of  exceptions  has  been  permitted  on  the 
ground  of  mistake  ;  ^  as  where  the  plaintiff's  solicitor,  for  the  pur- 
pose of  instructing  his  counsel  in  drawing  the  exceptions,  sent  him, 
by  mistake,  the  original  draft  of  the  bill,  instead  of  another  draft 
from  which  the  bill  was  engi-ossed,  which  differed  materially,  and 
the  mistake  was  not  discovered  till  it  was  too  late  to  rectify  it.^ 
In  Northcote  v.  Nortlicote^^  it  is  stated,  that  liberty  was  given  to 
amend  exceptions  after  arguing  them ;  it  docs  not,  however,  appear 
upon  what  ground  such  liberty  was  given. 

In  the  case  of  several  defendants  answering  separately,  exceptions 
must  be  taken  to  each  answer ;  ^^  and  if  a  defendant,  who  has  an- 
swered jointly  with  another  defendant,  dies,  exce})tions  may  be 
taken  to  the  answer,  as  being  that  of  the  survivor  only.-'^ 

The  exceptions,  after  they  have  been  drawn  or  perused,  and 
signed  by  counsel,  must  be  written  on  paper  of  the  same  descrip- 


see  Dexter  v.  Arnold,  2  Sumner,  108. 
Material  and  necessary  matter  must  be 
explicitly  met  in  an  answer;  but  excep- 
tions, founded  on  verbal  criticisms,  slight 
defects,  and  omissions  of  immaterial  mat- 
ter, will  be  invariably  disallowed,  and 
treated  as  vexatious.  Haggott  v.  Ilenrv, 
1  Edw.  Ch.  7.     See  form  in  Vol.  III. 

1  Iliggiiison  V.  Blockley,  1  Jur.  N.  S. 
llO-l,  V.  C.  K.;  see,  however,  Ilanibrook 
V.  Smith,  17  Sim.  209,  212,  IG  Jur.  144; 
HoflFman  v.  Postill,  L.  K.  4  Ch.  Ap.  673, 
681. 

2  Hodgson  V.  Butterfield,  2  S.  &  S.  236. 
8  Brown  v.  Keating,  2  Beav.  581,  583; 

4  Jur.  477. 

4  WoodrofTe  v.  Daniel,  10  Sim.  243. 

6  Duke  of  Brunswick  v.  Duke  of  Cam- 
bridge, 12  Beav.  279,  280 ;  Esdaiie  v.  Moly- 
neaux,  1  I)e  G.  &  S.  218  ;  Brown  ». 
Keating,  vbi  tup. 


6  Per  Lord  Hard  wick  e,  in  East  India 
Company?;.  Campbel,  1  Ves.  S.  247.  An 
exception  b.ul  in  part  is  not  necessarily  to 
be  overruled.  Hotfm:in  v.  Postill,  L.  K.  4 
Cli.  Ap.  673  ;  see  Van  KensselMer  v.  Brice, 
4  Paige,  174;  Tucker  v.  The  Cheshire  U. 
R.  Co.,  21  N.  II.  37;  Mclntvre  v.  Union 
College,  6  Paige,  240;  Iligginson  v.  Block- 
ley,  1  Jur.  N.  S.  1104. 

7  Partridge  v.  Ilavcrafr,  11  Ves.  575. 

8  DoJder  v.  Bank  of  England,  10  Vea. 
284.  The  application  may  be  made  by 
summons,  which  must  be  served  on  the 
solicitors  of  all  the  defendants  affected  by 
the  exceptions.  For  form  of  summons,  see 
Vol.  III. 

9  Bancroft  v.  Wentworth,  cited  10  Ves. 
28.'-,,  n. 

10  1  Dick.  22. 

11  Sydi.lph  V.  Monkston,  2  Dick.  609. 

12  Lord  Herbert  v.  Pusey,  1  Dick.  255. 


EXCEPTIONS    TO    ANSWERS. 


71)5 


tion  and  size  as  that  on  which  bills  are  printed.^  The  signature  of 
counsel  is  aflSxed  to  the  draft,  and  copied  on  to  the  engrossment.^ 
The  exceptions  must  be  indorsed  with  the  name  and  place  of  busi- 
ness of  the  plaintilf  s  solicitor,^  or  with  the  name  and  residence  of 
the  plaintiff  himself,  if  suing  in  person,'*  and  with  the  address  for 
service,  if  any,  as  in  the  case  of  other  proceedings  to  be  filed  at 
the  Record  and  Writ  Clerks'  Office.^  Formerly,  the  excej)tions 
were  only  delivered  to«the  clerk  in  Court  of  the  opposite  party, 
and  were  not  of  record;  but  now,  they  must  be  filed  at  the  Record 
and  Writ  Clerks'  Office,  and  notice  of  the  filing  thereof  must,  on 
the  same  day,  be  given  by  the  plaintifi"  or  his  sohcitor  to  the  de- 
fendant's solicitor,  or  to  the  defendant  himself,  where  he  acts  in 
person.®  If  the  plaintiff  does  not  give  due  notice,  the  exceptions 
will  not  be  thereby  rendered  invalid,  but  further  time- will  be  given 
for  the  next  step,  on  the  application  of  either  party,  on  ])ayment 
of  costs  by  the  plaintiff.^ 

The  defendant  whose  answer  is  excepted  to,  should  take  an  office 
copy  of  the  exceptions.* 

After  the  filing  of  a  defendant's  answer,  the  plaintiff  has  six 
weeks  within  which  he  may  file  exceptions  thereto  for  insufficiency;^ 
and  if  he  does  not  file  them  within  six  weeks,  such  answer  on  the 
expiration  of  the  six  weeks,  will  be  deemed  sufficient.^"  Where  the 
plaintiff  desires  to  except  to  an  answer  filed  to  an  amended  bill,  to 
which  the  plaintiff  has  not  required  an  answer,  he  must  obtain  a 
special  order  for  that  purpose  within  fotirteen  days  aft.er  the  answer 
is  filed." 

By  the  original  })ractice  of  the  Court  the  plaintiff  might  obtain, 


C.  XVI!.  §4. 


Must  be  in- 
dorsed with 
name,  «&('.,  of 
person  filin;^; 


and  be  filed 
at  Record  and 
Writ  Clerks' 
Office,  and 
notice  of 
tiling  given. 


Consequences 
of  not  giving 
due  notice. 


Copy  of  ex- 
ceptions. 

Time  allowed 
for  excepting. 


1  Ord.  6  March,  1860,  r.  16.    As  to  such 
paper,  see  Unl.  IX.  3,  ante,  p.  31)6. 
•i  Ante,  p.  .iVi. 
3  Ord.  III.  2. 
*  Ord.  III.  5. 

6  Ante,  pp  453,  454. 

«<  Ord  XV' I.  3.  The  notice  must  be 
Bcrved  before  seven  o'clock  in  the  evening, 
except  on  Saturday,  when  it  niu>-t  be  served 
before  two  o'cl(jck  in  the  afternoon,  or 
the  service  will  be  deemed  to  Inive  been 
made  on  the  following  day,  or  Monday,  as 
the  case  may  be.  (Jrd.  X.\.\\'JI.  2;  ante, 
p.  455.     For  form  of  notice,  see  Vol.  III. 

7  Bradstock  v.  VVhalley,  0  IJeav.  61,  02; 
see  also  Lowe  v.  Williams,  12  Ik-av.  482, 
4ft4. 

8  Ord.  XXXVI.  1. 

»  By  the  eist  Kquity  Kulc  of  the  United 
States  Courts,  it  is  provided,  that  "  alter 
an  answer  is  liled  on  imy  rulo  <lay,  the 
plaintiff  shall  be  allowed  until  the  next 
8u<;ceedin>;  rule  day  to  lilo  in  the  clerk's 
office  exceptions  thereto  for  insulliciency. 
and  no  lon^^er,  uidess  a  longer  time  shall 
be  allowed  fur  the  purpo.se,  upon  cause 
shown,  to  the  (;ourt  or  a  .Judge  thereof; 
and  if  no  exception  aliall  be  liled  thereto 


within  that  period,  the  answer  shall  be 
deemed  and  taken  to  be  sufficient."  See 
the  17th  of  the  Rules  for  the  Regulation 
of  Practice  in  Chancer}'  in  Massachusetts, 
by  which  it  is  provided,  that  "  the  plaintilf 
sh;ill  reply,  or  file  exceptions,  or  set 
d  )Wii,  the  Ciiuse  lor  hearing  on  the  bill 
and  answer,  within  one  month  after  the 
answer  is  required  to  be  liled;  or  if  the 
answer  be  liled  before  it  is  required,  then 
within  one  month  after  written  notice  of 
such  tiling;  and  if  he  fail  so  to  do,  a  de- 
cree may  be  entered  for  the  dismissal  of 
the  bill,  with  costs."  See  for  New  llamp- 
sliire^38  N.  II.  601),  Rule  20;  for  Maine, 
37  M:iinp,  TiH:!,  Kuie  H. 

1"  (Jrd.  \X\II1.  12(3).  In  New  Hamp- 
shire, exceptions  will  be  deemed  waived, 
unless  allowed  and  ilelivered  to  the  de- 
fend.int's  solicitor  within  one  month  from 
the  clelivi;ry  of  the  answer,  or  unless  fur- 
ther time  he  allowed  bv  the  justice.  Rule 
20  of  Chiincery  Practice,  33  N.  II.  O'JS). 

n  Ord.  .\VI.  6.  I'he  time  runs  strictly 
from  the  filing  of  the  answer,  and  not  from 
the  aocejitance  of  co-ts  of  a  contempt. 
Nicklin  v.  I'attcu,  4  Hcav.  120;  .O.lur.  047 ; 
Coyle  V.   Alleyne,  16  Beav.  54b;  but  the 


Leave  to  file 
after  time 
expired. 


■()H 


ANSWERS. 


C.  XVII.  5  4. 


riirther  time 
t(i  lile. 


Time  to  file, 
where  plea  or 
tli'inurrer 
overruled, 


or  plea  or- 
dered to  stand 
for  answer. 


Vacations  not 
reckoned. 

Xo  excep- 
tions for 
insufficiency 
arter  replica- 
tion. 

<')n  filing 
replication,  or 
ser\-ice  of 
notice  of 
motion  for 
decree,  an- 
swer deemed 
suHicient. 

Submission  to 
fxceptious: 

'lime  allowed 
to  submit; 


as  of  course,  nii  order  to  (lelivcr  exceptions  nnnc  pro  tunc/  but 
tliis  is  now  expressly  prohibited ;  ^  and  such  an  order  will  not  now 
be  made  even  by  consent.  If  necessary,  however,  a  special  order 
will  be  made,  that  the  ]>laintift'may  be  at  liberty  to  file  exceptions, 
notwithstanding  the  time  for  filing  them  has  ex])ired.^  The  appli- 
cation for  such  order  may  be  made  by  notice  of  motion,  or  by  sum- 
mons;'' and  the  notice  or  summons  should  be  served  on  the 
solicitors  of  those  defendants  only  to  whose  answers  the  excep- 
tions are  to  be  filed.  By  consent,  such  an  order  may  also  be 
made,  on  petition,  as  of  course,  at  the  Kolls.^  Further  time  to  file 
exceptions  may  also  be  applied  for  by  summons  at  Chambers,^ 
which  must  be  served  on  the  solicitors  of  the  defendants  to  whose 
answers  exceptions  are  in  contemplation. 

If  a  plea  and  answer,  or  demurrer  and  answer,  have  been  filed, 
and  the  plea  or  demurrer  is  overruled,  the  time  for  excepting  to 
the  answer  for  insufticiency  is  six  weeks,  reckoned  from  the  day  on 
which  the  plea  or  demurrer  is  overruled.^ 

If  a  i)lea  is  ordered  to  stand  for  an  answer,  with  liberty  to  ex- 
cept, and  no  time  is  fixed  within  whif  h  the  exceptions  ar«  to  be 
filed,  the  six  weeks  for  filing  the  exceptions  will  be  reckoned  from 
the  date  of  the  order  directing  the  plea  to  stand  for  an  answer.'' 

The  times  of  vacation  are  not  reckoned  in  the  computation  of 
the  time  allowed  for  filing  exceptions  for  insufficiency.^  No  excep- 
tions can  be  taken  to  an  answer  for  insufficiency,  after  replica- 
tion ;  ^  in  some  cases,  however,  the  Court  has,  on  special  application, 
permitted  the  replication  to  be  withdrawn,  and  exceptions  to  be 
then  filed.^°  If  the  plaintiff"  files  replication,  or  serves  notice  of 
motion  for  a  decree,  he  is  considered  to  have  admitted  the  answer 
to  be  sufficient,  and  cannot  compel  a  iurther  answer,  even  though 
the  first  has  been  found  insufficient.^^ 

The  defendant  may,  if  he  think  it  advisable,  submit  to  the  ex- 
ceptions ;  and  where  he  does  so  without  an  order  of  the  Court, 
the  answer  will  be  deemed  insufficient  from  the  date  of  the  sub- 
mission.^^ If  he  desires  to  prevent  the  exceptions  being  set  down 
for  hearing,  he  must  submit  to  them  within  eight  days  after  the 
filing  thereof."    The  submission  is  made  by  notice  to  the  plaintiff''8 


times  of   vacation   are   excluded.      Ord. 
XXXVII.  13  (2). 

1  Urd.  XVI.  5. 

2  Biddulfih  V.  Lord  Camoys,  9  Beav.  155. 

3  For  forms  of  notice  of  motion  and  sum- 
mons, see  Vol.  III. 

■*  For  form  of  petition,  see  Vol.  III. 

fi  Ord  XXXVII.  17;  and  see  Nicklin  v. 
Patten,  M  sup.  For  form  of  summons, 
see  Vol.  III. 

6  Esdaile  v.  Molj'neux,  2  Coll.  614  ;  11 
Jur.  201. 

"  Ante,  p.  701.  Every  special  order  for 
eave  to  except   should  specily  the  time 


within    which  the  exceptions  are  to  be 
filed. 

8  Ord.  XXXVII.   13   (2);    but  see,  io 
ca<es  of  election,  Ord.  XLII. 
"  Ord.  XVI.  7. 
10  Wyatt's  1'.  R.  202. 
n  Boyse  v.  Cokell,  18  Jur.  770,  V.  C.  W. 

12  Old.  XVI.  18. 

13  J/jid.  It  is  presumed  that,  in  a  proper 
case,  further  time  to  submit  may  be  ob- 
tained on  summons,  to  be  served  on  the 
plaintiff's  solicitor;  see  Ord.  XXXVII.  17; 
and  see  Mayer  v.  Fritii,  1859,  M.  164.  For 
form  of  summons,  see  Vol.  III. 


EXCEPTIONS    TO    ANSWERS. 


767 


solicitor,  and  payment  of  20s.  costs ;  ^  and  where  a  defendant,  not 
being  in  contempt,  submits  before  the  exceptions  are  set  down  for 
hearing,  he  has  fourteen  days  from  the  date  of  the  submission 
within  which  to  put  in  his  further  answer;^  but  he  may  apply  for 
further  time,  by  summons  at  Chambers,^  which  must  be  served  on 
the  plaint ifi^s  solicitor,  but  not  on  the  solicitor  of  any  co-defendant. 
If  the  defendant  does  not  answer  within  the  fourteen  days,  or  ob- 
tain further  time,  and  answer  within  such  further  time,  the  plain- 
tiff may  sue  out  process  of  contempt  against  him.^ 

Where  two  or  more  defendants  put  in  a  joint  and  several  an- 
swer, which  is  excepted  to  for  insufficiency,  and  one  or  more  of 
them  submit  to  the  exceptions,  the  others  may  have  them  argued.^ 

If  the  defendant  dpes  not  submit  to  the  exceptions,  the  jilaintiff 
may  set  them  down  for  hearing.®  The  exceptions  are  not,  how- 
ever, to  be  set  down  before  the  expu'ation  of  eight  days  from  the 
filing  thereof,  unless,  in  a  case  of  election,  the  defendant  has,  by 
notice  in  writing  required  the  plaintiff  to  set  them  down  AWthin 
four  days  from  tlie  service  of  the  notice.''  The  exceptions  must  be 
set  down  within  fourteen  days  from  the  filing  thereof;  otherwise, 
the  answer,  on  the  exj^iration  of  such  fourteen  days,  will  be  deemed 
sufl5cient.^ 

The  Court  will,  however,  on  a  special  case  being  made,  allow 
exceptions  to  be  set  down  for  hearing  after  the  expiration  of  the 
fourteen  days;®  and,  in  injunction  cases,  if  the  insufficiency  of  the 
answer  is  shown  as  a  cause  against  dissolving  the  injunction,  the 
Court  will  direct  the  exceptions  to  be  set  down  and  argued  in- 
■  stanter}^  Any  objection,  on  the  ground  that  the  exceptions  were 
not  set  doAvn  in  projier  time,  should  be  taken  when  they  come  on 
for  hearing. 


C.  XVII.  §4. 


Process,  on 
default  of 
answer. 


"VMiere  one 
of  several 
defendants 
submits. 

Where  dc- 
fendanf  does 
not  submit, 
exceptions  to 
be  set  down 
for  hearing. 

Time 
allowed. 


Enlarging  or 
abridf^ing 
time  for  set- 
ting down. 


1  Bniithwaite's  Pr.  129;  Ord.  XL.  13. 
For  form  oi  suljuiiitsion,  see  Vol.  III. 

2  Ord.  XVI.  9.  Uy  the  «3d  Equity 
Rule  of  the  United  States  Couits,  '"where 
exceptions  shall  be  (iled  to  the  answer  for 
iiisuHiciency,  within  tlie  period  prescribed 
by  these  ruh-s,  if  the  defendant  shall  not 
submit  to  the  saine,  and  file  an  )inien<ied 
answer  on  the  next  succeedinf;  rule  ilay, 
the  plaintiff  shall  lorthwith  set  them  down 
for  a  hearin/i  on  the  next  succeeding  rule 
day  tlierealter,  Ijcloie  a  .ludge  of  the 
Court;  an<l  shall  enter,  as  ol  course,  in  the 
order  b'>ok  mi  cinh^r  lor  that  purjjose;  and 
if  he  sliiill  ni.t  set  down  the  same  for  a 
hearing,  the  excei)tions  shull  be  deemed 
abandoned  and  the  answer  shall  be  deemed 
suflicient.' 

3  Onl.  XVI.  15;  Ord.  X.X.WII.  17,  18. 
For  form  oi  siiminons,  see  Vol.  III. 

*  ()u\.  XVI.  li>.  In  New  Ilamp-hirc. 
"  if  the  deleiuhint,  on  notice  of  ex<e|)lioiiH 
to  his  answer,  shall  deliver  to  the  plaintiO's 
Bolioitor,  uetore  the  day  appointed  for  the 


hearing  thereon,  a  sufficient  answer,  the 
same  shall  be  received  without  costs.  If 
the  exceptions  are  sustained,  the  defendant 
shall  deliver  to  the  plaintiff's  solicitor  a 
full  and  com))lete  answer  theieto  within 
one  niontii,  and  i)ay  such  costs  as  the  jus- 
tice allowing  such  exccjjtioiis  shall  order; 
or  the  bill  slia  1  be  taken  pro  confessv  ;  but 
if  the  plaintiff  so  elects,  he  may  move  for 
process  of  contempt  to  compel  an  answer." 
liule  '^1  0/  Chancery  Practice,  'M  N.  H. 
009. 

6  Ilinde,  2G8;  Wvatt's  Pr.  204. 

0  ];i&  14  Vic.  c.'.35,  §  27. 

'  Ord.  XVI.  11;  XLII.  6. 

8  Old.  XVI.  12;  but  see  ante,  p.  766,  n. 
(13);  see  Cist  h'-ipiily  liule  of  the  United 
States  Courts,  ami  the  17th  of  the  Rules  of 
I'riiclice  in  Chancery  in  Massachusetts; 
ante,  70.0,  note. 

"  See  Tuck  v.  Kaymcnt,  9  IJeav.  38; 
Old.  XXXVII.  17. 

1'  Hughes  V.  'I  hoinas,  7  Iteav.  684. 


7()8 


ANSWERS. 


('.  XVII.  §  4. 


rimes  of  va- 
i-ation,  wheu 
ri-ckonod. 


F.xceptions : 
liow  set 
down. 


Notice  of 
setting  down 


Papers  for  use 
of  Court. 


Hearing  ot 
exceptions : 

where  de- 
fendant does 
not  appear; 

where  plain- 
tiff does  not 
appear; 

where  neither 
party  ap- 
pearV; 

where  both 
parties  ap- 
pear. 


TIuMiino.s  of  vacation  arc  not  rcckctncd  in  the  computation  of 
the  times  ;i])]H)inte(l  lor  setting  doAvn  exceptions  for  insufficiency, 
except  where  the  time  has  been  limited,  in  a  case  of  election,  in 
consequence  of  the  defendant  having  by  notice  in  writing,  required 
the  jilaintiif  to  set  down  the  exce2»tions  within  four  days  from  tlie 
service  of  the  notice.^ 

Exce])tions  to  answers  for  insufficiency  are  set  down  to  be  hoard 
before  the  Judge  to  whose  Court  the  cause  is  attached,^  on  produc- 
tion to  the  liegistrars'  clerk,  at  the  order  of  course  seat,  by  the  plain- 
tiff of  a  certificate  of  the  Clerk  of  Records  and  AVrits  of  the  filing: 
of  such  exceptions,  or  of  the  filing  of  a  further  answer.  The 
plaintiff's  solicitor  must  indorse  the  certificate,  with  a  request  that 
the  exceptions  be  set  down,  which  will  be  done  on  the  same  day 
that  the  certificate  and  request  are  produced  to  the  liegistrars' 
clerk.^  The  exceptions  will  then  be  advancet^,  and  put  in  the 
paper  for  hearing  on  an  early  day;  and  the  plaintiff's  solicitor 
must,  on  the  same  day  on  which  the  exceptions  are  set  down,  serve 
notice  thereof  on  the  defendant :  otherwise,  the  exceptions  will  be 
deemed  not  set  down.* 

Before  the  exceptions  come  on  to  be  heard,  the  solicitor  for  the 
plaintiff  should  leave  Avith  the  Usher,  for  the  use  of  the  Court,  two 
printed  copies  of  the  bill  and  answer,  and  a  copy  of  the  excep- 
tions, and  of  the  interrogatories  to  the  answers  to  which  the 
exceptions  are  taken.^ 

If  the  defendant  does  not  appear  at  the  hearing,  the  exceptions 
Avill  be  heard  ex  parte,  on  production  by  the  plaintiff  of  an  office 
copy  of  an  affidavit  of  service  on  the  (.lefendant  of  the  notice  of 
setting  down  the  exceptions.®  If  tlie  plaintiff  does  not  appear,  the 
exceptions  Avill  be  overruled,  as  of  course,  with  costs,  on  jjroduc- 
tion  by  the  defendant  of  an  office  copy  of  an  affidavit  of  having 
been  served  with  the  notice  of  setting  down  the  excejitions.''  If 
neither  side  appear,  the  exceptions  will  be  struck  out  of  the  paper. 

Where  both  sides  appear,  the  plaintifi''s  counsel  is  first  heard  in 

6  See  Davis  v.  Earl  of  Dysart,  4  W.  K. 
41,  i\J.  U.;  and  Ora.  XXI.  12.  Kauh  coun- 
sel should  be  I'ui  iiished  with  printed  copies 
of  the  bill  and  answer,  ami  brief  copies  of 
the  exceptions  and  interrogatories  above 
mentioned. 

6  For  forui  of  affidavit,  see  Vol.  III. 

"^  For  form  ot  order,  see  Setou,  1257,  No. 
9;  and  for  lorni  of  aliidavit,  see  Vol.  111. 
In  Latouche  1'.  Sampson,  cited  beton,  1267, 
it  was,  liowever,  held  that  the  exceptions 
being  in  the  paper,  and  the  dclendant 
present,  was  Suliicient  proof  of  the  notice 
iiaving  been  served;  so  that  the  afKaavit 
of  service  beeni.s  to  be  unnecessary  where 
the  plaintiff  is  the  defaulter. 


1  Ord.  XXX VII.  13  (2);  XLII.  6. 

'^  Ord.  \1.  4.  F^xcepiions  to  a  defend- 
ant's answer  in  South  Candina  may  be 
heard  and  determined  by  the  Court  without 
the  intervention  of  a  Muster.  Satterwhite 
V.  Davenport,  10  llicli.  l^q.  (S.  C.)  305.  In 
New  Hampshire,  exceptions  to  an  answer 
may  be  allowed  by  a  justice,  a  copy  there- 
of and  a  notice  oi  tiie  time  and  place  at 
which  the  same  will  be  heard  belore  such 
justice,  being  seasonabl}-  given  to  the  de- 
lendant's  sohcitor.  Kule  20  of  Chancery 
Practice. 

3  Ord.  XVI.  10;  Keg.  Ptegul.  15  March, 
1860,  rr.  1,  6.  !•  or  form  of  request,  see 
Vol.  III. 

*  Ord.  XVI.  10.  For  form  of  notice,  see 
Vol.  III. 


EXCEPTIONS    TO    ANSWERS. 


769 


support  of  the  exceptions ;  then  the  counsel  for  the  defendant ; 
and  the  phiintiff's  counsel  is  entitled  to  a  reply.  The  Court  will 
then  dispose  of  the  excejitions,  by  overruling-  or  allowing  them,  in 
whole  or  in  part.^ 

No  exceptions  will  be  allowed  to  stand  over  for  an  indefinite 
period ;  '^  and  in  deciding  on  the  sufficiency  or  insufficiency  of  any 
answer,  the  relevancy  or  materiality  of  the  statement  or  question 
referred  to  is  to  be  taken  into  consideration.^  Either  party  has 
a  right  to  the  judgment  of  the  Court  upon  each  of  the  excep- 
tions.* 

If,  upon  the  hearing  of  the  exceptions,  the  answer  is  held  suffi- 
cient, it  will  be  deemed  to  be  so  from  the  date  of  the  order  made 
on  the  hearing.^ 

If  the  first  or  second  answer  is  held  to  be  insufficient,  or  the  de- 
fendant (not  being  in  contempt)  submits  to  answer  the  exceptions 
after  they  are  set  down  for  liearing,  the  Court  may  appoint  a  time 
witliin  which  the  defendant  must  put  in  las  further  answer ;  ®  and 
if  the  defendant  does  not  answer  within  the  time  so  appointed,  or 
obtain  further  time,''  and  answer  within  such  further  time,  the 
plaintiff  may  sue  out  process  of  contempt  against  him.^  A  defend- 
ant, however,  who  is  in  contempt  for  want  of  a  further  answer, 
cannot  procure  an  enlargement  of  the  time  for  putting  in  his  far- 
ther answer,^  unless  the  plaintiff  waives  his  right  to  object  to  the 
apjdication  on  tliat  ground. 

If,  after  the  excei)tions  have  been  allowed  or  submitted  to,  the 
plaintiff  desires  to  amend  his  bill,  he  may,  on  petition  at  the 
KolLs,^'^  obtain  an  order,  as  of  course,  that  he  may  be  at  liberty 
to  amend  his  bill,  and  that  the  defendant  may  answer  the  amend- 
ments and  exceptions  at  the  same  time."  The  defendant  must  then, 
as  we  have  before  seen,^'-  put  in  his  further  answer,  and  his  answer 


1  For  forin  of  order,  see  Seton,  1256, 
Ko.  8. 

2  Orl.  XXI.  13. 

3  Oril.  XVI.  4;  see  nn^e,  pp.  717-7I1I,  ns 
to  olici^tinns  on  the  ground  of  w-.uit  of 
inati  ri  il  tv. 

*  Itowe"  t).  Gu'l^eon,  1  V.  &  15.  331 ; 
Agar  V.  (Jiirnev,  2  Mad.  389. 

0  (»rd.  XVI.  18. 

'  Ord.  X\'I.  14;  rpg  Miinclipstor,  Slief- 
fi'-ld,  and  hiiicoliisliire  Knilwiiv  Co.  v. 
W.'ik'Oii   IJoini  of  Hcidth,  2  K!  &  J.  2.i. 

■^  An  appliciiiinn  for  fiirllKT  lime  nriy 
be  made  at  ('li:iinlicrs  hy  summon-',  wliicli 
nni>t  lie  served  on  llie  pl;iin(in''a  solictor, 
tor  form,  see  Vol    III. 

»  Or  I.  XIV.  1.5.  \',Y  flic  64tli  Kqnity 
Rule  of  the  Tnifed  Slale-v  (.'onrto,  it  is  pro- 
videil.  tliat  "if,  at  the  lieariii;,',  the  exeej)- 
ti  ns  shall  he  allowel,  the  dciendiint  shall 
be  bound  to  put  in  a  full  and  complete 
nn->wiT  thereto,  on  the  tiexf  sueeeeding 
rule  day;  (itherwi^e  the  [ilaintiflT  shall,  as 

VOL.  I. 


of  course.  Vie  entitled  to  lake  the  l.ill,  so  fur 
as  the  matter  of  such  e.\fepli(in<  i-*  I'lin- 
cerned,  as  confessed,  or,  at  his  eleetinn,  he 
may  have  a  writ  of  allaclimiMit  to  C'  nipd 
the  ce'endant  to  make  a  better  answer  to 
the  matter  of  the  excejitions;  and  llie  de- 
fend int,  when  he  i"  in  cast'  dy,  up  n  such 
writ,  sliall  not  be  discharged  tlierel'roii  but 
by  ;rti  ord'T  oi  the  ('otnt,  or  of  a  .lulge 
there"!',  upon  his  putting  in  such  unswt-r 
aud  complviig  w  th  such  other  terms,  as 
the  (,'ourt  or  .Iiidgi'  m  iv  direct  " 

«   U  In-at  r.  (;raham,"6  S  ni.  r>70. 

1"  For  liirm  o(  petition,  se>!  Vol.  III. 

11  The  Court  (  U.  .S'ales  C.  (.'.)  may,  for 
the  purpose  of  avo'ding  unnecessaiv  de- 
lays, oiitertain  a  motion  t(i  anu-nd  a  l)ill  in 
Jv'piity,  Mt  the  same  time  that  I'xccplicius  to 
thf  answ.r  ari-  lile  I,  a  d  uuiv  iicpiir.-  tlie 
defendants  to  answer  the  amendi'd  ni  itler 
and  the  exceptions  {>  getlier.  Iviitredgu  v. 
Claremont  15a'  k,  3  Story,  61)0. 

1-  Ante,  p.  738. 


C.  XVII.  §  4. 


Exceptions 
not  to  stand 
over  indefi- 
nitely. 

Relevancy  of 
the  question 
to  be  con- 
sidered. 

Answer  held 
sufficient  on 
argument,  is 
deemed  so 
from  order 
thereon. 

If  first  or 
second  an- 
swer insuf- 
ficient, or 
defendant 
submits 
after  excep- 
tions set 
down,  time 
may  be  ap- 
pointed for 
further 
answer. 

On  default, 
process  of 
contempt 
may  issue. 

Plaintiff  may 
obtain  order 
to  amend, 
and  that 
delendant 
answer 
amendments 
and  excep- 
tions to- 
gether. 


49 


770 


ANSWERS. 


f.  XVII. 5  4. 


Hilt  iK'U'iul- 
iuii  liy 
aiiswi'iiiiL: 
hctoiv  service 
of  I  ho  onlor, 
may  ilolcat 
its  object. 

It"  second  or 
tliirii  answer 
iiisutiicieiit, 
old  excep- 
tions must  be 
set  down; 

otherwise, 
further 
answer 
sulficient. 

Form  of 
notice  of 
setting  down 
old  excep- 
tions. 


Papers  for 
the  Judge. 


After  old 
exceptions 
set  down, 
further  time 
to  answer  to 
l)e  applied  for 
in  Court. 


Where  hill 
amended, 
new  excep- 
tions may  be 
taken  to 
answer  to  the 
amendments. 


to  the  aincmliiuMits,  within  loiii-tceii  tluys  allor  service  of  the  intcr- 
roii^atories  to  tlio  aiiuMuU'd  bill.^  Tlie  order  must  be  served  on  the 
di'lciulant's  solicitor ;  and  if  the  defendant  can  put  in  his  further 
answer  before  he  is  served  with  the  order,  lie  Avill  de])rive  tlie 
)>hiintiti'  of  the  benefit  of  it,  and  it  will  be  discharged  for  irregu- 
larity,- notwithstanding  the  defendant  has  notice  of  the  order  at 
the  time,  he  files  his  further  answer,^ 

Itj  after  excei)tions  allowed  or  submitted  to,  the  defendant  puts 
in  a  second  or  third  answer  which  the  j)laintiif  considers  insuf- 
ficient, he  may  at  once  set  do^vn  the  old  exceptions  for  hearing,* 
and  give  notice  thereo  to  the  defendant.^  If  the  plaintiff  does 
not  set  doAvn  the  old  excei)tions  within  fourteen  days  after  the 
further  answer  has  been  ])ut  in,  it  Avill,  on  the  expiration  of  such 
iburteen  days,  be  deemed  sufficient.® 

The  plaintiff  must  state,  in  the  notice  of  setting  down  the  old 
exceptions,  the  particular  exception  or  exceptions  to  which  he 
requires  a  further  answer  ;  '^  and  if  he  does  not  do  so,  he  may  be 
ordered  to  i)ay  the  costs  of  the  xlefendant  appearing  to  object 
on  account  of  the  irregularity  of  the  notice.  Leave  will,  however, 
be  given  to  the  i)laintiff,  to  amend  the  notice,  and  set  down  the 
exceptions  again.* 

The  exceptions  so  set  down  come  on  for  argument  in  Court  as 
before  explained ;  and  previously  thereto  the  Judge  should  be  ftir- 
nished  with  a  jirinted  cojiy  of  the  further  answer,  in  addition  to 
the  former  j^apers. 

If  the  defendant  submits  to  the  old  exceptions,  Avhich  have  been 
set  down  after  a  further  answer  has  been  put  in,  an  a])plication  for 
time  to  put  in  a  iurther  answer  should  not  be  made  at  Chambers : 
because,  by  consenting  to  that  course,  the  plaintiff  might  be  held 
to  have  waived  the  exceptions ;  but  the  exceptions  should  be 
alloAved  to  come  on  for  hearing  before  the  Court,  and  a  time  will 
then  be  fixed  within  Avhich  the  defendant  must  put  in  his  further 
answer.^ 

No  new  exceptions  can  be  taken  to  a  second  or  third  answer. 
Where,  however,  the  bill  has  been  amended,  and  an  answer  is  sub- 
sequently filed,  the  j^laintiff  may  file  new  exceptions,  specifying 


i  Ord.  XXXVII.  6;  see  Bennington 
Iron  Co.  V.  Cam(ibell,  2  Paige,  160. 

'•^  JIayne  v.  Hochin,  1  Dick.  255 ;  15ethuen 
t:  IJateman,  ib.  2itG;  Knox  v.  Symnionds, 
1  Ves.  J.  J>7,  88;  I'aly  r.  Simpson,  2  Cox, 
392;  I'artrioge  v.  Ilaycraft,  11  Ves.  570, 
57fe;  Hemming  r.  Dingwuli,  fc  Beav.  102. 

8  Pariente  v.  Ben.susan,  13  Sim.  522 ;  7 
Jur.  61S. 

4  Ord.  XYI.  13. 

5  For  form  of  notice,  see  Vol.  III. 
e  Old.  XVI.  1.3,  IC. 

7  Ord.  XVI.  17.    See  notice  in  Vol.  III. 


8  Tanner  v.  Strutton,  15  Jur.  457,  V.  C. 
Ld.  C;  Thomas  v-  liawlings,  28  Beav. 
346. 

'■*  Manchester,  Sheffield,  and  Liricoln'-hire 
IJailwav  Conipiiny  v.  The  Worksop  Board 
oflleafth,  2  K.  &  J.  25.  It  would  seem, 
however,  tliat  the  plaintiff  and  defendant 
may  agree  that,  to  save  exjiense,  the  appli- 
cation shiill  he  made  by  summons  at  Cham- 
bers; in  which  case,  the  order  shouhl  state 
that,  by  consent,  the  exceptions  shall  not 
be  deemed  to  be  waived  or  prejudiced. 


EXCEPTIONS    TO    ANSWERS. 


771 


the  inteiTogatories  to  the  amended  hill  which  he  does  not  think 
sufficiently  answered  ;  but  such  new  exceptions  must  not  extend  to 
any  matter  which  was  contained  in  the  interrogatories  to  the  origi- 
nal bill.^  Where  the  bill  has  been  amended,  the  ])laintiff  must  go 
before  the  Court  upon  the  old  exceptions,  as  they  apjily  to  the 
original  bill,  and  upon  new  exceptions  as  to  the  new  matter  intro- 
duced by  the  amendments ;  in  such  case,  however,  he  may  have 
the  judgment  of  the  Court  ujion  the  answer  to  the  amendments, 
with  reference  to  such  parts  of  the  original  bill  as  a2:)ply  to  them ; 
and  the  original  words  apply  to  the  amendments,  the  Court,  in 
considering  whether  the  answer  is  sufficient  as  to  the  amendments, 
will  take  into  consideration  every  thing  in  the  amended  bill  that 
gives  a  construction  to  the  amendments.^ 

The  proceedings  in  Court  upon  exceptions  to  a  second  or  third 
answer  for  insufficiency  are  precisely  the  same  as  those  upon  excep- 
tions to  a  first.  The  Court,  however,  in  deciding  upon  the  excep- 
tions, will  not  look  at  the  second  or  third  answer  only,  but  will 
look  at  it  in  connection  with  the  preceding  answer.^  If  the  Court, 
upon  looking  into  the  answers  in  the  manner  above  stated,  is  still 
of  opinion  that  no  sufficient  answer  is  given  to  tlie  matter  origi- 
nally excepted  to,  judgment  will  be  given  accordingly,  and  the 
exceptions  will  be  allowed. 

If  a  first  or  second  answer  is  eld  insufficient,  tlie  Court  will,  as 
we  have  seen,  appoint  a  time  within  which  the  further  answer 
must  be  put  in ;  *  but  in  the  case  of  a  third  insufficient  answer, 
this  is  unnecessary :  for,  in  such  a  case,  the  Court  may  order  the 
defendant  to  be  examined  upon  interrogatories  to  the  jioint  as 
to  which  it  is  held  to  be  insufficient,  and  to  stand  committed  until 
he  shall  Imve  perfectly  answered  the  interrogatories;  and  the 
defendant  must  pay  such  costs  as  the  Court  shall  think  lit  to 
award.''  After  a  third  answer  has  been  held  insufficient,  a 
fourth  answer  is  irregular,  and  will  be  ordered  to  be  taken  off 
the  fi]e.« 

If  the  <lefendant  is  ordered  to  stand  committed,  a  co]iy  of  the 
order  (»f  committal  must  be  delivered  to  the  Tijjstaff  of  tlie  Court, 
wlio   will  proceed  to   irrrest  the   defendant.      If  tlie  defendant  is 


C.  XVII.  §  4. 


Proceedings 
in  Court, 
upon  excep- 
tions to  a 
second  or 
tliird  answer. 


After  a  third 
insuflicient 
answer,  de- 
fendant to  be 
examined  on 
interrogato- 
ries, and 
stand  com- 
mitted till 
perfect 
answer; 
and  a  fourth 
answer  will 
be  irregular. 


Order  for 
committal: 
liow  exe- 
cuted. 


1  Partridge  r.  Ilaycraft,  11  Ves.  670, 
681. 

2  Ih.  6HI. 

8  l''an|uli!irson  v.  Balfour,  T.  &  U.   189. 

*  Ord.  XV'I.  14;  antf,  p.  "tilt. 

^  Ord.  .\VI.  1!J.  Ill  is  order  does  not 
apply  to  a  third  in^iifficieiit  atlidavit  as  to 
documents.  Harford  r.  Lloyd.  2  W.  II,  637, 
V.C  W.;  and  as  to  the 'practice  in  the 
case  of  an  insuiricicnt  answer  lu  iuteiroga- 
tories,  exhibited  in  prosecuting  a  decree  at 


Chambers,  see  Ilayward  v.  Ilaywurd,  Iv:iv 
Ap.  31;  see  also  Allfrey  v.  Allfrev,  12 
Heav.  G20.  IJy  the  19th  Kulc  fc.r  llio 
Keg.  rif  I'rac.  in  (Jhan.  in  Muss.,  ii|i<in  a 
second  answer  lieiiig  adjuilgcd  iri^ufliiicnt, 
costs  shall  Ik;  douhl.'cl  hy  the  C'ourl  ;  .'ilid 
the  di-lcndant  may  \n\  I'xamincd  upon  in- 
terrogatories iind  committed  until  lieshiill 
answer  them. 

•5  Liverpool  v-  Chippendall,  14  .lur.  301, 


<  <  -  ANSWERS. 

('.  XVII.  §1.  nnvstoil,  lie  slumld,  in  strictness,  bo  taken  to  Wliitccross  Street 
Prison  ; '  Imt  in  Fartjuharson  v.  Iia{fou)\-  the  defendant,  being  a 
gentlenuni  advanced  in  years,  -was,  by  the  onler  of  tlie  Court, 
aUowed  to  remain  at  an  hotel  in  the  neit^hboiliood  of  Lincohi's 
Inn,  in  tlie  eustody  tif  tlie  Tipstair,  (ill  Ids  examination  slionhl 
be  compK'ted. 
After  ploa  Jf  a   (k'tendant    sliould,  aller  ])lea  ovcM'ruled,  jnit  in  two  answers 

lomiiiiital        Avhicli   are   insulnt'ient,  it   seems    tlie   plea    is   not   treated    as    an 
will  lu't  inl-      answer,  and  lie  -will   not  be  liable  to  the  consequences  of  a  third 

low  on  two  •  a'    •  n 

insiiiiicioiit       insumcicnt  answer. 

answers.  j^.  .^  j)laintiif,  having  obtained  the  order  that  the  defendant  be 

Interro£;ato-  -i  •,'  ,•  .  i-i-x-^^  ^      • 

ries:    "  examiiuHl  ujion  interrogatories,  means  to  exhibit   interrogatories, 

he  must,  if  the  defendant  is  in  custody,  do  so  immediately.''     The 

how  prepared  interrogatories  arc  drawn  by  counsel,  but  must  be  settled  by  the 
sett  ei  ,  jm]ge .  5  (jjjj.g  })eing  taken  tliat  they  go  directly  to  the  points  as  to 
which  the  exceptions  are  sustained  ;  and  the  Judge  must  deter- 
mine whether  they  have  a  direct  reference  to  those  points  or  not.® 

iiow  allowed.  The  subsequent  proceedings  would  seem  to  be  as  follows :  The 
interrogatories  having  been  settled  by  the  Judge,  a  fair  copy 
thereof  is  made  by  the  plaintiff,  on  2^ni>er  of  the  same  description 
and  size  as  that  on  Avhich4)ills  are  ])rinted  ; ''  and  the  signature  of 
the  Judge's  Chief  Clerk  is  ol)taincd  to  a  memorandum  of  allow- 
ance in  the  margin  thereof^  The  copy  so  allowed  is  left  at  the 
Judge's  Chambers,  and  notice  thereof  is  given  to  the  defendant  by 
the  plaintiff.^  The  defendant  may  then  procure  a  copy  of  the 
interrogatories  from  the  Chambers ;  and  he  should  i)rei)are  a 
written  answer  thereto ;  ^°  and  obtain  at  Chambers  an  appointment 

Examination    to  proceed  thereon.     On  attending  such  appointment,  the  defend- 

taken""'  ^^  ^"^  ^^^^^  ^®  examined  on  oath  by  the  Judge,  who  will  compare 
the  proposed  answer  with  the  interrogatories,  and  determine 
whether  or  not  it  is  sufficient.  If  the  proposed  answer,  or  exami- 
nation as  it  is  called,  is  considered  insufficient  in  any  respect,  the 
defect  will  be  supplied  by  the  personal  examination  of  the  defend- 
ant by  the  Judge,  until  the  .Judge  is  of  opinion  that  the  examina- 
tion is  sufficient.  The  examination,  when  completed,  will  be 
authenticated  by  the  signature  of  the  Judge's  Chief  Clerk ;  and 
he  Avill  transmit  the  interrogatories  and  examination  to  the  Record 

Notice  of         ^^^  Writ  Clerks'  Office, 'to  be  there  filed;"  and  notice  of  the  filing 

filing  exam- 
ination.                  J  25  &  26  Vic.  c.  104,  §  2.  7  Or.].  6   Mnr.,  18f,0,  r.   10.     As  to  such 
2  See  T.  &  H.  184,  I'.U,  V.)Z.  paper,  see  Onl.  l.\.  3;  mite,  p.  3y6. 
8  Cl'itwiiriliv  ''•  Mellisli,  1  Clia.  Ca.  279.  "  For   form  of   mcinuranduiii,  see  Vol. 
*  Farquharsoii  v.   HalloMr,  T.  &  U    litl.  III. 

6  See  1.5  &   10  Vic.  c.   60,  §   20;    Ilaj'-  «  For  form  of  notice,  see  Vol.  III. 

ward   «.  Hay  ward,  Kay  Ap.  31.     For  form  !•*  I<"or  the  formal  paits,  see  Vol.  III. 

ot  interrogatorie'<,  see  Vol.  III.  11  See  Ord.  XXXV.  31.     The  examina- 

*<  Fai'quliitrson  v.   Balfour,  T.  &  R.  203.  tinu  due-*  not  retpiire  the  signature  of  coun- 

Bel;  LJraithwaitu's  I'r.  45. 


EXCEPTIONS    TO    ANSWERS. 


773 


thereof  must  be  given  by  the  defendant  to  the  plaintiff.^  The 
defendant  is  entitled  to  be  attended  by  his  counsel  at  his  examina- 
tion, but  the  plaintiff  is  not  entitled  to  notice  of  the  defendant's 
being  under  examination,  and  has  no  riglit  to  attend.^ 

The  defendant  having  passed  his  examination  to  the  satisfictlon 
of  the  Judge,  may  apply  to  be  discharged  out  of  custody.  He  is 
not,  however,  entitled  to  be  discharged  until  the  plaintiff  has  had 
an  opportunity  of  perusing  the  examination,  in  order  that  he  may 
be  satisfied  that  it  is  sufficient.^  The  plaintiff  has  also  a  right, 
before  the  defendant  is  discharged,  to  see  all  the  documents  men- 
tioned in  the  schedules,  or  referred  to  in  the  examination,  if  they 
are  so  mentioned  or  referred  to  that,  in  the  case  of  an  answer,  they 
would  have  made  part  of  the  answer.* 

The  application  for  the  discharge  of  the  defendant  from  custody 
is  made  on  motion,  notice  of  which  must  be  given  to  the  plain- 
tiff; *  and  the  order  will  be  made  upon  payment  of  the  costs, 
charges,  and  expenses  occasioned  to  the  plaintiff  by  the  insufficient 
answer.® 

Where  the  defendant  submits  to  exceptions  for  insufficiency 
which  have  not  been  set  down  for  heai-ing,  he  must  pay  to  the 
plaintiff  20s.  costs ;  and  where  a  plaintiff  obtains  a  decree  with 
costs,  the  costs  occasioned  to  the  2>h^intiff  by  the  insufficiency  of 
the  answer  of  any  defendant,  who  has  submitted  to  exceptions  for 
insufficiency,  will  be  deemed  to  be  part  of  the  plaintiff's  costs  in 
the  cause :  such  sum  being  deducted  therefrom  as  shall  have  been 
paid  by  the  defendant,  upon  the  exceptions  to  the  said  answer 
being  submitted  to.''  It  must  be  recollected,  however,  that  this 
rule  will  only  apjjly  where  the  question  of  the  extra  costs  has  not 
been  disposed  of  by  the  Court  in  the  course  of  the  suit.^ 

Under  the  old  practice  of  the  Court,  if  the  answer  was  reported 
insufficient,  the  defendant  was,  if  it  was  a  first  answer,  to  pay  40s. 
costs,  when  the  answer  was  j5ut  in  by  the  defendant  in  person, 
but  if  put  in  by  commission,  50s. ;  if  it  was-  a  second  answer,  the 
defendant  was  to  pay  60s.  costs ;  upon  the  third  answer,  80s. 
costs,  and  upon  the  fourth  answer  bl.^  with  the  costs  of  the  con- 
tempt, if  the  jilaintiff  availed  himself  of  the  right  of  commitment.^* 
It  seems,  that  the  present  i)ractice  is  to  tax  the  costs  of  excej)tions, 
and  they  are  considered  to  be  in  the  discretion  of  the  Court." 
Where,   however,  the  exceptions  are  allowed,  the  costs  will,  in 


C.  XVII.  §4. 


Application 
for  (liscliarge: 
how  made. 


Costs : 
Wliero 
exceptions 
submitted  to, 
before  set 
down*. 


Where  set 
down  and 
allowed. 


1  YoT  form  of  notice,  see  Vol.  III. 

2  Farfiuluir-on  v.  Balfour,  T.  &  R.  202, 
203;  gee  Havward  v.  Hay  ward,  Kay  Ap. 
31. 

a  Farqiiharson  v.  Balfour,  T.  &  li.  201. 

*   Ih.  202. 

'  For  form  of  notice,  see  Vol.  III. 

«  T.  &  U.  200. 


7  Ord.  XL.  13. 

8  I'ooe   r.  (iordnn,  C.   P.   Coop.  43.3;  8 
L.  J.  N.  S.  Ch.  205. 

0  Hcnnics'  ()r<i.  182,  183. 

10  Ibid  ;  and  Beanies  on  Costs,  227. 

11  13   Sc   14  Vic.  c.  35,  §  32;    Morgan  & 
Davey,  27. 


ANSWERS. 


r.  XVII.  5  4. 


\Vherc 

l>artially 

allowod. 


('o>ts  niiist  1)0 
aj>i>Iii'il  ll>r  at 
hoariuii. 

WIUTO  (Ic- 
toiulant  is  a 
marrietl 
wdinan. 
living  apart. 


Set  off 
against  costs 
of  bill  of 
discovery. 


In  what 
manner 
recovered. 


Appeal  lies 
from  order  on 
exceptions. 


urnor:il,  bo  onlorod  to  follow  tlio  deoision :  liecanse  the  defendant 
laii  always  i)ivvi'iit  tlu'  costs,  or  the  greater  part  of  them,  by 
submit tiuii:  to  the  exeeptions.^  Where  the  exee])tions  are  over- 
ruled, the  eosts  will  also,  in  general,  be  directed  to  follow  the 
decision.-  If  tlicy  arc  partially  allowed,  and  partially  overi'uled, 
the  costs  of  those  allowed  will  be  ordered  to  be  set  off  against 
those  overruled.*  If  no  direction  as  to  the  costs  is  given,  tliey 
will,  inider  the  present  practice,  be  costs  in  the  cause.'' 

Application  must  be  made  for  the  costs  on  the  hearing  of  the 
exce))tions ;  "^  and  where  tlie  exceptions  are  allowed,  the  costs 
may  be  ordered  to  be  paid  immediately.*  Where  a  married 
woman,  living  sej)arate  from  her  husband,  filed  an  insuillcient 
sejKirate  answer,  leave  was  given  to  the  plaintiff  to  apply  for  part 
of  the  costs  out  of  any  sums  which  inight  come  to  her,  on  account 
of  her  separate  estate,  as  the  order  could  not  be  personally  en- 
forced against  her.'' 

Where,  on  a  sufficient  answer  being  filed,  the  plaintiff  has  been 
ordered  to  pay  the  costs  of  a  bill  of  discovery,*  the  costs  of  excep- 
tions which  have  been  allowed  to  the  first  answer,  may  be  ordered, 
on  the  plaintifi"'s  ex  parte  apj)lication,  to  be  deducted  from  the 
costs  payable  to  the  defendant.^ 

The  costs  of  insufficient  answers  are  recoverable  by  the  usual 
process  of  subpoena  and  attachment,  or  hj  fieri  facias,  or  elegit  f 
and  if  a  first  or  second  answer  is  held  insufficient,  the  jdaintiff  will 
not,  by  accepting  a  further  answer,  waive  his  right  to  the  costs 
already  due  to  him  for  the  insufficiency  of  the  former  answer.^" 

An  order  of  the  Court,  allowing  or  overruling  excejitions,  may 
be  apjDealed  from  in  the  usual  manner.^^ 


1  Newton  v.  Dimes,  3  Jur.  N.  S.  583,  V. 
C.  W. 

2  Stent  V.  Wickens,  5  De  G.  &  S.  384 ; 
B.  V.  W.,  31  Beiiv.  342,  346;  S.  C.  nom. 
A.  V.  B.,  8  Jur.  N.  S.  1141.  By  the  65th 
Equity  Rule  of  the  Uniti'd  States  Courts, 
it  is  provided,  that  "  if,  upon  argument, 
the  pliiiiititf's  exceptions  to  the  answer 
shall  he  overruled,  or  the  answer  shall  be 
adjudged  insufficient,  the  prevailing  party 
shall  tie  entitled  to  all  the  costs  occasioned 
thereby,  unless  otherwise  directed  by  the 
Court,  or  the  .Judge  thereof,  at  the  hearing 
upon  the  exceptions." 

2  Willis  r.  Childe,  13  Beav.  454;  Dally 
».  Worliani,  32  Beav.  69;  Brideewater  «. 
De  Winton,  9  Jur.  N.  S.  1270,  1272;  12 
W.  R.  40,  V.  C.  K. ;  see  Order  in  Seton, 
1256,  No.  8;  see  as  to  costs,  where  several 


questions  were  contained  in  the  interrog- 
atory and  some  answered.  Langton  v. 
Waite,  1  W.  N.  328;  15  W.  R.  53.  V.  C.  K. 

4  Crossley  v.  Stewart,  11  W.  R.  636, 
V.  C.  K. 

5  Earp  V.  Lloyd.  4  K.  &  J.  58;  Crossley 
V.  Stewart.  11  W.  R.  6.36,  V.  C.  K.;  Betts 
V.  Rimell,  1  W.  N.  22,  V.  C.  W. 

6  Thnmas  v.  Rawling,  27  Beav.  375. 

■?  I'emberton  v.  M'Gill,  1  Jur.  N.  S. 
1045,  V.  C.  W. 

8  ^ec.post,  Chap.  XXXIV.  §  2,  BiUs  of 
Discovery. 

9  Hughes  V.  Clerk,  6  Hare,  195;  but 
see  now,  Thomas  v.  Rawling,  27  Beav. 
375. 

1"  Brotherton  v.  Chance,  Bunb.  34. 
11  See  post,  Chap.  XXXH.,  Heheai-inff 
and  Appeals. 


FURTHER   ANSWERS. ANSWERS    TO   AMENDED   BILLS. 


775 


c.  x^^I.  §  5. 


Sectiox  Y.  —  Further  Ansicers  —  Answers  to  Amended  Bills. 

If  a  defendant,  not  being  in  contempt,  submits  to  exceptions 
to  his  answer  for  insufficiency  before  they  are  set  down  for  hear- 
ing, he  has,  as  we  have  seen,^  fourteen  days  from  the  date  of  the 
submission  within  which  to  jjut  in  his  further  answer ;  and  if  he  does 
not  answer  within  such  time,  or  obtain  further  time  and  answer 
within  such  furtlier  time,'^  the  plaintiff  may  sue  out  process  of  con- 
tempt against  hira.^ 

If  the  defendant  is  in  contempt,  no  time  is  allowed  him  to  put 
in  his  further  answer,  beyond  the  eight  days  from  the  filing  of  the 
exceptions :  before  the  expiration  of  which  time  the  plaintiif  can- 
not, as  we  have  seen,  set  them  down  for  hearing ;  *  a  defendant 
may  however  put  in  a  further  answer,  at  any  time,  pending  the 
exceptions.* 

If,  after  the  exceptions  are  set  down  for  hearing,  a  defendant, 
not  being  in  contempt,  submits  to  answer,  or  if  the  Court  holds 
the  first  or  second  answer  to  be  insufficient,  the  Court  may,  as  we 
have  seen,  appoint  a  time  within  which  he  must  put  in  liis  farther 
answer ;  and  if  he  does  not  put  in  his  further  answer  within  tlie 
time  so  appointed,  or  obtain  further  time  and  answer  within  such 
further  time,  the  plaintiff  may  sue  out  process  of  contempt  against 
him.® 

If  the  defendant  submits  to  the  exceptions  after  they  are  set 
down,  it  seems  that  they  should  be  allowed  to  come  on  for  hear- 
ing, and  an  application  be  then  made  to  the  Court  to  appoint  a 
time  within  which  the  defendant  must  put  in  his  further  answer.'^ 
If  tlie  exceptions  are  allowed,  the  Court  will,  at  the  request  of  the 
parties,  at  tlie  time  of  giving  its  decision,  appoint  a  time  within 
which  the  defendant  is  to  put  in  his  further  answer.^ 

If,  after  the  excejitions  are  allowed  or  submitted  to,  the  defend- 
ant desires  to  amend  his  bill,  he  may  obtain  on  petition,  as 
of  course,  at  the  Rolls,  an  order  that  he  may  be  at  liberty  to 
amend  his  bill,  and  that  the  defendant  may  answer  the  amendments 
and  exceptions  together.^  The  defendant  must  then,  as  we  have 
6een,^°  put  in  his  further  answer  and  his  answer  to  the  amended 
bill,  within  fourteen  days  after  service  on  him  of  the  interrogatories 


Time  for 
further  an- 
swer, where 
exceptions 
.submitted  to 
before  set 
down. 

Oonsequences 
of  default. 


Where  de- 
fendant is  in 
contempt. 


If  exceptions 
set  down, 
Court  ap- 
points time 
for  further 
answer. 


Application 
for  further 
time  made  to 
the  Court. 

Where 
exceptions 
allowed, 
Court  ap- 
p<iints  time 
at  hearing. 

Wliere 
defendant 
ordered  to 
answer 

amendments  ' 
and  excep- 
tions 
together. 


Ante.  p.  707. 

2  See  th'i<\. 

3  Or.!.  XVI.  9,  15:  (inte,  p.  707  note. 
*  OpI.  XVr.  f^,  11;  nnie,  p.  707. 

*■•  Ingliain  r.  Iugiiiim,9  Snn.  303;  2jur. 

«  Ord.  XVI.  14,  15;  ante,  p.  769. 


7  Manchester,  Sheffield,  and  Lincoln- 
shire Ha  Iway  Cnnipany  »'•  Worksop  IJourd 
o*'  Health,  2'K.  &  J.  25;  but  see  ante,  p. 
770,  u.  (9). 

«  Antv,  p.  769. 

»  Ante,  p.  769. 
10  AnU,  pp.  739,  769. 


776 


ANSWERS. 


C.  XVII.  § 


Further  an- 
swer sliinild 
only  extend 
to  unan- 
swered inter- 
rogatories ; 


not  to  inter- 
rogatories to 
original  bill; 

unless  en- 
tirely new 
case  is  made 
by  amend- 
ments. 

Forms  of  fur- 
ther answers. 


to  (lie  ninonilo.l  Mil.'  If  tlu"  (U'll'iidaiit  i)ut  in  :i  fiirtlu'i-  niiswcr 
only,  or  :in  :ins\voi-  to  tlio  nnuMidcMl  bill  only,  the  ]»l:iintiil"  ni:iy 
luovo  to  have  il  takon  otl'  (ho  lile,  unless  ho  is  desirous  that  it 
sln)ul(l  rotuain  tlioro:  in  which  case,  he  sliouUl  move  for  leave  to 
issue  an  attat'hnient.-  Iftho  defendant,  after  e.\t'ei)tions  allowed,  put 
in  his  further  answer  to  the  original  bill,  before  tlie  plaintitr serves  the 
order  for  liim  to  answer  tlie  amendments  and  exceptions  at  the  same 
time,  he  will  dej^rivc  the  plaintiff  of  the  benefit  of  the  order." 

A  further  answer,  as  Avell  as  an  answer  to  an  amended  bill,  is  in 
every  respect  similar  to,  and  is  considered  as  part  of,  the  answer 
to  the  original  bill ;  ■*  therefore,  a  further  answer  should  only  ex- 
tend to  the  interrogatories  which  have  not  been  answered  already; 
and  if  a  defendant,  in  a  further  answer,  or  an  answ^er  to  an 
amended  bill,  rejjeats  any  thing  contained  in  a  former  answer,  the 
repetition,  unless  it  varies  the  defence  in  point  of  substance,  or  is 
otherwise  necessary  or  expedient,  will  be  considered  as  imper- 
tinent ;  ^  and  the  defendant  may  be  ordered  to  pay  the  costs  oc- 
casioned by  the  introduction  of  such  impertinent  matter." 

The  defendant  need  not  answer  any  interrogatories  to  the 
amended  bill  wdiich  have  been,''  or  might  have  been,*  put  to  the 
original  bill,  unless  the  plaintiff  has  amended  his  bill,  stating  an 
entirely  new  case  :  for  then  the  defendant  must  answer  that  case, 
even  though  in  so  doing  he  answers  some  of  the  interrogatories 
Avhich  were  or  might  have  been  filed  to  the  original  bill.'' 

The  form  of  a  further  answer  and  of  an  answer  to  an  amended 
bill,  is  nearly  the  same  as  that  of  an  answ^er  to  an  original  bill. 
If  it  be  an  answer  to  amendments  as  Avell  as  to  exce])tions,  it 
must  be  entitled  "the  further  answer  of  A.  B.,  the  above-named 
defendant,  to  the  bill  of  complaint  of  the  above-named  plaintiff, 
and  the  answer  of  the  same  defendant  to  the  amended  bill  of 
complaint  of  the  said  plaintiff."  i°  If,  after  exceptions  to  the 
original  bill  arc  allow^ed,  the  plaintiff  amends  his  bill,  and  the  de- 
fendant puts  in  a  further  answer  to  the  original  bill  and  an  answer 
to  the  amended  bill,  and  the  answer  is  again  held  insuflicient, 
whereupon  the  bill  is  again  amended,  the  answer  should  be  en- 


1  Ord.  XXXVII.  6. 

2  I)e  THstet  r.  Lopez,  1  Sim.  11. 

s  Mayne  v.  Hociiin,  1  Dick.  255;  Be- 
thueii  V.  Batemaii,  ib.  29ti;  Knox  v.  Sym- 
monds,  1  Ves.  J.  87,  88;  Piitv  v.  Simpson, 
2  Cox,  392;  Partridge  v.  Ilaycraft.  11  Ves. 
570,  578;  Hemming  v  Diiigwa'l,  8  Beav. 
102;  Pariente  v  Bensu.san,  13  Sim.  522; 
7  Jur.  C18. 

*  Story  Kq.  PI.  §  868;  Bennington  Iron 
Co.  I'.  Ciimpbell,2  Paige,  160;  iMitford  Eq. 
PI.  by  .leremy,  318. 

6  Bowen  i-.'ldley,  6  Paige,  46;  Trust  & 
Fire  Ins.  Co.  v.  Jenkins,  8  Paige,  690. 


6  15  &  16  Vic.  c.  86,  §  17.  For  the  prac- 
tice as  to  impertinence,  see  ante,  pp.  349, 
3  50. 

7  Wieh'v.  Parker,  22  Beav.  59;  2  Jur. 
N.  S.  583;  nnte,  p  729. 

8  Drake  v.  Svmes,  2  De  G.,  F.  &  .1.  81; 
Dennis  v.  Kochussen,  4  Jur.  N.  S.  298,  V. 
C.  W. 

9  Mazerredo  v.  Maitland,  3  .Mad.  60.  72. 
10  Peacock  v.  Duke  o(   Bedford.  1   V.  & 

B.  186;  Braithwaite's  Pr.  42;  ,«ee  Benning- 
ton Iron  Co.  V.  (J.impbell,  2  Paige,  16U;  see 
forms  in  Vol.  111. 


AMENDING    ANSWERS. SUPPLEMENTAL    ANSWERS. 


777 


titled  "  the  further  answer  of  A.  B .,  the  above-named  defendant, 
to  the  orighial  and  first  amended  bill  of  complaint  of  the  above- 
named  plain tiiF,  and  the  answer  of  tlie  same  defendant  to  the 
secondly  amended  bill  of  complaint  of  the  said  plaintiflP."  ^  It  is 
not  necessary,  in  answering  a  bill  which  has  been  amended  before 
answer,  to  call  it  an  answer  to  the  original  and  amended  bill ;  the 
most  correct  Avay  is  to  call  it  the  answer  to  "  the  amended  bill,"  or 
to  "the  secondly  (or  thirdly)  amended  bill,"  only:  as  the  original 
bill  has  become  nugatory  by  the  amendment,  and  the  defendant  is 
not  bound  to  notice  it,  either  in  an  answer  or  a  demiirrer.- 

Further  answers,  and  ansAvers  to  amended  bills,  must  be  pre- 
pared, signed,  taken,  filed,  and  printed  in  the  same  manner  as 
answers  to  original  bills.^ 

If  the  plaintiff  has  vexatiously  required  an  answer  to  the 
amended  bill,  and  the  defendant  claims  the  costs  of  it  in  such 
answer,  and  asks  for  them  at  the  hearing,  the  Court  will  order 
them  to  be  paid  at  once.* 

A  defendant  who  is  required  to  answer  an  amended  bill,  must 
put  in  his  plea,  answer,  or  demurrer  thereto,  not  demurring  alone, 
Avithin  twenty-eight  days  from  the  delivery  to  him  or  his  solicitor 
of  a  copy  of  the  interrogatories  which  he  is  required  to  answer ;  ^ 
and  if  an  answer  is  not  required  to  the  amended  bill,  a  defendant 
who  has  appeared  to  and  answered,  or  has  not  been  required  to 
answer,  the  original  bill,  but  desires  to  answer  the  amended  bill, 
must  put  in  his  answer  thereto  within  fourteen  days  after  the  ex- 
piration of  the  time  Avithin  Avhich,  if  an  answer  had  been  required, 
he  miglit  have  been  served  with  interrogatories  for  his  examina- 
tion in  answer  to  such  amended  bill,  or  Avithin  such  further  time 
as  the  Judge  may  alloAV.®  An  application  for  further  time  must 
be  made  by  sj^ecial  summons,  in  the  manner  before  explained,'' 


C.  XYII.  §  6. 


IIow  pre- 
pared, &c. 


Costs,  where 
answer  to 
amended   bill 
is  vexatiously 
required. 

Time  for 
answerinnj 
amended  bill : 
when  interro- 
gated ; 


when  not 
interrogated. 


Section  VI.  —  Amending  Answers  —  and  Siq^jyletnental 
Answers. 

After  an  answer  has  been  put  in  u])on  oath,  the  Court  will  not,   In  what  cases 
for  obvious  reasons,  readily  suffer  any  alteration  to  be  made  in  it.*  uUowedT"'^ 


1  See  Rraithwaite's  I'r.  42,  and  forms 
in  Vol.  III. 

2  Sinitti  r  Hryon,  3  Mad.  428.  It  may 
be  c  dlccl  '•  Tlie  answer  fo  the  bill  of  com- 
plaint."    Itigliv  V.  Ki-bv.  9  Heav.  311,813. 

8  >e>'  nut, ,  §§  2,  3,  ot'tliis  eliaptcr. 

*  Coi'k^  ).'.  .St:inley,  4  Jur.  N.  S.  942;  C 
W.  I{.  4',.  V,  C.  S. 

6  Or.l.  XXX  VH.  4;  (inte,  p.  738. 

«  did.  XXXVn.  7.  This  pives  thirty 
days  Iroiu  tlie  date  of  service  of  the  amend- 


ed bill,  where  the  service  is  effected  within 
the  jurisdiction;  see  ante,  p.  740. 

T  Ante.  J).  741. 

8  See  llowe  «.  Russell,  36  Maine,  115; 
American  Life  Ins.  &  Trust  Va).  v.  iiayard, 
and  Same  v.  Sackett,  3  Uarl).  Cli.'OlO; 
V'aiulervere  V.  Reading,  1  Stockt.  ( M.  J.) 
446.  In  Maine,  answers,  ])leas,  and  rules 
may  be  amended  iit  any  time  on  the  like 
terms  as  a  liili.  Rule  3,  Maine  Chiincery 
rrantiee;  but  see  IIowo  V.  Kussell,  88 
Maine,  115. 


778 


ANSWERS. 


'- Y ■ 

wlu'r\>  mis- 
take or  orror 


C.  XVII.  §0.  Tlu'lo  :iro,  however,  many  instances  in  tlie  books  in  whicli  it  np- 
)>ears  that  the  Court,  upon  special  a])plication,  lias  allowed  the 
(letentlant  to  reform  his  answer.'  Thus,  where,  in  answer  to  a  tithe 
bill,  the  iletendant  has  sworn  that  a  certain  close  contained  nine 
acres,  he  was  ])ermitted  to  amend  it  by  statintj  the  close  to  contain 
seventeen  acres,  even  though  issue  had  been  joined ;  ^  so,  wliere, 
owing  to  the  mistake  of  the  engrossing  clerk,  the  words  '■'■her 
shares"  had  been  introduced  into  an  answer  instead  of  '•'■ten 
shares,"  the  answer  was  allowed  to  be  taken  off  the  file  and 
amended,  though  a  service  had  been  made;^  and  where  there 
has  been  a  mistake  hi  the  title  of  the  answer,  an  amendment  of 
it  has  been  permitted,*  even  though  opposed  by  the  plaintiff.^ 

The  Court  has  also  allowed  a  defendant  to  amend  his  answer 
where  new  matter  has  come  to  his  knowledge  since  it  was  i)ut  in," 
or  in  cases  of  surprise,  as  where  an  addition  has  been  made  to  the 
draft  of  the  ans^ver  after  the  defendant  has  perused  it.''  In  like 
manner,  Avliere  a  plaintiff,  having   drawn  the  defendant  into  an 


where  new 

matter  dis- 
covereil, 


or  suqinse, 
or  misreprc- 
seutation. 


1  Campion  v.  Kille,  1  McCarter  (N..T.) 
229,  232.  In  matters  of  form,  or  mistiikes 
of  dates,  or  verbal  iiiticcuraeies,  Courts  of 
E(|iiity  are  very  indulgent  in  allowing 
amendments  of  answers;  but  it  is  onlj' 
under  very  special  circumstances,  that  a 
defendant  can  be  allowed  to  make  any 
material  alteration  in  his  answer,  after  it 
has  been  put  in.  See  M'Kim  v.  Thomp- 
son, 1  Bland,  162;  Bowen  r.  Cross,  4  John. 
Ch.  37.',;  1  Barb.  Ch.  Pr.  163,164;  Smith 
r.  Rabcock,  3  Sumner,  583;  Burden  v. 
M'Elmoyle,  1  Bailey  Eq.  375;  Western 
Reserve'Bank  v.  Str^'ker,  1  Clarke,  380; 
Cock  V.  Evans,  9  Verger,  287,  288 ;  Giles 
V.  (iiles,  1  Bailey  Eq.  428;  Caster  v.  Wood, 
1  Bald.  289;  Cullowav  v.  Dobson,  1  Brock. 
119;  Liggon  v.  Smith,  4  Hen.  &  M.  405; 
Coffman  v.  Allin,  Litt.  Sel.  Ca.  201 ;  Ma- 
son V.  Debow,  2  Hayw.  178;  Flora  r.  Rog- 
ers, 4  Havw.  202;  Jackson  v.  Cutright, 
5  Munf.  308 ;  Beach  v.  Fulton  Bank,  3 
Wend.  574;  Hennings  v.  Conner,  4  Bibb, 
299;  Taylor  v.  Bogert,  5  Paige,  33.  This 
subject  is  tre.ited  at  length  in  Storv  Eq. 
Pl.§§  896-901;  also  in  Smith  v.  Biibcock, 
uhisupra  ;  Williams r.  The  Savage  Manuf. 
Co.,  3  Md.  Ch.  Dec.  418;  Tillinghast  v. 
Champlin,  4  R.  I.  12S;  Howe  v.  Russell, 
36  Maine,  115;  Vandervere  v.  Reading,  1 
Stockt.  (X.  J.)  446. 

By  the  60th  of  the  Equity  Rules  of  the 
United  States  Courts,  it  is  provided  that, 
"  after  an  answer  is  put  in,  it  may  be 
amended  as  of  course,  in  any  matter  of 
form,  or  by  filling  up  a  blank,  or  correcting 
a  date,  or  reference  to  a  document,  or  other 
small  matter,  and  be  resworn  at  any  time 
before  a  replication  is  put  in,  or  the  cause 
is  set  down  for  a  hearing,  upon  bill  and 
answer.  But  after  rejilication,  or  sucli  set- 
ting down  for  a  hearing,  it  shall  not  be 
amended  in  any  material  matters,  as  b}' 
adding  new  facts  or  defences,  or  qualifying 


or  altering  the  original  statements,  except 
by  special  leave  of  the  Court,  or  the  Judge 
thereof,  upon  motion  and  cause  shown  af- 
ter due  notice  to  the  adverse  party,  sup- 
ported, if  requireil,  by  affidavit.  And  in 
every  case  where  leave  is  so  granted,  the 
Court  or  the  Judge  granting  the  same,  may 
in  his  discretion,  require  that  the  same  bo 
separately  engrossed  and  added  as  a  dis- 
tinct amendment  to  the  original  answer,  so 
as  to  he  distinguishable  therefrom."  An 
amendment  changing  the  whole  ground  of 
defence  set  up  in  the  first  answer  will  not 
be  allowed.  Western  Reserve  Bank  v. 
Strj'ker,  1  Clarke,  380.  Where  an  answer 
is  amended,  the  old  answer  must  remain 
on  tile  as  originally  put  in.      Ibid. 

Where  the  defendant  has  obtained  leave 
to  file  an  amended  answer,  he  is  not  to 
be  considered  as  having  put  in  any  answer, 
until  such  amended  answer  has  l)een  tiled. 
Whiter.  Hampton,  9  Iowa  (1  With.),  181. 

2  Berney  ».  Chambers,  Bunb.  248;  but 

see  Montague  v. ,  cited  ib.  n.,  and  2 

Gwil.  674,  n.  {b). 

3  Countess  of  Gainsborough  v.  Giffbrd, 
2  P.  Wins.  424.  427 ;  but  see  Vandervere 
V.  Readins,  1  Stockt.  (N.  J.)  446. 

4  Wiiite  V.  Godliold,  1  Mad.  269;  Pea- 
cock V.  Duke  of  Bedford,  1  V.  &  B.  186; 
Thatcher  v.  Lambert,  5  Hare,  228. 

5  Attorney-General  v.  Corporation  of 
Worcester,  2  Phil.  3;  1  C.  P.  Coop.  t.  Cott. 
18. 

6  Patterson  v.  Slaughter,  Amb.  292; 
Wells  ?'.  Wood,  10  Ves.  401;  and  see  re- 
marks on  Patterson  v.  Slaughter,  in  Fulton 
V.  Gilmore,  1  Phil.  528;  Tillinghast  v. 
Champlin,  4  H.  I.  128. 

■^  Chute  V.  Lady  Dacre,  1  Eq.  Ca.  Ab. 
29,  pi.  4,  especially  where  the  answer  has 
not  been  sworn  to.  Taylor  v.  Dodd,  5  Ind. 
(Porter)  246. 


AMENDING   ANSWERS. SUPPLEMENTAL,   ANSWERS. 


779 


agreement,  whereby,  for  300^.,  he  was  to  relinquish  to  the  plaintiff 
all  his  right  and  interest  in  a  certain  estate  which  had  been  left  to 
him,  filed  a  bill  to  have  the  agreement  performed,  to  which  the 
defendant  put  in  an  answer  confessing  the  agreement,  and  submit- 
ting to  have  it  performed,  but,  afterwards  discovering  that  the 
estate  was  of  several  thousand  pounds'  value,  he  ajjplied  for  leave 
to  take  his  answer  off  the  file,  and  to  put  in  another,  leave  was 
granted.^  The  Court  has  also  permitted  a  defendant  to  amend  an 
answer,  by  limiting  the  admission  of  assets  contained  therein, 
where  it  was  clearly  established  that  such  admission  had  been 
made  by  mistake,  and  through  the  carelessness  of  the  solicitor's 
clerk.2 

The  Court,  however,  has  never  permitted  amendments  of  this 
nature,  where  the  application  has  been  made  merely  on  the  ground 
that  the  defendant,  at  the  time  he  put  in  liis  answer,  was  acting 
under  a  mistake  in  point  of  law ;  and  not  on  the  ground  of  a  fact 
ha\'ing  been  incorrectly  stated.^  Thus,  where  a  defendant,  who 
was  an  executor,  had  admitted  himself  accountable  for  the  surplus, 
and  it  was  afterwards  found  that  the  circumstances  of  the  case 
were  such  that  he  would  have  been  entitled  to  it  himself,  permis- 
sion to  amend  was  refused.*  So,  where  a  defendant  had,  by  his 
answer,  admitted  the  receipt  of  a  sum  of  money  from  his  father  by 
way  of  advancement,  and  refiised  to  bring  it  into  hotchpot,  he 
was  not  pemiitted  to  amend  his  answer  as  to  the  admission, 
although  he  swore  that  he  made  it  under  a  mistake  as  to  the  law 
of  the  case.^ 

The  Court  will  also  refuse  to  permit  an  amendment  of  an  answer, 
after  an  indictment  for  perjury  prefeiTcd  or  threatened,  even 
though  it  consider  it  to  be  clear  that  the  defendant  did  not  intend 
to  perjure  himself,  and  had  no  interest  in  so  doing,^ 

From  the  above  cases  it  appears,  that  it  was  formerly  ihe  general 
practice  of  the  Court,  if  it  saw  a  sufficient  ground  for  so  oing,  to 
permit  the  defendant  to  an^end  his  answei'.  Lord  Thurlow,  how- 
ever, as  it  seems,  introduced  a  better  course  in  cases  of  mistake : 


C.  XVII.  §  6. 


1  Alpha  r.  Payman,]  Dick.  33.  So  where 
iin  order,  i;rantin):f  to  tlm  |ilaintifTtiie  right 
to  siirchartje  and  tiil-iify  an  account,  was 
apjii'ah'd  from,  and  the  ajipidhite  Court 
reniand(!d  the  cause  for  tlic  purpose  of  hav- 
ing; the  pleadinf^s  auuMided,  ami  for  further 
proceedint'H,  and  extended  the  right  to  sur- 
ch'irffc  and  falsify  the  account  to  both  par- 
tie.x,  provided  ftie  di^fendant's  amended 
pleadinps  .'■hould  warrant  such  extension. 
It  was  helil  that  tlic  defendant  could  amend 
his  answer  sio  as  to  surcharfre  and  falsify  in 
rPHfiect  to  matters  known  to  him  at  the 
time  of  filing  liis  original  answer.  Wil- 
liams V.  The  Savage  Manuf.  Co.,  3  Md. 
Ch.  Dec.  418. 


2  Dagly  V.  Crtiinp,  i/>.  35;  and  see 
Cooper  r."  Uttoxeter  liurial  Board,  1  IT.  & 
M.  680;  Hughes  r.  Hloomer.  9  Paige,  209. 

8  IJraneh  v.  Dawson,  0  Geo.  6i)2.  So 
where  there  has  been  a  dcciee  to  account, 
the  defendant  will  not  be  permitted  to 
amend  his  answer  so  as  to  embrace  ;he 
defence  of  the  Statute  of  Limitations. 
McHea  V   David,  7  Kich.  Eq.  (S.  C.)  375. 

*  Hawlins?'.  Powel,  1  P.  VVnis.  2!tS;  see, 
however,  Hrown  v.  Lake,  1  De  (I.  &  S.  144. 

^'  K'arce  v.  Grove,  Amb.  05;  3  Afk.  522. 

"  I'jirl  Verney  v.  Macnanuira,  1  Hro.  C. 
C.  419;  Phelps  v.  Prothero,  2  De  G.  &  S. 
274. 


By  luiiiting 
admission  of 
assets. 


Not  where 
facts  are  cor- 
rectly stated, 
but  law  mis- 
taken. 


Nor  where  a 
prosecution  is 
pending. 


Supple- 
mental an- 
swer, in  lieu 
of  amending: 


780 


ANSWERS. 


C.  XVII.  §( 


Perniitted 
in  casi's  of 
mistake; 

or  of  iguo- 
rance, 


or  of  subse- 
quent events 
occurriji}'. 


Court  very 
cautious  in 
allowiiif^ 
supplemental 
answer: 


not  t.-ikiiiu:  tlio  aiiswor  oiV  the  file,  but  ponnittiiig  a  sort  of  supple- 
iiu'iit.nl  .-.iiswi'i-  ti)  be  filcil,  ;uul  by  tliat  course  leaving  to  tl>e  parties 
tlie  elleet  of  what  bas  been  sworn  before,  witb  the  explanation 
given  by  tlie  supplemental  answer.^ 

This  jjraetieo  lias  been  since  adopted,  in  all  cases  in  Avliich  it  is 
wisbed  to  correct  a  mistake  in  an  answer  as  to  a  matter  of  fact;'* 
and  it  is  not  confined  to  cases  of  mistake  only,  but  has  been 
extended  to  other  analogous  cases :  as  where  a  defen(bMnt,  at  the 
time  of  i)utting  in  his  original  answer,  Avas  ignorant  of  a  i)articuUir 
circumstance,  he  has  been  permitted  to  introduce  that  circumstance 
by  sui)j>lemental  answei-,'  even  though  the  information  Avas  ob- 
tained by  a  violation  of  professional  confidence.*  And  where  a 
defendant  had  Avishcd  to  state  a  fact  in  his  original  answer,  but 
had  been  induced  to  leave  it  out  by  the  mistaken  advice  of  his 
solicitor,  he  was  allowed  to  state  it  by  supplemental  answer.^ 
Again,  Avhere,  subsequently  to  the  filing  of  the  answer,  events  had 
occurred  Avhich  the  defendant  was  advised  ought,  for  the  purjjoses 
of  his  defence,  to  appear  on  the  record,  he  Avas  alloAved  to  state 
them  by  means  of  a  supplemental  ansAver." 

Although  the  Court  will,  in  cases  of  mistake,  or  other  cases  of 
that  dcscrijition,  jiermit  a  defendant  to  correct  his  ansAver  by  sup- 
]>lemental  ansAver,  it  always  does  so  Avith  great  difficulty,  where  an 
addition  is  to  be  put  upon  the  record  prejudicial  to  the  i)laintifF,'' 


1  Per  Lord  Kliion,  in  Do'der  v.  Bank  of 
Eiiiil.'iul,  10  Yes.  285;  and  see  .Tennin^^s 
17.  .Nlerton  CoUeffe,  8  Ve^.  79;  Weli-i  y. 
Wo'd,  10  Yes.  401;  Phclp-!  v.  Protluro,  2 
l)e  G.  &  S.  274;  12  Jur.  73.3;  see  lioweii 
V.  Cross,  4  John  Ch.  375;  Vand^rvere  v. 
Kea'ling.  1  Stoekt.  (N.  .1)  440;  1  Harl). 
Ch.  I'r.  165,  106;  Howe  v.  Uiissell,  36 
Maine.  124:  Edward*  v.  M'Lear,  2  V.  & 
B.  256;  1  Smith  Cli.  Pr.  (2d  .Am  ed.)  270. 
A  sufiph.'nieiital  iinswer,  to  correct  an  error 
in  tlie  orif^iiial  answer,  will  not  be  alloweil 
except  with  great  cautinn,  and  Jilways  on 
e<|uitable  terms  as  to  costs  and  furnishing 
copies  gratis.  AYestern  Reserve  B  ink  v. 
Str\ker,  I  Clarke,  380.  AVhen  a  supple- 
mental imswer  is  put  in,  the  ol  I  iiiiswer 
must  remain  on  fi!easit  wasoriL'in;dly  put 
in.  Murdock's  C;ise,  2  Bland,  261 ;  AYest- 
em  lie-erve  Bink  v.  S  ryker,  1  Chirke, 
3!^0.  All  application  will  n"t  be  enter- 
tained to  file  a  supplemental  answer  to 
ctiange  the  whole  ground  of  defence  setup 
in  the  first  answei'.  Mu' dock's  Case,  2 
Bland.  261;  AVe-teni  lieserve  Bank  i'. 
Striker,  1  Clarke.  3.S0.  The  d.-fendant 
will  not  be  a'lowed  to  amend  his  an-wer 
alter  the  ofiinion  of  the  Court,  and  the  tcs- 
timnny  have  indicMt'-d  in  what  resnect  it 
may  be  m""ii)ied  so  ms  to  effect  his  pur- 
pose. Collowiiy  ?,'.  Dobson.  1  Brock  119. 
A  defend  ait  is  not  allowed  to  file  a  supple- 
mental answer  for  the  purpose  of  setting 


up  an  imporfant  fact,  which  ha.s  arisen 
since  the  hlingof  the  ori^'inal  answer.  Ho 
shnuhl  lile  a  bill  in  the  nUure  of  a  supple- 
mental bill.  Tavlor  v.  Titus,  2  EJw.  Ch. 
135;   Storv  Eq.  PI.  §  903. 

■^  Strange  v.  Collins,  2  V.  &  B.  163, 167; 
Tavlor  v  Obee,  3  Pri.  83;  Hidlev  v.  Obee, 
AVightw.  32;  Swallow  y.  l);iv,  2  Coll.  133; 
9  Jur.  805;  Bell  r.  Dunmore,  7  B'-av.  283, 
287;  Cooper  v.  Uttoxeter  Burial  Boird,  1 
11.  &  M.  680;  Mounce  v.  Bvars,  II  Geo. 
180;  Tillinsha-t  v.  Chiimplin,  4  It.  I.  128. 

3  Jackson  v.  Parish,  1  Sim.  505,  509; 
Tiilswell  V.  Bowver,  7  Sim.  64;  .see  Const 
V.  Ba-r,  2  Mer.  57,  60;  Fran  sland  v.  Over- 
eni,  9  Sim.  365;  2  Jur.  886;  Fulton  v. 
Gilmore,  8  Beav.  154;  9  Jur.  1;  1  Phil. 
522,528;  9  Jur.  265;  Chad  wick  w.  Turner, 
34  L.  J.  Ch.  62,  M.  R. ;  '1  almage  v.  Pell, 
9  Paige,  410;  Suydam  v.  Truesdale,  6  Mc- 
Lean. 459. 

4  Raincock  v.  Young,  16  Sim.  122. 
fi  Nail  1".  Punter,  4  Sim.  474,  483. 

6  StMtiips  ().  Birmingham  &  Stour  Val- 
ley Railway  Comp  my,  2  Phil.  673,  677; 
Anon.,  Ilopk.  27;  Smith  i>.  Smitli,  4  Paige, 

"!  Where  the  purpose  of  the  amendment 
is  not  to  correct  any  mistake  or  misstate- 
ment in  the  original  answer,  but  to  set  up 
substantially  a  tU'w  ground  of  ilefence  at 
the  heariu'j,  it  will  not  be  [lermitte'l.  C;im- 
pion  u.  Kdle,  1  McCarter  (N.J. ), 229,232. 


AMENDING   ANSWERS. SUPPLEMENTAL    ANS"«'T:rS. 


781 


thougli  it  will  be  inclined  to  yield  to  the  application,  if  the  object 
is  to  remove  out  of  the  jilaintiff's  way  the  effect  of  a  denial,  or  to 
give  him  the  benefit  of  a  material  admission.^  Therefore,  where 
the  ajiplication  was  made  for  the  purpose  of  enabling  the  defend- 
ant to  raise  the  Statute  of  Limitations  as  a  defence,  leave  to  file 
a  supplemental  answer  was  refused ;  ^  and  where  the  defendant 
had,  by  his  original  answer  to  a  bill  for  the  specific  performance  of 
a  contract,  admitted  that  he  took  possession  of  the  whole  property 
in  pursuance  of  the  contract,  but  afterwards  applied  for  leave  to 
put  in  a  supplemental  answer  to  limit  the  admission  to  part  of  the 
premises  only,  u])on  affidavits  of  mistake,  the  motion  was  refused : 
imless  the  defendant  would  state  upon  oath,  that  when  he  swore 
to  the  original  answer,  he  meant  to  SAvear  in  the  sense  in  which 
he,  by  the  application,  desired  to  be  permitted  to  swear  to  it.^ 

An  application  for  leave  to  file  a  supplemental  answer  is  made 
upon  motion  or  by  summons.*  The  summons  or  notice  of  motion 
must  be  served  on  the  plaintifi*  and  must  specify  the  facts  intended 
to  be  stated  in  the  proposed  supplemental  answer,  and  be  sup- 
ported by  affidavit  verilying  the  truth  of  the  proposed  supplemen- 
tal answer,  specifically  stating  the  facts  intended  to  be  placed  on 
the  record,^  and  showing  a  sufl^cient  reason  Avhy  they  were  not 
introduced  into  the  original  answer.®  The  defendant  must  also, 
it  seems,  produce  a  full  copy  of  the  intended  supplemental  answer,'' 
for  the  inspection  of  the  plaintiff.^ 

In  making  an  application  for  leave  to  file  a  sup^ilemental  an- 
swer, the  defendant  must  also  make  a  case,  showing  that  justice 
requires  that  he  should  be  pennitted  to  alter  the  defence  already 
on  record ;  and  even  where  a  defendant  applied  for  leave  to  file  a 
supplemental  answer  for  the  puq^ose  of  making -an  admission  in 

mons  see  Bovill  v.  Clark,  V.  C.  W.,  at 
Crianibers,  23  Nov.,  It'Co,  lioff.  Lib.  A. 
2221;  .'iiul  sf  e  Setnn,  4-5.     It  s-eeins,  liow- 


C.  XVII.  §  6. 


nor  to  qualify 
admission  of 
possession. 


Application: 
how  made. 


Evidence  in 
support. 


A  case  for 
altering  de- 
fence must  be 
shown. 


1  Edwards  v.  M'Leay,  2  V.  &  B.  256. 
Lord  KIdon  in  this  case,  as  well  as  in 
Strange  r.  Collins,  ib.  1G6,  appears  to  have 
been  of  opinion,  tliat  a  supplemental  iin- 
swer  ouglii  not  to  have  any  efl'ect  upon  an 
indicitne^  t  li.r  j  crjury  upon  the  orijiinal 
answer;  but  see  Kiig  v.  Carr,  1  SkI.  418; 
2  Keb  ulO;  see  I'lielp-  v.  Proiliero,  2  I)e 
(;.  &  Sni.  278;  Swallow  r.  Dav,  2  Coll. 
Viii;   Hughes  v.  Hh.oiiier,  7  I'aige",  2G9. 

■i  I'ercival  v.  Caney,  14  Jur.  473,  V.  C. 
K.  U. 

3  IJve^ey  f.  Wilson,  1  V.  &  B.  149;  see 
al-o  (ircenwo'd  r.  Atkinson,  4  Sim.  54, 
64;  .Murdock's  t^ase,  2  Hi:ind.  461;  Van- 
dervcrc  r.  Healing.  1  Slockt.  (N.  J.)  446. 
A  clelt-niiant  will  no'  be  allowed  to  file  a 
supplenientMl  an-wer  contradicting  the 
st.iienicnts  in  the  lirstiin--wer.  Greenwood 
r.  Atk.n-on,  4  Sim.  61;  see  IhoniMs  v. 
Vi.-it "ts  of  Frederick  Co  School,  7  Gill  & 
.1.  3MJ. 

*  l-'i.r  fonim  of  no'ice  of  motion  and  snm- 
raone,  nee   Vol.  111.;    for   Order  or  Sum- 


ever,  from  Churtoii  v  Frewen,  L.  li.  1  ICq. 
2.'!N,  V.  C.  K.,  that  I  he  ap|)lication  should 
be  made  by  niitiin  <  I'ly. 

6  Culling  I'.  Marfjuis  Townshend,  19 
Ves.  628,  631;  Smith  v.  ILirtlev.  5  1{(  av. 
432;  Ha.-<lar«.  Ilullis2  Bei.v.  236;  Fult<m 
V.  Gilmore,  8  Beav.  154;  9  Jur.  1;  1  I'lil. 
622,527;  9  Jur.  265.  W'lif re  the  ap])lica- 
tlon  is  founded  on  docunic-ntavy  ev.i  cnce, 
it  must  lie  pioduceii.  Cliurton  v.  Frewen, 
L.  It.  1  Fq  238,  V.  C   K. 

o  Tenniint  v.  AVMsmore,  2  Ai-.-st.  362; 
Scott  V.  Carter,  1  Y.  &  J.  452;  I'odmoie 
u.  Skipwith,  2  Sim.  565;  Sni;ill«o(id  r. 
Lew  in,  2  Ik-asley  (N.  .1  ).  123;  Smith 
r.  Babcock,  3  Sumner,  585;  Van  lervere  «. 
llcalmi:,  1  St<.ckt.  (N.  J)  446. 

"  r.ell  r.  Dni  more,  7  Beav.  2^:3;  Fulton 
V.  Gil  more,  iibi  sup. 

"  Fulton  V.  Gi.morc,  ubi  sup. 


782 


ANSWERS. 


r.  XVII.  5  ti. 


Supple- 
mental an- 
swer must  be 
oontined  to 
the  oliject 
iipitlit'il  tor. 


Defendant 
cannot  con- 
trovert facta 
in  his  an- 
swer, by 
cross-bill. 


Within  what 
time  a]>plica- 
tion  must  be 
made. 


Wliere  plain- 
tiff cannot  be 
placed  in 
same  situa- 
tion. 


In  what  cases 
the  Court  will 
still  permit  an 
answer  to  be 
amended. 


th\  or  i)t'  tlu'  plaintitV,  ui)oii  an  allulavit  that,  from  certain  circnin- 
staiu'c's  which  liad  since  occurred,  be  was  satisfied  lie  oitglit  to 
have  admitted  a  fact  which  he  liad  (h'nied,^  Lord  El(h)n  held,  that 
the  athdavit  onuht  to  have  stated  that,  at  the  time  of  i)utting  in 
the  answer,  the  defendant  did  not  kno>v  the  circumstances  upon 
which  he  made  the  ai)])lication,  or  any  other  circumstances  upon 
which  he  ought  to  have  stated  the  fact  otherwise.- 

"Where  a  defendant  has  obtained  })ermission  to  file  a  supj)le- 
mental  answer,  for  the  i)urpose  of  correcting  a  mistake  in  his 
original  answer,  he  must  confine  his  supplemental  answer  strictly 
to  the  correction  of  the  mistake  sworn  to.  If  he  goes  beyond 
that,  and  makes  any  other  alteration  in  the  case  than  what  arises 
from  the  correction  of  such  mistake,  his  supplemental  answer  will 
be  taken  off  the  file." 

Where  a  defendant  has,  at  the  time  of  putting  in  his  original 
answer,  mistaken  facts,  hie  cannot  contravene  his  own  admission  in 
any  other  way  than  by  moving  to  correct  his  answer,  either  by 
amendment  or  su])plemental  answer.  He  cannot  do  so  by  tiling  a 
cross-bill.* 

There  appears  to  be  no  particular  limit  to  the  time  within  wdiich 
an  application  for  leave  to  file  a  supplemental  answer,  to  correct  a 
mistake  in  an  original  answer,  will  be  complied  with :  provided  the 
cause  is  in  such  a  state  that  the  plaintiff  may  be  placed  in  the  same 
situation  that  he  would  have  been  in,  had  the  answer  been  correct 
at  first.^  Accordingly,  we  find  several  instances  in  the  books  in 
which  such  aj^plications  have  been  granted  after  replication,^  and 
even  after  the  cause  has  been  set  down,  and  in  the  paper  for  hear- 
ing.'' Where,  however,  the  plaintiff  cannot  be  placed  in  the  same 
situation  that  be  would  have  been  in,  bad  the  defence  been  stated 
on  the  record  in  due  time,  the  Court  will  not  permit  a  supplemen- 
tal answ'er  to  be  filed.  Therefore,  where,  after  the  cause  had  been 
set  down  for  bearing,  an  application  was  made  for  leave  to  file  a 
supplemental  answer,  which  set  up  a  totally  new  defence,  while  it 
admitted  the  facts  as  stated  in  the  original  answer  to  be  true,  the 
Court  refused  the  motion  with  costs.* 

But  although  the  rule  of  practice  now  is,  that,  in  cases  of  mis- 
take in  the  statement  or  admissions  in  an  answer,  or  in  analogous 
cases,  the  defendant  will  not  be  permitted  to  amend  bis  answer. 


1  The  motion  for  leave  to  file  a  supple- 
mental answer  must  be  accompanied  with 
an  affidavit.  Thomas  v.  Doub,  1  Md.  252; 
WcKim  r.  Thompson,  1  IJland,  150. 

2  Wells  V.  Wood,  10  Ves.  401. 

8  Strange  v.  Collins,  2  V.  &  li.  163, 167. 
Berkley  r.  Kydtr,  2  Ves.  S.  5.33,  537 ; 
Graham  r.  Tankersley,  15  Ala.  634. 
6  Martin  v.  Atkinson,  5  Geo.  390. 


6  Jackson  v.  Parish,  1  Sim.  505,  509; 
Raincock  ti.  Younp,  16  Sim.  122;  Parsons 
V.  Hardy,  21  L.  .1.  Ch.  400,  V.  C.  T. 

7  Fulton  V.  (iilmore,  8  Beav.  154,  158; 
9  Jur.  1;  1  Phil.  522,  525,  530;  9.Jur.  265; 
Chadwick  v.  Turner,  34  L.  J.  Ch.  62, 
M.  R. 

8  Macdougal  v.  Purrier,  4  Russ.  486;  see 
Smallwood  v.  Lewin,  2  Beasley  (N.  J.),  123. 


AMENDING    ANSWERS. SUPPLEMENTAL   ANSWERS.  783 

but  must  apply  for  leave  to  file  a  supplemental  answer,  for  the  C.  XVII.  6. 
purpose  of  correcting  the  mistake,  the  old  course  of  amending  the  '•—  v — -"-' 
answer  may  still  be  pursued  in  cases  of  error  or  mistake  in  mat- 
ters of  form.  Thus,  in  White  v.  Godbold,^  where  the  title  of  an 
answer  was  defective,  a  motion  by  the  defendant  to  take  it  ofl'  the 
file  and  amend  and  reswear  it,  was  granted  ;  and  so,  where,  in  the 
title  of  an  answer,  the  name  of  the  plaintiflT  was  mistaken,  a  similar 
order  was  made.'^  The  addition  of  the  name  of  a  party  omitted  in 
the  title  has  also  been  permitted.^  Where,  however,  an  answer 
had  been  prepared  for  certain  defendants,  but  only  sworn  to  by 
some  of  them,  it  was  directed  to  be  received  as  the  answer  of  those 
who  had  sworn  it,  without  striking  out  the  names  of  those  who 
had  not.*  A  defendant  has,  also,  been  pennitted  to  add  the  sched- 
ules referred  to  in  his  answer,  where  they  had  been  accidentally 
omitted ;  *  and  in  several  cases,  where  verbal  inaccuracies  have 
crept  into  answers,  they  have  been  ordered,  at  the  hearing,  to  be 
struck  out.®  In  like  manner,  where,  in  filing  an  answer,  one  skin 
had,  by  accident,  been  omitted,  leave  was  giA'en  to  the  defendant 
to  take  it  off  the  file,  for  the  j)urpose  of  rectifying  the  omission, 
upon  condition,  however,  of  his  reswearing  it  immediately.''  A 
similar  order  was  made,  in  a  case  where  the  defendant  had  omitted 
to  sign  some  of  the  skins  ;  *  and,  in  general,  the  Court  will  not  per- 
mit such  amendments  as  those  above  mentioned,  without  making 
it  part  of  the  order  that  the  answer  shall  be  resworn,  or,  in  case  ot 
a  peer,  again  attested  upon  honor.^  The  Court  has  also  permitted 
an  answer  to  be  amended,  by  adding  to  the  record  the  name  of  the 
counsel  who  signed  the  draft.^" 

An  order  to  amend  an  answer  must  state  the  particular  amend-  ordor  to 
ment  to  be  made;  and  may,  by  consent,  be  obtained  on  petition,  ^jJl^j"*^ j^**^ 
as  of  course,  at  the  Rolls."    If  the  plaintiff  will  not  consent,  it 
seems  that  a  special  application  must  be  made  to  the  Court,  on 
motion,  of  which  notice  must  be  given,  specifying  the  proposed 
amendment.^^ 


1  1  Mad.  269;  the  order  was,  however,  see  Jesus  College  v.  Gibbs,  1  Y.  &  C.  Ex. 

made  by  consent  in  this  case.  145, 162. 

'■^  I'eacocit  V.  Dui<e  of  Hedford,  1  V.  &  '>  J$rowning  v.  Sloman,  6  Law  J.  N.  S. 

B.    186;    Woodger  v.   Crumpton,  1  Fowl.  Ex.  Kq.  48;  1  Jur.  68. 

Ex.   I'r.  .388;    Llovd  v.  Mytton,  ih.  389;  8  Lord  Moncaster «.  Braithwaite,  1  You. 

Keen  r  Stanley,  ibid. ;  Kabbetli   r.  Squire,  382. 

10  Ilure  Ap.  3";  but  see  Fry  v.  Mantel),  4  «  Peacock  v.  Duke  of  Bedford,  1  V.  & 

Beav.  485;     S.   C.  nom.   ity  v.   Martel,  B.  186. 

6.Jur.  11'j4.                               "  1"  Harrison    i'.     Delmont,    1    I'ri.    108; 

8  Wright  V.  Campbell,  I  Fowl.  Ex.  I'r.  Wliit<  head  v.  Cunlifte,  2  Y.  &  C.  Ex.  3; 

380.  anh',  j).  733. 

*  Done  V.  Head,  2  V.  &  B.  310;  and  see  ^  Braithwaite's  Pr.  312;    and  see  Wy- 

Lyons  )•.  Read,  Braithwaite's  Pr.  51 ;  see  att'^  P.  U.  JO;    Ilinde,  206.     For  form  of 

also  ante,  p.  733.  potition,  see  Vol.  III. 

^  Bryan  i>.  Truman,  1  Fowl.  Ex.  Pr.  389.  ''^  Attorncv-(aneral    v.    Corporation     of 

«  Elfisr.  Saul,  lAnst.  332,338,341;  and  Worcester,  2  Phil.  3;  1  C.  P.  Coop.  t.  Cott. 

18.    For  form  of  notice,  see  Vol.  HI. 


784 


ANSWERS. 


C.  XVII.  5 


Aiiicmliiiciit : 
how  uiiuU'. 


Whi^n  sun- 

plemontal 

nnswcr 

deemed 

fiulHiieiit, 


The  ninondniont  Avill  ho  made  l)y  the  Clerk  of  Records  and 
Writs,  on  the  «h-:itl  of  the  answer,  as  amended  and  signed  by 
eounsel,  together  with  the  order  to  amend,  being  k'ft  with  him  for 
tliat  ])ur])ose.  Any  ollii-ial  printed  eopies  of  tlie  answer  whicli  may 
ha\  e  been  taki'ii  shoiihl  also  be  left,  in  order  that  they  may  be 
altered,  so  as  to  agree  with  the  amended  answer.^ 

A  su|)|)]einental  answer  cannot  be  excepted  to  without  leave  ;  so 
tliat,  for  the  i)Ui-pose  of  determining  the  time  at  which  the  defendant 
may  move  to  dismiss  the  bill,  a  su])])lemental  answer  is  to  be  deemed, 
2'n'out  facie,  sufficient  when  it  is  filed.^ 


Tnkinpr  an- 
swers off  the 
file  for  irreg- 
ularity : 

On  the 

application  of 
plaintifl"; 


wajver ; 


Section  VII.  —  Talcing  Answers  off  the  File. 

If  any  iri-egularity  has  occurred,  either  in  the  fi-ame  or  form  of 
an  a'nswer,  or  in  the  taking  or  filing  of  it,  the  plaintifl' may  take 
advantage  of  such  irregularity,  by  moving  to  take  the  answer  off 
the  tile.''  Instances  in  Avhich  such  motions  maybe  made  have  been 
before  pointed  out.*  If,  however,  the  plaintiff  intends  to  apply  to 
the  Court  to  take  an  answer  off  the  file  for  irregularity,  ho  must 
do  so  before  he  accepts  the  answer  :  otherwise,  he  will  have  waived 
his  right  to  make  the  aj)i)lication  ;  ''  unless  in  the  case  of  an  irreg- 


1  Rraithwiiite's  Pr.  312. 

2  Barnes  V.  Twed<lle,  10  Sim.  481,  483. 
8  See  l,itt!ejohn  v.  Munn,  3  Paige,  280; 

Supervisor-,  i^c  v.  ]\Iissi>;-i|ipi,  &c.  R.  R. 
Co,  21  111.33b;  Sp:vev  v  Krazee,  7  Ind. 
GUI ;  Me  Lure  v  Colcioiigh,  17  Ala.  89.  An 
an.'-wer,  t  ken  b}^  eommiss-ioii,  w.ll  be  taken 
oft'  the  lile,  if  the  jurat  does  not  state 
where  it  was  swo'n.  Henry  v.  Co-stello,  1 
llogan,  130.  The  answer  of  a  foreigner, 
wlio  (li  es  not  umlerstand  English,  must  be 
swo:n  in  the  language  he  s|)eaks,  and  be 
tiled  with  an  lOiig  ish  transl  ttioii ;  ami  if 
he  tiles  an  ai  swer  in  1-iiglisli  only,  it  will 
be  taken  <'tf  the  file,  llayes  v.  l.equiii,  1 
Hogan,  274.  But  a  mistake  in  the  Englisli 
translation  of  an  answer  is  no  ground  fur 
t:ik.ng  it  off  tlie  lile.  Ibid.  An  answer 
was  taken  off  the  file  for  irregularity,  one 
skin  only  out  (jf  six  skins  having  been 
sign'  d  \i\  the  delemiant.  Lord  Moi.cas- 
tt-r  V  Biaithwaite,  1  You.  382;  Carter  v. 
Bosi.nquer,  13Pr.ce,  604;  B;iiley  v.  Forbes, 
Jl'Clel.  &  Y.  462.  So  where  the  an- 
swer has  not  been  signed  at  iill.  Denison 
f  Basshjrd,  7  I'aige,  370.  A  bill  amended 
without  leave  w:is  ordered  to  be  taken  off 
the  (ile.  Thomas  r.  Freder  ek  (^o.  Seln.ol, 
7  (Jill  &  .J.  36y.  If  the  phi'iiiilf  waives  an 
aii>wer  on  oath,  heeaMiot  i'pply  to  have 
it  laken  oil"  the  liles  on  the  gronnd  Ihit  the 
delenlanr  knows  it  to  I  e  whilly  untrue. 
\>i  nisoii  V.  Ba-sforil,  7  Paige,  U70.  In  a 
.'uit  :.  gainst  hu-hand  jind  uile,  the  liiing 
ol  a  se|  aiat"'  answer  hy  the  hii.'-hand,  was 
held  irregular,  ana  no  aet  ot  waiver  on  ths 


part  of  the  plaintiff  appearing,  the  Court 
held  that  it  must  be  t^ken  off  the  file. 
I.eavitt  V.  Cruger  et  ux.  1  Piii^e,  422;  Col- 
laid  V.  Smith,  2  BeasK^y  (N.  J  ),  43;  mdt, 
754,  note.  For  otiier  case*  where  an  an- 
swer wdl  be  taken  iVcim  the  files,  see  Per- 
ine  r.  Swaine,  1  .John.  Ch.  24;  Trumbull 
V  (iibbon",  Ilal-t.  Dig.  172;  Nesbitt  v. 
Dellam,  7  Gill  &  J.  4'J4;  Fidton  U.mk 
t'.  Beaeli,  6  Weiid.  36;  New  York  (Jliem. 
Co.  V.  Flowers,  6  P;iigp,  604.  An  iijipliea- 
tion  to  tiike  an  answer  off  the  (ile,  in  order 
to  prosecute  for  ])erjury,  is  niiide  to  the  dis- 
cretion ol  the  Court,  and  will  not  be  liraiited 
mdess  some  groinnl  is  laiil  to  enable  the 
Court  to  jutlue  of  the  propriety  ol  such  a 
proceeding.  Dalv  v.  loole,  1  Iri-h  Eq. 
344;  S.  C.  2  l)ru.'&  Wal  5U9.  The  Court 
will  not  allow  an  ai, swer  to  be  taken  olf  the 
file  fur  this  jiurpose,  if  it  appear,  that  ttie 
alleged  |ierjury  is  in  a  pnrt  wdiolly  in.ima- 
teriid  to  the  merits  of  the  case  M'iiiwan 
V.  Hall,  Haves,  17;  see  Napier  v  N:ipier, 
1  Iri-h  Eq."4l4;   S.  C.  2  Dru.  &  Wal.  604. 

^  Antt,  pp  731,  733,  748,  753,  771;  and 
see  Fry  v.  AJautell,  4  Be:iv.  485;  S  C.  nom. 
Vr\  V  Marlel,  5  Jur.  1194;  Raisiriik  v. 
l':rswortli,  12  .lor.  782,  V.  C.  K.  B.;  Liver- 
pool V.  Chippendal,  14  ,Jur.  301,  V.  C.  E. 

''  Taking  an  oliice  copy  of  the  answer, 
does  not  seem  to  be  an  acceptance  for  this 
pu  pose.  Fry  v.  Mantel!,  wii  swy;. ;  am)  see 
Woolward  v.  Twinaine.  9  Sim.  301 ;  Attor- 
.nev-General  v.  Shield,  11  Beav.  441,  445; 
13' Jur.  330. 


TAKmG    ANSWERS    OFF    THE    FILE. 


785 


ularity  in  the  jurat,  or  of  an  omission  of  the  oath  or  attestation  of 
honor  of  the  defendant,  without  an  order  to  warrant  such  omission  : 
in  -tt^hieh  cases,  as  we  have  seen,  there  must  be  an  express  waiver 
of  the  iiTCgularity.^ 

The  Court  has  sometimes  also,  as  before  stated,-  allowed  an  an- 
swer to  be  taken  off  the  file  on  an  application  on  the  part  of  the 
defendant,  for  the  purpose  of  enabling  him  to  correct  a  mistake  in 
its  foi-m  ;  but  it  does  so  only,  as  we  have  seen,  upon  condition  that 
the  defendant  shall  inmiediately  cause  the  correction  to  be  made, 
and  resAvear  and  file  the  answer ;  and  it  will  never  make  such  an 
order  where  the  plaintiff  can  be  at  all  prejudiced  by  it. 

Where  an  answer  is  evidently,  on  the  face  of  it,  evasive,  the 
Court  will  order  it  to  be  taken  off  the  file,  and  not  leave  the  plain- 
tiff to  his  remedy  by  exceptions.^ 

The  appUcation  to  take  an  evasive  answer  off  the  file  is  made  by 
motion,  of  which  notice  must  be  given  to  the  defendant.*  The 
defendant  Avill  be  ordered  to  pay  the  costs  of  the  motion,  and  the 
costs  of  an  office  co])y  of  the  document  filed  as  the  answer,  and  all 
other  costs  properly  incurred  by  the  plaintiff  in  consequence  of 
the  filing  of  the  evasive  answer.^  The  plaintiff  cannot  apply  to 
take  the  answer  off  the  file  after  he  has  excepted  to  it  for  insuf- 
ficiency.® 

Lastly,  it  may  be  here  observed,  that  the  Court  will,  upon  the 
consent  of  all  parties,  order  pleadings,  affidavits,  and  other  docu- 
ments to  be  taken  off  the  file,  where  they  contain  matter  which 
is  scandalous,  or  which  it  is  desirable  should  not  remain  recorded.'^ 


C.  XYII.  §  7 . 


On  the 

application  of 
(let'endaut. 


Evasive 
answer 
ordered  off 
the  tile. 

Application : 
how  made. 


Pleadings, 
&c.,  may  be 
ordered  olF 
the  file,  by 
consent. 


1  Ante,  p.  748;  see  Trumbull  v.  Gib- 
bons, 1  Halst.  Dig.  172;  Nesl;itt  v.  Dellam, 
7  Gill  &  J.  494;  Scott  v.  Allett,  1  Hogaii, 
375. 

2  Ante,  p.  732. 

3  Lynch  v.  Lecesne,  1  Hare,  626,  631 ;  7 
Jur.  35;  Kead  v.  Barton,  3  K.  &  J.  166; 
3  Jur.  N.  S.  263;  see  also  Tomkin  v.  Leth- 
bridge,  9  Ves.  179 ;  Smith  v.  Serle,  14  Yes. 
415;  hrooks  v.  I'urton,  1  Y.  &  (J.  C.  C. 
278;  see  cimtra,  .Marsh  v.  Hunter,  3  Mad. 
437;  White  v.  Howard,  2  De  G.  &  S.  223. 
If  an  answer  is  so  evasive  that  it  is  obvi- 
ously a  mere  delusion,  —  if  tliere  is  no  an- 
swer to  any  of  the  material  facts  stated  in 
the  bill,  and  no  reason  assigned  for  not 
answering  them,  —  it  will  be  considered  as 
no  answer,  and  the  Court  will  order  it  to 
be  taken  from  the  file.  If,  on  the  other 
hand,  it  be  an  answer,  however  defective, 
the  plaintill  must  either  tile  exceptions  or 


a  replication,  or  set  down  the  cause  for 
hearing  upon  bill  and  answer.  Travers  v. 
Koss,  1  McCarter  (N.  J.),  254;  see  Finan- 
cial Corporation  v.  Bristol  &  North  Somer- 
set Railway  Co.,  L.  R,  3  Eq.  422. 

4  For  form  of  notice,  ^ee  Yol.  HI. 

5  Read  v.  Barton,  3  K.  &  J.  166;  3  ,Tur. 
N.  S.  263 ;  Financial  Corporation  v.  Bris- 
tol &  North  Somerset  Railway  Co.,  L.  R. 
3  Lq.  422. 

6  Glassington  v.  Thwaites,  2  Rnss.  458, 
462;  Seaton  v.  Grant,  L.  R.2Ch.  Ap.  459. 

"  Tiemaine  r.  Treinaine,  1  Yern.  189; 
AYaiton  v.  Broadbent,  3  Hare,  334;  Jewin 
r.  Taylor,  6  Beav.  120;  Clifton  ?;.  Bentull, 
9  Bea'v.  105;  Barritt  v.  Tidswell,  7  \Y.  R. 
85,  Y.  C.  K. ;  Makepeace  v.  Romieux,  8 
W.  R.  687,  V.  C.  K. ;  see  also  Goddard  v. 
Parr,  24  L.  J.  Ch.  783,  V.  C.  K.;  Kernick 
V.  Kernick,  12  VV.  R.  335,  V.  C.  W. 


50 


TNI) 


ANSWERS. 


C.  XVII.  5  8. 


Section  VTTI. —  Vroni  w/iat  Thne  Answer  deemed  svfficient. 


Answor 
ilot'iiu-il 
prinu\  fticie, 
siitKi'iont  oil 
tilini;. 

When  it 
iKHMinos  so 
absolutely: 

where  no 

exceptions 

tiled, 

or  set  down, 

or  old 

exceptions 
not  set  down. 

Vacations 
not  included. 


From  what 
time  answer 
deemed 
sutlicient  if 
excepted  to. 


The  answor  of  a  (Icli'iidnnt  is,  u,etu'r:illy,  treat  cm!  as  being  siif- 
iieient  until  it  is  Ibund  to  be  iiisullieient ; '  and  it  will  be  deemed, 
to  be  snilieient, — 

1.  AVliere  no  exeei)tions  for  insufficiency  arc  filed  thereto,  within 
six  weeks  ailer  the  filing  of  such  answer.- 

-2.  AVhere,  exceptions  being  filed,  the  plaintiff  does  not  set  them 
down  for  hearing  within  fourteen  days  after  the  filing  thereof.'' 

8.  "Where,  within  fourteen  days  after  the  filing  of  a  further  an- 
swer, the  plaintirt'  does  not  set  down  the  old  exce2)tions.* 

We  have  before  seen,  that  the  vacations  are  not  reckoned  in  the 
computation  of  the  time  allowed  for  filing  or  setting  down  excep- 
tions, in  cases  where  the  time  is  not  limited  by  notice  given  by  the 
defendant  in  a  case  of  election ;  ^  so  that,  in  computing  the  above- 
mentioned  periods,  the  vacations  are  not  included. 

Where,  upon  the  hearing  of  exceptions,  the  answer  is  held 
sufficient,  it  will  be  deemed  to  be  so  from  the  date  of  the  order 
made  on  the  hearing :  and  where  the  defendant  submits  to  answer 
without  an  order  from  the  Court,  the  answer  will  be  deemed  in- 
sufficient fi-om  the  date  of  the  submission.® 

It  is  important  to  fix  with  precision  when  an  answer  is  to  be 
deemed  sufficient,  because  as  we  shall  see  hereafter,  in  treating  of 
motions  to  dismiss,''  the  date  of  the  sufficiency  of  the  answer  con- 
stitutes the  point  of  time  from  which  is  to  be  I'eckoned  the  period, 
at  the  exjiiration  of  which  a  motion  to  dismiss  the  bill  for  want  of 
prosecution  may  be  made.^ 


1  Sibbald  v.  Lowrie,  2  K.  &  J.  277,  n. ; 
Lafone  v.  Falkland  Islands  Company,  ib. 
277. 

2  See  61st  Equity  Rule  of  the  United 
States  Courts,  and  the  17th  of  the  Rules  of 
Practice  in  Chancery  in  Massachusetts; 
ante,  p.  7C5,  note. 

3  See  63d  Equity  Rule  of  the  United 
States  Courts. 


4  Ord.  XVI.  16. 

5  Ord.XXXVII.13  (2);  XLII.  6;  ante, 
p.  768. 

6  Ord.  XVI.  18. 

^  See  post,  p.  801  et  seq. 
8  For  the    manner    of  computing  the 
several  periods,  see  ante,  p.  786. 


CHAPTER   XVIII. 


THE    JOINDER    OF    SEVERAL    DEFENCES. 


All  or  any  of  the  several  modes  of  defence  before  enumerated  What  de- 
may  be  joined  in  the  defence  to  a  bill ;  ^  thus,  a  defendant  may  de-  ^Ti^oined*^ 
mur  to  one  part  of  the  bill,  plead  to  another,  answer  to  another, 
and  disclaim  as  to  another.^  A  defendant  may  also,  as  we  have 
seen,  put  in  separate  and  distinct  demurrers,  to  separate  and  dis- 
tinct parts  of  the  same  bill;'  he  may  also  plead  different  matters, 
to  separate  parts  of  the  same  bill.*  "When  the  species  of  defence  is 
adopted,  the  same  rules  which  have  been  before  laid  down  with 
reference  to  each  mode  of  defence  when  adopted  singly,  must  be 
observed  when  the  same  modes  of  defence  are  resorted  to  collec- 
tively. Lord  Redesdale  lays  it  down,  that  "all  these  defences 
must  clearly  refer  to  separate  and  distinct  })arts  of  the  bill ;  for  a  to' separate 
defendant  cannot  plead  to  that  2)art  to  which  he  has  already  de-  P?^^^  ^^  ^^^ 
murred,  neither  can  he  answer  to  any  part  to  which  he  has  cither 
demurred  or  pleaded :  the  demun-er  demanding  the  judgment  of 
the  Court  whether  he  shall  make  any  answer,  and  the  plea, 
whether  lie  shall  make  any  other  answer  than  what  is  contained 
in  tlie  plea.  Nor  can  the  defendant,  by  answer,  claim  what,  by 
disclaimer,  he  has  declared  he  has  no  right  to.  A  plea  or  answer  ^ 
will,  therefore,  overrule  a  demurrer,®  and  an  answer  a  plea,''  and 


Each  must, 
formerly, 
have  referred 


1  Provided  each  relates  to  a  separate 
and  distinct  part  of  the  bill.  Mitford  Eq. 
PI.  by  Jeremv,  lOG,  319;  Livingston  v. 
Story,  9  Peters,  623;  Lubc^  Eq.  PI.  319; 
Clark  V.  Phelps,  6  .John.  Ch.  214;  Beau- 
champ  V.  Giblis,  1  Uibb,  481;  Robertson  V. 
Binglev,  1  M'Cord  Ch.  352. 

^  Ld".  Red.  319;  Rule  10  of  Mass.  Chan- 
cery Practice;  Rule  6,  Maine  Ch.  Prac- 
tice. By  the  .32d  Equity  Rule  of  the 
United  States  Courts,  the  defendant  may, 
at  any  time  before  the  bill  is  taken  as  con- 
fessed, or  afterwards  with  the  leave  of  the 
Court,  demur  or  plead  to  the  whole  bill,  or 
to  ]iart  of  it;  and  he  may  demur  to  part, 
plead  to  part,  and  aii'-wcr  as  to  the  residue. 
Or  the  defendant,  in  Ma'^sachu'^etts,  may, 
instead  of  filinj^  a  formid  demurrer  or  plea, 
intdst  on. any  speci:il  matter  in  his  answer, 
and  have  the  same  benefit  thereof  as  if  he 
had  pleaded  the  same,  or  demurred  to  the 


bill.  Rule  14,  Chancery  Practice,  Mass. 
So  in  ISIaine,  the  defendant  may  have  the 
benefit  of  a  plea  by  inserting  its  substance 
in  his  answer.  Rule  6,  Chancery  Practice ; 
see  39th  Equity  Rule  of  the  United  States 
Courts;  ante,  pp.  589,  590,  note;  Hartshorn 
V.  Jv.imes,  31  jlaine,  97;  Smith  v.  Kellev, 
66  Maine,  64,  65. 

3  Ante,  p.  584. 

4  Ante,  p.  610. 

6  See  Bolton  v.  Gardner,  3  Paige,  273. 

"  See  Sportbrd  v.  Manning,  6  Paige,  383 ; 
Clark  w.  I'helps,  6  John.  Cli.  214;  Miller 
V.  Furse,  1  Bailey  E(|.  187;  II.  K.  ('base's 
Case,  1  inland,  217;  Souzer  v.  De  Meyer,  2 
Paige,  674 ;  R  )bertson  v.  Binglev,  1  M'Cord 
Ch.  362;  Rule  10  of  the  Reg.  of  Prac. 
in  Chanc.  in  Mass  ;  and  23d  Equity  Rule 
of  the  United  States  Courts. 

7  Bolton  V.  Gardner,  3  Paige,  273;  II.  K. 
Chase's  Case,  1  Bland,  217  j  Souzer  v.  Do 


788 


JOINDER   OF   SEVERAL    DEFENCES. 


0.  XVllI. 

V— — Y 

but  mil-  sim' 
rtliixed. 


Where  now 

applicable. 


•nue. 


it' a  ilisclaiiiuT  and  answ  it  arr  iiu'oiisisti'ut  tlio  luattiM- will  bo  taken 
most  stnmuly  aiiniust  tlu'  (K'teiulaiit  iij)()n  tlie  disclaimer.'''^ 

The  strict  ap|ilie;it ion  t»t"  these  ])rinei|)les  has,  as  we  have  seen, 
been  relaxed;  and  now,  no  diMiiurrer  or  jih'a  \\ill  he  lu'ld  bad  aud 
overnded  on  aroument,  oidy  beeause  sueli  demurrer  or  jdea  docs 
not  eover  80  mueh  t)t' the  bill  as  it  might  by  law  have  extended  to, 
or  only  beeause  the  answer  of  the  defendant  extends  to  some  part 
of  the  same  matter  as  is  covered  by  such  demurrer  or  plea.*^ 

In  all  eases  not  coming  strictly  within  these  rules,  the  principles 
above  quoted  from  Lord  Redesdale  still  a])])ly ;  and,  in  addition 
thereto,  it  is  to  be  remarked  that,  where  a  defendant  adoi)ts  this 
mode  of  defence,  not  only  should  each  defence  in  words  be  api)li- 
cable  to  the  distinct  part  of  the  bill  to  which  it  professes  to  a])ply, 
but  that  it  should  also,  in  substance,  relate  peculiarly  to  that  part  of 
the  bill  which  it  professes  to  cover  ;  so  that  a  defence  in  words  ap))li- 
cable  to  part  of  a  bill  only,  but  in  reality  ajijjlicable  to  the  whole  )>ill, 
is  not  good,  and  cannot  stand,  in  conjunction  with  another  distinct 
defence  applicable  and  applied  to  another  distinct  part  of  the  bill.^ 
Where,  therefore,  a  defendant,  put  in  a  joint  demurrer  and  })lea, 
each  of  which  went  to  the  whole  bill,  the  demurrer  was  overruled ;  * 
and  where  a  defendant,  as  to  part  of  a  bill,  put  in  a  plea  that  there 
was  no  outstanding  term,  and  a  demurrer  as  to  the  rest  on  the 
ground  that  the  ])laintiff  had  no  title.  Lord  Langdale  M.  R., 
although  he  held  the  plea  to  be  good,  was  of  opinion  that  the  de- 
murrer being  applicable  to  the  whole  bill,  and  consequently  to  that 
part  of  it  which  was  covered  by  the  plea,  was  bad.^ 

When  a  demurrer  is  to  part  only  of  the  bill,  and  is  accompanied 
by  an  answer  or  other  defence  to  the  reinaindei',  it  should  be  en- 
titled "  The  demurrer  of  A.  B .,  the  above-named  defendant,  to 
part  of  the  bill,  and  the  answer  of  the  said  defendant  to  the  re- 
mainder of  the  bill  of  complaint  of  the  above-named  plaintiff."  ^  The 
same  rule  is  applicable  to  cases  where  the  defence  is  partly  by  i)lea, 
and  jjartly  by  answer ;  except  in  those  cases  where  the  answer  is 


Meyer,  2  Paige,  574;  Ferguson  v.  O'llarra, 
1  Peters  C  C  493  ;  Leaycraft «.  Dempscj', 
4  Paige,  124;  Stearns r.  Page,  1  Story, 20'4. 
In  Maine,  "  demurrers,  pleas,  and  answers 
■will  be  decided  on  their  own  merits,  and 
one  will  not  be  regarded  as  overruling  an- 
other." Kule  G  of  Chancery  Practice,  37 
Maine,  583. 

By  tiie  rules  in  Chancery  cases  in  Maine, 
defendants  may  severally  demur  and  an- 
swer to  the  merits  of  the  Ijill  at;  the  same 
time.  Smith  v.  Kelley,  56  Maine,  G4,  65. 
In  this  case  the  defendants  each  put  in  a 
demurrer,  and  at  the  same  time  answered 
to  the  wh'jle  bill,  and  the  demurrers  were 
sustiiined.  See  also  Hartshorn  v.  Earaes, 
31  Maine,  07. 


1  Ld.  Red.  319. 

2  Ord.  XIV.  8,  9;  rtwi!c,  pp.  584,  585,  617. 
These  orders  have  been  adopted  in  the  36th 
and  37th  Equity  Rules  of  the  Supreme 
Court  of  the  United  States,  January  Terra, 
1842. 

3  Crouch  V.  Hickin,  1  Keen,  385,  389. 

4  Lowndes  v.  Garnett  and  Moselej'  Gold 
Mining  Company,  2  J.  &  II.  282;  8  Jur.  N. 
S.  C94 ;  see  also  Mansell  v.  Eeeiiey,  2  J.  & 
H.  313. 

5  Crouch  V.  Hickin,  ubl  sup.  His  Lord- 
ship, however,  allowed  a  demurrer  ore  te- 
nus,  for  want  of  equit}',  to  that  part  of  the 
bill  which  was  not  covered  by  the  plea. 

6  'I'omlinson  v.  Swinnertou,  1  Keen,  9 
13 ;  Braithwaite's  Pr.  43. 


JOINDER    OF    SEVERAL    DEFENCES. 


789 


in  support  of  the  plea;  foi*  then,  the  plea  and  answer  form  but  one 
defence,  and  the  title  is  properly  "  The  Plea  and  AnsM'cr."  ^ 

Where  a  defence  of  this  nature  has  been  put  in,  the  first  thino- 
is  to  dispose  of  the  demurrer,  and  also  of  the  plea,  if  there  is  one 
(unless  it  is  intended  to  admit  that  it  is  a  valid  defence,  if  tnie), 
and  for  this  purpose,  the  demurrer  and  plea  must  be  set  down  for 
argument  in  the  usual  way.^  The  plaintiif  must,  however,  be  care- 
ful not  to  amend  his  bill,  or  except  to  the  answer  for  insufficiency, 
before  the  demurrer  and  plea  have  been  disjiosed  of:  otherwise, 
they  will  be  held  sufficient.^ 

If,  upon  the  argument,  the  demurrer  and  plea  are,  or  either  of 
them  is,  overruled,  the  plaintiff  may  deliver  exceptions  for  insuffi- 
ciency, extending  not  only  to  the  answer,  but  to  the  parts  of  the 
bill  which  were  intended  to  be  covered  by  the  demun-er  and  plea ; 
but  if  the  demurrer  and  plea  are,  or  either  of  them  is,  allowed,  the 
exceptions  must  not  extend  to  the  parts  of  the  bill  covered  by 
them.*  The  proper  course  to  be  pursued,  where  a  partial  demur- 
rer has  been  allowed  to  a  bill,  appears  to  be,  to  amend  the  bill, 
either  by  striking  out  the  part  demurred  to,  or  by  making  such 
alteration  in  the  bill  as  will  obviate  the  ground  of  demurrer. 
Thus,  after  a  partial  demurrer,  ore  tenus^  for  want  of  parties,  has 
been  allowed,  the  bill  may  be  amended  by  adding  the  neces- 
sary parties,  or  stating  them  to  be  out  of  the  jurisdiction  of  the 
Court ;  and  it  seems  that  such  an  amendment  will  npt  ])reclude 
the  plaintiff  from  excepting  to  the  answer  to  those  parts  of  the 
bill  wliich  are  not  covered  by  the  demurrer.® 

After  a  plea  has  been  allowed,  no  amendment  of  the  bill  can  be 
made  without  a  special  order  of  the  Court ;  and  in  applying  for 
such  order,  the  plaintiff  must  specify  the  amendments  he  intends 
to  make.^  After  the  allowance  of  the  plea,  the  plaintiff  nuist  reply 
to  the  plea  as  well  as  to  the  ansAver,  and  j^roceed  with  tlie  case  in 
the  usual  manner. 


c.  xvm. 

> y . 

Of  setting 
doT^Ti  de- 
murrer and 
plea. 


Exceptions  to 
answer,  after 
demurrer  or 
plea  ovei^ 
ruled, 


or  allowed. 

Amendment 

of  bill,  after 

partial 

demurrer 

allowed. 


After  plea 
allowed, 
application 
to  amend  is 
special. 

Replication, 
after  plea 
allowed. 


1  .4n<e,  p.  682.  If  an  answer  commences 
as  an  answer  to  the  wliole  bill,  it  overrules 
a  plea  or  demurrer  to  any  particular  part 
of  the  bill,  althoiifjli  such  part  is  not  in  fact 
answered.  Leaycraft  f.  Dempscy,  4  Paige, 
124;  .Summers  v.  Murray,  2  Edw.  Ch.  205. 

2  Ante,  pp.  504,  693. 

8  Antt,  pp.  594,  691,  760. 
*  Ante,  p.  7G0. 


S  Tavlor  v.  B;ii!ev,  3  M.  &  C.  677,  683; 
3  Jur.  308;  Foster  v.  Fisher,  4  Law  ,J.,  N. 
S.  237,  M.  R.  in  Osborne  v.  .lullion,  3 
Drew.  596,  609,  the  Court,  on  allowing  a 
demurier,  refused  leave  to  amend  the  bill. 

0  Ante,  pp.  419,  699;  Tavlor  v.  Shiiw.  2 
S.  &  S.  12  ;  Neck  v.  Gains',  1  De  G.  &  S. 
223;  llJur.  763. 


CHAPTER  XIX. 

DISMISSING   BILLS,  OTHERWISE    THAN   AT   THE    HEARING, 
AND    STAYING    PROCEEDINGS. 

Section  I. —  Generally. 


Before 
appearance, 
plaintitt"  may 
dismiss  bill, 
without  costs, 
on  motion  or 
petition  of 
course. 

After  appear- 
ance, plaintiff 
may,  in  like 
manner  dis- 
miss bill  on 
payment  of 
costs,  or  by 
consent 
without ; 


unless  the 
defendant  has 
obtained  a 
right  against 
the  plaintiff. 


Before  a  defendant  has  appeared  to  the  bill,  the  plaintiff  may 
dismiss  the  bill,  as  against  him,  without  costs :  on  an  order  to  be 
obtained  upon  motion  of  course,  or  vipon  petition  of  course,  at  the 
Rolls.^  Where,  however,  such  an  order  was  obtained  in  breach 
of  faith  of  a  compromise  entered  into  with  the  defendant,  it  was 
discharged  with  costs.'^ 

After  appearance,  and  before  decree,  the  plaintiff  may,  generally, 
obtain  an  order  to  dismiss  the  bill,  but  only  iipon  payment  of 
costs :  ^  unless  the  parties  against  whom  it  is  dismissed  consent  to 
its  being  dismissed  without  costs.*  The  order  may  be  obtained 
either  on  petition  of  course  or  motion,^  and  if  the  defendant's 
consent  is  required,  it  is  signified  by  the  appearance  of  counsel  on 
his  behalf  on  the  motion,  or  by  his  solicitor  subscribing  his  con- 
sent to  the  prayer  of  the  petition.  The  application  is  usually 
made  by  petition.®  Whei*e,  however,  there  has  been  any  proceed- 
ing in  the  cause  which  has  given  the  defendant  a  right  against  the 
plaintiff,  the  plaintiff  cannot  dismiss  his  bill  as  of  course ;  thus, 
where  a  general  demurrer  had  been  overruled  on  argument,  Lord 
Cottenham  was  of  opinion  that  the  plaintiff  could  not  dismiss  his 
bill  as  of  course  :  the  defendant  having  a  right  to  appeal  against 


1  Thompson  v.  Thompson,  7  Beav.  350; 
Wyatt's  Pr.  60,  61;  Braithwaite's  Pr.  566. 
For  form  of  order,  see  Seton,  1277,  No.  1; 
and  for  forms  of  motion  paper  and  petition, 
see  Vol.  III. 

2  Belts  r.Barton,  3.1ur.  N.S.  154,V.C.\V. 
8  The  plaintiff  cannot  dismiss  his  bill,  as 

to  part  of  the  relief  prayed,  and  proceed 
with  the  residue;  he  must  apply  to  amend. 
The  Camden  &  Ambov  U.K.  Co.  i\  Stew- 
art, 4  C.  E.  Green  (N.  J.).  69;  see  New 
Jersey  Rule  in  Chancerj-,  94. 

*  Dixon  V.  Parks,  1  Ves..!.  402;  Wyntt's 
Pr.  01 ;  Braithwaite's  Pr.  560.  These  rules 
also  apply  where  the  plaintiff  is  suing  on 


behalf  of  himself  and  others.  Handford  v. 
Storie,  2  S.  &  S.  196,  198;  Armstrongs 
Storer,  9  Beav.  277,  281;  ante,  p.  239,  240. 
But  a  bill  will  not  be  dismissed  ""  without 
prejudice,"  when  the  plaintifT  has  had 
ample  opportutiity  to  hunt  up  his  testi- 
mony, and  prepare  his  case  on  the  merits. 
Kumbly  v.  Stainton.  24  Ala.  712;  see 
Kochester  v.  Lee,  1  M'N.  &  G.  467,469,  470. 

6  But  a  bill  will  not  be  dismissed  upon  a 
mere  suggestion.  Wiswell  v.  Starr,  50 
Maine,  381,  384. 

6  For  form  of  order,  see  Seton,  1277, 
Nos.  1,  2;  and  for  forms  of  motion  paper 
aiid  petition,  see  Vol.  III. 


GENERALLY. 


791 


the  order  overruling  the  demurrer :  which  right  he  ought  not  to 
be  deprived  of,  on  an  ex  parte  application.^ 

It  seems  once  to  have  been  the  privilege  of  the  plaintiff  to  dismiss 
his  bill,  when  the  defendant  had  answered,  upon  payment  of  '10s. 
costs ;  -  but  that  rule  was  altered  ;  ^  and  the  Statute  of  Anne  has 
since  enacted,'*  that,  upon  the  plaintiff's  dismissing  his  oa^ti  bill,  or 
the  defendant's  dismissing  the  same  for  want  of  prosecution,  the 
plaintiff  in  such  suit  shall  pay  to  the  defendant  or  defendants  his 
or  their  full  costs,  to  be  taxed  by  the  Master."  It  seems,  formerly, 
to  have  been  considered,  that  the  Court  had  no  power  to  make  an 
order,  on  the  application  of  the  plaintiff,  dismissing  the  bill  with- 
out costs,  except  upon  the  defendant's  consent  actually  given  in 
Court.®  It  has  now,  however,  been  decided,  that  the  Court  has 
power  to  make  such  an  order  in  a  proper  case ;  and  such  orders 
liave  been  made  :  where  the  defendant  surrendered  a  lease,  to 
obtain  an  assignment  of  which  the  bill  was  filed,  and  absconded : '' 
where  the  bill  was  filed  under  a  mistake,  under  which  both  plain- 
tiffs and  defendants  were  at  the  time :  *  where  the  defendants  had 
assigned  their  interests  to  co-defendants,  after  the  bill  was  filed, 
and  had  joined  in  an  answer  with  such  other  defendants  and  dis- 
claimed :  ®  where  the  suit  was  rendered  nugatory  by  the  subse- 
quent passing  of  an  Act  of  Parliament,  or  by  the  reversal  of  a 
case  on  the  authority  of  which  the  bill  was  filed,  or  by  any  subse- 
quent matter:^''  and  where  the  plaintiff  liad  been  misled  by  the 
act  of  the  Court.^^ 

The  application  to  dismiss,  in  these  cases,  is  usually  made  by 
special  motion,  of  which  notice  must  be  served  on  the  defendants, 
or  such  of  them  as  are  affected  by  the  motion.^'^ 


1  Cooper  V.  Lewis,  2  Phil.  178,  ISl;  and 
see  Ainslie  v.  Sims,  17  Beav.  174;  see  also 
Booth  V.  Leycester,  1  K''en,  247,  255, 
where  a  bill  and  cross-b;ll  had  been  set 
doi^n  to  be  heard  tofjether. 

2  (iilb.  For.  Rom.  110;  2  Atk.  2S8. 

8  Anon.,  1  Vern.  llti;  Anon.,  ib.  3.34. 

<  4  &  5  Anne,  c.  16,  §  23. 

5  The  plaintiff  seems  to  hnve  been  liable, 
notwithstanding  the  statuf,  to  tlie  pay- 
ment of  only  40«.  cost-;  where  the  cause 
was  set  down  and  dismi.^sod  on  hill  and  an- 
swer; see  Newsha'n  v.  (irav,  2  Atk.  288; 
but  by  G(;ncrMl  Order  of  27rh  April,  1748, 
ib.  28'j;  .Sand.  Ord.  028,  it  is  provided,  that, 
in  such  a  case,  the  Court  may  dismiss  the 
bill,  either  with  40*.  costs,  or  with  taxed 
costs,  or  without  costs.  This  Order  ap- 
pear*, in  this  respect,  to  be  abrogated  by 
the  Cons.  Ord. 

8  Oixon  r  I'arko,  1  Ves.  .J.  402;  Anon., 
Uj.  140;  Fidelle  v.  Kvans.  1  Hro.  C.C.  207; 
1  Cox,  27;  Kislicr  v.  (^uick,  1  Stockt.  (N. 
J.)  312 

7  Knox  V.  Brown,  2  Bro.  C.  C.  186;  1 
Cox,  351);  iind see Goodday  v.  Slei{;h,  l.Jur. 


N.  S.  201;   3  W.  R.  87,  V.  C.  S.;    Wripht 
V.  Barlow,  5  De  G   &  S.  43;  15  .lur.  1141). 
8  Broughton  v.  Lashmar,  5  M.  &  C.  136, 
144. 

'■>  Hawkins  v.  Gardiner,  17  Jur.  780,  V. 
C.  8. 

1"  Sutton  Harbour  Company  I'.  Hitchens, 
15  Beav.  161;  1  De  G  ,  .M.  &'  G.  161,  169; 
and  see  ib  16  Beav.  381;  Robinson  v.  Ro- 
sher,  1  Y.  &  C.  C.  C.  7,  12;  5  .Jur.  1006; 
but  see  South  Stallbrdshire  Kaiiwav  Com- 
pany r.  ILdl.  L6Jur.  160.  V.  C-  K.;"Lnnoa- 
shire  and  Yorkshire  Railway  C'lnijKiiiv 
r.  Fvaiis,  14  Beav.  529  ;  Ventilation  and 
Sanitary  Improvement  Company  v.  Eilel- 
Bton,  11  \V.  It.  613,  V.  C.  S.;  El>ey  v.  Ad- 
ams, 10  Jur.  N.  S.  459;  12  W."R.  58C, 
L.  .I.J.;  2  De  G,  J.  &  S.  147;  Kilev  «. 
CrcTydou,  10  Jur.  N.  S.  1251;  13  W.  R.  223, 
V.  U.  K. 

11  Lister  v.  Leather,  1  De  G.  &  .1.  361 ;  3 
Jur.  N.  S  848.  But  not  where  the  object 
of  the  suit  has  been  delValed  by  the  plain- 
tiff's own  act  or  p'-ocnrement.  Ilanimers- 
ley  (;.  Barker,  2  I'aiKe,  372. 
1-    For  form  of  notice,  see  Vol.  IIL 


C.  XIX.  §  1. 


Costs  payable 
by  plaintiff, 
on  dismissal. 


As  to  dis- 
missing bill 
without  costs, 
on  special 
application  of 
plaintiff; 
has  been 
done, 
where  de- 
fendant by 
his  own  act, 
.rendered  suit 
useless ; 
■where  bill 
filed  under 
mutual 
mistake ; 
where  de- 
fendants 
assigned 
after  bill 
filed; 
where,  by 
subsequent 
Act  or  de- 
cision, suit 
rendered 
useless; 
where  plain- 
tiff mi,4ed  by 
act  of  the 
Court. 
Special 
application 
to  dismi.ss: 
how  made. 


792 


DISMISSING   BILLS,    AND    STAYING    PROCEEDINGS. 


(\  XIX.  5  1. 


Whoro  l.iU 
liRS  l)oeii 
dismissod  tor 
want  ot" 
HR>sociition 
aLiainst  some 
ilotoiulants, 
]>laintitV  can- 
not itisniiss  it 
witlunit  costs, 
as  atrainst 
otiicrs. 
^\■|lctl^c^ 
(ilaintitl'  may 
dismiss 
aijainst  some 
di'londaiUs 
witli  costs, 
without 
prejudice  to 
question  how 
costs  should 
ultimately  he 
home. 

Where  plain- 
tiff sues  in 
forimi 
pauperis. 


Where  plain- 
tiff disavows 
suit. 

Where  one 
of  several 
co-plaintitfs 
desu'es  to 
dismiss. 


Plaintiff  may 
apply  to  dis- 
miss bill,  at 
any  time  be- 
fore decree. 


WhoiT,  however,  tlio  in;it(iM-s  in  dispute  liave  been  disposed  of 
by  nn  independent  proceeding,  but  the  bill  has  been  dismissed  for 
want  of  jn-oseeution,  with  costs,  :is  against  some  of  the  defendants, 
the  plaintiff  can  no  longer  move  to  dismiss  it,  as  against  the 
others,  without  ct)sts  :  the  Coiut  not  being  able  to  adjudicate  as 
to  the  costs,  in  the  ab.senee  of  the  dismissed  ])arties,  who  might  be 
jirejudiced  by  the  other  defendants  being  entitled  to  add  their 
costs  to  their  securities,  or  otherwise.  In  siu-h  a  case,  the  bill  can 
only  be  dismissed  with  costs.^ 

Where  the  plaintiff  moved  to  dismiss  the  bill  with  costs  against 
some  of  the  defendants  who  had  disclaimed,  without  j^rejudice  to 
the  question  by  whom  the  costs  should  ultimately  be  borne,  it  was 
held  by  Sir  James  Wigram  V.  C.  that  the  order  might  be  made 
without  serving  the  other  defendants,  as  they  could  not  ))e  preju- 
diced ;  -  but  Sir  J,  L.  Knight  Bruce  V.  C.  refused  to  make  such 
an  order,  unless  the  other  defendants  were  served.^ 

AVhere  the  plain  tiif  has  been  admitted  to  sue  in  forma  pauperisl 
he  may  move  to  dismiss  his  bill  without  costs  :  except  in  cases  in 
which  his  admission  in  forma  pauperis  has  taken  place  subse- 
qently  to  the  filing  of  the  bill  ;"*  but  the  motion  must  not  be  made 
ex  parte!' 

The  course  of  proceeding  to  obtain  the  dismissal  of  the  bill  by 
a  plaintiff  Avho  disavows  the  suit,  has  been  before  pointed  out." 
Where  the  suit  is  not  disavowed,  one  co-plaintiff  may,  with  the 
consent  of  the  defendant,  dismiss  a  bill  with  costs,  so  fir  as  con- 
cerns himself,  if  it  M'ill  not  in  any  ^vay  injure  the  other  plaintiffs : 
otherwise,  the  Court  will  refuse  the  order,  unless  upon  terms  so 
framed  as  to  protect  the  other  plaintiffs  in  the  suit  from  injury.'' 
The  mere  circumstance  that  the  rights  of  the  plaintiff  applying  to 
be  dismissed  are  concurrent  with  those  of  the  plaintiffs  who  re- 
main, will  not  be  a  sufficient  reason  for  refusing  the  aj)plication  : 
since  any  defect  which  his  withdrawal  may  make  in  the  record 
may  be  supplied  by  making  him  a  defendant,  by  amendment.^ 

A  })laintiff  may,  in  general,  obtain  an  order  to  dismiss  his  own 
bill,  with  costs,  as  a  matter  of  course,  at  any  time  before  decree. 


t  Troward  v.  Attwood,  27  Beav.  85. 

2  Baily  i'.  Laml)ert,  o  Mare,  178;  10  Jur. 
109;  and  see  Collis  v.  CoUis,  14  L.  J.  Ch. 
56,  V.  C.  K.  B.;  Styles  v.  Sliipton,  3  Eq. 
Kep.  224,  V.  C.  \V.  Similar  orders  made 
on  ex pai-te  motion  in  Clements  «.  Clifford, 
11  Jur.  N.  S.  851;  14  W.  K.  22,  V.  C.  K.; 
Berndston  v.  Churchill,  1  W.  N.  8,  V. 
C.  W. 

3  Wigginon  v.  Pateman,  12  Jur.  89. 
*  Ante,  p.  42. 

6  Ibid. ;  Parkinson  v.  Hanbury,  4  De  G., 
M.  &  G.  508;  and  see  Wilkinson  v.  Bel- 
sher,  2  I$ro.  C.  C.  272.  Where  an  executor 
or  administrator  has  commenced  a  wrong 


suit  by  mistake,  or  has  ascertained  that  it 
would  be  useless  to  proceed,  in  consequence 
of  facts  subsequently  discovered,  he  will  be 
permitted  to  discontinue  witliout  payment 
of  costs.  Arnoux  i;.  Steinbrenner,  1  i^aige, 
82. 

8  Ante,  p.  307. 

■?  Ilolkirk  V.  Holkirk,  4  Mad.  50;  Win- 
throp  V.  Murray,  7  Hare,  152;  13  Jur.  955; 
and  see  ante,  p.  30'J;  but  see  Laiigibile 
V.  Langdale,  13  Ves.  167;  see  Muldrow  v. 
Du  IJose,  2  Hill  Ch.  375,  377;  Bank  v. 
Kose,  1  Rich.  Ch.  292. 

8  Holkirk  V.  Holkirk,  vbi  sup. 


GENERALLY. 


793 


and  notwithstanding  a  pending  motion  which  has  been  ordered  to 
stand  over.^  Tlius,  in  Curtis  v.  Lloyd^-  after  the  caitse  had  been 
called  on  for  hearing,  and  had  stood  over  at  the  request  of  counsel, 
the  plaintiff  obtained,  as  of  course,  an  order  to  dismiss  his  bill  with 
costs;  the  defendant  afterwards  objected  to  this  course;  but  Lord 
Cottenham  held,  that  the  plaintiff  was  entitled  to  the  order :  ob- 
serving, that  he  could  not  see  why  a  plaintiff  should  be  in  a  worse 
situation,  because  he  informs  the  Court  that  he.  does  not  intend  to 
proceed  with  the  hearing  of  his  cause,  than  if  he  made  default. 

If,  however,  the  plaintiff,  after  the  cause  is  set  doAvn  to  be  heard, 
causes  the  bill  to  be  dismissed  on  his  own  apphcation,  such  dis- 
missal is,  unless  the  Court  otherwise  directs,  equivalent  to  a  dis- 
missal on  the  merits,  and  may  be  j^leaded  in  bar  to  another  suit  for 
the  same  matter.^ 

After  a  decree,  or  decretal  order,^  however,  the  Court  will  not 
suffer  a  plaintiff  to  dismiss  his  own  bill,  unless  upon  consent :  for 
all  parties  are  interested  in  a  decree,  and  any  party  may  take  such, 
steps  as  he  may  be  advised  to  have  the  effect  of  it.^  The  proper 
form  of  order  after  decree  is  not  to  dismiss  the  bill,  but  to  stay  all 
further  proceedings.*'  If,  however,  the  decree  merely  directs  accounts 
and  inquiries,'^  in  order  to  enable  the  Court  to  determine  what  is 
to  be  done,  the  bill  may  be  dismissed.^  And  where,  upon  the 
hearing  of  the  cause,  the  Coui't  has  merely  directed  an  issue,  the 
plaintiff  may,  before  trial  of  the  issue,  obtain  an  order  to  dismiss 
the  bill  with  costs :  because  the  directing  of  an  issue  is  only  to 
satisfy  the  conscience  of  the  Court,  prefatory  to  its  giving  judg- 
ment.    If,  however,  the  issue  has  been  tried,  and  determined  in 


C.  XIX.  §  1. 


Dismissal, 
after  cause 
set  down, 
may  be 
pleaded  to 
another  suit. 


Plaintiff  can- 
not, after 
decree,  dis- 
miss bill, 
unless  by- 
consent  ; 
but  further 
proceedings 
may  be 
stayed, 
exceptions  to 
rule. 


1  Markwick  v.  Pawson,  33  L.  J.  Ch.  703 ; 
4  N.  It.  528,  L.  .1.1.  It  is  a  matter  of  course 
to  permit  tlie  phiintiff  to  dismiss  the  bill  at 
any  time  before  decree,  upon  payment  of 
costs,  but  the  order  for  such  leave  is  con- 
ditional, and  the  suit  not  absolutely  dis- 
contitmed  so  as  to  authorize  the  filing  a 
new  bill,  till  the  costs  of  tiie  first  suit  are 
paid.  Cummins  r.  Uennett,  8  Paige,  70; 
see  Thomas  v.  Tiiomas,  3  Lift.  9;  liassard 
V.  Lester,  2  M'Cord  Ch.  421;  Smith  v. 
Smith,  2  Blackf  232:  Simpson  v.  I5rew- 
ster,  0  I'aige,  245;  Klderkin  «.  l'"itch,  2 
Carter  (lud.),  90;  Mason  v.  York  &  Cum- 
berland li.K.  Co.,  52  Maine,  82,  107.  After 
a  voluntary  dismissal  of  a  bill  by  the 
plaintiff,  he  will  not  be  allowed  to  rein- 
state it.  Orphiin  Asylum  v.  McfJartee,  1 
Hopk.  372.  In  New  Jersey,  l)y  liulo 
of  Chancery,  when  a  replication  has  been 
filed,  and  the  taking  of  proofs  begun 
by  either  party,  the  pliiintilf  sIihII  not  bo 
ailowerl  to  ilismiss  his  bill,  exce[)t  upon 
special  motion  and  notice  to  the  defendants. 
Pkule  94  ;  2  McCarter.  5.33. 

2  4  M.  &  C.  194;  2  Jur.  1058. 

3  Ord.  X.VIII.  13. 

<  /'o*<,  bUO;  Anon.,  11  Ves.  169;  Biscoe 


V.  Brett,  2  V.  &  B.  377 ;  Bluck  v.  Colna^hi, 
9  Sim.  411 ;  Collins  v.  Greaves,  5  Hare,  596; 
Gregory  ?;.  Spencer,  11  Ben  v.  143. 

5  Guilbert  v.  Hawles,  1  Cha.  Ca.  40; 
Carrington  v.  Holly,  1  Dick.  280. 

^  Egg  V.  Dovev,  11  Beav.  221;  see  also 
Lashley  v.  Hogg,  11  Ves.  602;  Bluck  v. 
Colnaghi,  9  Sim.  411;  Handford  v.  Storie, 
2  S.  &  S.  19C,  198. 

7  Harton  v.  Barton,  3  K.  &  J.  512 ;  3  Jur. 
N.  S.  808. 

8  Anon.,  11  Ves.  169;  Barton  v.  Barton, 
uhi  sup.;  and  see  post,  pp.  810,  811;  see 
Clarkson  v.  Scrogins,  2  Monr.  52.  After 
an  order  to  account,  and  report  made,  the 
plaintiff  cannot  dismiss  on  payment  of 
costs.  Betliia  v.  M'Kny,  Cheves  Cii.  Ca. 
93;  see  also  Hall  v.  McPherson,  8  Hiaiid, 
529;  but  see  Bassard  v.  Lester,  2  M'Cord 
Ch.  42f.  A  bill  by  trustees  to  marslnd  as- 
sets and  call  in  creditors,  after  a  decree 
made  directing  money  to  be  p!ii<l,  and 
creditors'  claims  established,  will  not  be 
dismissed  at  the  instance  of  one  of  the 
I)laintifls,  his  co-plaintilf  and  the  creditors 
olijecting.  Muldrow  v.  Du  liose,  2  Hill  Ch. 
375,  377  ;  sec  Jones  v.  Lansing,  7  Paige, 
583. 


794 


DISMISSING   BILLS,    AND    STAYING    rROCEEDINGS. 


0.  XIX.  §  1. 


Where  bill 
caiinot  be 
disinissotl 
even  by  eon- 
sent,  arter 
deeix-e. 


Application 
by  defendant 
to  dismiss  or 
stay,  on  sub- 
mitting to 
satisfy  plain- 
tiff"'s  de- 
mand, and 
pay  costs ; 


what  the 
costs  include. 

Application 
by  one  of 
several 
defendants. 


ilivor  of  tlio  (Irti'iulant,  till'  |il:iinlitr  (Mimot  move  to  dismiss:  be- 
c':ius(.'  (ho  (lofi'iiilaiit  may  li:i\  c  it  sot  iloM  ii  on  tlio  Kquity  reserved, 
in  orilor  lo  obt;iiu  a  loriiial  dismissal  ot"  tlio  hill,  so  as  to  enrol  it  as 
a  iinal  juili^moiit,  aiul  thoroby  make  it  jiloadablo.' 

Al\or  a  dooroo  has  boon  iiiaile  of  suoh  a  kiml  that  othor  ])ovsons, 
bosidos  tho  partios  on  the  record,  are  intorostod  in  the  })rosocutiou 
of  it,  neither  tho  plaintiii*  nor  defendant,  on  tlte  consent  of  the 
othor,  can  obtain  an  order  for  the  dismissal  of  the  bill."  Thus, 
w  horo  a  ])laintilf  sues  on  behalf  of  himself  and  all  otlioi-  persons 
of  tho  same  class:  allhoutih  he  acts  upon  his  own  mere  motion, 
and  retains  the  absolute  dominion  of  the  suit  until  the  decree,  and 
may  dismiss  the  bill  at  his  pleasure,  yet,  after  a  decree,  he  cannot 
by  his  conduct  deprive  othor  persons  of  the  same  class  of  the  bene- 
fit of  the  decree,  if  they  think  lit  to  prosecute  it.  "The  reason  of 
the  distinction  is,  that,  before  decree,  no  other  person  of  the  class 
is  bound  to  rely  upon  the  diligence  of  him  who  has  first  instituted 
his  suit,  but  may  file  a  bill  of  liis  own ;  and  that,  after  a  decree,  no 
second  suit  is  permitted."  ^ 

AVhere  a  defendant  submits  to  the  whole. demand  of  the  plain- 
tiff, and  to  pay  the  costs,  he  has  a  right  to  apply  to  the  Court  to 
dismiss  the  bill,  or  stay  all  further  proceedings.*  The  application 
is  usually  made  on  motion,  of  which  notice  must  be  given.^  The 
Court  will  not,  on  sucli  an  application,  go  into  the  merits  of  the 
case  ;  but  will  only  consider  the  conduct  of  the  parties  in  conduct- 
ing the  cause.  It  will  not,  therefore,  entertain  such  an  application, 
unless  the  defendant  submits  to  pay  the  costs,  as  well  as  comply 
with  all  the  plaintiff's  demands  :  ®  though  it  has,  in  some  cases,  de- 
termined the  question  whether  particular  costs,  incurred  in  pro- 
ceedings collateral  to  the  suit,  are  to  be  paid  by  the  defendant.'' 
The  costs  of  suit  which  the  defendant  must  submit  to  pay,  include 
the  costs  of  co-defendants,  for  which  the  plaintiff  is  liable.^ 

Where  there  are  several  defendants,  and  the  plaintiff  claims  only 
]>art  of  the  relief  against  one  defendant,  that  defendant  may  apply, 
by  special  motion,  to  stay  all  further  proceedings,  on  satisfying  the 


1  Carrington  v.  Holly,  1  Dick.  280. 

2  Updike  V.  Dovle,  7  R.  I.  446,  462. 

3  Hnndford  v.  Storie,  2  S.  &  S.  196, 
198;  York  v.  White,  10  Jur.  168,  M.  K., 
an(e,  p.  239;  and  see  post,  p.  795;  Up- 
dike V.  Doyle,  7  R.  I.  446,  462;  Collins 
V.  Taylor,  3  Green  Cli.  163;  William- 
son V.  Wilson,  1  Bland,  418  ;  Waring 
V.  Robinson,  Hoff.  Ch.  524,  529,  530  ; 
Muldrow  V.  Du  Bose,  2  Hill  Ch.  375,  377; 
Jones  V.  Lansing,  7  I'aige,  583;  Shewen  v. 
Vanderhorst,  2  K.  &  M.  75;  Atlas  Biink  v. 
Niihant  B;mk,  23  Pick.  480;  Mass;  St.  1862, 
c.  218,  §  8;  ante,  p.  239,  and  cases  in  note. 

*  I'er  Lord  L;ingdale  in  Sivell  v.  Abra- 
ham, 8  Beuv.  599;  see  also  I'einberton  v. 
Topham,  1  Beav.  316;  2  Jur.  1009;  Hol- 


den  V.  Kynaston.  2  Beav.  204,  206  ;  Field 
V.  Robitison,  7  Beav.  66;  Hennetw.  I.uard, 
12  Beav.  479;  Danier  f .  JiOnl  Tortarling- 
ton,  2  I'hil.  30,  35;  1  C  P.  Coop.  t.  Cott. 
229,  234;  10  Jur.  673;  Manton  v.  Roe,  14 
Sim.  353;  Pavnter  r.  Carew,  Kay  Ap.  36; 
18  Jur.  417;  Orton  v.  Bainlirigge,  22  L.  J. 
Ch.  979;  1  W.  R.  487,  M.  R. 

''  For  form  of  notice,  see  Vol.  HI. 

6  Wallis  V.  Wallis,  4  Drew.  458;  Ilennet 
V.  Luard,  vIjI  stip. ;  see,  liowever,  Hoiden 
V.  Kynaston,  uhi  sup. 

"<  Penny  v.  Beavan,7  Hare,  133;  12  Jur. 
936. 

8  Pemberton  v.  Topham,  and  Paynter  v. 
Carew,  ulii  sup. 


GENERALLY. 


795 


whole  demand  made  against  bim,  and  paying  the  plaintiff's  costs 
incurred  up  to  the  time  of  making  the  application.^ 

In  a  foreclosure  or  redemption  suit,  the  bill  may  be  dismissed  on 
the  special  motion  of  a  subsequent  incumbrancer,  as  against  all  the 
defendants  except  himself,  on  his  paying  into  Court,  by  a  specified 
day,  a  sum  sufficient  to  cover  the  mortgage  debt  and  interest,  and 
the  costs  of  the  plaintiif  and  other  defendants.^  Where  discovery 
is  sought  from  the  defendant,  the  plaintiff  is  entitled  to  continue 
his  suit  for  that  purpose  ;  and  an  application  by  the  defendant  be- 
fore answer  to  stay  proceedings,  upon  his  submission  to  the  plain- 
tiff's demand  and  pajonent  of  the  costs  of  the  suit,  is  premature, 
and  will  not  be  entertained.^ 

The  defendant  may  also,  by  submitting  to  pay  the  plaintiff's  de- 
mands, and  his  costs  of  the  suit,  obtain  an  order  to  stay  the  pro- 
ceedings, under  a  decree  in  which  other  persons  are  interested,  as 
well  as  the  parties  to  the  suit ;  but,  in  such  a  case,  any  one  of  the 
persons  so  interested  may  subsequently,  on  sjjecial  motion  or  sum- 
mons,* with  notice  to  the  parties  to  the  cause,  obtain  an  order  that 
the  applicant  may  have  either  the  conduct  of  the  cause,  or  liberty 
to  carry  on  the  proceedings  imder  the  decree,  or  the  prosecution 
of  particular  accounts  or  inquiries.^ 

Orders  to  stay  proceedings,  on  the  ground  that  the  defendant 
has  submitted  to  the  plaintiff's  demands,  have  also  been  made  on 
the  application  of  the  plaintiff,  hostilely  to  the  defendant ;  ^  but  it 
seems  that  the  defendant  has  a  right  to  have  the  cause  brought  to 
a  hearing,  for  the  purpose  of  determining  the  question  of  costs ; 
and  that  such  an  apjjlication  by  the  plaintiff  can,  therefore,  only  be 
made  by  consent.''  Where  the  question  in  dispute  has  been  settled 
by  compromise  out  of  Court,  without  providing  for  the  costs,  the 
Court  will  not  detennine  the  question  of  costs,  either  on  motion  or 
at  the  hearing.* 


C.  XIX.  §  1. 


If  required, 
dt'tenJant 
must  give 
discovery. 


Staying  class 
suit,  after 
decree. 


On  applica- 
tion of 
plaintiff; 


only  by 
consent. 


1  Sawj-er  v.  Mills,  1  M'N.  &  G.  390, 395 ; 
13  Jur.  1061 ;  see  also  Holden  v.  Kynaston, 
vbi  tup.  For  form  of  notice  of  motion,  see 
Vol.  III. 

2  Jones  V.  Tinney,  Kay  Ap.  45;  Chal- 
lie  V.  Gwynne,  ib.  40,  wliere  the  forms  of 
the  orders  are  given  ;  see  also  I'aynter  v. 
Carew,  ib.  30;  18  .Jur.  417;  and  I'aine  v. 
Edwards.  8  Jur.  N.  S.  1200,  1202;  10  W. 
K.  709,  V.  C.  iS.,  where  the  motion  was 
refused,  the  pri'iriti'-s  being  in  dispute; 
Wainwriglit  v.  Sewt-ll,  11  W.  It.  560,  V.  C. 
S.     For  Ibrms  of  nuticf,  see  Vol.  HI. 

8  Stevens  v.  IJrctt,  12  \V.  U.  572,V.  C.  W  . 

<  15  &  16  Vic.  c.  80,  §  26.  For  forms  of 
notice  of  motion  :ind  summons,  see  Vol.  III. 

6  See  Salter  v.  'I'llde^lev,  13  VV.  U.  370, 
M.  U. ;  see  also  nnle,  ]>]>.  239,  240,  7!)4. 

«  Nichols  1'.  Kiford,  5  Jur.  N.  S.  204,  V. 
C.  W.;  North  r\  (niat  Western  liailway 
Co.,  2  (iin.  f,  1 :  r,  Jur.  N.  S.  244;  Thomp- 


son V.  Knight,  7  Jur.  N.  S.  704;  9  "W. 
R.  780,  V.  ('.  W.;  Brooksbank  v.  Hig- 
cinbottom,  31  I$eav.  35  ;  and  see  Sivell  v. 
Al)raham,  8  Ueav.  598  ;  Hennet  v:  Luard, 
12  Beav.  479,  480. 

7  Laiigliam  v.  Great  Northern  Railway 
Company,  16  Sim.  173;  12  Jur.  574;  I'.ur- 
gess  V.  Hills,  26  Beav.  244,  249;  5  Jur.  N. 
S.  233;  Burgess  r.  Hatelv,  26  Beav.  249; 
M'Naughlan  r.  Ilasker,  12  Jur.  956,  V.  C. 
K.  B.;  AVilde  v.  Wilde,  10  W.  U.  503,  L. 
J.I.;  Ahirgan  v.  Grent  Eastern  li;iilway 
('om[)atiy,  1  II.  &  M.  78;  and  see  Chester 
I'.  Metropolitan  IJailwav  Cotnpjinv,  11  .lur. 
N.  S.  214,  iM.  i;.;  13  VV.  li.  3:j;3;"  Hudson 
V.  Bennett,  12  Jur.  N.  S.  519;  14  \V.  R.  911, 
V.  C.  s.  • 

8  (Jihson  V.  Lord  Cranlev,  C  Mad.  365; 
Roberts  v.  P.oberts,  1  S.  &  S.  39;  Whalley 
V.  Lord  Snfliohl,  12  Beav.  402;  Nichols  v. 
Elford,  5  Jur.  N.  S.  264,  V.  C.  W. 


796 


DISMISSING    BILLS,    AND    STAYING   mOCEEDINQS. 


C.  XIX.  §  1. 


Stayinjr 
proceedings 
until  costs  in 
tbrmer  suit 
piiid ; 

dismissal  of 
second  Mil, 
on  default. 


Exceptions 
where  both 
suits  are  not 
for  the  same 
matter. 


Similar  rule, 
in  the  case  of 
abandoned 
proceedings. 

Amount  of 
costs  shoidd 
be  first  ascer- 
tained. 


l>y  (MniscMit,  the  l)ill  uKiy  be  disiuissoil  or  tlic  ])V()('iHMlin<i;s  stayed, 
on  motion  ofoonrse,  or  ])i'tition  ot"cH)ursc'  at  tlu'  IvoUs,  or  on  special 
motion  or  ])i'liti(ni,' or  on  summons,  on  any  terms  wliicli  may  be 
aureoil  njion  ;  -  and  whore  an  agreement  to  dismiss  a  bill  was  en- 
tered into  at  the  trial  of  an  aetion  direeted  to  he  hrought,  and 
made  a  rule  of  the  Court  of  Law,  the  Cotu-t  of  Chancery  enforced 
it  against  the  ]>arties,  on  motion  in  tlie  cause.''  Where  any  of  the 
parties  are  not  j<ifi  J i/n's,  or  are  ext'cutors  or  trustees,  the  Court 
must  be  satisiied  of  the  propriety  of  the  agreement.'' 

Where  a  i)lainti1f  has  made  default  in  ])ayment  of  the  costs  of  a 
former  suit  against  the  same  defendant,  or  the  person  whom  he 
represents,  for  the  same  purpose,  the  defendant  may  obtain  an 
order,  on  motion,  Avith  notice  to  the  plaintiff,  staying  all  further 
proceedings  until  the  plaintiff  has  paid  such  costs ;  ^  and  where, 
after  great  delay,  the  costs  still  continue  unpaid,  the  Court  will 
order  the  plaintiif  to  pay  them  within  a  limited  time,  or,  in  default, 
tiiat  the  second  bill  stand  dismissed.^  Where,  however,  the  two 
suits  are  not  for  the  same  matter,  and  the  second  bill  could  not  be 
produced  by  a  fair  amendment  of  the  first,,  such  an  order  will  be 
refused ; ''  nor  can  it  be  obtained,  where  the  plaintiff  sues  by  his 
next  friend  ;  *  nor,  it  seems,  where  the  defendant  has  taken  any 
step  in  the  new  cause,  before  making  the  application.^ 

Where  the  same  object  may  be  attained  under  two  different 
modes  of  proceeding :  if  the  first  is  adopted,  and  then  abandoned 
and  the  second  adopted,  the  proceedings  in  the  second  may  be 
stayed  until  the  costs  of  the  first  are  paid.^°  It  would  seem  that 
the  amount  of  the  costs  should  be  ascertained  by  taxation  or  other- 
w^ise,  before  the  application  to  stay  proceedings,  is  niade.^^ 


1  Where  the  terms  are  complicated,  or  a 
fund  in  Court  is  dealt  witli,  the  sipplication 
is  usually  made  on  special  petitinn.  See 
Winthrop  v.  Wiiithrop,  1  C  P.  Coop.  t. 
Cott.  201  ;  Richardson  v.  Eyton,  2  I)e  G., 
M.  &  G.  79;  Harrison  17.  Lane,  2  Sm.  &  G. 
249;  iJawson  ?.'.  Newsome,  2  Gift".  272;  6 
Jur.  N.  S.  625;  post,  Chap.  XXXV.,  §  1, 
Interlocuti>ry  Applications  ;  or  on  summonsi 

2  See  North  v.  Great  Western  Railway 
Company,  2  Gift'.  64;  Troward  t'.  Alt  wood, 
27  IJeav.  85.  For  forms  of  motion  paper, 
notice  of  motion,  petition,  and  summons, 
see  Vol.  III. 

8  Tebbutt  V.  Potter,  4  Hare,  164  ;  see 
also  Warwick  v.  Cox,  9  Hare  Ap.  14  ; 
Dawson  v.  Newsome,  vhi  sup. ;  see,  how- 
ever. Askew  ».  Mdliiigton,  9  Hare,  65;  15 
Jur.  5.32. 

4  Warwick  v.  Cox,  uhi  sup. ;  and  see 
Lippiatf.  Holley.  1  Heav.  423;  Seton,691. 

s  Pickett  V.  Lo^rgan,  5  Ves.  706 ;  Altree 
V.  Hordern.  5  lieav.  623,  628;  7  .Jur.  247; 
Lautourr;  Ilolcombe,  10  IJeav.  256;  Spires 
r.  Sewcll,  5  Sim.  193;  Onge  i'.  Truelock,2 
Moll.  41;  Jyong  v.  Storie,  13  Jur.  1091,  V. 


C.  E.;  Sprye  v.  Reynell,  1  De  G.,  M.  &  G. 
712 ;  Ernest  v.  Partridge,  8  L.  T.  N.  S.  762, 
V.  (J.  W.;  see,  however.  Wild  v.  Hobsou, 
2  V.  &  B.  105,  108;  see  Cummins  v.  Uen- 
nett,  8  Paige,  79;  Rathbone  v.  Eckford, 
cited  1  Hoff.  Ch.  Pr.  328,  n.  (1);  Simpson 
V.  JJrewster,  9  Paige,  245.  The  a])i)lication 
should  not  be  mside  until  the  amount  of 
the  costs  has  been  ascertained  by  taxation. 
Ernest  v.  Partridge,  ubi  sup.  For  form  of 
notice  of  motion,  see  Vol.  HI. 

c  Princess  of  Wales  v.  Lord  Liverpool,  3 
Swanst.  567  ;  Lautour  c  Holcombe,  11 
15eav.  624;  Ernest  v.  Govett,  2  N.  R.  486, 
V.  C  W.  For  form  of  notice  of  motion, 
see  Vol;  HI. 

7  Budge  V.  Budge,  12  Beav.  385,  387. 

8  Hind  V.  Whitinore,  2  K.  &  J.  458. 
'•>  Onge  V.  Truelock,  2  Moll.  41. 

1"  Folev  V.  Smith,  12  Be:iv.  164;  Davey 
V.  Durraiit,  24  Beav.  41 1 ;  4  Jur.  N.  S.  398; 
2  De  a.  &  J.  506 ;  see  also  Oldfield  v.  Cob- 
bett,  12  Beav.  91,  95. 

11  Ernest  v.  Partridge,  8  L.  T.  N.  S.  762, 
V.  C.  W. ;  and  see  F(dey  v.  Smith,  12 
Beav.  154  ;  Davey  v.  Durrant,  24  Beav. 


GENERALLY. 


797 


Where  a  plaintiff  is  in  contempt  for  non-papnent  of  costs  in  the 
suit,  an  order  to  stay  proceedings  until  the  costs  have  been  paid 
may  be  obtained  on  special  motion ;  ^  and  where  he  has  failed  to 
give  security  for  costs  pursuant  to  an  order,  the  defendant  may  ob- 
tain, on  motion  with  notice,  an  order  that  he  give  security  within 
a  limited  time,  or  the  bill  be  dismissed.^ 

There  are  also  several  cases  in  which,  where  there  are  tAvo  suits 
relating  to  the  same  subject-matter,  the  Court  will,  under  certain 
cii'cumstances,  make  an  order  staying  the  proceedings  in  one  of 
them.^  Thus,  as  we  have  seen,  where  two  or  more  suits  are  insti- 
tuted in  the  name  of  an  infant  by  different  persons,  each  acting  as 
his  next  Mend,  the  Court,  on  being  satisfied  by  an  inquiry,  or 
otherwise,  which  suit  is  most  for  his  benefit,  will  stay  the  proceed- 
ings in  the  other  suit.*  So,  also,  where  two  suits  are  instituted, 
for  the  administration  of  an  estate  :  when  the  decree  has  been  ob- 
tained in  one  suit,  proceedings  will  be  stayed  in  the  other. 

Where  the  second  suit  embraces  an  object  not  provided  for  in 
the  decree  pronounced  in  the  first  suit,  the  proceedings  in  the 
second  suit  will  not  be  stayed  :  °  as  for  instance,  Avhere  the  decree 
is  made  in  a  creditors'  suit,  and  a  bill  is  filed  by  a  legatee.^  But 
even  in  this  case,  it  is  often  desirable  to  obtain  a  transfer  and 
amalgamation  of  the  two  suits.''  Where  the  second  suit  prayed 
additional  relief,  the  Coui-t  stayed  proceedings  in  it,  on  the  parties 
to  the  first  suit  undertaking  to  introduce  into  the  decree  in  that 
suit,  the  additional  relief  which  might  be  obtained  in  the  second 
suit.*     In  another  case,  the  Coui't  stayed  proceedings  in  the  second 


C.  XIX.  §  1. 

Staying 
proceedings, 
■where  plain- 
tiff" in  con- 
tempt for 
non-payment 
ot'  costs ;  or 
wliere  secu- 
rity for  costs 
not  given, 
though 
ordered. 
Wliere  two 
suits  relate  to 
the  same 
matter: 
Infant ; 
Administra- 
tion. 


Where  the 
objects  of  the 
two  suits  are 
not  identical. 


411;  4  Jur.  N.  S.  398;  Altree  v.  Hordern, 
5  Beav.  623,  628;  7  Jur.  247;  Spires  v. 
Sewell,  5  Sim.  193;  Longr.  Storie,  13  Jur. 
1091,  V.  C.  E. 

1  Bradburv  v.  Shawe,  14  Jur.  1042,  V. 
C.  K.  B.;  Wilson  r.  Bates.,  3  M.  &  C  197, 
204;  9  Sim.  54;  2  Jur.  107,  319:  Fulvove 
V.  Kennard,  2  Giff.  533;  7  Jur.  N.  S.  iO'JS; 
and  see  Wild  v.  Hobson,  4  Mad.  49;  cited 
3  M.  &  C.  202.  For  Ibrm  of  notice  of  mo- 
tion, see  Vol.  III. 

2  Kennedy  v.  Edwards,  11  Jur.  N.  S. 
153,  V.  C.  W.  For  form  of  notice,  see 
Vol.  III. 

3  Smith  V.  Guy,  2  C.  1'.  Coop.  t.  Cott. 
289,  296;  2  I'liii.  1.0'J;  IMgbv  r.  Strang- 
ways.  21'hil.  175.  177;  lOJur.'OOS;  Under- 
wood r.  Jee,  1  M'N.  &  G.  276;  17  Sim.  119; 
15  Jnr.  99;  and  see  Seton,  889'.  It  is 
within  the  power  of  a  Court  of  Equity  to 
consolidiite  actions,  witli  or  without  the 
consentof  the  plaintids.  Biirnh;im  r.  l)al- 
HuR,  1  C.  E.  (jreen  (X.  J.),  31u.  Chancel- 
lor Green,  in  the  above  ciise,  having 
remarked  that  "books  of  Equity  Practice 
are  silent  on  the  subject,"  cited,  among 
others,  the  case  of  Keigblev  v.  Brown.  16 
Ve«.  344,  in  wliich  a  motion  was  nindc  on 
the  part  of  tli';  liel.Midnnls  to  <oiisi)lidatc 
several  actiou.s,  and  both  Sir  Samuel  Itom- 


illy,  by  whom  the  motion  was  made,  and 
the  Chancellor  (Lord  Eldon)  speak  of  tiic 
practice  as  a  familiar  one.  In  reference  to 
this  power  of  a  Court  of  Equity  to  consoli- 
date actions.  Chancellor  Green  said:  "It 
seems  to  me  to  be  a  power  over  the  conduct 
of  suitors,  resting  ui)on  the  clearest  prin- 
ciples, and  absolutely  essential  to  prevent 
Scandalous  abuses,  and  to  protect  defend- 
ants against  gross  oppression."  1  C.  E. 
Green,  312. 

4  Atile,  pp.  69,  70. 
•  <»  Underwood  v.  Jee,  nbi  sup. ;  Menzies 
V.  Connor,  3  M'N.  &  G.  648,  652;  Anson 
V.  Towgood,  0  Mad.  374 ;  Pickford  r.  Hun- 
ter, 5  Sim.  122,  129  ;  Lad  broke  i'.  Sloane, 
3  l)e  G.  &  S.  291 ;  Smith  t'.'(Juy,  ubisup.  ; 
liump  ('.  (Jreenhili,  20  Beav.  512;  1  .lur.  N. 
S.  123;  Whittington  v.  Edwards,  3  l)e  G. 
&  J.  243;  Taylor  v.  Southgate,  4  M.  &  C. 
203,  20». 

6  Colder  v.  Colder,  9  Hare.  270;  ICarl  of 
Portarlington  r.  Damer,  2  PhiL  202;  Plun- 
kett  V.  Lewis,  1 1  Sim.  379. 

"!  See  Cumming  v.  Slater,  1  Y.  &  C.  C. 
C.  484  ;  Godfrey  r.  Maw,  ib.  485  ;  Pott  v. 
Gallini,  1  S.  &  S.  206,  209;  Budgen  v. 
Sa;;c,  3  M.  \:  ( '.  683,  687. 

«  Gwycr  i\  Peterson,  26  Beav.  83;  Mat- 
thews V.  Palmer,  11  W.  U.  610,  V.  C.  K. 


798 


DISMISSING   BILLS,    AND   STAYING   rROCEEDINGS. 


C.  XIX.  §  1. 


Who  may 
apply  to  stay 
concurrent 
suit. 


ResiduarA''s 
suit  preferred 
to  executor's 
suit. 


Staying  suit 
in  High 
Court,  after 
decree  in 
Duchy  Court. 

Mode  of 

obtaining 

order  to  stay 

concurrent 

suit. 

Transfer 

necessary, 

when  suits  in 

different 

branches  of 

the  Court. 


suit,  only  so  far  as  the  rrlii't'  sou^lit  t'ouhl  1)0  oblainod  in  the  first 
snit  ; '  and  recently,  tJio  Court,  on  the  parties  consenting- tliat  an 
iuinu'iliate  decree  sliould  bo  made  in  the  second  suit,  ordered  the 
two  suits  to  be  consolidated,  and  decreed  the  iiirtlier  relief  which 
eouUl  be  t)btained  in  the  second  suit ;-  but  where,  after  a  bill  had 
been  filed  by  one  executor  aj^ainst  his  co-executor  for  administra- 
tion, and  asking  special  reliei^  but,  before  decree,  the  latter  obtained, 
on  summons,  an  order  against  the  former  to  administer  the  same 
estate,  the  Court  refused  to  discliarge  the  order.^  Where  a  decree 
has  been  made  in  botli  suits,  tlie  Covirt  will  direct  the  adminis- 
tration to  ju-oceed  in  that  branch  of  the  Court  in  which  the  decree 
is  in  the  most  perfect  state,  notwithstanding  that  it  may  be  posterior 
in  point  of  date.* 

It  is  the  duty  of  the  personal  representative  to  make  the  appli- 
cation, as  soon  as  a  decree  lias  been  made  in  one  suit;"^  but  if  he 
neglects  to  do  so,  the  j)laintilf  in  tlie  suit  in  which  tlie  decree  has 
been  made,^  or  any  person  interested,'^  may  obtain  the  order : 
although  he  is  not  a  party  to  the  other  suit. 

Wliere  two  suits  for  the  administration  of  the  same  estate,  one 
by  the  executor,  and  the  other  by  the  residuary  legatee,  come  on 
together,  the  proceedings  in  the  executor's  suit  will  be  stayed,  and 
the  deci-ee  made  in  the  residuary  legatee's  suit.® 

Where  an  administration  decree  has  been  obtained  in  the  Court 
of  the  Duchy  of  Lancaster,  a  suit  for  the  same  purpose  in  the 
Court  of  Chancery  will  be  stayed,  if  the  wliole  subject-matter  is 
within  the  jurisdiction  of  the  Duchy  Court,  but  not  otherwise.^ 

Where  the  concurrent  suits  are  in  different  branches  of  the 
Court,  a  difference  of  opinion  prevailed  with  reference  to  the 
Judge  by  Avhom  the  order  staying  j^roceedings  should  be  made  ;  ^^ 
but  the  practice  now  adopted  is :  to  obtain  from  the  Lord  Chan- 
cellor, or  Lords  Justices,  on  special  motion,  with  notice  to  the 
other  parties  to  the  suits,^^  an  order  transfemng  the  cause  in  which 
it  is  desired  to  stay  furtlier  proceedings,  to  the  Judge  who  has 
pronounced  the  decree ;  and  then  to  obtain  from  liim  an  order, 


1  Drvden  v.  Foster,  6  Beav.  146. 

2  Hoskiris  V.  Campbell,  2  11.  &  M.  43. 

3  Vanrenen  v.  Piffard,  13  W.  K.  425, 
V.  C.  S.;  sed  qu.  if  the  plaintilf  in  the 
summons  suit  was  entitled  so  to  sue;  see 
15  &  10  Vic.  c.  80,  §  45. 

4  Littlewood  v.  Collins,  11  W.  R.  387, 
L.  JJ. 

5  Therrj'  v.  Henderson,  1  Y.  &  C,  C.  C. 
481,  483;  6  .Jur.  386;  Stead  r.  Stead,  2  C. 
P.  Coop.  t.  Cott.  311;  Pavkwood  v.  Mad- 
dison,  1  S.  &  S.  232,  234;  2  C.  P.  Coop.  t. 
Cott.  312. 

6  Earl  of  Portarlington  v.  Darner,  2 
Phil.  262;  and  see  Swale  v.  Swale,  22 
Beav.  401. 


7  Smith  V.  Guy,  2  C.  P.  Coop.  t.  Cott. 
289  297. 

s'Kelic  V.  Archer,  16  Jur.  605,  M.  R.; 
and  Miller  v.  Powell,  V.  C  K.  B  ,  14  July, 
1849,  there  referred  to. 

a  Wynne  v.  Hughes,  26  Beav.  377;  6 
Jur.  N.  S.  165;  and  see  26  Beav.  384  n.; 
28  L.  J.  Ch.  485,  L.  JJ.;  see  also  Seton, 
881;  Bradley  v.  Stelfox,  1  N.  R.  221, 
L.  C. 

10  Whiter.  Johnson,  2  Phil.  689;  Lad- 
brooke  v.  Bleadon,  15  Beav.  457 ;  16  Jur. 
851;  Scotto  V.  Stone,  17  Jur.  588,  V. 
C.  K. 

11  Bond  V.  Barnes,  2  De  G.,  F.  &  J.  887; 
and  see  ante,  pp.  70,  n.  398.  For  form 
of  notice  of  motion,  see  Vol.  HI. 


GENERALLY. 


799 


entitled  in  both  causes,  staying  further  proceedings  in  the  trans- 
ferred cause,  and  jjroviding  for  the  costs.^  The  order  to  stay 
may  be  obtained  on  special  motion,  or,  where  the  decree  is  in 
prosecution  at  Chambers,  on  special  summons ;  and  notice  of  the 
motion,  or  the  summons,  must  be  served  on  all  parties  to  each 
cause.^ 

Where  such  an  order  is  made,  the  ■  costs  of  all  parties  to  the 
second  suit  who  are  parties  to  the  first  suit,  up  to  notice  of  the 
decree,  are  usually  made  costs  in  that  suit,  and  the  costs  of  any 
party  who  is  not  a  party  to  the  first  suit,  are  ordered  to  be  paid  by 
the  executor,  and  added  to  his  own.^  If  the  executor  has  no  assets 
to  pay  them,  liberty  will  be  given  such  i)arty  to  go  in  and  prove 
for  them  in  the  first  suit.* 

^-If  the  plaintiflT  in  the  second  suit  proceed,  after  notice  of  the 
decree  in  the  first  suit,  he  will  not  be  allowed  the  costs  of  such 
subsequent  proceedings ;  but  he  will  not  be  made  to  pay  costs.^ 
Where,  however,  the  Court  considered  that  the  second  suit  was 
improperly  instituted,  the  plaintiff  in  it  was  ordered  to  pay  the 
costs  of  the  order  of  transfer,  and  of  the  motion  to  stay  pro- 
ceedings.® 

The  rule,  that  when  two  suits  are  instituted  for  the  administra- 
tion of  the  same  estate,  that  shall  be  prosecuted  in  which  the 
earlier  decree  has  been  obtained,  does  not  apply  when  it  has  not 
been  obtained  fairly ;  and  the  Court  held  this  to  have  been  the 
case  where,  on  the  same  day  on  Avhich  notice  had  been  given  to 
an  executor  to  appear  to  an  administration  summons,  he  appeared 
of  his  own  accord  at  an  earlier  hour  in  the  Chambers  of  another 
Judge,  and  consented  to  an  order  on  a  summons  then,  and  not 
previously,  apj)lied  for,  by  another  plaintifi7  But  the  Court,  by 
consent,  made  an  immediate  decree  in  a  cause  not  in  the  paper,  for 
administration  of  the  real  and  personal  estate  of  an  intestate,  at 
the  suit  of  a  creditor,  afler  a  summons  in  Chambers  for  the  admin- 
istration of  the  personal  estate  had  been  taken  out  by  another 
creditor,  and  which  was  returnable  before  the  first  day  on  which 
the  cause  could  be  heard  as  a  short  cause.^ 

Where  the  suit  in  which  the  decree  was  made  was  instituted  by 

1  Duffort  V.  Arrowsmith,  7  De  G.,  M.  & 
G.  434;  Harris  v.  Gandy,  1  DeG.,  F.  &  J. 
13;  Swale  v.  Swale,  22  Beav.  401;  and 
see  ante,  pp.  70,  .398. 

2  For  form  of  order,  see  Scton,  887;  and 
for  forms  of  notice  of  motion  and  sum- 
mon.s,  see  Vol.  III. 

8  Seton.  888;  Golder  v.  Golder,  9  Hare, 
276,  27!);  West  r.  Swinburne,  14  .Iiir.  3G0, 
V.  (J.  K.  U. ;  and  see  Tlierry  v.  Hender- 
flon,  1  Y.  &  ('.  (J.  ('.  4>^l,  4><3;  G  .lur.  3K6; 
Frowd  1'.  I'lakcr,  4  iieav.  7«,  78;  J>ittle- 
wood  ti.  Coliiiis,  11  W.  K.  387,  L.  JJ.;  and 
see  form  of  order,  Seton,  887. 


C.  XIX.  §  1. 


Costs. 


Where  plain- 
tiff in  second 
.suit  proceeds, 
after  notice 
of  decree  in 
the  first. 


Snatching 
decrees. 


4  Canhan  v.  Neale,  26  Beav.  2G6 ;  5  ,Tur. 
N.  S.  52:  Ladbroke  v.  Sloane,  3  De  G.  & 
S.  21)1;  West?'.  Swinburne,  «6i  siip. ;  see 
form  of  ordor,  Seton,  887. 

5  Earl 'of  I'ortarlington  v.  Damer,  2 
Phil.  202 ;  and  see  Seton,  888. 

0  Salter  v.  Tildesley,  13  W.  R.  376, 
M.  R.  , 

7  Harris  r.  Gandy,  1  De  G.,  F.  &  J.  13; 
and  see  Frost  v.  Wood,  12  W.  R.  285, 
I^.  .JJ.  S.  C  iwm.  Frost  v.  Ward,  2  De 
G.,  J.  &  S.  70. 

8  Furze  v.  Ilennet,  2  De  G.  &  J.  125. 


Order  to  stay 
suit  by  cred- 
itor against 
executors, 
refused,  till 
their  answer 
put  in. 


800 


DISMISSING    BILLS,    AND   STAYING   TROCEEDINGS. 


r.  XIX.  §  1.  two  executors  Mo-aiiist  n  tliinl,  the  Court  refused  to  stay  the  j)ro- 
eoedings  in  a  suit  hy  a  creditor,  avIiosc  case  depeiuKMl  on  vouchers 
niul  documents  in  the  executors''  liands,  until  they  liad  ])ut  in  their 
answer;  and  directed  the  motion  to  stay  ])roceedings  to  stand 
over  \u\til  that  liad  been  done :  observino,  that  tlie  Court  wouhl 
tlien  know  who  ought  to  luivc  the  conduct  of  the  Htigation.^ 

When  the  order  staying  proceedings  is  made,  if  a  sufficient 
reason  for  so  doing  aj))»ears,  the  Court  will  give  the  condiu-t  of  the 
decree  to  the  jilaintiif  in  tlic  suit  in  Avhich  the  ])roceedings  are 
stayed;'-  but  the  mere  fact  that  the  plaintiff  and  defendants,  in 
the  suit  in  whidi  the  decree  lias  been  made,  appear  l)y  the  same 
solicitor,  is  not  a  sufficient  reason  for  so  doing  ;  and  where  a 
creditors'  and  legatees'  suit  are  amalgamated,  the  Court  i)refers 
giving  the  conduct  of  the  cause  to  the  legatee,  who  is  interested 
in  reducing  the  exi)enses  as  much  as  possible,  all  persons  being  at 
liberty  to  attend  and  assert  their  claims :  considering  it  very 
important  that  administration  suits  should  be  conducted  in  a 
li-iendly  spirit.^  Where  there  are  lio  s])ecial  circumstances  giving 
the  preference  to  eithei*  plaintiff,  the  plaintiff  in  the  lirst  suit  in 
point  of  time  will  have  the  conduct  of  the  iiroceedings.^ 

Where  a  decree  or  judgment  has  been  obtained  in  a  foreign 
country,  in  resi^ect  of  the  same  matter  for  which  a  suit  has  been 
connnenced  in  the  Court  of  Chancery,  ])roceedings  in  such  suit 
will  be  stayed,  if  the  Court  is  satisfied  that  the  decree  or  judgment 
in  the  foreign  Court  does  justice,  and  covers  the  Avhole  subject 
of  the  suit.^ 

A  party  to  a  suit  in  the  Court  of  Chancery,  wdierein  a  decree  has 
been  made  under  which  he  may  obtain  relief^  will  be  restrained 
from  prosecuting  a  suit  in  a  foreign  Court  for  the  same  object.® 

Proceedings  in  a  suit  may  also  be  stayed,  pending  a  rehearing 
or  a2:)peal.'' 


Conduct  of 
dooree : 
may  be  ijivcn 
to  plaiiitirt"  in 
titayed  suit; 


legatee 
preferred  to 
creditor; 


ordinarily 
given  to 
plaintiff  in 
lirst  suit. 

Stay  of  pro- 
ceedings, on 
account  of 
decree  in  a 
foreign  Court. 


Injunction 
against  pro- 
ceeding in  a 
foreign  Court. 

Pending  a 
rehearing. 


1  Macrae  v.  Smith,  2  K.  &  J.  411;  see 
also  IJudgen  y.  Sage,  3  M.  &  C.  683,  687. 

^  )See  Macrae  v.  Smith,  ubi  sup. ;  Nor- 
vall  V.  I'ascoe,  10  W.  II.  338,  V.  C.  K. ; 
Uawkes  v.  Barrett,  5  Slad.  17 ;  Kelk  v. 
Archer,  16  Jur.  605,  M.  R.;  M'Hardy  «. 
Hitcbcock,  12  Jur.  781,  L.  C;  Smiths. 
Guy,  2  i'hil.  159;  2  C.  P.  Coop.  t.  Cott. 
289;  Wheelliouse  v.  Calvert,  cited  Seton, 
888;  Frost  V.  Wood,  uhi  sup.;  Belcher  v. 
Belcher,  2  Dr.  6c  Sni.  444,  where  the  other 
suit  was  by  the  personiil  representatives. 

«*  I'er  Sir  J.  Koniilly  M.  ii.  in  Benny 
V.  Francis,  7  Jur.  N.  fS.  248;  9  W.  K.  9; 
see  also  Kelk  r.  Archer,  ubi-sup. ;  Harris 
V.  Lightfoot,  10  W.  K.  31,  y.  C.  K. 

4  Norvall  >;.  Bascoe,  ubl  sup.;  and  see 
Salter  v.  TiKleslev,  13  W.  B.  376,  U.  R. 

5  Ostell  V.  Le  Bage,  2  De  G.,  M.  &  G. 
892,  894;  16  Jur.  1134,  V.  C.  S.;  see  also 
Stainton  v.  Carron   Company  (No.  3),  21 


Beav.  500 ;  ante,  pp.  658, 659,  664,-  and  note ; 
Low«.  Mussey,  41  Vt.  393;  Brown  y.  I^ex- 
ington  &  Danville  K.K.  Co.,  1  McCarter 
(N.  J.),  191. 

6  Harrison  v.  Curacy,  2  J.  &  W.  563; 
Bushby  v.  Munday,  5  Mad.  297;  Beau- 
champ  V.  Miirquis  of  Huntley,  Jac.  546; 
Booth  V.  I^evcestcr,  1  Keen,  579;  Wed- 
derburn  v.  Wedderhurn,  2  Beav.  208,  214; 
4  Jur.  66;  4  M.  &  C.  585,  594,  596;  Gra- 
ham V.  Maxwell,  1  M'N.  &  G.  71;  13  Jur. 
217;  Maclaren  r.  Stainton,  16  Beav.  279; 
overruled  by  H.  L.,  5  H.  L.  Ca.  416;  see 
also  Stainton  v.  (Jarron  Company,  21 
Beav.  152,  500;  2  Jur.  N.  S.  49,  B.  C.  «& 
L.  JJ.;  and  upon  conflict  of  jurisdiction, 
generallv,  see  Venning  v.  Loyd,  1  De  G., 
F.  &  J."  193,  200;  6  Jur.  N.  S.  81;  and 
Seton,  881. 

7  Haa post,  Ch»i).  XXXII.  §  1,  Eeheai'- 
ings  and  Appeals. 


FOR   WANT    OF    PROSECUTION, 


801 


It  may  also  be  mentioned  here,  that  where  an  oppressive  number 
of  bUls  has  been  filed,  for  infi-ingement  of  the  same  patent,  the 
Court  will  appoint  some  of  the  infringers  to  represent  the  others, 
and  stay  the  proceedings  in  the  remaining  suits.^ 

Where  a  suit  had  been  compromised,  and  the  proceedings 
therein  stayed,  the  Court,  on  setting  aside  the  compromise  as 
against  one  of  the  plaintiffs,  gave  him  permission  to  proceed 
with  the  suit,  although  it  remained  stayed  as  against  the  other 
plaintiffs.^ 


C.  XIX.  §  2. 


Where  sev- 
eral suits  for 
infriugement 
of  the  same 
patent. 
Leave  for  a 
plaintift'  to 
proceed  -with 
a  suit,  which 
is  stayed  as 
to  co-plain- 
tiffs. 


Section   II.  —  For   Want  of  Prosecution. 


Any  defendant  may,  upon  notice,^  move  the  Court  that  the  bill 
may  be  dismissed  with  costs,  for  want  of  prosecution,  and  the 
Court  may  order  accordingly,  in  the  following  cases :  — 

(1.)  Where  the  plaintilt^  having  obtained  no  order  to  enlarge 
the  time,*  does  not  within  four  weeks  *  after  the  answer,  or  the 
last  of  the  answers,  required  to  be  put  in  by  such  defendant,  is 
held  or  deemed  to  be  sufficient,^  or  after  the  filing  of  a  traversing 
note  against  such  defendant,'^  file  replication,^  or  set  doAvn  the 
cause  to  be  heard  on  bill  and  answer,^  or  serve  a  notice  of  motion 
for  a  decree,"  or  obtain  and  serve  an  order  for  leave  to  amend  the 
bill ;  "  or 

(2.)  Where  the  plaintiff,  having  undertaken  to  reply  to  a  plea 
filed  by  such  defendant  to  the  whole  bill,  does  not  file  his  replica- 
tioll  within  four  weeks  after  the  date  of  his  undertaking  ;  ^^  or 

(3.)  Where  the  plaintiff,  having  obtained  no  order  to  enlarge 
the  time,  does  not  set  down  the  cause  to  be  heard,  and  obtain  and 
serve  a  sxihpoena  to  hear  judgment,  Avithin  four  weeks  after  the 
evidence  has  closed.^* 

Where  the  })laintiff"  obtains  an  order  for  leave  to  amend  his  bill, 
and,  having  obtained  no  order  to  enlarge  the  time,"  does  not  amend 


Time  for 
motion  to 
dismiss  for 
want  of 
prosecution : 
after  suffi- 
cient answer, 
or  after  a 
traversing 
note; 


1  Foxwell  t'.  Webster,  10  Jur.  N.  S. 
137,  L.  C;  2  Dr.  &  S.  250;  9  Jur.  N.  S. 
1189. 

2  Brooke  v.  Lord  Mostyn,  13  W.  R.  248, 
L.  JJ. 

8  See  Hoxey  f.  Carey,  12  Geo.  534.  A 
rule  to  .'■peed  tl>e  cause  should  precede  a 
motion  to  di-miss  for  want  of  prosecution. 
Dixon  r.  Rutherford,  26  Geo.  153. 

*  Antt,  p.  421. 

6  These  four  weeks  expire  at  12  o'clock 
at  ni^'ht  on  ihe  hist  ilav.  I'reston  v.  Coi- 
Ictt,  20  L.  .).  N.  S.  <h.'228,  V.  C.  Ld.  C. 

6  AnU.  pp.  412,  7>-<;;  sec  Leite  r.  John- 
8ton,  L.  \\.  5  i;<|.  2G0. 

7  Ante  i>.  514  e/  «e</. 

«  I'oil,  p.  han  rt  si-q.  ;  cec  CCth  Enuify 
Rule  of  tho   United  States   Courts;    and 


Rule  17  of  the  Chancery  Rules  in  Massa- 
chusetts. 

9  J'ost,  828  et  seq.;  and  Chap.  XXIIL, 
Stltinr/  down  Causts ;  see  Rule  17  of  the 
Chancery  Rules  in  Massachusetts. 

10  I'ost,  p.  819  et  seq. 

11  Ante,  p.  412. 
1-  Ante,  p.  696. 

13  Ord.  XXXin.  10;  as  varied  by  Ord. 
22  Nov.,  1866,  r.  1;  see  I'onsardin  r.Steiir, 
32  I5eav.  666;  9  ,Jur.  N.  S.  885;  Ernest  v. 
Govelt,  2  N.  R.  486,  V.  V.  W. ;  see  also 
Hart  V.  Roberts,  32  Reav.  231;  7  .fur.  N. 
S.  669;  post,  ('hap.  XXIII.,  Settin;/  down 
Causes ;  and  see  Braithwaite's  Manual, 
193,  n.  (135). 

"  Ante,  p.  421. 


after  under- 
taking to 
reply  to  plea ; 


where  cause 
not  set  down 
in  due  time. 


Effect,  as  to 
dismissal,  of 
order  to 
amend  not 
acted  on. 


51 


802 


DISMISSING   BILLS,    AND    STAYING    TROCEEDINGS. 


('.  \1X.  $ 


ArtiT  iimt'iul- 
luont  of"  bill, 
aiul  uo  An- 
swer to 
aniondiiuMits 
rciiuiivd ; 


and  time  to 
jinswor  vol- 
untarilv  has 
expired ; 

or  further 
time  so  to  do 
refused ; 


after  volun- 
tarj'  answer. 


When  vaca- 
tions not 
reckoned. 


tlu>  Iiill  within  tlu'  time  limiLod  by  the  onk-r  to  amoiul,  or,  if  no 
liiiu-  bo  so  limited,  within  fourteen  days  from  the  date  of  such 
order,  the  order  to  amend  is  void,  and  the  cause  as  to  dismissal 
stands  in  the  same  jjosition  as  if  tlie  order  to  amend  had  not  been 
niade.^ 

Any  defendant  may,  u])on  notice,  move  to  dismiss  the  bill  with 
costs  for  -Nvant  of  prosecution,  where  the  plaiutitf,  after  answer, 
antends  liis  bill  without  requiring  an  answer  to  the  amendments 
irom  any  of  the  defendants,-  and,  having  obtained  no  order  to  en- 
large the  time,*^  does  not  file  the  replication,*  or  set  down  the  cause 
to  be  heard  on  bill  and  answer,'^  or  serve  a  notice  of  motion  for  a 
decree,''  within  the  times  following,  viz. :  — 

(1.)  Within  one  week  after  the  expiration  of  the  time  within 
which  the  tlefendant  might  have  put  in  an  answer,''  in  cases  wdiere 
the  defendant  does  not  desire  to  answer  the  amendments.* 

(2.)  Within  fourteen  days  after  the  refusal  to  allow  further  time, 
in  cases  where  the  defendant,  desiring  to  answer,  has  not  put  in 
his  answer  Avithin  the  time  allowed  for  that  purpose,  and  the  Judge 
lias  refused  to  allow^  furtlier  time. 

(3.)  Within  fouiteen  days  after  the  filing  of  the  answer,  in  cases 
where  the  defendant  has  put  in  an  answer  to  the  amendments, 
unless  the  plaintiff  has,  within  such  fourteen  days,  obtained  a 
special  order  for  leave  to  excej^t  to  such  answer  or  to  re-amend  the 
hiW 

In  cases  where  the  defendant  j^uts  in  an  answer  to  amendments 
to  w^hich  the  plaintiff  has  not  required  an  answer,  vacations  are 
not  reckoned  in  computing  the  times  for  filing  replication,  settrhg 
down  the  cause,  or  setting  doAVn  a  motion  for  a  decree.^'' 

If  the  plaintiff  fails  to  set  down  a  motion  for  decree  within  one 
week  after  the  expiration  of  the  time  allowed  to  him  to  file  his  affi- 
davits in  reply,  in  case  the  defendant  has  filed  any  affidavit,  or 
wdthin  one  week  after  the  expiration  of  the  time  allowed  to  the 
defendant  to  file  his  affidavits  in  answer,  in  case  the  defendant  has 
not  filed  any  affidavit,  or  in  case  the  time  allowed  for  either  of  the 


1  Ord.  XXXIII.  n.  This  order  ap- 
plies to  all  orders  to  amend,  whether  of 
course  or  not;  Armistead  v.  Durliam,  11 
Beav.  428;  13  .lur.  330;  Biiiiibrigije  v. 
Biiddeley,  12  IJoav.  1.02;   13  .Jur.  l*yV. 

■■2  Brown  t'.  Butter,  21  Beav.  615.  This 
case  appears  to  be  inconsistent  with  Bram- 
stoti  V.  Carter,  2  Sim.  4.58;  Cooke  v.  Da- 
vies,  1  Kus3.  153,  n.  (c);  and  Kaistrick  %i. 
Elsworth,  2De  G.  &  S.  95;  12  Jur.  281, 
none  of  which  were  cited  in  Brown  v.  But- 
ter; and  see  Forbes  v.  Preston,  11  .Jur.  N. 
S.  198,  V.  C.  S. 

3  Antt,  p.  421. 

*  Post,  p.  828  et  seq. 

fi  Pes*,  p.  828  et  se<i.;  and  Ch.  XXIII., 
Setting  clown  Causes. 


6  Post,  p.  819  et  seq. 

7  See  Ord.  XXXVII.  7,  which  fixes  the 
time  at  thirty  days  from  service  of  the 
amended  bill;  and  .see  ante,  p.  740. 

8  This  applies,  although  an  answer  to 
the  amended  bill  may  have  been  required 
from  another  defendant.  Forbes  v.  Pres- 
ton, uhi  snp. 

9  Ord.  XXXIII.  12;  as  varied  by  Ord. 
22  Nov.,  18(36,  r.  1;  ante,  p.  765. 

10  Ord.  XXXVIl.  13  (4).  It  is  assumed 
that  the  words  "setting  down  causes,"  in 
Ur.i.  X.XXVII.  13  (4),  include  setting 
down  motions  for  decree.  As  to  the  va- 
cations, see  ante,  p.  412;  and  Braithwaite's 
Manual,  186,  n.  (109). 


FOE    WANT    OF    PROSECUTION. 


803 


purposes  aforesaid  shall  be  enlarged,  tlien  within  one  week  after 
the  expiration  of  such  enlarged  time,  the  defendant  may  move  to 
dismiss  the  bill  for  want  of  prosecution,^ 

If  the  plaintiff  amends  his  bill,  and  requires  an  answer,  the  de- 
fendant cannot  move  to  dismiss  the  bill  for  want  of  prosecution 
until  four  weeks  from  the  exjiiration  of  the  time  when  his  answer, 
or  the  last  of  his  answers,  to  the  amended  bill  is  held  or  deemed 
sufficient,  excei)t  xipon  the  same  contingencies  as  are  mentioned 
above,  with  respect  to  answers  to  original  bills.- 

A  defendant  to  a  suit  commenced  by  bill,  who  has  not  been  re- 
quii'ed  to  answer  the  bill,  and  has  not  answered  it,  may  apply  for 
an  order  to  dismiss  the  bill  for  want  of  prosecution,  at  any  time 
after  the  expiration  of  three  months  from  the  time  of  his  appearance, 
unless  a  notice  of  motion  for  a  decree  has  been  served  in  the  mean 
time,  or  the  cause  has  been  set  down  to  be  heard ;  and  the  Court 
may,  upon  such  application,  if  it  shall  think  fit,  make  an  order  dis- 
missing the  bill,  or  make  such  other  order  and  impose  such  terms 
as  may  appear  just  and  reasonable.^  In  computing  the  three 
months,  vacations  are  reckoned.^ 

Where,  at  the  expiration  of  the  three  months,  the  evidence  had 
not  closed,  so  that  the  plaintiff  could  not  set  down  the  cause,  the 
Court,  upon  a  motion  to  dismiss  for  want  of  prosecution,  gave 
the  plaintiff  leave  to  set  down  the  cause  after  the  expiration  of 
the  three  months.^ 

The  orders  do  not  appear  to  be  fi-amed  to  meet  the  case  of  a 
defendant  who  files  a  voluntary  answer;  but  it  was  said  by  Sir  W. 
P.  AVocjd  V.  C,  in  Bentley  v.  Mercer^  that  it  must  have  been  in- 
tended that  such  a  defendant  should,  in  some  way,  be  able  to  get 
rid  of  a  suit,  after  having  put  in  a  voluntary  answer ;  and  it  would 
seem  that  a  defendant  mgy,  in  such  a  case,, move  to  dismiss  for 
want  of  prosecution,  after  the  expiration  of  three  months  from  the 
date  of  liis  a]>pearance,  and  four  weeks  from  the  filing  of  his  an- 
swer, and  possibly  even  after  the  expiration  (jf  the  four  weeks 
although  the  three  montlis  have  not  expired^ 

Tlie  right  of  a  defendant  to  move  to  dismiss  depends,  in  all  cases, 
upon  the  proceedings  of  the  jdaintiff  relative  to  the  particular  de- 
fendant making  the  motion,  and  not  to  the  general  proceedings  in 
the  cause  as  to  other  defendants.^     The  form  of  order  to  be  made 


C.  XIX.  §  2. 


"Where  plain- 
tift'  amends, 
and  requires 
an  answer. 


"Where 
defendants 
are  not 
required  to, 
and  do  not, 
answer. 


Vacations. 


"Where  the 
e\idence  had 
not  closed  at 
expiration  of 
the  three 
months,  leave 
given  to  set 
down  cause 
after  the 
three  months. 
Wliere  de- 
fendant files 
a  voluntary 
answer. 


1  Onl.  22  Nov.,  1866,  rr.  2,3. 

2  Autf.,  p.  «01. 

8  Ord.  XXXIII.  13;  as  varied  by  Ord. 
22  Nov.,  l^.tjtj.r.  1.  A  bill  wan  di-inisscd 
witli  cottt'*  under  tiiis  order,  in  Iladdon  v. 
Wv\kx.  tj  ,Iur.  N.  S.  1123,  V.  ('.  W. 

*  Hoth  .nilny  V.  Squire,  7  l)e  G.,  M.  & 
G.  240;  Ord.  "XXXVII.  13  (14tli  of  .May, 
1845,  Sund.  Ord.  9«4)  docs  not  api)ly  to 
thin  case.  /bid.  As  to  the  vucations,  see 
ante,  p.  412. 


6  Bates  V.  Brothers,  2  W.  K.  388,  "V. 
C  S. 

6  4  Jur.  N.  S.  407 ;  6  W.  R.  265. 

"•  lientlev  V.  Mercer,  4  .hir.  N.  S.  407;  6 
W.  li.  205,"  V.  C.  W.;  see  also  Weeks  v. 
Ileward,  II  W.  K.  7!i,  V.  C.  W.;  Seiiiple 
V.  Holland,  1  N.  H.  5(i4,  .M.  It.;  and  Nu- 
gent V.  Jenkiiibon,  cited  IJraitlivvaite's  I'r. 
572. 

8  See  Nicholl  v.  .Jonen,  14  W.  H.  7U;  V. 
C  W.;  buninies  r.  Molt,  27  Geo.  1)2.    A 


Defendant's 
right  to  move 
to  dismiss, 
de]K'nds  oa 
state  of 
proceedings 
relative  to 
him  only. 


804 


DISMISSING    BILLS,    AND    STAYING   PROCEEDINGS. 


0.  XIX.  5  '2. 


■NVhoro 
motion  to 
tlismiss  may 
be  prvvonted 
by  luueud- 
ment ; 

or  by  filing 
replication. 

Costs  in  such 


No  order  of 
course  to 
amend,  alter 
service  of 
notice  of 
motion  to 
dismiss. 

Irregular 
order  to 
amend  is  in 
operation  till 
discharired. 


Motion  to 
dismiss,  after 
adjournment 
with  leave 
given  to 
amend. 


Where  cause 
stands  over 
for  a  limited 
time  with 
liberty  to  add 
parties;  and 
in  default, 
bill  to  stand 
disniissed ; 


Where  de- 
fendant may 
move  that 
bill,  if  not 
amended 
within  a 
certain  time, 
may  be 
dismissed. 


upon  stu'li  a  motion  is,  liowrvor,  within  tlie  discretion  of  the  Court: 
w  hifli  will,  ot"  course,  be  guided  by  tlie  conduct  of  the  cause  rela- 
tive to  all  the  defendants. 

The  |ilaintitV,  by  obtainino^  and  scrvin^^  an  order  for  leave  to 
amend  tlie  bill,  precludes  the  defendant  from  moving  to  dismiss ; 
and  the  order  to  amend  is  in  time,  if  drawn  up  and  served  before 
the  motion  to  dismiss  is  actually  made,  although  after  notice  of  the 
motion  has  b«>en  served.^  And  if,  after  service  of  the  notice,  the 
jtlaintitf  tiles  replication,  it  is  also  a  complete  answer  to  the  motion.'^ 
But  in  such  cases,  and  in  others  where  a  defendant's  title  to  dismiss 
is  intercei>ted  by  a  step  taken  by  the  plaintift"  between  the  notice 
of  motion  and  its  being  heard,  the  plaintiff  has  to  pay  the  costs  of 
tlie  defendant's  ajiplication  to  dismiss  the  bill.^  It  must  be  remem- 
bered, however,  that  after  service  of  a  notice  of  motion  to  dismiss, 
in  a  case  where  the  defendant  is  entitled  to  move,  an  order  of 
course  to  amend  cannot  be  obtained.* 

An  order  to  amend,  if  irregularly  obtained,  has  been  held  to  be 
a  nullity,  and  not,  thei-efore,  to  sto])  a  motion  to  dismiss ;  ^  but  this 
decision  would  seem  to  be  overruled  :  the  rule  of  the  Court  now 
being  to  treat  all  orders  that  have  been  made  as  valid,  until  they 
have  been  regularly  discharged.^ 

If,  upon  the  hearing  of  a  cause,  it  is  ordered  to  stand  over,  with 
liberty  to  the  plaintiff  to  amend  his- ))ill  by  adding  parties:  in 
pursuance  of  which  the  j^laintiff  amends,  but  does  not  proceed  any 
further,  the  defendant  may  move  specially  to  dismiss  the  bill  for 
want  of  prosecution,  and  is  not  bound  to  set  the  cause  down  again.'' 
And  where  the  order  directs  the  cause  to  stand  over  for  a  limited 
time,  within  which  the  plaintiff  is  to  add  necessary  parties,  and 
that  in  default  thereof  the  bill  is  to  stand  dismissed  with  costs, 
without  further  order:  if  the  plaintiff  does  not  add  the  parties 
within  the  limited  time,  no  further  application  need  be  made  to 
dismiss  the  bill,  as  it  is  already  out  of  Court ;  ^  but  if  the  order 
does  not  contain  a  direction  for  taxation  and  payment  of  costs,  an 
ex  parte  application  for  an  order  for  such  direction  must  be  made.^ 
\yhere  the  order  does  not  direct  the  bill  to  be  dismissed  in  case 


bill  cannot  be  dismissed  for  failure  to 
prosecute,  if  the  defendants  have  caused 
or  acquiesced  in  the  delay.  Dixon  v. 
Rutherford,  26  Geo.  153. 

1  I'eacock  r.  Sievier,  6  Sim.  553;  Jones 
V.  Lord  Charleniont,  12  Jur.  389,  V.  C  E. 
As  to  orders  to  amend,  see  ante,,  p.  409 
tt  seq. 

2  Story  );.  Official  Manager  of  the  Na- 
tional Insurance  Society,  2  N.  K.  351,  V. 
C.  \V.;  and  see  post,  p.  b05. 

3  Ibid.;  Waller  u.  Pedlington,  4  Beav. 
124. 

■*  Ord.  IX.  12;  see  Briggs  v.  Beale,  12 
W.  K.  934,  V.  C.  W. ;  and  ante,  pp.  412, 
416. 


s  De  Geneve  v.  Hannam,  1  R.  &  M. 
494. 

6  Blake  v.  Blake,  7  Beav.  514;  Petty  v. 
Lonsdale,  4  M.  &  0.  545;  3  Jur.  1186, 
reversing  ib.  1070;  Chuck  v.  Cremer,  2 
Phil.  113,  115;  1  C.  P.  Coop.  t.  Cott.  338, 
342;  and  see  observations  in  report  last 
cited;  VVhittington  v.  Edwards,  3  De  G. 
&  J.  243,  249. 

"  Mitchel  V.  Lowndes,  2  Cox,  15. 

8  See  Stevens  v.  Praed,  ih.  374. 

9  Dobede  v.  Edwards,  11  Sim.  454. 
Qucere,  if  the  application  should  not  be 
on  notice,  see  Seton,  1116.  For  form  of 
motion  paper,  see  Vol.  III. 


FOR   WANT    OF    PROSECUTION. 


805 


the  bill  is  not  amended  within  the  time  specified  in  the  order,  and 
the  plaintiff  omits  to  amend,  the  defendant  may  move,  upon  notice, 
that  unless  the  hill  be  amended  within  a  certain  time,  it  may  be 
dismissed  with  costs.^ 

"Where,  at  the  time  of  service  of  the  notice  iipon  the  plaintiff, 
the  defendant  had  a  right  to  move  to  dismiss  the  bill,  yet,  if  the 
plaintiff  files  a  replication,  or  serves  an  order  to  amend  the  bill, 
before  the  'hearing  of  the  motion,  the  defendant's  right  is  inter- 
cepted, and  the  plaintiff  will  be  allowed  to  retain  his  bill.- 

"Where,  however,  the  jilaintiff  adopts  this  course,  the  Court 
usually  orders  him  to  pay  the  costs  of  the  application  for  dismissal ; 
and  even  though  the  defendant  had  notice  that  the  plaintiff,  by 
taking  a  step  in  the  cause,  had  prevented  any  order  being  made 
upon  the  motion  to  dismiss,  yet,  where  the  plaintiff  had  not  ten- 
dered the  costs  of  preparing  and  serving  the  notice  of  motion,  it 
■was  held,  that  the  defendant  had  a  right  to  bring  his  motion  before 
the  Court,  for  the  purjDose  of  obtaining  his  costs ;  where  the  plain- 
tiff had  tendered  the  costs  of  preparing  and  ser\dng  the  notice  of 
motion,  there  seems  to  have  been  some  difference  of  opinion  as  to 
the  right  of  the  defendant  to  bring  on  the  motion  to  obtain  taxed 
costs ; '  Itiit  the  jDractice  would  now  seem  to  be  that  the  defendant 
is  entitled  to  the  costs  actually  incm'red,  and  that  he  may  in  all 
cases,  if  necessary,  bring  on  his  motion  for  the  purpose  of  obtain- 
ing them.*  It  would  seem,  however,  that  if  the  plaintiff  tenders  the 
costs  which  have  been  incurred,  it  is  improper  for  the  defendant  to 
bring  on  his  motion,  and  that  he  would  not  be  allowed  subsequent 
costs.^ 

Where  there  is  an  irregularity  in  the  notice  of  motion  to  dismiss, 
the  Court  will  not  make  the  plaintiff  pay  the  costs  of  the  applica- 
tion for  dismissal.® 

An  order  to  dismiss  a  bill  for  want  of  prosecution,  ojjerates  fi'om 
the  time  of  its  being  pronounced ;  and  it  would  seem,  therefore, 
that  the  filing  .of  replication  on  the  same  day  does  not  prcAcnt  its 
effect ;  "^  although  the  contrary  has  been  held,  under  the  old  j)rac- 
tice,  where  the  order  was  made  ex  parte? 


C.  XIX.  §  2. 


Plaintiff,  by 
replying,  or 
serving  order 
to  amend, 
may  intercept 
dctcudant's 
right  to 
dismiss. 
Costs  in  such 
a  case. 


Defendant 
entitled  to 
actual  costs; 
but  ought  not 
to  bring  on 
motion,  after 
sutticient 
tender. 


Costs  of 
application, 
where  notice 
of  moticni 
irregular. 
Order  to  dis- 
missovcrrides 
replication 
tiled  on  same 
da\',  semble. 


1  Emcr'on  v.  Emerson,  6  Hare,  442;  12 
Jur.  97.3. 

2  Waller  v.  Pedlinffton,  4  Beav.  124; 
Corry  y  Curlewis,  8  Heav.  606;  Ileanioy 
V.  Abraham,  5  Hare,  214;  Young  v.  Quin- 
CC3',  9  Heav.  160;  and  see  ante,  p.  804. 

8  Attorney-fjeneral  v.  Cooper,  9  Sim. 
370;  2  .lur.  917;  I'iper  v.  Giltens,  11  ISini. 
282;  Wright  r.  Angle,  6  Hnre,  109;  ]2 
Jur.  .'54;  (liighe.'i  v.  Lewis,  John.  696;  6 
Jur.  N   .S.  804. 

♦  lluglies  V.  Lewis,  6  Jur.  N.  S.  442; 
Johns.  696,  698;  anl  see  note  by  Kegis- 
trtirs  there  si't  out.  Kindiay  v.  Lawrence, 
11  Jur.  705,  V.  C.  K.  JJ. 


fi  Newton  V.  Ricketts,  11  Renv.  164. 

6  Stcedman  r.  Poole,  10  Jur.  979;  11 
Jur.  f>55,  V.  C.  AV. 

7  Lorin»cr  v.  Lorimer,  1  J.  &  AV.  284, 
288;  and  see  note  of  Registrars  in  Hughes 
r.  Lewis,  John.  698. 

8  R"vnoi(i8  V.  Nelson,  5  Mnd.  60;  Fox 
V.  More  wood,  2  S.  &  S.  325.  The  (ilingof 
a  replication  after  notice  given  of  a  niotioti 
to  dismiss  the  bdl  for  want  Ihcreof,  is  irnnd 
cause  against  the  moti"n;  but  it  will  he 
allowed  only  on  jiavnient  of  costs.  (Jri.i- 
wold  )'.  Iriinan,  I'Hopk.  80.  AVherc  a 
cause  is  at  ixsue  a.s  to  one  of  the  defend- 
ants, by  filing  a  rejilication  to  liis  answer, 


80G 


DISMISSING    BILLS,    AND    STAYING    rROCEEDINGS. 


C.  XIX.  §  -2. 


Motion  to 
dismiss,  not 
pri'vonti'il  by 
intorloi-iitory 
application. 


Oitlor  of 
ret'ea>ni'e  as 
to  title, 
prevents  a 
motion  to 
dismiss. 


Notice  of 
motion  for 
too  early  a 
dAv,  not 
cured  l)y 
postponing 
motion. 
Defendant,  in 
contempt  for 
non-payment 
of  costs  of 
attachment, 
cannot  move 
to  dismiss. 

Slotion  to 
dismiss  irreg- 
ular, after 
order  to  stay 
till  contempt 
cleared  by 
plaintilf. 

Where  secu- 
rity for  costs 
ordered,  but 
not  given. 


Tlio  (lofoiidant  is  not  piTvontod,  by  an  inlorlofutoiy  ai)j)licntion, 
tVoin  iiiovino-  (o  ilisiniss  lor  want,  of  ])foscH'iition ;  and  even  tlie  ob- 
taininu-  an  iiiiiinclion  dors  not  prcvciil  tin'  bill  boinu;  disinissod.^ 
The  stimo  was  also  held  ofsliowint;-  cause,  siicccsst'iiUy,  ao'ainst  dis- 
solvini;-  tin  injunction;-  and  an  order  to  dismiss  a  bill  for  want  of 
prosecution  was  lield  to  be  rcotdar,  although  made  after  a  notice 
had  been  oiven  by  the  defendant  of  a  motion  to  dissolve  an  injunc- 
tion, but  which  motion  was  not  made,  in  consequence  of  the  state 
of  business  in  the  Court  .^ 

There  is  one  case,  liowevcr,  in  -which  an  order  made  ujion  an 
interlocutory  application  is  considered  as  a  sufficient  proceeding  to 
prevent  the  dismissal  of  a  bill  for  want  of  prosecution ;  viz.,  where 
the  bill  having  been  filed  for  the  specific  ])erformance  of  a  contract, 
and  the  title  only  being  in  dis])ute,  a  reference  is  made,  u])on  mo- 
tion, to  inquire  into  the  title.^  In  such  case,  the  order  being  in  tlie 
nature  of  a  decree,  made  upon  the  hearing  of  the  cause,  prevents  the 
dismissal  of  the  bill.     The  same  rule  applies  to  all  decretal  orders.^ 

It  has  always  been  a  general  rule,  that  if  notice  of  motion  to 
dismiss  for  Avant  of  prosecution  be  given  for  too  early  a  day,  the 
defect  is  not  cured  by  the  motion  being  accidentally  postponed  to 
a  day  when  it  might  have  been  regularly  made."  • 

It  is  to  be  recollected,  that  a  defendant  who  is  in  contempt  for 
non-payment  of  the  costs  of  an  attachment,  for  not  putting  in  his 
answer  in  due  time,  will  not  be  in  a  situation,  even  after  answer, 
to  move  to  dismiss  the  bill  for  want  of  prosecution :  unless,  indeed, 
the  plaintiff  has  replied  to  the  answer,  or  taken  any  other  step 
amounting  to  an  acceptance  of  it.'' 

After  an  order  to  stay  proceedings  until  the  plaintiff  had  cleared 
his  contempt,  a  motion  to  dismiss  was  held  to  be  irregular,  and 
was  refused.* 

Where  the  defendant  has  obtained  an  order  for  security  for 
costs,  which  has  not  been  com})lied  with,  he  should  not  move  to 
dismiss  the  bill  for  want  of  prosecution,  but  that,  unless  secm-ity 
is  given  within  a  hmited  time,  the  bill  may  be  dismissed." 


and  the  plaintiff  has  neglected  to  proceed 
ag.iinst  the  otiier  parties  so  that  such  de- 
fendant cannot  proceed  to  examine  wit- 
nesses and  close  ilie  proofs,  he  may  move 
to  dismiss  the  plaintiff's  bill  for  want  of 
prosecution.  Vermilveay.  Odell,  4Paige, 
121;  S.  C.  1  Edw.  Cli.  017;  Whitney  v. 
Mayor,  &c.,  of  New  York,  1  Paige,  548; 
Hastings  v.  Palmer,  1  Clarke,  52. 

i  Day  V.  Siiee,  3  V.  &  H  170;  James  v. 
Biou,  3  Swanst.  234,  209;  Bliss  v.  Collins, 
cited  2  Mer.  62. 

2  Earl  of  Warwick  v.  Duke  of  Beaufort, 
1  Cox,  111. 

3  I-'arquhar-on  v.  Pitcher,  3  Russ.  383. 
Motion  refused  where  defendant  had  filed 
interrogatories  for  the  examination  of  the 


plaintiff.  Jackson  v.  Ivimej'-,  L.  R.  1  En. 
693,  V.  C.  W. 

4  Biscoe  V.  Brett,  2  V.  &  B.  377 ;  Collins 
V.  Greaves,  5  Hare,  596;  Gregorys.  Spen- 
cer, 11  Beav.  143. 

6  Black  v.  Colnaghi,  9  Sim.  411;  ante, 
p.  793;  post,  p.  810;  Anon.,  11   Ves.   169. 

6  De  (ieaeve  v.  Hiinnam,  1  R.  &  M. 
494;  an' I  see  Ponsardin  v.  Stear,  32  Beav. 
666;  9.Jur.  N.  S.  885;  Ernest  «.  Govett,  2 
N.  R.  486,  V.  C.  W. 

'  Anon.,  15  Ves.  174;  TIerrott  v.  Rey- 
nolds, 2  Giff.  409;  6  Jur.  N.  S.  880. 

8  Initvoye  v.  Kennard,  2  Giff.  533:  7 
Jur.  N.  S.  958. 

^  Kennedy  v.  Edwards,  11  Jur.  N.  S. 
153,  V.  C.  W.;  ante,  pp.  35,  36. 


FOR   WANT    OF    PROSECUTION.  807 

A  defendant  can  only  have  the  bill  dismissed  as  acjainst  himself:   C.  XIX.  §  2. 

not  as  against  all  the  defendants ;  ^  and  the  notice  of  motion  should   ""^ y ■' 

be  framed  accordingly.  Bill  dismissed 

'^  •'  .  onlv  as 

An  order  to  dismiss  a  bill  can  only  be  drawn  up  on  the  produc-  against  the 
tion  of  the  Record  and  Wiit  Clerk's  certificate  of  the  proceedings  J'o'",'Jg"^ 
in  the  cause,  for  the  purpose  of  showing  M'hat  proceedings  have  How  order 
been  had.     This  certificate  ought  to  be  produced  in  Court  at  the  '^'■*^*'"  up- 
time of  the  motion  being  made,  or  at  all  events  before  the  rising 
of  the  Court  on  that  day ;  ^  and  the  Registrar  will  not  draw  up 
the  order  until  he  sees  that  the  certificate  has  been  granted.^    Some- 
times, the  certificate  has  been  applied  for,  and  obtained,  after  the 
order  has  been  pronounced  by  the  Court;  so  that  it  was  dated 
subsequently  to  the  order:  which,  although  drawn  up  and  entered 
afterwards,  is  always  dated  on  the  day  that  it  is  pronounced  by 
the  Court.*     This  practice  would  seem  to  have  been  irregular,  and, 
if  objected  to,  not  now  to  be  jjennitted.^ 

Where  either  party  does  not  appear  on  the  motion,  an  oflice  Where  either 
copy  of  the  aflidavit  of  ser-\dce  of  the  notice  of  motion^  must  also  appe^r"^*""' 
be  in  Court ;  and  where  the  defendant  fails  to  move,  the  plaintifl:' 
may  obtain  an  order  for  jiayment  of  liis  costs  of  the  abandoned 
motion,^ 

Upon  hearing  the  motion,  the  Court  usually  either  dismisses  the  On  hearing 

,.,,.,  ,  ,  !••«>,  ^1  -         p  ii        motion,  Court 

bill  Avith  costs,   or  orders  the  plaintiTi   to  pay  the  costs  ot  the  usually 
motion,  and  to  enter  into  an  undertaking  to  amend  the  bill,  file  allows  it  with 

'  o  •         c        costs,  or 

replication,  or    set  down  the  cause  to  be   heard  on  motion  for  orders  plain- 
decree,  or  on  bill  and  answer,  within  a  limited  period,  according  cost^s°amf 
to  the  state  of  the  suit :  *  or,  as  it  is  usually  ex])ressed,  to  "  speed  undertake  to 
the  cause.  cause. 

The  Court,  however,  sometimes  directs  the  motion  to  stand  Motion  some- 
over,  in  order  to  give  the  plaintifi"  an  opportunity  of  taking  a  step  to"stand  over, 
in  the  cause,  and  so  preventinfj    the  bill   being  dismissed ;    and  oi^  plaintiir 

,  •      -1    •  1  1  T  1  •  11  to  proceed. 

upon  his  doing  so,  makes  no  other  order  on  tJie  motion  than  tliat 
the  plaintiflT  pay  the  costs ; '  or,  if  satisfied  that  the  plaintiff 
has  used  reasonable  diligence,  it  has  refused  to  make  any  order  on 

1  Ward  V.  Ward,  11  Beav.  159,  162;  12  386;  Earl  of  Morningtoii  v.  Smith.  9  Beuv. 
Jur.  5'j2.  251;    Hiirdv  r.   Haidv.   1   C.   I'.  Coop.  t. 

2  Freeston  «.  Claydon,  17  Jur.  435,  V.  Cott.  16;   \VilI;ains  7-.'l{()wland,  3  Jur.  N. 
C.  W.  S.  658,  V   C.  VV.;  Hancock  v.  Hollison,  5 

3  Wills  V.  Pugh,  10  Ves.  402,  403.  Jur.  N.»  S.  1199;    8  W.  K.    18,  V.  C.  S.; 
<  Ihid.;    M'Mahon  v.    Sisson,    12   Ves.        Hand  i-.  King,  10  Jur.  N.  S.  91,  V.  C.  W.; 

465;  .\tlornev-Gei]«,-riil  r.  Kiixli,  1   V.  &  JoiiPs  t".  Jones,  10  Jur   N.  S.  1 107,  L.  JJ. ; 

B.  308;  KiiiK  !■.  N'oei,  5  Mad.  13;  lit  Uisca  Forbes  v.  Preston,  11  Jur.  N.  S.  198,  V.  C 

Coal  Companv,  10  \V    R.  701,  L.  (J.  S. ;    Soutliampton,  &c.    Steainhoat   Com- 

6  Bell  I'.  B'ell,  14  Jur.   1129,  V.  C   Ld.  panv  (Limited)  v.  Rawlins,  13  W.  K.  512, 
C.;  Freeston  v.  Claydon,  vbi  sun.  L. .).[. 

0  For  formn  of  aflidavit,  see  Vol.  HI.  '■>  Voung  v.  Quincv,  9  Beav.  100;  Stin- 

7  See  /M'fl,  Chap.  XXXV.  §  2,  Motions  ;        ton  v.   Taylor,  4  Ililre,  008,  009;  10  Jur. 
Ord.  XI..  23.  380. 

»  Stiiilon  V.  Taylor,  4  Hare,  008;  10  Jur. 


808 


DISMISSING   BILLS,    AND    STAYING   rROCEEDINOS. 


Further  tiino 

sometiuu's 

ttivon. 

Costs. 

arv  in  tho 

discretion  o( 

the  Court. 


C.  XIX.  §'2.  tlio  motion;'  ami  after  rc'j)l'u"ation  lias  been  tiled,  the  Court  will, 
in  a  pro]>er  case,  give  the  i)laintitt*  further  time.^ 

Notwithstanding  the  enactment  that,  xipon  the  defendant's 
dismissing  a  bill  for  want  of  prosecution  the  jdaintiff  shall  pay  to 
the  defendant  his  costs,  to  be  taxed  by  the  Master,^  the  Court  has 
a  discretion  to  make  such  order  in  resj)ect  of  costs,  as  well  as  in 
otlier  respects,  as  it  thinks  fit;  ami  though,  in  most  cases,  where 
the  defendant  was  in  a  ]")osition  to  move  to  dismiss  at  the  time  the 
notice  was  served,  the  Court  orders  the  plaintitt'  to  pay  the  costs, 
whatever  order  it  may  nuike  in  other  res])ects,  it  has  refused  to 
make  any  order  upon  the  motion:*  has  dismissed  the  bill,  without 
costs  :^  and  has  even  gone  the  length  of  dismissing  the  motion 
Avith  costs.® 

Where  the  plaintiff  becomes  bankrupt,'  or  has  filed  liis  bill 
ifi  fori7id  pauperis,^  the  rule  is  to  dismiss  the  bill  without  costs. 
Where  the  defendant  becomes  bankrupt,  it  seems  to  have  been 
formerly  considered  that  the  bill,  if  dismissed  for  want  of  prose- 
cution, ought  to  be  dismissed  without  costs;'  but  it  has  since 
been  held,  that  the  fact  of  a  defendant  becoming  a  bankrupt,  is 
not  of  itself  a  sufficient  reason  for  departing  from  the  ordinary 
rule  that,  a  bill  dismissed  for  want  of  prosecution,  is  dismissed 
with  costs.^° 

Tlie  Court  will  not  enter  into  the  merits  of  the  case,  for  the 
purjDose  of  determining  whether  the  bill  shall  be  dismissed  Avith 
or  without  costs  ;  but  will,  for  that  purpose,  only  consider  the 
conduct  of  the  parties  in  the  prosecution  of  the  cause.'' 

Where  a  defendant,  knowing  that  the  plaintitf  has  used  due 
diligence  and  been  unable  to  get  in  the  answers  of  other  defend- 
ants, moves  to  dismiss  the  bill  for  want  of  prosecution,  the  motion 
will  be  dismissed  with  costs ;  '^  and  it  is,  therefore,  prudent  on  the 


Costs:  where 
plaintifl" 
Decomes 
bankrupt,  or 
sues  in  forma 
pauperis  ; 


or  where 
defendant 
becomes 
bankrupt. 


Court  -will 
not  enter 
into  merits, 
on  motion  to 
dismiss. 

Where 
defendant 
knows  plain- 
tiff has 
used  due 
diligence. 


1  Ingle  V.  Partridge,  12  W.  R.  65,  M.  R. ; 
33  Be:iv.  287. 

2  Pollard  V.  Doyle,  2  W.  R.  509,  V.  C. 
K. ;  and  see  Forbes  v.  Preston,  11  Jur.  N. 
S.  198,  V.  C.  S. 

3  4  &  5  Anne,  c.  16,  §  23,  ante,  p.  791. 
As  to  the  form  of  order,  where  the  suit  is 
by  an  official  manager  or  liquiiiator,  see 
Grand  Trunk  Company  ii.  Brodie,  3  De  G., 
M.  &  G.   146;  17.Jur."309;  9  Hare,  823; 

17  Jur.  205 ;  Official  Manager  of  Consols 
Insurance  Companj'  v.  Wood,  13  W.  R. 
492,  V.  C.  K. ;  2  Dr.  &  Sm.  353;  and  see 
Morgan  &  Davey,  226. 

■*  Vent  V.  Pacey,  3  Sim.  382;  and  see 
Ingle  V.  Partridge,  nbi  sup. 

5  I'infold  I'.  Pinfold,  9  Hare  Ap.  14;  16 
Jur.  1081.  V.  C.  T. ;  and  see  South  Staf- 
fordshire Railway  Company  I".  Hall,  16  Jur. 
160,  V.  C.  K.;  LaucHshire  and  Yorkshire 
Railwav  Company  r.  Evans,  14  Heav.  529; 
Kemball  v.  Waldnck,  1  Sm.  &  G.  Ap.  27; 

18  Jur.  69,  V.  C,  S. 


6  Partington  v.  Baillie,  5  Sim.  667 ;  Win- 
throp  V.  Murrav,  7  Hare,  150;  13  Jur.  32; 
Ingle  V.  Partridge,  33  iJeav.  287. 

■?  Ante.  p.  64,  post,  p.  813;  Meiklam  v. 
Elmore,  4  De  G.  &  J.  208;  5  Jur.  N.  S. 
904;  and  see  post,  p.  814. 

8  Atite,  p,  792;  and  see  p.  42. 

9  Rlancliardr.  Drew,  10  Sim.  240;  Mon- 
teith  V.  Taylor,  9  Ves.  615;  1  M'N.  &  G. 
81,  n.;  Kemball  v.  Walduck,  1  Sm.  &  G. 
Ap.  27;  18  Jur.  69;  Findlay  «;.  Lawrence, 
2  De  G.  &  S.  303. 

1"  HIackmore  r.  Smith,  1  M'N.  &  G.  80; 
13  Jur.  218;  Rob'.on  v.  Earl  of  Devon,  3 
Sm.  &  G.  227;  2  Jur.  N.  S.  565;  Levi  v. 
Heritage,  26  Beav.  660;  S.  C.  notn.  Lever 
V.  Heritage,  5  Jur.  N.  S.  215. 

11  Stagg  V.  Knowles,  3  Hare,  241,  244; 
South  Staffordshire  l\ailwav  Company  v. 
Hall,  16  Jur.  160,  V.  C.  K.;  \Vallis  «.  Wal- 
lis.  4  Drew.  458. 

12  Partington^.  Baillie,  5  Sim.  667;  Win- 
throp  V.  Murray,  7  Hare,  150;  13  Jur.  32; 


FOR   WANT    OF   PROSECUTION. 


809 


part  of  the  plaintiff  to  give  a  defendant  who  is  in  a  position  to 
move  to  dismiss,  notice  that  the  other  answers  have  not  been  got 
in,  if  such  is  the  fact.^ 

Where  the  phiintiff  undertakes  to  speed  the  cause,  the  order 
ought  to  go  on  to  i^rovide  that,  in  default  of  his  taking  the 
appointed  step  within  the  prescribed  period,  the  bill  shall  be 
dismissed  with  costs,  without  further  notice.^ 

If  the  plaintiff  makes  default  in  taking  the  next  step  within 
the  time  limited,  no  further  indulgence  will  in  general  be  granted 
him.^  Where,  however,  the  plaintiff  considers  he  has  a  case 
entitling  him  to  ask  for  further  indulgence,  he  should  make  a 
special  application  for  flirther  time,  by  motion  or  summons,  before 
the  expiration  of  the  period  limited;*  or  if  the  time  has  ex- 
pired, the  application  must  be  to  have  the  bill  restored,^  It  is 
not,  however,  the  ordinary  course  of  the  Court  to  restore  a  bill 
which  has  once  been  dismissed ;  it  must  be  shown  that  substantial 
justice  requires  that  it  should  be  done,  and  then,  upon  the  pai-tic- 
ular  circumstances,  the  Court  will  make  the  order.^  The  Court 
will  not  restore  a  bill,  which  has  been  regularly  dismissed,  for  the 
mere  purpose  of  agitating  the  question  of  costs.'' 

It  has  been  held,  that  it  is  no  answer  to  a  motion  to  dismiss 
that  tlie  plaintiff  has  not  been  able  to  get  in  the  answers  of  other 
defendants;^  or  that  the  delay  of  the  plaintiff  was  occasioned 
by  <lifficulties  in  dra-«nng  up  an  order  allowing  a  demurrer  by 
other  defendants,  with  leave  to  amend ;  ®  or  that  the  plaintiff  has 
applied  for  the  production  of  documents,  unless  the  application 
was  made  without  delay :  ^^  or  that  proceedings  had  been  stayed, 
against  other  defendants,  till  the  plaintiff  should  pay  them  certain 


C.  XIX.  §  2. 


Form  of 
order,  where 
plaintifl" 
undertakes 
to  speed. 

"Where  plain- 
tiff makes 
default,  no 
further 
indulgence 
generally 
granted. 


Bill  may  be 
restored,  on 
special 
grounds; 


but  not  for 
the  purpose 
of  costs. 


What  is  not 
an  answer  to 
a  motion  to 
dismiss. 


and  see  Ingle  v.  PartridRe,  12  W.  R.  65, 
M.  R.;  3.3  Heiiv.  287;  Nicholl  v.  Jones,  14 
W.  K.  79.  V.  C.  W.;  Barker  v.  Piele,  12 
W.  K.  460,  V.  C.  K. 

1  Ad;iir  V.  Barrington,  2  W.  R.  361;  2 
Eq.  liep.  408,  V.  C  W. 

2  Emerson  v.  Emerson,  6  Hare,  442;  12 
.Jur.  973;  Stephenson  t'.  Mackay,  24  Beav. 
2.52;  F'earce  v.  Wrigton,  16.  253;  and  see 
Bartlett  V.  Ilarton,  17  Beav.  479;  17  Jur. 
1019;  Stevens  v.  I'raed,  2  Cox,  374;  Do- 
bede  v.  Kdwards,  11  Sim.  454.  For  form 
oforder  in  such  case,  see  .Seton,  1278,  No.  4. 

3  Lamert  r.  Stanhope,  5  De  G.  &  S. 
247;  Stephen.son  v.  Macka3',  ubisiip. ;  Wil- 
liHms  V.  Page,  24  Beav.  490;  Bartlett  v. 
Harton,  uhi  sup. 

*  I.,a  Mert  f.  Stanhope,  ubi  sup.  In  an 
ordinary  case  the  application  should  be 
miule  by  summons.  For  forms  of  notice 
of  motion  arid  summons,  see  Vol.  III. 

*•  Bartlett  v.  Harton,  17  Beav.  479;  17 
Jur.  1019 ;  Jiickson  v.  i'urnell,  16  Ves.  204 ; 
the  appbciition,  iti  this  case,  shouhl  be 
made  by  motion.  For  form  of  notice  of 
motion,  see  Vol.  [II. 

•  See   Southam[)ton    Steamboat    Com- 


pany V.  Rawlins,  11  Jur.  N.  S.230;  13  W. 
R.  512,  L.  JJ.,  where  the  delay  had  been 
occasioned  In'  a  mistake. 

"  Hannam  v.  South  London  Water 
Works  (;ompany,  2  Mer.  63,  64;  Stone  v. 
Locke,  48  Maine,  425.  Where  a  bill  has 
been  dismissed  from  the  docket,  for  want 
of  prosecution,  on  motion  of  the  defendant, 
the  suit  cannot  properly  be  brought  for- 
ward at  a  subsequent  term,  on  motion,  to 
obtain  an  order  for  costs.  It  seems  the 
proper  proceeding  fur  the  defendant,  after 
dismissal  for  want  of  prosecution,  is  to 
apply  for  an  order  to  discharge  tlie  decree 
dismissiifg  the  bill.  Stone  v.  Locke,  vM 
supra. 

**  Lester  ?;.  Archdale,  9  Beav.  156;  Earl 
of  Morniiigton  v.  Smitii,  ib.  251;  Baldwin 
V.  Damer,  11  Jur.  723,  V.  C.  K. ;  Stinton 
J-.  Tavlor,  4  Hare,  008,  009;  10  Jur.  386; 
Ad;iif  V.  Barrington,  2  W.  R.  361;  2  Eq. 
Hep.  408,  V.  C.  W. ;  Briggs  t'.  Beale,  12 
W.  i:.  934,  V.  C.  W.;  l)ut  see  ante,  p.  808. 

9  Jones  V.  Morgan,  12  Jur.  388,  V.  C.  E.; 
see  also  Drioli  v.  Sedgwick,  16  Jur.  284, 
V.  C.  Ld.  C. 

10  Franco  t'.  Meyer,  2  H.  &  M.  42. 


810 


DISMISSING   BILLS,    AND   STAYING   PROCEEDINGS. 


c.  XIX.  §  •:. 


Ncffotiiitious 
with 

dolenilaiit 
nioviiit;  may 
be  au  answer. 


PolVndant 
may  iiiovo, 
altluuijili  lie 
has  oiuitti'd 
to  give  notice 
ot"  tiling  his 
answer. 

T\'here  plain- 
tiflf  outlawed. 

Abatement 
by  (letend- 
aiifs  death. 
Bills  to 
peqietuate 
testimony, 
cannot  be 
dismissed  for 
want  of 
prosecution. 


BUIs  of 
discovery. 


Suit  for 
receiver, 
pendente  lite. 


costs  :^  or  tliat  the  pliiiiilill' li:ul  olli'vod  to  dismiss  tlio  bill  with- 
out costs  :  the  decision  on  Avhich  it  li;id  been  tiled  having  been 
overruled;-^  or  that  the  (h'tendant  lias  become  baidsnipt." 

AVhere,  however,  in  conse(]uence  of  negotiations  with  the  prin- 
cipal defendant,  the  plaintiff  did  not  get  in  the  answers  of  the 
other  defcnihnits,  and  the  principal  defendant,  dmnng  the  absence 
of  the  ]>laintitV  abroad,  moved  to  dismiss  for  want  of  prosecution, 
Lord  Cotteidiam  gave  the  ])l;ruitiff  (on  the  7th  of  July)  till  the 
1st  day  of  the  ensuing  Michaelmas  term,  to  file  replication.*  The 
omission  on  the  part  of  the  defendant  to  give  notice  of  the  filing 
of  his  answer,^  does  not  affect  his  right  to  move  to  dismiss  the 
bill  for  want  of  prosecution  :  though,  of  course,  it  may  materially 
affect  the  order  which  the  Court  will  make  uj-»on  the  motion.*"' 

A  bill  inixj  be  dismissed  for  want  of  prosecution,  while  the 
plaintiff  is  an  outlaw.' 

A  defendant  is  not  prevented  from  moving  to  dismiss  by  the 
suit  having  abated,  through  the  death  of  another  defendant.^ 

In  bills  to  perpetuate  testimony,  it  does  not  seem  that  the  de- 
fendant has  hitherto  had,  under  any  circumstances,  a  right  to 
have  the  bill  dismissed  for  Avant  of  prosecution.  In  Jieavan  v. 
Carpenter^  a  cause  of  this  kind,  a  motion  to  dismiss  before 
replication,  Avas  refused ;  but  Sir  Lancelot  Shad  well  V.  C.  made 
an  order,  that  the  plaintiff  should  file  a  replication  forthwith,  and 
proceed  to  the  examination  of  his  witnesses,  as  prayed  by  his  bill, 
and  procure  such  examination  to  be  completed  on  or  before  a  cer- 
tain day ;  and  that,  in  default  thereof,  he  should  pay  to  the  defend- 
ant his  costs  of  the  suit.  And  a  similar  order  was  made,  on  a  like 
motion  after  replication.^" 

So,  in  the  case  of  a  bill  for  discovery,  the  defendant  should 
not  move  to  dismiss  for  want  of  prosecution,  but  should,  after 
the  time  for  excepting  to  his  answer  has  elapsed,  obtain,  on  peti- 
tion as  of  course,  an  order  for  the  payment  of  his  costs  by  the 
plaintiff.^^    And  in  a  suit  for  a  receiver,  pendente  lite,,  the  motion 


1  Lautour  v.  Holcombe,  10  Beav.  256. 

2  Lancashire  and  Yorkshire  Railway 
Company  v.  Evans,  14  Beav.  529;  the  bill 
was,  however,  in  this  case,  afterwards  dis- 
missed without  costs.  South  Stsitlbrdshire 
Eailway  Company  v.  Hall,  16  Jur.  160,  V. 
C.  K. 

8  Levi  V.  Heritage,  26  Beav.  560,  and 
cases  there  cited;  S.  C.  nmn.  Lever  v. 
Ileritage,  5  Jur.  N.  S.  215;  or  that  a 
cross-bill  at  the  suit  of  another  defendant 
is  pending.  Windham  v.  Cooper,  14  \V. 
R.  8,  V.  C.  W. 

4  Hardy  v.  Hardy,  1  C.  P.  Coop.  t.  Cott. 
16. 

5  Ord.  III.  9;  see  ante,  p.  755. 

6  Jones  V.  Jones,  1  Jur.  N.  S.  863;  3 
W.  K.  638,  V.  C.  S. 


T  Knowles  v.  Rhvdydefed  Colliery  Com- 
panv,  John.  630;  6  Jur.  N.  S.  291. 

8  "Williams  v.  Page,  24  Beav.  490. 

9  11  Sim.  22. 

10  Wright  V.  Tatham,  2  Sim.  459;  and 
Barliam  v.  Longman,  ih.  460;  see  also 
Brigstocke  v.  Roch,  7  Jiir.  N.  S.  63,  V.  C. 
S.;  and /)os<.  Chap.  XXXIV.  §  4,  BUh  to 
Perpetwitii  Testimony. 

11  Woodcocks.  King,  lAtk.  286;  Attor- 
nev-Gcneral  );.  Burch,  4  Mad.  178;  liliodes 
V.  Hayne,  9  .lur.  175,  V.  C.  K.  B. ;  South 
Eastern  Railway  Companv  v.  Submarine 
Telegraph  Com'pany,  18  "Beav.  429;  17 
Jur.  1044;  Fitzgerald  v.  Butt,  9  Hare  Ap. 
65;  sieejwst,  Chap.  XXXIV.  §  2,  Bills  of 
Discw:ery.  JTor  form  of  petition,  see  post, 
Vol.  III. 


FOR    WANT    OF   PROSECUTION. 


811 


should  be  for  payment  of  costs,  to  stay  proceedings,  and,  if  neces- 
sary, to  discharge  the  receiver.^ 

After  a  decree,  or  even  a  decretal  order,  has  been  made,  a  bill 
cannot  be  dismissed  for  Avant  of  prosecution ;  thus,  in  the  case  of 
UlucJc  V.  Colnaghi^-  which  was  a  suit  for  winding  up  the  aflairs  of 
the  partnership  between  the  plaintiff  and  defendant,  and  in  Avhich 
an  order  had  been  made,  by  consent  on  motion,  for  taking  the 
accounts  of  the  partnership,  but  had  not  been  drawn  up.  Sir 
Lancelot  Shadwell  V.  C.  said,  that  the  order  which  had  been  pro- 
nounced was  a  decretal  order ;  and  though  it  had  not  been  drawn 
up,  yet,  either  party  was  at  liberty  to  draw  it  up  ;  and  that  an  order 
in  the  nature  of  a  decree  haAang  been  made  in  the  cause,  the  bill 
could  not  be  dismissed.  But  after  a  decree  merely  directing 
accounts  and  inquiries,  to  enable  the  Court  to  determine  what  is 
to  be  done,  a  bill  can  always  be  dismissed.^ 

It  has  been  before  stated,  that  an  order  to  dismiss  a  bill  for 
want  of  prosecution  cannot  be  i^leaded  in  bar  to  a  new  bill  for  the 
same  matter.*  Where,  however,  after  a  bill  has  been  so  dis- 
missed, the  plaintiff  iiles  another  bill  for  the  same  purpose,  the 
Court  will  suspend  the  proceedings  on  such  new  bill  till  the- costs 
of  the  former  suit  have  been  paid ;  and  where  the  defendant,  in 
the  suit  which  had  been  dismissed,  died  before  he  had  received 
his  costs,  and  the  j^laintiff  filed  a  new  bill  against  his  executor 
for  the  same  object,  Sir  Lancelot  Shadwell  V.  C.  ordered  the 
proceedings  on  the  new  bill  to  be  stayed,  until  the  plaintiff  had 
paid  the  executor  the  costs  of  the  dismissed  suit.^  This  rule  does 
not  apply,  Avhere  the  plaintiff  sues  by  a  next  friend.® 

An  order  to  dismiss  a  bill  for  want  of  prosecution,  effectually 
puts  an  end  to  every  proceeding  in  the  suit  which  has  been  dis- 
missed, and  no  subsequent  step  can  be  taken  in  it,  except  such  as 
may  be  necessary  for  carrying  into  effect  the  order  of  dismissal.'' 
Tl*erffore,  where  a  defendant  obtains  an  order  to  dismiss  a  bill 
for  want  of  prosecution,  without  the  plaintiff's  having  made  a 
motion    of  which    he    has    given    notice,  the    defendant    cannot 


C.  XIX.  §2. 


After  decree, 
or  decretal 
order,  a 
motion  to 
dismiss  for 
want  of 
prosecution 
cannot  be 
made. 


Dismission 
cannot  be 
pleaded  to  a 
new  bill; 


but  second 
suit  may  be 
stayed,  till 
costs  paid. 


No  proceed- 
ing, after 
order  to 
dismiss. 


1  Edwarris  v.  Edwards,  17  .lur.  826,  V. 
C.  W.;  .\nderson?-.  Gniciiar',9  Hare,  275; 
Barton  r.  Itook  (No.  2),  22  Beav.  37G;  see 
now  20  &  21  Vic.  c.  77,  §§  70,  71;  but 
see  Williams  v.  Attorney-General,  Seton, 
1003. 

2  9  Sim.  411;  Egg  v.  Devej',  11  Beav. 
221 ;  see  also  ante,  pp.  793,  806 ;  and  (Jol- 
liriK  V.  Greaves,  5  llare,  596;  Gregory  v. 
Spencer,  11  Beav.  143. 

8  Anon.,  11  Ves.  169;  Bnrton  v.  Barton, 
3  K.  &  J.  512;  3  Jur.  N.  S.  808;  and  see 
anlf,  p  793. 

*  Ante,  p.  659;  Story  Eq.  I'l.  §  793; 
Mitford  E'|.  ri.  by  .Icremy, '^j^;  see  I'lvrne 
V.  Fre.'-e,  2  Moll.  107.     \\'\\tn  a  bill  is" dis- 


missed for  want  of  prosecution,  it  operates 
as  a  discontinuance,  and  is  no  more  than 
a  nonsuit,  at  law,  and  does  not  prevent  the 
bviiiffing  of  a  new  bill.  M'Brooin  v.  Som- 
mervillft,2  Stewart,  515;  Porter  t'.Vnuglin, 
26  Vt.  624.  The  dismissal  absolutely  of  a 
bill  by  a  Court  which  had  no  jurisdiction 
of  the  case,  is  no  bar  to  another  suit.  Lan- 
caster V.  Lair,  1  Dana,  109. 

6  Long  v.  Storie,  13  Jur.  1091,  V.  C.  E.; 
and  see  ovie.  p.  796. 

0  Hind  1'.  Whitmore,  2  K.  &  J.  468. 

■^  See  Lorimer  r.  Lorimer,  1  .1.  &  W. 
284;  Biirtlett  v.  Ilarton,  17  Jur.  1019, 
M.  li. 


812 


DISMISSING   BILLS,    AND   STAYING   TEOCEEDINGS. 


C.  XIX.  §  3. 

V— y ■ 

Costs  of  (lis 
niissjil  niav 
bf  taxoil. ' 
■without  spe- 
cial ivti'n'iice, 
and  recov- 
ered. 

What  costs 
are  included. 


yriiere  offi- 
cial manager 
has  been 
substituted 
as  plaiiitilf. 


Order  dis- 
missing bill 
may  be 
enrolled. 

Dismissal  of 
bill,  where 
plea  held 
sufficient. 


aHorwanls  obtain  the  costs  of  tho  motion,  ns  an  abandoned 
motion.^ 

AVliere  a  bill  is  dismissed  willi  costs,  thoy  may  be  taxed  witli- 
out  any  ovdcr  n'ferrin^  them  Cor  taxation,  nnless  the  Court  pro- 
liibits  the  taxation;  and  they  Avill  be  recoverable  hy  subpoena,  in 
the  usual  manner.-  AVhere  the  dismissal  takes  place  before  the 
liearing,  only  those  costs  Avhieli  are  costs  in  the  cause  are  in- 
cluded :  ^  therefore,  when  the  costs  of  a  motion  or  other  a]>])lication 
in  the  cause  are  reserved,  they  should  be  made  costs  in  the  cause, 
or  reserved  "  until  the  hearing  or  further  order,"  and  not  simply 
"until  the  hearing."  * 

AVhere  a  bill  was  dismissed  for  want  of  prosecution,  in  a  suit 
in  which  the  official  manager  of  a  com])any  under  process  of  wind- 
ing up  had,  after  institution  of  the  suit,  been  substituted  as 
jilaintilf,  the  order  provided  that  the  defendants  should  be  at 
liberty  to  prove  for  their  costs  in  the  winding  up.^ 

The  order  dismissing  a  bill  for  want  of  prosecution,  may  be 
enrolled,  although  the  only  object  in  doing  so  be  to  prevent  an 
appeal. ° 

Where  a  plea  to  the  whole  bill  is  not  set  down  for  argument 
within  three  weeks  after  the  filing,  and  the  plaintift*  does  not 
within  such  three  weeks  serve  an  order  for  leave  to  amend  the 
bill,  or  by  notice  in  writing  undertake  to  reply  to  the  plea,  the 
defendant  by  whom  such  plea  was  filed  may  obtain,  as  of  course, 
an  order  to  dismiss  the  bill.'' 


Where 
abated  by 
death  of  sole 
plaintiff: 
notice  to  his 
legal  repre- 
sentative, to 
revive. 


Section  III. —  W/we  the  Suit  has  Abated,  or  become  otherwise 

Defective. 

Where  a  suit  abates  by  the  death  of  a  sole  plaintiff,  the  Court, 
upon  motion  of  any  defendant,  made  on  notice  served  on  the  legal 
representative  of  the  deceased  plaintiff,  may  order  that  such  legal 
representative  do  revive  the  suit  within  a  limited  time,  or  that  the 
bill  be  dismissed.® 


1  As  to  abandoned  motions,  see  post, 
Chap.  XXXV.  §  2,  Motions;  and  Ord. 
XL.  23. 

2  Ord.  XL.  38. 

8  Stevens  v.  Keating,  1  M'N.  &  G.  659, 
663 ;  14  Jur.  1.57. 
*  Rumbold  v.  Forte;ith,  4  Jur.  N.  S.  608, 

V.  c.  w. 

5  CiiMwell  V.  Ernest  (No.  2),  27  Beav. 
42;  5  .Jur.  N.  S.  667. 

6  Williams  v.  Page,  1  De  G.  &  J.  561. 
■?  Ord.   XIV.   17;    ante,  p.  695.     As  to 

Inches  in  npph'inz,  see  Campbell  i\  Joyce, 
L.  K.  2  Erj.  377,  V.  C.  W. 

8  Ord.  XXXII.  4.  Tills  rule  is  only  ap- 
plicable to  an  abatement  or  defect  occur- 


ring before  decree.  As  to  proceedings  in 
the  suit,  after  an  abatement,  but  in  igno- 
rance of  it,  see  Smith  v.  Horsfall,  24  Beav. 
331 ;  Houston  v.  Briscoe,  7  W.  R.  394,  V. 
C.  K.  In  Massachusetts,  "  when  the 
death  of  any  party  shall  l)e  suggested  in 
writing,  and  entered  on  the  docket,  the 
clerk,  upon  application,  may  issue  process 
to  bring  into  court  the  representative  of 
sucli  deceased  party."  Rule  25  of  the 
Rules  for  I'ractice  in  Chancery;  see  also 
66th  and  57th  Equity  Rules  of  the  United 
States  Courts.  For  form  of  order  umler 
r.  4,  see  Scton,  1278,  No.  5;  and  for  form 
of  notice  of  raiition,  see  Vol.  III. 


WHERE    SUIT   HAS    ABATED,    OR    BECOME    DEFECTIVE. 


813 


The  words  legal  rei:)resentatiTe  mean  heir,  or  devisee,  or  execu- 
tor, or  administrator,  according  as  the  suit  relates  to  real  or  personal 
estate.^ 

"Where  the  sole  plaintiff  died  after  decree,  and  after  an  injunc- 
tion to  restrain  waste.  Lord  Langdale  M.  R.  made  an  order,  that 
all  ftirther  proceedings  should  be  stayed,  and  the  injunction  dis- 
solved, unless  the  suit  were  revived  within  a  limited  time ;  ^  but 
Sir  R..  T.  Ivindersley  V.  C.  declined  to  follow  this  case,^  on  the 
gi'ound  that  the  defendant  could  himself  revive,^  And  where  an 
injunction  had  been  obtained,  restraining  an  action  at  law,  and  the 
sole  plaintiff  died.  Sir  John  Romilly  M.  R.  said  he  had  no  jurisdic- 
tion to  make  an  order  that  the  suit  be  revived  by  the  plaintiff's 
representatives,  or  the  bill  be  dismissed.^  If  the  bill  is  dismissed, 
it  Viill  be  dismissed  without  costs.® 

A  suit  does  not  abate  by  the  death  of  a  sole  plaintiff,  who  is  the 
public  officer  of  a  joint-stock  company : ''  in  such  a  case,  therefore, 
the  defendant  should  aj^ply  to  dismiss  the  bill  in  the  usual  form, 
and  not  that  it  may  be  revived  mthin  a  limited  time  or  dismissed.* 

"Where  a  suit  abates  by  the  death  of  one  of  several  co-plaintiffs, 
the  defendant  may,  on  motion,®  obtain  an  order  that  the  surviving 
plaintiffs  do  revive  within  a  limited  time,  or,  in  default,  that  the 
bill  stand  dismissed  with  costs ;  ■^''  and  it  is  no  answer  to  such  an 
application  that  there  is  no  personal  representative  of  the  deceased 
plaiutiff,^^     Xo  order  will  be  made  as  to  the  costs  of  the  motion.^''^ 

"Where  a  suit  abates  by  the  marriage  of  a  female  sole  plaintiff,  a 
similar  order  may  be  obtained  against  her  husband ;  ^'  and  it  seems 
that  the  order  will  be  made  with  costs." 

Where  the  abatement  is  caused  by  the  death  of  a  defendant,  his 
representatives  may  move  that  the  plaintiff  do  revive  the  suit 


C.  XIX.  §  3. 


Meaning  of 
"  legal  repre- 
sent.tive." 
Where  sole 
plaintiff  dies 
after  decree : 


Defendant 
may  revive. 


Costs,  on 
dismissal. 

"Where  plain- 
tifl'  sues  as 
public  officer. 


Death  of  one 
co-plaintiff: 
notice  to  sur- 
vivor to 
revive. 


Marriage  of 
feniale  solo 
plaintiff. 

Death  of 
defendant: 


1  See  Price  v.  Berrington,  11  Beav.  90. 

2  Jbirl. 

8  Mills  I'.  Dudgeon,  1  W.  K.  614,  V. 
C.  K. 

*  See  Deva3-nes  v.  Morris,  1  M.  &  C. 
218,  225. 

6  OUlHeldr.  Cobbett,  20  Beav.  563. 

C  Chowick  V.  Dimes,  3  Beav.  290,  492, 
n.;  and  cases  in  i//.  294,  n.;  Hill  v.  Gaunt, 
7  Jur.  N.  .S.  42;  9  W.  K.  68,  V.  C.  W. 

T  See  7  Geo.  IV.  c.  46,  §  9. 

8  Bunnester  V.  Von  Stenz,23  Beav.  82. 

*  For  form  of  notice,  see  \'ol.  III. 

10  Adatrison  v.  Hall,  T.  &  U.  258,  over- 
ruling S-  C.  nam.  Adamsun  v.  Hull,  1  .S.& 
8.249;  Chichester  r.  Hunter,  3  iieav.  491; 
Lord  Hniitiiigtower  v.  Sherborn,  5  Beav. 
380;  Holcombe  v.  Trotter,  1  (Joll.  654; 
Norton  v.  White,  2  De  G.,  .M.  &  (J.  678; 
I'oweJl  V.  I'oweli,  ih.  n.;  Pudge  r.  Pitt,  3 
W.  li.  100,  V.  C.  S.;  Peatce  v.  Wiinton, 
24  Beav.  253;  Hinder.  Mort"n,  13  W.  K. 
401,  V.  C.  W.  See  Pellsf.  Coon,  1  Hoi)k. 
460,  in  which  it  waa  held  in  New  York, 


that  upon  the  abatement  of  a  suit,  by  the 
death  of  one  of  several  co-plaintiffs,  it  is  at 
the  election  of  the  surviving  co-plaintiffs 
whether  they  will  revive  the  suit.  The 
Court  will  limit  the  time  within  which 
thej-  shall  make  that  election.  And  if 
the}'  do  not  revive  the  suit  within  the  time 
limited,  the  Court  will  order  that  they  be 
precluded  from  any  further  prosecution 
of  it. 

11  Saner  v.  Deaven,  16  Beav.  30. 

i'^  Hiiide  V.  Morton,  2tbi  sup.  According 
to  the  report  of  Hindu  v.  Morton,  in  2  II. 
&  M.  3*8,  the  oriler  in  the  case  of  the 
death  of  aco-plaintilT,  one  of  several  resid- 
uary legatees,  shoulii  be  that  the  remain- 
ing plaintiffs  proceed,  or  the  bill  be  dis- 
missed witti  costs;  the  deatii  of  the  co- 
pliiintiff  being  marked  on  the  record. 

18  .Johnson  v.  Ilorlock,  3  Meav.  294,  n.; 
Wilkinson  v.  Chiirleswurth,  i/j.  297,  n. 

*  .lolinsoii  V.  Ilorlock,  uOi  sup.;  Boe, 
however,  Wilkinson  t'.  Charlesworth,  vbi 
sup  ^  contra. 


814 


DISMISSING    BILLS,    AND    STAYING   rROCEEDINGS. 


C.  XIX.  §  3. 


or  of  n  co- 
plaintilV. 


After  decree. 


Distinction 
between 
order  upon 
abrttenu'nt, 
and  order  to 
dismiss  for 
want  of 
prosecution. 


Bankruptcy 
of  defendant: 

Ordinary 
motion  to 
dismiss  for 
want  of  pros- 
ecution may 
be  made. 


witliiii  :i  liinitod  tiino,  o\\  in  (Irthiilt,  that  the  bill  may  he  dismissed 
as  against  (hem;  ami  the  order  is,  it  seems,  for  the  dismissal  "with- 
out eosts.^ 

AVhere  u  suit  ])eeomes  deteetive  by  the  haid^niiitoy  of  a  solo 
plaintitf,  the  ilefendaiit  may  obtain,  on  special  motion,-  an  order 
that  the  assignee  do  within  a  limited  time  (usually  three  weeks) 
take  ])roper  supplemental  proceedings  for  the  pm-pose  of  prosecut- 
ing the  suit  against  the  defendant,  or,  in  defaidt,  that  the  bill  be 
dismissed,  without  costs.'  And  where  one  of  several  co-plaintiffs 
becomes  bankruj^t,  a  similar  order  may  be  obtained  against  the 
other  co-plaintilfs ;  ■*  but  in  this  case,  the  dismissal  Avill  be  with 
costs.* 

If  the  ])laintiff  become  bankrupt  after  decree,  the  Court  will,  on 
the  motion  of  the  defendant,  order  that  the  assignees  elect,  within 
a  limited  time,  whether  they  will  prosecute  the  suit,  and,  in  default, 
that  all  further  proceedings  be  stayed,®  And  a  similar  order  has 
been  made,  with  resiject  to  a  trustee  under  the  act  to  facilitate 
arrangements  Avith  creditors.'' 

The  order  to  dismiss  on  occasions  of  abatement,  or  of  the  suit 
becoming  defective,  must  not  be  confounded  with  an  ordinary 
order  to  dismiss  for  want  of  prosecution.  The  two  orders  diifer 
from  one  another  materially,  both  in  the  circumstances  in  which 
they  may  be  obtained,  and  the  form  of  the  order  when  it  is  made. 
After  a  suit  has  abated,  or  after  it  has  become  defective  by  the 
bankruptcy  of  the  plaintiff,  it  is  irregular  to  move  for  the  ordinary 
order  to  dismiss  the  bill  for  want  of  prosecution ;  ^  and  such  an 
order,  if  made,  will  be  discharged  for  irregularity.^ 

Where  a  suit  becomes  defective  by  the  bankruptcy  of  a  defend- 
ant, he  may,  as  w^e  have  seen,  notwithstanding  his  bankruptcy, 
obtain  the  usual  order  to  dismiss  the  bill  for  want  of  prosecution, 


1  Burnell  v.  Duke  of  "Wellington,  6  Sim. 
461;  Norton  v.  White,  2  De  G.,  M.  &  G. 
67t>;  Powell  i'.  Powell,  ib.  n. ;  Cross  v. 
Cro>s,  11  VV.  R.  7y7,  V.  C.  S.;  Keeves  v. 
Baker,  13  IJeav.  115,  is  incorrectly  report- 
ed; see  2  De  G.,  M.  &  G.  67'J,  n.  (6).  So 
the  survivors  up  in  the  death  ot  one  of 
sevenil  defendants  niiiy  move  that  the 
plaintiff  revive,  or  the  bill  be  dismissed. 
Harrington  v.  Becker,  2  Barb.  Ch.  C47. 

2  As  to  serving  notice  of  tlie  motion  on 
the  bankrupt,  as  well  as  on  the  assignees, 
see  Vestris  v.  Hooper,  8  Sim.  570. 

8  Ante,  pp.  64,  808;  Sharp  v.  Hullett, 
2  S.  &  S.  496;  Wheeler  v.  M..lins,  4  Mad. 
171;  l^orterf.  Cox,  5  .Mad.  *:0;  Lord  Huii- 
tingtower  v.  Sherborn,  ubisup.  ;  lloijinsou 
V.  Norton,  10  Beav.  4^4;  Fisher  v.  Fislier, 
6  Hare,  628;  2  Phil.  2.36;  Meiklam  v.  El- 
more, 4  De  G.  &  J.  208;  u  Jur.  N.  S  004; 
Jackson  V.  Kiga  Kiiilway,  28  Beav.  75; 
Boucicault  i\  DeUiheld,  10  Jur.  N.  S.  937; 
12  W.  Pv.  1025,  V.  C.  W.;  10  Jur.  N.  S. 


1063 ;  13  W.  R  64,  L.  JT. ;  where  the  bank- 
ruptcy has  occurred  in  a  foreign  country, 
see  Bourbaud  v.  Bourbaud,  12  \V.  K.  1024, 
V.  C.  W.  As  to'  the  eti'ect  of  a  trust  deed 
by  the  plaintiff,  under  24  &  25  Vic.  c.  134, 
see  §  197.  For  form  of  order,  see  Seton, 
1278,  No.  6 ;  and  for  form  of  notice  of  mo- 
tion, see  Vol.  III. 

4  Ward  V.  Ward,  8  Beav.  397;  11  Heav. 
159;  12  Jur.  592;  Kilminster  v.  Pratt,  1 
Hare,  632 ;  see,  however,  Caddick  v.  Mas- 
son,  1  Sim.  501. 

5  Waid  i\  Ward,  and  Kilminster  v. 
Pratt,  nbi  sup. 

s  Whitmore  v.  Oxborrow,  1  Coll.  91; 
Clarke  v.  Tipping,  16  Peiv.  12. 

V  Ilardv  r.  Dar,n.-ll,  4  De  G.  &  S.  568; 
see  7  &  8' Vic.  c.  70;  24  &  25  Vic.  c.  134, 
§  107. 

«  Itobinson  v.  Norton,  10  Reav.  484. 

9  Boeidy  V.  Kent,  1  Mer.  361,  365;  Sel- 
lers V.  Dawson,  2  Dick.  738 ;  S.  C.  nom. 
Sellas  V.  Dawson,  2  Anst.  458,  n. 


CASES    OF    ELECTION.  815 

with  costs ;  ^  but  he  cannot  obtain   an  order  of  a  similar  kind  to   C.  XIX.  §  4. 
that  granted  on  the  bankruptcy  of  a  plaintiff.- 


Sectiox  IV.  —  Cases  of  Election. 

Where  the  plaintiff  is  suing  both  at  Law  and  in  Equity,  at  the  in -what  cases 
same  time,  for  the  same  matter,  the  defendant  is  entitled  to  an  Plaintiff  is 

1    •      -m    T        1  compellable 

order  that  the  plamtiff  do  elect  whether  he  will  proceed  with  the  to  elect 
suit  in  Equity,  or  with  the  action  at  Law.^     Thus,  the  Court  will  suKna  ^'^ 
generally  compel  a  plaintiff  to  elect  between  a  suit  in  Equity  for  action: 
the  specific  performance  of  an  agreement,  and  an  action  at  Law   Specific  per- 
brought  in  respect  of  the  same  agreement.*     So  also,  as  a  general  formance; 
rule,  a  party  suing  in  Equity  will  not  be  allowed  to  sue  at  Law  for 
the  same  debt.     The  case  of  a  mortgagee  is  an  exception  to  this  Mortgagee; 
rule ;  it  is  fi-equently  said,  that  he  may  pursue  all  his  remedies  con- 
currently ;  at  any  rate,  he  can  proceed  on  his  mortgage  in  Equity, 
and  on  his  bond  or  covenant  at  Law  at  the  same  time.^     In  the 
case  of  Barker  v.  SmarA;^  however,  Lord  Langdale  M,  R.  refused  Vendor. 
to  extend  the  exception  to  the  case  of  a  vendor,  who  had  com- 
menced an  action  at  Law  upon  a  bond  for  his  unpaid  purchase- 
money,  and  at  the  same  time  was  suing  in  Equity  to  establish  a 
lien  upon  the  estate  for  the  same  sum. 

The  principle  of  election  has  also  been  aj^pUed  w^here  there  was  Where  one 
one  suit  in  this  country,  and  another  for  the  same  matter  in  a  for-  ?"''  '^ 

....  in  a 

eign  Court  of  competent  jurisdiction  '  foreign 

It  seems  that,  in  a  particular  case,  the  plaintiff  may  be  allowed  "'"°''^* 

to  proceed  partially  in  Equity,  and  partially  at  Law,  and  compelled  election. 
to  enter  into  a  special  election.^ 


1  Blackmore  v.  Smith,  1  M"X.  &  G.  80;  brose  v.  Nott,  2  Hare,  C49,  C51;  see  also 

13  Jur.  21t<;  Robson  v.   Karl  of  Devon,  3  Fenninss  v.  Humjihery,  4  Beav.  1;  5  Jiir. 

Sm.  &  G.  227;  2  Jur.  N.  S.  565;  Levi  v.  455;    Faulkner   r.    Llewellyn,    10  W.    R. 

Jleiitage,  26  Beav.  560;  S.  C.  nu7ii.  Lever  506,  V.  C.  K.;   Gedve   v.  Duke  of  Mon- 

V.    Ileritiige,  5   Jur.   N.  -S.  215;    but  see  trose,  5  W.  R.  537;  S.  C.  26  Beav.  45,  47. 

Kenib.ill  v.  \Valduck,  1  Sm.  &  G.  27;  18  Where  the  plaintitl'  sued  nt  Law  ami  in 

Jur.  69,  V.  C.  S.,  where  tlie  dismissal  was  Equity  for  the  same  debt,  but  the  action 

without  costs.  was  di>missed  on  ])ayment  of  the  debt  and 

■■^  .Manson  v.  Burton,  1  Y.  &  C.  C.  C.  626.  costs  at  Law,  the  Court  ordered  the  suit  to 

3  Ld.  Ri-d.  249;  Carlisle  r.  Cooper,  3  U.  be  stayed  on  payment  of  costs  by  the  dc- 

E.  (Jreeti  (N.  J.),  241 ;  Liviiigston  v  Katie,  fendant.    Deane  v.  Uamber,  14  \V.  R.  167, 

a.John.  Ch.  224;  Sanger  v.  \Vood,i6.  410;  V.  C.  S. 

Rogers  f.  Vosburgli,  4  J<.hn.(,'h.)?4;  Gibbs  ^  Schftole  v.   Sail,   1  Sch.  &  Lef.  176; 

«.  I'erkiiison,  4  Hen.  &  .M.  415;  (utte,  (iU  Booth   v.    Booth,   2   Atk.  343;    Willes  v. 

note.     Wheie  tiu;  remedies  at  I^aw  and  in  Levett,  1  l)e  G.  &  S.  392. 

E(|nily  are  inconsistent,  any  ilecisive  act  o  3  Beav.  64. 

of   the    party,   under   either   jurisdiciion,  7  Fieters  i'.  Thompson,  (i.  Coop.  204. 

with   knowledge  of  liis  rijihts  and  of  the  *  Barker  v.   Dumare'-ciue,  2  Aik.   119; 

facti,  determines  his  election,     ijanger  u.  Seton,  949;  Annn.,  1  Vern.  104;  3  Atk. 

Wo'.d,  vbi  suprn;  see  Combs  v.   larlt^n,  129;  Triiuleslon  v.  Kenimi-',  LI.  «&  tJoold. 

2  B.  Mcin.  194;  «n/e,  p.  634,  note.    For  form  29;  .Mills   v.   I'ly,  G.  Coop.   107;   19   \es. 

of  order,  see  2  Seton   Dec.  {3d  ICng.  ed.)  277.     I'or  form  of  the  order,  see  3  Seton, 

947.  Dec.  (3d  Eiig.  ed.)  948. 

*  Currick  r.  Young,   4  Mad.  437;  Am- 


816 


DISMISSING   BILLS,    AND   STATING    rROCEEDINGS. 


C.  XIX.  §  4. 

^^ Y ' 

Time  wlion 
application 
for  oli'oliou 
order  may  be 
niiulo,  iiuJ 
how. 


Where  bill 
amended. 


mVhere  no 

answer 

required. 


Plea,  or  joint 
plea  and  an- 
swer will  not 
entitle  de- 
fendant to 
election 
order. 


Effect  of  the 
order. 


If  tlio  ik'lViulaiil's  ansAViT  is  not  oxcoptod  to,  or  set  down  for 
hearing  on  lonner  exceptions,  he  may,  on  an  allegation  that  the 
j>laintiff  is  prosecuting  liim  in  this  Court,  and  also  at  Law,  for  the 
same  matter,  obtain,  at  the  expiration  of  eight  days  after  his 
answer,  or  further  answer  is  tiled,  as  of  course,  on  motion  or  ])eti- 
tion,  the  usual  order  for  tlie  plaintiff  to  make  his  election  in  whicli 
•Court  he  w  ill  proceed.  If  his  answer  is  excepted  to,  he  may, 
by  notice  in  wiiting,  require  the  plaintiff  to  set  doAvn  the  excep- 
tions, within  four  days  from  the  service  of  the  notice ;  ^  and  if  the 
plaintii^'does  not  set  down  the  excej)tions  Avithin  such  four  days,  or 
if  they  are  not  allowed,  the  defendant  is  entitled  as  of  course,  on 
motion  or  petition,  to  obtain  the  usual  order  for  the  plaintiff  to 
make  his  election  in  Avhich  Court  he  will  proceed.^  Where  the 
plaintiff  has  amended  his  bill,  the  defendant  cannot  obtain 
the  order  to  elect  until  the  time  for  excepting  to  his  ansAver  to  the 
amendments  has  expired,  notwithstanding  the  time  for  excepting 
to  his  answer  to  the  original  bill  has  expired.^ 

If  the  defendant  is  not  required  to  answer,  he  may,  at  the  expi- 
ration of  the  time  within  which  he  might  have  been  served  with 
interrogatories  to  the  bill,  in  like  manner  obtain  a  similar  order  to 
elect.* 

"We  have  before  seen  that,  for  some  purposes,  a  jslea  is  included 
in  the  term  answer ;  ^  but  under  the  old  practice  it  was  decided, 
that  neither  a  plea  nor  a  joint  j^lea  and  answ^er  was  so  for  an 
answer  to  the  bill  as  to  entitle  a  defendant  to  move  for  an  order 
for  the  plaintiff  to  elect ;  ^  and  it  does  not  seem  that  there  is  any 
thing  in  the  present  practice  to  affect  this  decision. 

The  order  must  be  served  on  the  plaintiff  or  his  solicitor,  and 
attorney  at  Law ;  and  within  eight  days  after  such  service,  the 
plaintiff  must  make  his  election  in  which  Court  he  will  proceed ; ' 
and  if  he  elect  to  proceed  in  this  Court,  then  his  proceedings  at 
Law  are  thereby  stayed  by  injunction ;  but  if  he  elect  to  proceed 
at  Law,  or  in  default  of  his  making  his  election  within  the  specified 
time,  then  his  bill  from  thenceforth  stands  dismissed  out  of  this 
Court,  with  costs  to  be  taxed  by  the  Taxing  Master,  without  further 
order :  such  costs  to  be  paid  by  the  plaintiff  to  the  defendant.^    It 


1  For  form  of  notice,  see  Vol.  III. 

2  Ord.  XLII.  5,  6;  ante,  pp.  766,  767; 
Royle  V.  Wynne,  C  &  P.  '.^52,  255 ;  5  Jur. 
1002;  the  vacations  are  not  excluded.  Ord. 
XXXVn.  13.  For  form  of  order  to  elect, 
see  Seton,  947,  No.  1;  and  for  forms  of 
motion  paper  and  petition,  see  Vol.  III. 

3  Leicester  v.  Leicester,  10  Sim.  h7,  89; 
Affd.  lb.  'Jl,  n.;  3  Jur.  308. 

*  Ord.  XLII.  7;  and  see  Braithwaite's 
Manual,  loG,  n.  (5).  For  forms,  see  Vol. 
III. 

'  See  ante,  p.  690. 


6  Fisher  v.  Mee,  3  Mer.  45, 47 ;  Vaughan 
V.  Welsh,  Mos.  210. 

7  The  Court  will  allow  the  party  a  rea-' 
sonable  time  to  make  his  election.  Brocken 
V.  Martin,  3  Yerger,  55;    see  Houston  v. 
Sadler,  4   Stew.  &   Port.  130;  Rogers  v. 
Vosburg,  4  John.  Ch   84. 

8  See  the  order  in  Seton,  947,  No.  1; 
see  also  Boyd  v.  Heinzelman,  1  V.  &  B. 
381 ;  Mou^'lev  v.  Basnett,  i/>.  382,  n. ;  Jones 
V.  Earl  Strafford,  3  P.  Wms.  90,  n.  (B.); 
see  Livingston  v.  Kane,  3  John.  Ch.  224; 
Kogers  v.  Vosburg,  4  John.  Ch.  84. 


CASES    OF   ELECTION.  Sll 

is  not  the  practice  to  issue  an  injunction :  the  service  of  the  order  C.  XK.  §  4. 
being  sufficient.^  ' y    — ^ 

When  the  defendant  has  obtained  such  an  order,  the  phiiutiff  Application 

.        .  ,        to  discharge 

may  move,  on  notice  to  the  defendant,  to  discharge  it,  either  tor  order. 

irregularity  or  upon  the  merits  confessed  in  the  answer,  or  proved 

by  affidavit."-     If,  upon  such  a  motion,  there  should  be  any  doubt  Inquirj'  may 

as  to  whether  the  suit  in  Equity,  and  the  action  at  Law,  are  for  the 

same  matter,  it  is  the  usual  course  to  direct  an  inqiui-y  into  that  fact.^ 

In  the  event  of  such  an  inquiry  being  directed,  it  seems  that  all  Stay  of  pro- 

the  proceedings  in  both  Courts  are  stayed  in  the  mean  time,^  unless  pending' 

the  plaintiff  can  show  that  justice  will  be  better  done  by  permitting  mqu'ry. 

proceedings  to  some  extent :  in  which  case,  special  leave  will  be 

given  him  to  proceed.^ 

If  the  conmion  order  cannot,  under,  the  circumstances,  be  ob-   Special 
tained,  it  seems  that  the  Court  will,  if  necessary,  make  a  special  ^^^|e*ct!'°° 
order,  and  grant  an  injunction  in  the  mean  time.^ 

The  election  must  be  in  writing,  and  signed  by  the  plaintiff  or  iMannerof 
his  solicitor,^  and  be  filed  at  the  Report  Office ;  and  notice  thereof  '^^*^'=^'"S- 
must  be  given  to  the  defendant's  solicitor :  who  thereupon  obtains 
an  office  copy.^ 

Tlie  dismissal  of  the  bill,  in  consequence  of  an  election  by  the  Dismissal, 
plaintiff  to  proceed  at  Law,  cannot  be  pleaded  m  bar  to  anotJiei-  cannot  be 
suit  for  the  same  matter.^  £'^'^'^  ^ 

If  the  plaintiff  requires  further  time  to  make  his  election,  he  Further  time 
must  a])ply  to  the  Court  by  motion,  on  notice,  to  have  the  time  obt^jJl'i^g^.^"^^ 
enlarged. ^'^ 

After  decree,  it  is  not  the  practice  to  make  an  order  to  elect ;  After  tlf.cree, 
but  the  plaintiff  will  be  restrained,  on  the  motion  of  the  defendant,  not  be  put  to 
from  proceeding  in  another  Court,  in  respect  of  the  same  matter :  '^^^!^h  ''"'■ 
even  though  such  proceedings  are  merely  auxiliary  to  the  proceed- 
ings in  P^quity." 

If  the  plaintiff  elect  to  proceed  in  Equity,  the  defendant  will  Costs,  on 
either  be  allowed  to  recover  the  costs  of  the  action  in  the  Court  of 

1  Braithwaite's  Pr.  229 ;  see  Fenninps  ^  for  forms  of  election  and  notice,  see 
V.  Humphery,  4  Beav.  1,  7,  8;  5  Jur.  455.  Vol.  III. 

2  <jrd.  XJ'lJ.  8.  For  form  of  notice  of  '••  Countess  of  Plymouth  v.  Bladoii,  2 
motion,  sec  Vol.  III.  Vern.  32.» 

3  Mousley  v.  Biisnett,  1  V.  &  B.  382,  i"  For  form  of  order  enlarjjing  the  time, 
n. ;  iind  for  form  of  order  for  inquiry,  see  see  Setoii,  948,  No.  2;  and  for  form  of 
Seton,  948,  No.  3.  notice  ot  motion,  see  Vol.  III. 

*  Mills  t!.  Fry,  3  Ves.  &  B.  9;  Anon.,  2  u  Wilscu   v.    Wetiierlierd,  2  Mer.    406, 

Mad.  395.          "  408;  Frank  t).  Basnctt,  2  M.  cV:  K.  C18, 020; 

6  Amory   r.    Brodrick,   Jac.    630,  533;  Weddcrburn  r.  Wcdderburn,  2  Beav.  208, 

Cnrwick  v.  Young,  2   Swanst.  239,  243;  213;  4.lur.  UU;  4  M.  &  C.  685,  590;  Phelps 

Mou.sley  v.    Basnctt,  M  sup.;  sec,  how-  v.  I'rothcro,  7  I)c  G.,  M.  &  G.  722;  2  Jur. 

ever,  Fennings  v.  llmnphcrj',  4  Beav.  1,  N.  S.  173.     Going  in   umlcr  an  aJniinis- 

8;  6  Jur.  456.  trution  decree  to  prove  a  doht,  is  not  such 

8  Hogue  V.  Curtis,  1  J.  &  W.  449.  an  election  to  proceed  in  K(|uity  as  |)re- 

''  Ord.  III.  1.  vents  an  iiction  at  Law.    Sexton  v.  Smith, 


3  De  G.  &  S.  094. 


62 


318  DISMISSING   BILLS,    AND    STAYING   rilOCEEDINQS. 

(\  XIX.  §  4.    LaAv,^  or  the  plaintift'will  be  dircoted  by  tlie  Court  of  Clumcery  to 

' Y ^    pay  tliein ;  -  and  it"  he  ehn't  to  jtroceed  at  Law,  tlie  bill  is,  as  we  have 

seen,  by  tlie  order  dismissed  with  costs.'' 

1  Simpson  r.  Siuld,  3  W.  li.  191,  L.  C;  2  See  Carwiclt  v.  Young,  2  S\vanst.239, 

SCO  also  S.  C.  10  r.  H.  2G;  1  Jur.  N.  S.  242. 

73G;  and  Movtimore  v.  Soarcs,  5  Jur.  N.  8  Ante,  p.  81G. 
S.  674,  Q.  B. 


CHAPTER   XX. 


MOTION  FOR   A   DECREE. 


At  any  time  after  the  expiration  of  the  time  allowed  to  the 
defendant  for  answering,^  but  before  replication,  the  plaintiff  may- 
move  the  Court  for  such  decree  or  decretal  order  as  he  may  think 
himself  entitled  to.-  Of  this  motion,  one  month's,  or  twenty-eight 
days'  notice  must  be  given  to  the  defendant.^ 

If  further  time  is  granted  to  the  defendant  for  pleading,  answer- 
ing, or  demurring,  the  plaintiff  cannot  move  for  a  decree  until  such 
ftirther  time  has  expired;*  and  where  "there  are  several  defendants, 
and  the  plaintiff  is  in  a  position  to  serve  a  notice  of  motion  for  a 
decree,  or  to  file  replication,  or  set  down  the  cause  on  bill  and  an- 
swer, as  to  some  of  them,  but  the  time  for  so  doing  as  to  the 
others  has  not  arrived,  he  should,  to  avoid  an  apj^lication  to  dismiss 
the  bill  for  want  of  prosecution,^  obtain  further  time,  on  special 
summons,  to  serve  the  notice  or  file  the  replication.^ 

The  filing  of  a  traversing  note  against  a  defendant,  does  not 
preclude  the  plaintiff"  from  moving  for  a  decree.'' 

Where,  at  the  hearing,  a  cause  was  ordered  to  stand  over  for 
the  purpose  of  adding  parties  by  amendment,  the  cause  was 
allowed  to  be  heard  on  motion  for  decree  against  the  new  defend- 
ants :  though  repUcation  had  been  filed  against  the  original 
defendants.^ 

An  order  of  course  to  amend  the  bill  may  be  obtained  after 
notice  of  motion  for  a  decree  has  been  served,  but  before  it  has 
been  set  down :  although  the  defendant  has  filed  affidavits  in 
opposition.^ 


1  Or,  by  consent,  before  the  expiration 
of  the  time.  IJraithwaite's  I'r.  429.  For 
form  of  consent,  see  Vol.  111. 

•■i  15  &  10  Vic.  c.  m,  §  15.  If  the  plain- 
tifl'  moves  for  a  (iecree,  replication  need 
not  afterwards  be  filed.  Dudield  v.  Sturges, 
y  Hare  Ap.  87;  lilake  v.  Cox,  1  W.  R. 
124,  V.  C.  \V. 

8  Ord.  XXXIII.  4;  XXXVII.  10. 

*  15  &  10  Vic.  c.  bO,  §  13. 

''  See  iiTite,  p   8<il  it  stq. 

0  Ord.  X  X  X  \  1 1.  17.  For  form  of  sum- 
mons, sec  Vol.  III. 


"When  it  may 
be  made: 


one  month's 
notice 
required. 
Where 
further  time 
granted  for 
defending. 
Further  time 
to  serve  the 
notice. 


Wliere 
traversing 
note  has  been 
filed. 

Cause  may 
be  heard  on 
motion  for 
decree  as  to 
defendants, 
added  at^er 
replication. 
Order  of 
course  to 
amend  bill, 
after  service 
of  notice. 


■^  Manii're  v.  Leicester,  Kay  Ap.  48;  18 
Jur.  320;  5  De  G.,  M.  &  G.  75;  Jones  v. 
Howell,  3  W.  K.  559,  V.  C  W.  As  to 
traversing  notes,  see  nnte,  p.  513,  tt  seq. 
The  causes  of  Gohegsin  t'.  Uarlnw  {lhG3, 
G.  132),  and  Leite  v.  Vicini  (li<03,  L.  40), 
were  set  down  on  motion  for  decree  as  to 
some  of  the  defendiints,  and  on  orders  to 
take  the  h'lW  pro  cuiifesso  as  to  others. 

8  Gw^'OM  V.  Gwyon,  1  K.  &  J.  211. 

«  Gill  t'.  Kayner,  1  K.  &  J.  395. 


820 


MOTION   FOR   A    DECREE. 


r.  XX. 

Form  of 
notice. 


Son-ice  out 
of  the 

jurisiliction: 
onior  for.  how 
obtained. 

Fomi. 


Notice  of  mo- 
tion cannot  1)6 
Gazetted,  as 
suljstitiited 
service. 


Notice  of  mo- 
tion admits 
sufficiency  of 
answer. 


Tlio  form  (if  iiotico  of  motion  for  doofoo  commonly  adopted  is 
to  the  I'tVort,  that  tlu'  Court  will  Ix.'  movi'd  for  a  dtHTOO,  "according 
to  the  ))raycr  of  tlio  jilaintitfs  bill;''''  .nnl  where  this  form  is  used 
the  plaintiff  is  entitled  to  have  the  same  relief  as  he  miglit  have 
liad  if  the  ca\ise  had  hetii  brought  to  a  hearing  in  the  ordinary 
w:iy.^ 

The  notice  of  motion  may  be  served  out  of  the  juiisdiction  ;  but 
;in  order  allowing  this  to  be  done  is  necessary.^  Such  an  order 
m.iy  be  obtained  on  an  <xc  joarfe  motion  or  summons,  supported  by 
an  ntHdavit  shoAving  where  the  defendant  is  resident,  or  may 
jirobably  be  found.'^  In  such  a  case,  the  order  giving  leave  to  serve 
the  notice  out  of  the  jurisdiction  must  s]K'cify  the  time  alloAved 
for  filing  affidavits  in  answer  and  reply,  and  must  be  drawn  up  and 
served  with  the  notice  of  motion ;  *  and  the  notice  of  motion  must 
be  given  tor  a  day  sufficiently  distant  to  include  the  whole  time 
limited  for  service,  and  the  times  limited  for  the  defendant  to  file 
affidavits  in  answer,  and  the  plaintiff  to  file  affiMavits  in  reply,  and 
so  as  to  allow  the  defendant  proper  time  to  obtain  copies  of  the 
plaintiff's  affidavits  in  support  and  in  reply.  These  times  must, 
therefore,  be  regulated  by  the  place  where  the  service  is  to  be 
effected.^  In  some  cases,  the  order  giving  leave  to  effect  the  ser- 
vice has  directed  copies  of  the  plaintiff's  affidavits  in  support  of 
the  motion  for  decree  to  be  served  with  the  notice ;  ®  but  it  seems 
this  cannot  be*  required.'^ 

Where  an  application  was  made  to  the  Court  for  leave  to  adver- 
tise in  the  Gazette  a  notice  of  motion  for  a  decree,  against  an 
absconding  defendant,  for  whom  an  appearance  had  been  entered,* 
it  was  refused  by  Sir  John  Romilly  M.  li. :  who  observed,  that  the 
6th  Rule  of  the  lUth  Consolidated  Order  had  no  a])})lication  to 
such  a  case ;  but  he  gave  leave  to  advertise  the  tiling  of  replication 
in  the  Gazette.^ 

By  giving  notice  of  motion  for  a  decree,  the  plaintiff  abandons 
his  claim  to  a  further  answer:  although  the  answer  has,  upon  ex- 
cej)tions,  been  held  insufficient.-^" 

The  plaintiff  and  defendant  respectively  are  at  liberty  to  file 
affidavits  in  support  of,  and  in  opposition  to,  the  motion ;  and  to 


1  Norton  v.  Steinkopf,  Kay,  45;  26.  Ap. 
10.     For  form  of  notice,  see  Vol.  III. 

2  Meek  v.  Ward,  10  Hare  Ap.  55;  1  W. 
R.  504;  and  see  Jliddleton  v.  Cliichester, 
1  N.  R.  255,  M.  R. 

3  Fur  form  of  order,  see  Seton,  1246, 
No.  11 ;  and  see  ib.  1247 ;  and  for  torms  of 
motion  paper,  summons,  and  affidavit,  see 
Vol.  III. 

■*  Meek  v.  Ward,  nbi  sup. ;  Seton,  28, 
1247;  as  to  evidence  of  the  service,  see 
Mendes  v.  Guedalla,  5  L.  T.  N.  S.  308,  V. 
C.  W. 


6  Seton,  28,  1247,  where  a  list  of  times 
is  given. 

<>  Meek  v.  Ward,  10  Hare  Ap.  55. 

1  Seton,  28,  1247;  and  for  form  of  order 
containing  such  direction,  see  Seton,  1246, 
No.  11. 

s  Under  Ord.  X.  6. 

0  Lechmere  v.  Clapp,  29  Beav.  259;  see 
2)ost,  pp.  831,  832. 

10  Boyse  v.  Cokell,   18  Jur.  770,  V.  C. 
W. 


MOTION   FOR   A   DECREE. 


821 


use  the  same  on  the  hearing  thereof.^  The  evidence  in  chief  on 
such  motion  is  ordinarily  taken  upon  affidavit ;  ^  and  where  motion 
is  made  after  answer  filed,  the  answer  is,  for  the  purposes  of  tlie 
motion,  to  be  treated  as  an  affidavit ;  ■  and  the  plaintiff  has  been 
allowed  to  cross-examine  the  defendant  thereon.* 

The  plaintiff  must  file  his  affidavits,  in  support  of  the  motion 
for  decree,  before  he  serves  the  notice,  and  must  set  forth  a  list  of 
the  affidavits  he  intends  to  use  at  the  foot  of  the  notice."  Where 
an  answer  has  been  filed,  the  i:)laiutiff  may  read  it  on  the  motion 
against  the  defendant  by  whom  it  was  filed,  without  giving  any 
notice  of  his  intention  to  do  so;  but  he  cannot- read  it  against  any 
other  defendants,  unless  he  has  included  it  in  the  list  at  the  foot 
of  his  notice  of  motion.*^ 

The  defendant  must  file  his  affidavits,  in  support  of  his  defence, 
within  fourteen  days  after  ser^dce  of  the  notice  of  motion,  and 
deliver  to  the  plaintiff  or  his  solicitor  a  Ust  thereof^ 

The  time  for  filing  the  defendant's  affidavits  Avill,  however,  be 
enlarged,  on  special  apjilication  to  the  Judge  in  Chambers,  by 
summons,^  where  a  sufficient  reason  is  shown  for  so  doing ;  ®  but 
the  desire  of  the  defendant  to  cross-examine  the  plaintiff's  wit- 
nesses on  their  affidavits,  before  filing  his  own,  on  the  ground  that 
by  so  doing  it  might  not  be  necessary  for  him  to  file  any,  is  not  a 
sufficient  reason.^*^ 

Where  the  defendant  is  seiwed  out  of  the  jurisdiction,  the  special 
order  allowing  such  seiwice  will,  as  we  have  seen,^-^  fix  the  time 
within  which  the  defendant's  affidavits  are  to  be  filed ;  but  further 
time  may,  in  a  proi)er  case,  be  obtained  on  special  ajoplication  by 
summons  at  Chambei's. 

If,  after  the  times  allowed  for  filing  affidavits  have  elapsed,  it  is 
desired  to  file  an  affidavit,  or  a  further  affidavit,  an  order  for  leave 
to  do  so  will  be  necessary.  Such  order  may  be  obtained  on  a 
special  application  by  summons,^'^  supported  by  an  affidavit  showing 
a  case  for  the  indulgence ;  and  the  applicant  will  usually  have  to 
pay  the  costs  of  the  application. 


1  15  &  IG  Vic.  c.  80,  §  15. 

2  See /x«/,  Chap.  XXn.  §  10,  Ajfi'flnviCs 
for  general  rales  as  to  the  form,  and  mode 
of  fnmiinf?  aflidavits. 

3  15  &  10  Vic.  c.  86,  §  15.  SemlAe,  an 
answer  put  in  by  a  deceased  defendant 
cannot  be  rend.  Moore  v.  Harper,  1  W. 
N.56;  14  W.  It.  .300,  V.  C.  W. 

*  WiKlitman  v.  Wlicclton,'.i.'J  IJcav.  397; 
3.Jur.  N.  S.  124;  Keliden  v.  Wesley,  26 
Beav.  432;  lirumfit  v.  Hart,  'J  Jur.  N.  S. 
12;  11  W.  U.  53,  V.  C.  S.;  and  see  post, 
p.  822. 

''  Ord.  XXXIII.  5,  see  form  of  notice. 
Vol.  II  r. 

0    Cousins  V.   Vascy,   t»  Hare  Ap.  01; 


Dawkins  v.  Mortan,  1  J.  &  H.  339;  Ste- 
phens «.  Heathcote,  1  Dr.  &  S.  138;  6  Jur. 
N.  S.  312. 

7  Ord.  XXIII.  6.  As  to  the  defences 
■which  m;iy  be  set  u[),  where  an  answer  has 
not  been  tiled,  see  ante,  pp.  056,  71"2;  and 
Creen  v.  Snead,  30  Heav.  231;  S.  U.  nom. 
Snoad  v.  (Jreon,  8  .lur.  N..S.  4. 

"  For  form  of  summons,  see  \i)\.  III. 
0  Onl.  XXXlll.  17,  18;  Marchioness  of 
Londonderry  v.  IJramwell,  3  K.  &.  J.  102. 

1"  llwl. 

11  Ante,  p.  820. 

Vi  Ord.  XXXVII.  17,  18.  For  form  of 
sumuions,  see  Vol.  III. 


C.  XX. 


Kvidence  on 
motion  for 
decree ; 
usually  by 
affidavit. 

Plaintiff's 

affidavits: 

when  to  be 

tiled; 

When  answer 

may  be  read 

by  plaintiff. 


Defendant's 
affidavits : 
when  to  be 
filed; 

enlarged 
time:  how 
obtained. 


Where 
defendant 
served  out  of 
the  jurisdic- 
tion. 


Leave  to  file 
affidavits, 
after  time 
elapsed. 


822 


MOTION   FOR   A    DECREE. 


('.  XX. 


Enlarged 
time:  how 
obtained. 


Notice  to 
Regii^trar  of 
enlargement 
of  time; 

how  given. 


Where  time 
expires  in 
the  long 
vacation. 


No  further 
evidence 
without 
leave,  except 
cross-exam- 
inations. 


If  llio  (lofendnnt  desires  to  read  his  own,  or  a  co-defendant's 
answer  in  supiiort  oi'  Iiis  ease,  lie  nmst  give  notice  thereof  to  tlie 
I'laiiitillV  hilt  it"  the  plaint itt' reads  ])art  of  a  delendant's  answer 
auaiiist  him,  without  notice,  the  defendant  may  read  the  whole  of 
his  answer,  without  notice.'- 

The  defendant  having  tiled  his  atlidavits,  the  ]>laintifr  has  seven 
♦lays  from  (he  ex})iration  of  the  fourteen  days,  or,  if  (he  time  has 
been  enlarged,  from  the  expiration  of  such  eidarged  time,^  within 
which  he  may  file  affidavits  in  reply:  which  affidavits  must  be 
confined  to  matters  strictly  in  re])ly.  The  jdaintitF  must  deliver  a 
list  of  these  affida\"its  to  the  defendant  or  his  solicitor;^  and  except 
so  fiir  as  such  afiidavits  are  in  rejily,  they  will  not  bo  regarded  by 
the  Court,  unless,  upon  the  hearing  of  the  motion,  the  Court  gives 
the  defendant  leave  to  answ^er  them:  in  which  case,  unless  the 
Court  otherwise  directs,  the  plaintiff  is  to  pay  the  costs  of  such 
affidavits,  and  such  further  affidavits  in  answer.*^  The  time  can, 
however,  be  enlarged  by  the  Judge  in  Chambers,  on  a  special  ap- 
plication by  summons.® 

Where  either  the  time  for  the  defendant's  filing  his  affidavits,  or 
for  the  plaintiff's  filing  his  affidavits  in  re]>ly,  is  enlarged,  notice 
thereof  is  to  be  given  to  the  Clerk  of  Records  and  Writs  by  pro- 
duction of  the  order  for  such  enlargement.'^  Such  notice  is  ordi- 
narily given  by  producing  to  the  Order  of  Course  Clerk  the  order 
enlarging  the  time,  and  he  will  thereni)on  make  a  note  of  such 
enlargement,  opposite  the  entry  of  the  notice  of  motion  in  the 
cause  list. 

Where  either  the  fi^urteen  days  for  the  defendant's  filing  his 
affidavits,  or  the  seven  days  for  the  plaintiff's  filing  his  affidavits 
in  rej^ly,  expire  in  the  Long  Vacation,  the  time  is  extended  to  the 
fifth  day  of  the  ensuing  Michaelmas  Term,  and  Avill  expire  on  that 
day,  unless  enlarged  by  order;  and  if  the  fi>urteen  days  are  thus 
extended,  the  seven  days  commence  to  run  from  the  expiration  of 
such  extended  period.^ 

No  furtiier  evidence,  on  either  side,  will  be  allowed  to  be  used 
on  the  hearing  of  the  motion  without  leave  of  the  Court,®  except 

7  Ord.  22  Nov.,  1866,  r.  5. 

8  Ord.  XXXVII.  15.  A  doubt  has 
arisen  whether  this  rule  applies  to  a  case 
where  the  fourteen  days,  or  the  seven 
days,  are  enhirged  before  the  Long  Vaca- 
tji^n  to  a  day  occurring  in  the  Vacation; 
see  Morgan,  553,  and  Clark  v.  Malpas, 
there  cited,  and  see  Braithwaite's  Manual, 
167,  n.  (46). 

9  Ord.  XXXIII.  8.  For  cases  in  which 
special  leave  was  given,  see  Watson  v. 
Cleaver,  20  Beav.  137;  1  .Jur.  N.  S.  270; 
and  Richards  v.  Curlewis,  18  Beav.  462, 
where  it  was  held,  that  the  application 
must  not  be  ex  parte. 


1  Stephens  v.  Heathcote,  1  Dr.  &  S. 
138;  6  .Jur.  N.  S.  312,  and  see  Barrack 
V.  M'CuUock,  3  K.  &  J.  110;  Rushout  v. 
Turner,  1  Dr.  &  S.  140,  n. ;  Wightman  v. 
Wheelton,  23  Beav.  397;  3  ,Iur.  N.  S.  124. 
For  form  of  notice,  see  Vol.  III. 

2  Stephens  v.  Heathcote,  uhi  sup. 

3  Where  the  defendant  is  served  out  of 
the  jurisdiction  with  the  notice,  the  time 
to  reply  will  be  regulated  by  the  service 
order;  see  ante,  p.  810. 

*  For  form  of  li-t,  see  Vol.  III. 

5  Ord.  XXXIII.  7. 

6  See  Ord.  XXXVII.  17,  18.  For  form 
of  summons,  see  Vol.  III. 


MOTION   FOR  A  DECREE. 


823 


tlie  cross-examinations  of  such  witnesses  as  have  been  cross- 
examined.^ 

All  %vitnesses  who  have  made  affidavits,  either  on  behalf  of  the 
plaintiff  or  the  defendant,  are  Uable  to  cross-examination ;  -  and  the 
party  desu'ing  to  cross-examine  any  of  them,  may,  at  any  time 
before  the  expiration  of  fourteen  days  next  after  the  end  of  the 
time  allowed  for  the  plaintiff  to  file  affidavits  in  reply,  or  within 
such  time  as  the  Court  or  Judge  in  Chambers  may  specially  ap- 
point,'' give  notice  in  writing*  to  the  party  on  whose  behaif  the 
affidavit  is  filed,  or  his  solicitor,  to  j^roduce  the  witness  for  cross- 
examination  before  the  examiner ;  and  unless  "the  witness  is  pro- 
duced accordingly,  the  affidavit  cannot  be  used  as  evidence,  without 
special  leave  of  the  Covu-t.^  The  plaintiff  is  entitled  to  cross- 
examine  any  defendant  upon  his  answer;*^  and  w^here  the  plaintiff 
gives  notice  of  his  intention  to  use  a  defendant's  answer  against  a 
co-defendant,  the  co-defendant  may  cross-examine  upon  the  an- 
swer ; '  and  where  a  defendant  gives  notice  to  use  his  or  a 
co-defendant's  answer  against  the  plaintiff,  he,  or  the  co-defendant, 
as  the  case  may  be,  may  be  cross-examined  by  the  plaintiff:  ^  the 
answer  in  such  cases  being  treated  as  an  affida\'it.  And  even 
where  the  plaintiff  had  given  notice  to  iise  the  defendant's 
answers  as  affidavits,  in  support  of  his  motion  for  a  decree,  he  was 
allowed  to  cross-examine  the  defendants  on  the  answers,  without 
prejudice  to  the  right  of  the  other  defendants  to  object  to  the 
cross-examination  being  used  against  them ;  ^  but  when  no  notice 
is  given  of  the  intention  to  read  the  answer  of  the  defendant,  and 
it  is  read  as  an  admission,  and  not  as  an  affidavit,  he  cannot  be 
cross-examined  upon  it.-'" 

According  to  the  practice  introduced  by  the  Order  of  5th  Feb., 
1861,  it  seems  that  all  the  evidence  in  chief  on  motions  for  decree 
must  be  taken  by  affidavit.^^  The  Court  has,  however,  power,  it  is 
presumed,  in  any  case,  upon  special  application,  to  order  the 
evidence  of  any  particular  witness  or  witnesses  to  be  taken  viva 
voce.  Such  an  a|)plication  could  only  be  made  on  the  part  of  the 
defendant,    as   the   plaintiff  would,  of  course,   ascertain,   before 

Beav.  432 ;  Bnmifit  v.  Hart,  9  Jur.  N.   S. 
12;  11  W.  K.  63,  V.  C.  S. 

7  Itehtlen  v.  Wesley,  nnd  Wiglitnian 
V.  Wlieeltoii,  nhi  sup. ;  Dawkins  v.  Mor- 
tal!, 1J.&  H.  339. 

8  See  Itehden  v.  Wesley,  and  Wiglitmai 
V.  Wheelton,  vlfi  sup. 

"  Rehden  v.  Wesley,  wi/  sup. 

1*  See  Dawkins  v.  Mortan,  1  J.  &  H 
339,  341 ;  (.'ousins  v.  Vasey,  9  Haro  Ap. 
61;  Stevens  v.  Ileathcote,  1  Dr.  &  8.138, 
6  Jur.  N.  S.  312. 

U  SeeOrd.6  IVl).,  IPOl,  particularly  r. 
19,  and  see  Smith  v.  Haker,  4  N.  K.  321, 
V.  C.  W.;  2  11.  &  M.  498. 


C.  XX. 


Cross-exam- 
ination of 
witnesses : 
Notice  to 
produce 
deponent. 


Cross-exam- 
ination of  de- 
fendant upoa 
his  answer. 


I  Bedwell  r.  Prudence,  1  Dr.  &  S.  221, 
223. 

'■*  15  &  16  Vic.  c.  86,  §  40;  Williams  v. 
Williiinis;  17  Beav.  150;  17  .Jur.  434. 

8  riie  application  is  usually  made  by 
gumniriils;  for  a  form,  see  Vol.  III. 

*  lor  a  form,  see  Vol.  III. 

6  Ord.  5  Feb.,  1801,  r.  19.  As  to  tlie 
conrne  to  be  [)ur-ued  by  eillior  party  after 
»ucli  notice,  see  post,  C'liap.  XXII.  §  10, 
AffifliiviU,  and  Braithwaite's  Manual,  178, 
n.  (85). 

«  Wiffhtman  v.  Wheelton,  23  Beav.  397; 
3  Jur.  N.  S.   124;  Hehden  v.  Wesley,  20 


Wliether 
evidence  in 
chief  can  be 
taken  orally, 
on  motion  for 
decree. 


824 


MOTION    FOR   A    DECREE. 


r.  XX. 


Cross-cxnin- 
inntidii  on 
iittiilavits: 
how  taken. 
Time  for 
crossH?xam- 
ininy. 

Suit  and 
cross-suit. 


Subpoena 
duces  tecum. 


Setting  down 
motion. 


sorviiii;-  his  notioo  of  motion  tor  a  decree,  ■whether  it  was  necessary 
or  desirable  to  ex.nniine  any  M-itness  on  his  beluilf  orally,  and  if  so, 
would  l>rino-  the  cause  to  a  hearin<>-  in  the  ordinary  way,  insteatl  of 
servin-r  the  notice.  Ix-fore  the  Order  of  Oth  February,  18G1,  it 
seems  to  lime  Itren  thought,  that  the  evidence  in  support  of  a 
motion  for  <leeree  might  be  taken  orally,  by  specifying  the  names 
of  the  witnesses  to  be  examined,  in  the  notice  of  motion,  and 
sununouing  them  before  the  examiner;^  but,  whether  this  could 
then  have  been  done  or  not,  it  is  conceived  that  it  cannot  be  done 
uiitKr  the  j)resent  practice. 

The  cross-examwiation  of  witnesses  on  their  affidavits  must,  on 
motion  for  decree,  be  taken  before  the  examiner;^  the  Court  has, 
however,  ])ower  to  order  it  to  be  taken  viva  voce  at  the  hearing." 
No  time  has  been  limited  for  the  cross-examination,  but  it  must,  it 
seems,  take  place  within  a  reasonable  time.^ 

Where  a  suit  is  brought  on  by  motion  foi-  decree,  and  replication 
has  been  filed  in  a  cross-suit,  and  the  plaintiff  in  the  original  suit 
has  obtained  an  order  for  leave  to  use,  in  the  cross-suit,  the  affida- 
vits filed  in  the  original  suit,  the  plaintiff  in  the  cross-suit  may 
either  treat  the  affidavits  filed  in  the  cross-suit  as  if  they  were 
filed  in  the  original  suit,  and  give  notice  to  cross-examine  the  wit- 
nesses before  an  examiner,  or  he  may  treat  them  as  evidence  filed 
in  the  cross-suit,  and  give  notice  of  cross-examination  in  open 
Court  at  the  hearing.'' 

A  si(bpce)ui  duces  tecwn,  for  the  production  of  a  Avill  or  other 
document  at  the  hearing  of  a  motion  for  a  decree,  may  be  issued,® 
and,  it  seems,  as  of  course.'' 

Motions  for  decree  are  set  down  with  the  Registrar  in  the  cause- 
book,  with  the  causes,  and  come  on  accordingly,  unless  the  Court 
otherwise  directs.^  1'bey  must  be  set  down  within  one  week  after 
the  expiration  of  the  time  allowed  to  the  plaintiff  for  filing  his 
affidavits  in  reply,  in  case  the  defendant  has  filed  any  affidavit,  or 
within  one  week  after  the  expiration  of  the  time  allowed  to  the 
defendant  to  file  his  affidavits  in  answer,  in  case  the  defendant 
has  not  filed  any  affidavit ;  but  in  case  the  time  allowed  for  either 
of  the  purposes  aforesaid  shall  be  enlarged,  then  within  one  week 
after  the  expiration  of  such  enlarged  time."     In  order  to  set  down 

1  Pellatt  V.  NichoUs,  24  Beav.  298 ;  Reh- 
den  V.  Wesley,  26  Beav.  432,  and  see  15 
&  IG  Vic.  c.  S6,  §  40;  and  Williams  i'. 
Williams,  17  Beav.  150;  17  .lur.  4.34. 

2  Ord.  .5  Feb.,  1861,  r.  19;  Bodger  v. 
Bodger,  11  W.  R.  80,  V.  C.  K.  For  mode 
of  taking  the  cross-exHrnination,  see  post, 
Chap.  XXII.  §  10,  Affidavits. 

3  See  1.5  &  16  Vic.  c.  86,  §  39. 

4  Bedwell  v-  Prudence,  1  Dr.  &  S.  221; 
Morey  v.  Vandenbergh,  1  W.  N.  197,  V. 
C  o. 


5  Neve  V.  Pennell,  1  H.  &  M.  252. 

6  Wigram  v.  lidwland,  10  Hare  Ap.  18; 
Kaworth  v.  Parker,  2  K.  &  .1.  163.  For 
form  oi'  sahpnmn,  see  Vol.  III. 

7  Wilhem  V.  Reynolds,  8  \V.  R.  025,  V. 
C.  K. 

8  Ord.  xxxrir.  9. 

9  Ord.  22  Nov.,  186G,  r.  2.;  see  Bovd  v. 
Jaggar,  17  .Jur.  055;  10  Hare  Ap.  54,  L.  C. 
&  L.  JJ. 


MOTION    FOR   A    DECREE. 


525 


a  motion  for  decree,  the  Record  and  Writ  Clerk's  certificate  that 
the  cause  is  in  a  fit  state  to  enable  the  plaintifi"  to  move  for  a 
decree,  indorsed  by  the  plaintifl^'s  solicitor  with  a  memorandum 
of  the  date  when  the  notice  was  served,  and  when  it  will  expire, 
and,  if  there  be  any  infant  defendant,  stating  that  a  guardian  ad 
litem  has  been  appointed,  or,  if  there  be  not,  stating  that  there  is 
not  any  infant  defendant,  must  be  produced  at  the  order  of  course 
seat  in  the  Registrar's  office.^  The  certificate  is  not  to  be  given  until 
after  the  expiration  of  the  time  allowed  to  the  plaintiff  to  file  his 
afiidavits  in  reply,  in  case  the  defendant  shall  have  filed  any  afli- 
davits,  or  until  after  the  expiration  of  the  time  allowed  to  the 
defendant  to  file  his  affidavits  in  answer,  in  case  the  defendant  has 
not  filed  any  affidavit ;  but  in  case  the  time  allowed  for  either  of 
the  purposes  aforesaid  shall  be  enlarged,  then  not  until  after  the 
expiration  of  such  enlarged  time.^  After  the  expiration  of  the  week, 
the  motion  M'ill  not  be  set  do^vii  without  the  consent  in  writing 
of  the  defendant's  solicitor.^  If  the  plaintiff  fails  to  set  down  the 
motion  within  the  time  above  limited,  the  defendant  may  either 
move  to  dismiss  the  bill  with  costs,  for  want  of  prosecution,  or  set 
the  motion  down  at  his  own  request.* 

In  a  proper  case,  a  motion  for  decree  may  be  marked^  and 
heard  as  a  short  cause ;  ^  and  it  will  be  so  marked,  on  production 
of  the  certificate  of  the  plaintiff's  counsel  that  the  motion  is  fit  to 
be  so  heard,  without  the  consent  of  the  solicitors  of  any  of  the 
defendants ;  but  notice  of  the  cause  having  been  so  marked,  must 
be  given  to  the  defendant ;  "^  and  the  motion  will  not  be  heard 
before  the  day  for  Avhich  notice  is  given,  except  by  consent  of  all 
parties.^ 

If  a  motion  for  injunction  is,  by  consent,  turned  into  a  motion 
for  decree,  it  should  be  set  down  "  by  order,"  that  the  month's 
delay  may  be  saved.^ 

All  affidavits  and  depositions  to  be  used  on  the  hearing  of  the 
motion  must  be  jtrinted,  under  the  regulations  hereafter  explained.^" 

Two  printed  copies  of  the  bill,  and  of  each  of  the  answers,  must 
also  be  left  with  the  Train-bearer  of  the  Master  of  the  Rolls,  or 


c.  XX. 


1  Reg.  Regul.  loth  Mar  ,  ISfiO,  r.  6 ;  and 
see  Boyd  v.  .laggar,  itbi  sn/i.  For  forms  of 
certilicatc  and  mumoraiulntn,  see  Kefj- 
Kegul.  15  .Mar.,  1860,  r.  G,  and  Vol.  III. 
The  certificate  of  the  Recurd  and  Writ 
Clerk  will  not  be  granted  before  the  ex- 
piration of  the  time  for  answering,  unless 
a  written  consent  Ity  the  di-lendant's  .solic- 
itor i»  left  with  him.     For  a  form,  see  Vol. 

iir. 

-  ()Ti\.  22  Nov.,  18f36,  r.  4. 

3  For  a  form  of  consent,  see  Vol.  HI. 

*  Ord.  22  Nov.,  1800,  r.  3. 

6  Ames  V.  Ames,  10  Hare  Ap.  54;    17 


Jur.  G(J4;  Drew  c.  Long,  17  Jiir.  17.3,  V. 
C.  K. ;  see /;os<,  Chap.  XXV.,  Hearing 
Causes. 

G  Recr.  Rcgul.  1,")  Mar.,  1800,  r.  10.  For 
form  of  certificate,  see  Vol.  III. 

T  Molesworth  V.  Snead,  11  W.  R.  9.34, 
V.  C.  W. 

8  Ibid.;  Loinsworth  »^  Rowley,  10  Hiire 
Ap.  56.     For  form  of  consent,  see  Vol.  III. 

«  (irccn  ?'.  Low,  22  Beav.  396.  The 
Record  and  W'rit  Clerk's  certificate  will  be 
required  in  such  case. 

w  Ord.  10  May,  1802;  post,  Ch.  XXII 
§  10,  AJ/iJavils. 


Motion  may 
be  heard 
short;  and, 
by  consent, 
before  the 
month 
expires. 


Where 
motion  for 
injunction 
turned  into 
motion  for 
decree. 
Printing 
evidence. 
Papers  for 
use  of  the 
Coui't. . 


826 


MOTION   FOR   A    DECREE. 


C.  XX. 


NfgU'i't  at 
tlio  hearing: 

l\v  plaint itV; 


In-  detend- 
uit; 


by  the 
solicitor. 


What  order 
may  be  made 
on  the 
hearing. 


Amendment 
of  bill,  alter 
motion. 

Right  to 
begin,  on 
appeal. 


ol'tho  Vioo-Ch:uu'oll()r,  ;is  niiiy  bo,  lor  llio  use  of  the  Court  and  the 
l\e<iistrav,  botbro  tlu'  motion  coinos  oji  for  lic:n'in<.i;.^ 

If  the  ])l;untiir  tiiils  to  apjiear  when  the  motion  is  called  on,  tlie 
delendant's  counsel  may  apply  to  have  the  ]>ill  dismissed  with 
costs,  and  need  not,  it  seems,  lor  tliis  pur|)ose  )>roduce  an  allidavit 
of  the  defendant's  having  been  served  with  the  notice  of  motion.'^ 
AVhere  the  defendant  fails  to  a])])ear,  the  pl.iintiff  may  move  for 
the  decree  in  his  absence,  subject  to  the  production  of  an  affidavit 
of  service  of  the  notice;*  but  the  Court  has,  in  such  case,  allowed 
the  decree  to  be  reopened  on  motion.''  The  alh<h\vit,  in  either 
case,  should  be  filed  at  the  Record  and  Writ  Clerk's  Office,  and 
an  office  copy  be  produced  to  the  Registrai",  at  the  latest  before 
the  rising  of  the  Court  on  the  day  on  which  the  a))])lication  is 
made.^  If  neither  party  appears  on  the  motion,  it  will  be  struck 
out  of  the  paper. 

Where  the  motion  cannot  conveniently  proceed  by  reason  of  the 
solicitor  for  any  party  neglecting  to  attend  personally,  or  by  some 
proper  person  on  his  behalf,  or  omitting  to  deliver  any  paper 
necessary  for  the  use  of  the  Court,  and  which  according  to  its 
practice  ought  to  have  been  delivered,  such  solicitor  is  personally  to 
pay  to  all  or  any  of  the  parties  such  costs  as  the  Court  may  award.^ 

Upon  hearing  a  motion  for  a  decree,  it  is  discretionary  with  the 
Court  to  grant  or  refuse  the  motion,  or  to  make  an  order  giving 
such  directions  with  respect  to  the  further  prosecution  of  the  suit 
as  the  circumstances  of  the  case  may  require,  and  to  make  such 
order  as  to  costs  as  it  may  think  right.''  The  decree  or  order  is 
drawn  up,  passed,  and  entered  in  the  manner  hereafter  explained, 
in  treating  of  decrees  made  on  the  hearing  of  the  cause.®  After 
an  unsuccessful  motion  for  a  decree,  the  bill  has  been  allowed  to 
be  amended.^ 

Upon  an  appeal  from  the  whole  decree,  made  on  motion  for 
decree,  the  .plaintiiF  has  the  right  to  begin.^" 


1  Reg.  Eegul.  15  March,  1860,  r.  22; 
Re^.  Notice,  23  Nov.,  1861;  and  see  Ord. 
XXI.  12.  The  plaintiff's  briefs  consist  of 
printed  copies  of  tlie  bill,  and  answers, 
affidavits  in  support,  opposition,  and  reply, 
and  of  the  depositions  of  the  witnesses  on 
their  cross-examination,  and  of  written 
copies  of  such  exhibits  or  other  documents 
as  may  be  necessary.  A  defendant's  briefs 
are  the  same,  except  that  copies  of  only 
the  answer,  and  of  vuch  answers  of  co-de- 
fondants  as  the  plaintiff"  has  notified  his 
intention  tu  read  against  him,  or  as  he  has 
sii/nified  his  intention  to  rend  agrainst  the 
plaintifl'or  co-defendants,  should  be  fur- 
nished. Each  brief  should  be  accompanied 
■with  observations. 

■■i  Marter  v.  Marter,  12  W.  R.  34,  M.  R. 

8  For  form  of  affidavit,  see  Vol.  III. 


4  Hughes  V.  Jones,  26  Beav.  24. 

5  Lord  Milltown  v.  Stuart,  8  Sim.  34; 
Seton,  29. 

6  Ord   XXI.  12. 

7  15  &  16  Yic.  c.  86,  §  16;  see  Thomas 
V.  Bernard,  5  Jur.  N.  S.  31;  7  W.  R.  86, 
V.  C.  K.;  Warde  v.  Dickson,  5  Jur.  N.  S. 
698;  7  W.  R.  148,  V.  C.  K. ;  Raworth  v. 
Parker,  2  K.  &  J.  163;  Norton  v.  Stein- 
kopf,  Kav,  45;  ?6.  Ap.  10;  Robinson  v. 
Lowater,  2  Eq.  Rep.  1072,  L.  JJ. 

8  See  post,  Chap.  XXVI.  §  3,  Drawing 
up  Decrees.  For  form  of  decree  on  motion, 
see  Seton,  26. 

"  Thomas  v.  Bernard,  5  Jur.  N.  S.  31; 
7  W.  R.  86,  V.  C.  K. 

1"  Hirkeiihead  Docks  v.  Laird,  4  De  6., 
M.  &  (i.  732. 


advisable. 


MOTION   FOR    A    DECREE.  827 

Where  a  decree,  jnade  on  a  motion  for  a  decree,  is  appealed       C.  XX. 
from,  a  petition  of  appeal  must  be  presented.^  "— — >  -  — ■' 

By  bringing  a  cause  to  a  hearing  on  a  motion  for  a  decree,  con-  Appeal  must 
siderable  delay  is  saved ;  it  is,  therefore,  the  better  course  for  a  ti^Q-^  ^^^^' 
plaintiff  to  follow,  where  he  expects  to  be  able  to  prove  his  case  Where  notice 
by  affidaxat ;  but  where  he  desires  to  examine  witnesses  in  chief,  ^ecree'*"^  ^'^^ 
orally,  he  should  file  replication.'^     It  is  also  to  be  observed,  that  replication,  is 
on  motions  for  a  decree,  the  plaintiff's  CA-idence  is  known  to  the 
defendant   before   he  prepares   his  proofs,  the   cross-examination 
of  witnesses  takes  place  before  the  examiner,^  and  the  plaintiff 
has  an  opportunity  of  adducing  evidence  in  reply;   but  that  if 
replication  has  been  filed,  both  parties  have  to  prepare  their  proofs 
before  the  evidence  of  the  other  side  is  known,  the  cross-exami- 
nation of  witnesses  must  take  place  before  the  Court  itself,^  and 
there  is  no  opportunity  of  adducing  evidence  in  reply, 

1  Ord.  XXXI.  8.     For  form  of  petition,  *  Ord.  5  Feb.,  1861,  r.  7;  with  certain 
see  Vol.  III.  exceptions,  for  which  see  Ord.  5  Feb.,  1861, 

2  See  ante,  p.  823.  rr.  10,  11,  16. 

3  Ord.  2  Feb.,  1861,  r.  19. 


CHAPTER  XXI. 


REPLICATION. 


In  what  cases 
to  be  filed. 


When  cause 
should  be 
heard  on  bill 
and  answer; 


Seldom  now 
done. 


After  the  defendant,  if  required  to  answer,  lias  fully  answered 
the  bill,  or,  if  not  required  to  answei",  the  time  allowed  for  })utting 
in  a  voluntary  answer  has  expired,  the  plaintiff,  if  he  determines 
not  to  move  for  a  decree,  or  his  motion  lias  been  refused,  must  file 
a  replication  :-^  unless,  where  an  answer  has  been  filed,  he  decides 
to  go  to  a  hearing  of  the  cause  on  bill  and  answer. 

It^  upon  the  answer  alone,  without  further  proof,  there  is  sufti- 
cient  ground  for  a  final  order  or  decree,  the  plaintiff  must  proceed 
to  a  hearing  on  bill  and  answer,  without  entering  into  evidence  :  ^ 
as  where  the  plaintiff  makes  his  title  by  a  will  or  other  conveyance 
in  the  defendant's  hands,  and  the  defendant,  by  his  answer,  con- 
fesses it,  or  where  a  trust  is  confessed  by  the  answer,  and  nothing 
further  is  required  than  to  have  the  accounts  taken.^ 

A  cause  is  now,  however,  rarely  heard   on   bill  and  answer. 


1  Ord.  XVII.  1;  15  &  16  Vic.  c.  86, 
§  26;  Duffield  v.  Sturges,  9  Hare  Ap. 
87;  Blake  v._  Cox,  1  W.  R.  124,  V.  C.  W. 
If  the  plaintiff'  wishes  to  prove  any  fact  on 
the  hearing;,  not  admitted  by  the  answer, 
he  must  file  a  replication.  Mills  v.  Pit- 
man, 1  Paige,  490. 

In  Maine,  "  within  thirty  days  after  the 
answer  is  tiled,  unless  exceptions  are  taken, 
or  within  fifteen  days  after  it  is  perfected, 
the  plaintiff's  counsel  shall  file  the  general 
replication,  and  give  notice  thereof;  or  give 
notice  of  a  hearing  at  the  next  term  on  bill 
and  answer."  Rule  9  of  Ciiancery  Prac- 
tice; see  Knle  17,  N.  Hamp.  Chancery 
Practice,  38  X.  H.  G08;  Rule  17,  Mass". 
Chancerj'  Practice;  6Gtli  Rule,  United 
States  Courts.  A  special  replication  can- 
not be  filed  witiiout  leave  of  Court.  Storms 
V.  Storms,  1  Edw.  Ch.  358. 

Bj'  45th  Equity  Rule  of  the  United 
States  Courts,  no  special  replication  to 
any  answer  shall  be  filed.  But  if  any 
matter  alleged  in  the  answer  shall  make 
it  necessary  for  the  plaintiff  to  amend  his 
bill,  he  may  have  leave  to  amend  the  same 
with  or  without  payment  of  costs,  as  the 
Court,  or  a  Judge  thereof  may  in  his  dis- 
cretion direct. 


In  Massachusetts,  "the  form  of  the 
general  replication  shall  be  that  the  plain- 
tiflf  joins  issue  on  the  answer.  No  special 
replication  shall  be  filed,  but  bv  leave  of 
the  Court.  Rule  16,  of  the  Rules  for 
Practice  in  Ch:incery.  In  New  Hamp- 
shire, a  replication  'shall  be  entitled  as 
an  answer,  Hnd  shall  be  in  substance, 
"The  plaintiff  says  his  bill  is  true,  and 
the  defendant's  answer,  as  set  forth,  is 
not  true,  and  this  he  is  ready  to  prove." 
Rule  22  of  Chancery  Practice;  see  Story 
Eq.  PI.  §  878;  Storms  v.  Storms,  1  Edw. 
Ch.  358;  Dupote  v.  Massy,  Cox's  Dig. 
146;  Brown  v.  Ricketts,  2  .John.  Ch.  425; 
Lyon  V.  Tallmadge,  1  John.  Ch.  184;  Liv- 
ingston V.  Gibbons,  4  John.  Ch.  94;  Thorn 
V.  Germand,  ib.  363;  Pratt  v.  B;icon,  10 
Pick.  123.  Matters  in  avoidance  of  a  plea, 
which  have  arisen  since  the  suit  began, 
are  properlj^  set  up  by  a  supplemental  bill, 
not  by  a  special  replication.  Chouteau  v. 
Rice,  1  Min.  106.  A  special  replication, 
denying  part  of  the  matter  of  the  plea,  and 
reasserting  the  substance  of  the  bill,  is  in- 
admissible. Newton  v.  Thayer,  17  Pick. 
129. 

2  Ord.  XIX.  1. 

8  Wyatt'8  P.  R.  374. 


REPLICATION. 


829 


The  only  advantage  in  doing  so,  instead  of  hearing  it  on  motion 
for  decree,  is,  that  the  month's  notice  is  thereby  saved ;  but,  on 
the  other  hand,  'where  a  cause  is  heard  upon  bill  and  answer,  the 
answer  must  be  admitted  to  be  true  in  all  points,  and  no  other 
evidence  will  be  admitted ;  ^  unless  it  be  matter  of  record  to  which 
the  answer  refers,  and  which  is  provable  by  the  record  itself,^ 
or  documents  proved  as  exhibits  at  the  hearing.^  It  therefore 
behoves  the  plaintift'to  look  attentively  into  the  answer;  and  if  he 
finds  that  the  efiect  of  the  defendant's  admissions  is  avoided  by 
any  new  matter  there  introduced,  he  should  serve  notice  of  motion 
for  a  decree,*  or  reply  to  the  answer,  and  proceed  to  establish  his 
case  by  proofs.^  If  the  plaintiff  decides  upon  having  the  cause 
heard  u]ion  bill  and  answer  against  one  or  all  of  the  defendants, 
he  must  proceeil  in  the  manner  hereafter  pointed  out.^ 

A  replication  must  also  be  put  in  by  the  plaintiff  where  the  de- 
fendant has  ])leaded  to  the  bill,  whether  his  plea  be  accompanied 
by  an  answer  or  not.''  It  is,  however,  to  be  recollected,  that,  if  the 
plaintiff  replies  to  a  plea  before  it  has  been  argued,  he  admits  the 
2:>lea  to  be  valid,  if  true  ;  *  and  that  he  cannot  afterwards  object  to 
it,  on  the  ground  of  its  invalidity  or  irregularity.^ 

We  have  seen  before,  that  a  replication  to  a  general  disclaimer 
to  the  whole  bill  is  improper :  although,  Avhen  a  disclahner  to  part 
of  the  bill  is  accompanied  by  a  plea  or  answer  to  another  part, 
there  may  be  a  replication  to  such  plea  or  answer.-^" 

A  replication  is  the  plaintiff's  answer  or  re])ly  to  the  defendant's 
plea  or  answer.  By  re])lying  to  the  answer,  the  plaintiff  docs  not 
preclude  himself  from  reading  any  j^art  of  the  answer  he  may  con- 
sider essential  to  assist  his  case. 

Only  one  replication  is  to  be  filed  in  each  cause,  imless  the  Court 
otherwise  directs.^^ 

The  Court  will  not  as  of  course,  or  exce^^t  in  cases  of  necessity. 


^  Contee  v.  Dawson,  2  Bland,  264; 
Childs  V.  Horr,  1  Clarke  (Iowa),  432;  Rog- 
ers V.  Mitcliell,  41  N.  H.  154;  I'ierce  v. 
West,  1  I'eters  C.  C.  351;  Pickett  r.  Chil- 
ton, 5  Muiif.  467;  Scott  v.  (,'larkson,  1 
Bibb,  277.  But  where  tlie  ciiuse  is  set 
down  for  iicariiij;  on  bill,  answer,  and 
depositions,  tlie  replication  is  mere  form, 
and  the  Court  will  suffer  it  to  be  filed  ku?jc 
pro  tunc.  Scott  v.  Clarkson,  ubi  supra  ; 
Demaree  «.  I)riskill,3  IJlackf.  115;  I'ierce 
V.  West,  uiji  su/ira;  (ilenn  r.  Hebb,  12 
Gill  &  .J.  271;  Armistead  r.  Bozman,  1 
Ired.  Ch.  117;  Smith  d.  VVf.-it,3  John.  t'h. 
363;  sec  Ueiiding  v.  I-'ord,  1  l'.ibb,  338. 

2  Ord.  XIX.  2;  Le^ard  v.  Sheflicld,  2 
Atk.  377;  see,  liowever,  Stanton  v.  I'er- 
civnl    3  W.  K.  3!il ;  24  L..J.('h.  309,  II.  L. 

8  PoM,  p.  h74  et  scj.;  Kowlanil  v.  Stur- 
gis,  2  Hare,  .'■|20;  Chalk  v.  Kaine,  7  Hare, 
31)3;  13Jur. 'JKl;  Neville  r.  i'itzgeriild,  2 


Dr.  &  War.  530;  contra,  Jones  v.  GrifKth, 
14  Sim.  262;  8  Jur.  733. 

•*  See  ante,  p.  819. 

5  Wyatt's  1'.  K.  375. 

"  Seepost,  Chap  XXV.  Tleanng  Causes. 

'  Ante,  p.  664.  A  plea  m;\\  beset  down 
to  obtain  judgment  of  its  sulliciencj'  and 
formality,  witliout  a  replication.  Moreton 
V.  Harrison,  1  Bland,  491. 

8  Hughes  V.  Blake,  6  Wheat.  472;  S.  C. 
1  Mason,  515;  Daniels  v.  Tngpart,  1  Gill 
&  J.  312;  Brooks  t\  Mead,  Walk.  Ch.  389; 
Bellows  V.  Stone,  8  N.  H.  280;  Newton  v. 
Thayer,  17  Pick.  129;  Ilurlburt?;.  Mritain, 
Walk.  454.  Upon  a  replication  to  a  plea, 
nothing  is  in  issue  except  what  is  distinctly 
averred  in  the  plea.  Fish  v.  Miller,  6 
Paige,  26. 

«  Ihld. 

10  Ih.  p.  055. 

11  Ord.  XVH.  2. 


C.  XXI. 


Evidence. 


When  an- 
swer should 
be  replied  to ; 


After  plea. 


After 
disclaimer. 


Nature  of 
replication : 
does  not  pre- 
clude plaintiff 
from  reading 
answer. 
Generally, 
only  one 
replication  to 
be  filed ; 
exceptions. 


830 


REPLICATION. 


C.  XXI. 


On  filinp 
rvplicalion, 
cause  is 
deemed  at 
issue. 


Form  of 
replication. 


tr'ivo  tlu>  |>l;iinti(r  leave  to  lilo  more  Ihan  one  roplieiition ;  ^  but 
wliere  tlie  re|)li(:itioii  only  applied  to  sonic  defendants,  and  as  to 
the  olliens  llie  eause  was  not  at  issue,  leave  was  given  to  file  a 
seeond  replieation  against  such  other  delendants  ;^  and  where, 
uj>on  notice  of  motion  to  dismiss  for  want  of  i)rosecution,  by  one  of 
two  defendants,  the  plaintiff  filed  replication  against  such  defend- 
ant alone,  the  other  defendant  not  having  appeared,  the  Court 
refused  the  int)tit)n,  on  the  jilaintiff  undi'rtaking  to  dismiss  the  bill 
against  the  defendant  who  had  not  api)earcd,  but  ordered  the 
plaintiff  to  pay  the  costs  of  the  motion.* 

Upon  filing  the  replication,  the  cause  is  deemed  to  be  completely 
at  issue ;  *  and  each  defendant  may,  without  any  rule  or  order, 
proceed  to  verify  his  case  by  evidence  ;  and  the  ])laintiff  may,  in 
like  manner,  proceed  to  verify  his  case  by  evidence ;  so  soon  as 
notice  of  the  replication  being  filed  has  been  duly  served  on  all  the 
defendants  Avho  have  filed  an  answer  or  plea,  or  against  whom  a 
traversing  note  has  been  filed,  or  who  have  not  been  required  to 
answer  and  have  not  answered  the  bill,^ 

The  foiTu  of  the  replication  in  the  General  Orders  assumes  a 
case  where  the  plaintiff'  desires  to  join  issue  as  to  one  of  the  defend- 
ants ;  to  hear  the  cause  on  bill  and  answer  as  to  another ;  and  to 
take  the  bill  as  confessed  as  against  a  third."  Where,  however, 
the  plaintiff  does  not  desire  to  join  issue  with  any  defendant,  no 
replication  can  be  filed.''  The  full  title  of  the  cause,  as  it  stands  at 
the  time  the  rej^lication  is  filed,  must  be  set  forth  in  the  heading 
of  the  replication,  but  only  the  names  of  such  of  the  defendants  as 
have  appeared  should  be  inserted  or  referred  to  in  the  body.  If  a 
defendant's  name  has  been  misspelt  by  the  plaintiff,  and  such  de- 
fendant has  coiTected  the  same  by  his  answer,  but  the  plaintiff  has 
not  afterwards  amended  his  bill  with  respect  to  such  name,  the 
correction  should  be  shown  in  the  title  of  the  re})lication  ;  ^  in  the 
body  of  the  replication,  however,  the  correct  name  only  should  be 
inserted.  Where  any  defendant  has  died  since  the  bill  was  filed, 
the  w^ords  "  since  deceased "  should  folloAV  his  name  in  the  title, 
but  his  name  should  be  omitted  in  the  body  of  the  replication.  If 
the  plaintiff  joins  issue  w^ith  all  the  defendants,  their  names  need 
not  be  repeated  in  the  body  ;  it  is  suflicient,  in  such  case,  to  desig- 


1  Stinton  v.  Taylor,  4  Hare,  608,  610; 
10  Jur.  386. 

-  Rogers  v.  Hiioper,  2  Drew.  97. 

3  Heanley  v.  Abraham,  5  Hare,  214. 
As  to  when  a  second  or  further  replication 
may  be  filed,  witiiout  special  leave,  see 
Braithwaite's  Pr.  73. 

■*  In  America,  generally,  if  not  univer- 
sally, the  pleadings  terminate  with  the 
repliciitioii,  and  no  rejoinder  is  filed;  and 
the  case  is  deemed  at  issue  upon  the  dling 
of  the  replication.     This  is  the  general 


practice  in  the  Courts  of  the  United  States. 
Story  Eq.  I'l.  §  879,  note;  66th  Equity 
Rule  of  the  United  States  Courts. 

s  Ord.  XVI J.  2,  where  the  form  of  repli- 
cation is  given,  smd  which  is  to  be  adopted, 
as  near  as  circumstances  admit  and  re- 
quire, ibid. ;  and  see  form.  Vol.  III. 

e  Ord.  XVII.  2. 

■^  Braithwaite's  Pr.  72. 

8  Thus:  "John  Jones  (in  the  bill  called 
William  Jones)." 


EEPLICATION. 


831 


nate  them  as  "  all  the  defendants  ; "  but  if  he  does  not  join  issue 
"with  all,  the  names  of  the  defendants  must  be  set  out  in  the  body. 
The  names  of  those  defendants  who  are  stated  in  the  bill  to  be  out 
of  the  jurisdiction,  and  who  have  not  appeared,  must  be  inserted 
in  the  title,  but  not  in  the  body ;  and  the  names  of  such  fonnal 
defendants  as  have  been  served  with  a  copy  of  the  biU  must  be  in- 
serted in  the  title  of  the  replication,  but  only  such  of  them  as  have 
entered  a  common  appearance  should  be  named  in  the  body,^ 

The  replication  is  prepared  by  the  solicitor  of  the  plaintiff:  it 
must  be  written  on  paper  of  the  same  description  and  size  as  that 
on  which  bills  are  printed,-  and  be  underwritten  with  the  name 
and  plac€  of  business  of  the  plaintiff's  solicitor,  and  of  his  agent,  if 
any,  or  with  the  name  and  place  of  residence  of  the  plaintiff  where 
he  acts  in  person,  and,  in  either  case,  with  the  address  for  serWce, 
if  any  ;  ^  and  the  replication  must  then  be  filed  at  the  Record  and 
Writ  Clerks'  Office.*     It  does  not  require  the  signature  of  counsel. 

Any  error  in  the  repUcation,  except  the  omission  of  the  names 
of  any  defendants,  may  be  corrected  by  amendment ;  but  an  order 
to  amend  is  necessary.  The  order  may  be  obtained  on  sj^ecial 
summons  at  Chambers,  or,  by  consent,  on  petition  of  com-se  at  the 
Rolls.^  Against  the  defendants  whose  names  have  been  omitted, 
another  repUcation  must  be  filed,  or  leave  obtained  to  witlidraw 
the  existing  replication  and  file  anotlier ;  and  an  order  for  leave  so 
to  do,  in  either  case,  must  be  obtained  in  like  manner,  or  upon 
special  motion  with  notice.® 

The  solicitor  must  give  notice  of  the  filing  of  the  replication  to 
the  solicitor  of  the  adverse  party,  or  to  the  adverse  party  himself 
if  he  acts  in  person,  on  the  same  day  on  which  it  is  filed.''  If  he 
neglects  to  do  so,  the  opposite  j^arty  should  move  that  the  time  for 
him  to  take  the  next  step,  may  be  extended :  *  not  that  the  replica^ 
tion  may  be  taken  off  the  file. 

The  notice  must  be  served  before  seven  o'clock  in  the  evening, 
except  on  Saturday,  when  it  must  be  served  before  two  o'clock  in 
the  afternoon.  If  served  after  these  hours,  the  service  will  be  con- 
sidered to  have  been  made  on  the  following  day,  or  Monday,  as 
the  case  may  be.® 


C.  XXI. 


How  pre- 
pared ; 


and  filed. 


Amendment : 
when 
allowed; 
order  for : 
howobtained. 


Notice  of 
filins: 


consequences 
of  neglect 
to  serve; 


when  to  be 
served. 


1  Braithwaite's  Pr.  75. 

2  Ord.  6  March,  1800,  r.  IG;  as  to  such 
paper,  see  Ord.  IX.  3.  ante,  p.  396. 

«  Ord.  III.  2,  6,  (ijite,  pp.  4rj3,  454.  For 
a  form,  see  Vol.  III.  Story  K(|.  I'l.  §  878, 
note;  IJurton  Suits  in  Equity,  144,  145; 
Chouteau  v.  Kice,  1  Min.  lOG. 

•*  Ord.  I.  35.    No  fee  is  payable. 

5  Braithwaite's  I'r.  318.  For  forms  of 
summons  and  petition,  see  Vol.  III. 

8  Stinton  V.  Taylor,  4  Hare,  608,  610; 
10  Jur.  3bG ;  Braithwaite's  Pr.  318.     For 


forms  of  notice  of  motion,  summons,  and 
petition,  see  Vol.  III. 

'  Ord.  HI.  9.  In  practice,  it  is  usual  to 
serve  the  notice  on  ail  the  defendants, 
or  their  solicitors,  who  iiave  appeared. 
Braitiiwaite's  Pr.  79. 

8  Wright  ('.  Angle,  6  Hare,  107;  llJur. 
9S7;  Lloyd  p.  Solicitors'  Life  Assurance 
Company,  3  W.  II.  640,  V.C.  W. ;  contra, 
Johnson  v.  Tucker,  15  Sim.  599;  11  Jur. 
466.  For  form  of  notice  of  motion,  see 
Vol.  III. 

9  Ord.  XXXVII.  2;  ante,  p.  466. 


832 


REPLICATION. 


O.  XXI. 


JMTVicO  of 

notice 

allowed  to  be 
iiirtiio  out  of 
tlu>  jurisdio- 
tioii ; 

or  on  iisulisti- 
tute  witliin; 
or  l)y  pill  )1  it- 
ad  vert  isi>- 
nienf. 
Order  to 
servo :  how 
obtained. 
Fonn  of 
notice. 


Row  soon 
re]ilieiition 
may  be  tiled: 


"Where  formal 
defendants 
have  been 
served  with 
copy  of  bill. 


Where  bUl 
taken  pro 
ccmftsso 
against  any 
defendants. 


In  proper  c;isos,  tlu-  uotii'c  will  hv  allowed  to  bo  served  out  of 
the  jurisdietioii  ; '  ;ind  lor  this  purpose,  the  tiine  for  service  will  be 
exteiuled  ;  •^  serviee  of  the  notiee  nuiy  also  be  substittited  ;  and 
this  has  been  done  by  allowing  the  noticre  to  be  advertised  in  the 
Gazette,  and  in  two  newspapers  circvdating  in  the  county  in  wliieli 
the  defendant  was  last  known  to  have  resided.^  An  order  for 
leave  to  ser\  e  notice  of  the  reidication,  in  any  of  the  modes  above 
inentiiMie<l,  may  be  obtained  on  ex  parte  motion,  supported  by  an 
aiiidavit  of  the  facts  ;  and  a  copy  of  the  order  must  be  served  witli 
the  notice.'' 

In  giving  notice  of  the  filing  of  replication,  the  most  convenient 
course  is  to  serve  a  copy  of  the  re])lication ;  but  it  is  not  essential 
to  (Ui  so;  and  if  not  done,  the  notice  nnist  show  the  ])urport  of  the 
replication.^  The  time  for  closing  the  evidence  is  computed  from 
the  day  on  which  the  replication  is  filed. 

The  plaintiff  may  file  replication  immediately  after  the  answers 
\\{\\e  been  put  in,  or  a  traversing  note  has  been  filed  and  served  ; 
or,  where  no  answer  is  required,  immediately  after  the  time  allowed 
for  answering  has  expired  ;  ^  and  when  he  desires  to  file  replication, 
without  w^aiting  till  all  the  answers  required  by  him  have  been  put 
in,  or  till  the  time  has  expired  for  defendants  to  answer  voluntarily, 
he  should  amend  the  interrogatories,^  by  striking  out  so  much  of 
the  heading  and  foot-notes  as  requires  an  ansAver  from  the  particular 
defendants  who  have  not  answered ;  ^  and  should  obtain  the  con- 
sent of  the  solicitor  of  those  defendants  whose  time  to  answer 
voluntarily  has  not  elapsed,  to  such  replication  being  filed,  not- 
withstanding the  time  to  file  a  vohmtary  answer  has  not  ex- 
pired.^ 

Where  any  formal  defendants  have  been  served  with  a  copy  of 
the  bill,  replication  may  be  filed,  notwithstanding  a  memorandum 
of  such  service  may  not  have  been  entered  :  it  being  sufficient  if 
such  memorandum  is  entered  before  the  certificate  to  set  down  the 
cause  is  granted.^" 

If  the  plaintiff  proposes  to  take  the  hW\  jwo  confesso  against  any 
defendant,  he  cannot  file  replication  imtil  the  order  to  take  the  bill 
pro  confesso  has  been  obtained  ;  and  such  order  must  be  produced 
to  the  officer  when  the  replication  is  presented  for  filing  :  unless  it 


1  Lanham  v.  Pirie,  2  Jur.  N.  S.  1201,  V. 
C.  S.;  Heath  f.  Lewis,  2  W.  K.  488,  M.  K. 

2  Rooper  v.  Harrison,  2  W.  K.  510;  2 
Eq.  Kep.  1085,  V.  C.  W. 

8  Barton  v.  Whitcomb,  17  .Jur.  81,  L.  C. 
&  L.  J.J.;  16  Beav.  206,  n.;  see  also  Jen- 
kin  V.  Vaiifjhan,  3  Drew.  20;  Lechmere  v. 
Clamp,  29  J5eav.  259. 

^  For  forms  of  motion  paper  and  affi- 
davit, see  Vol.  III. 


5  Braithwaite's  Pr.  79.  For  form  of 
notice,  see  Vol.  III. 

c  Braithwaite's  Pr.  74,  76;  andseeOrd. 
XXXIII.  10,  12;  ante,  p.  828. 

■?  As  to  amending  interrogatories,  see 
ante,  p.  480. 

8  Braithwaite's  Pr.  76. 

9  Ibid.  The  consent  should  be  indorsed 
on  the  proposed  replication.  For  form  of 
consent,  see  Vol.  III. 

10  Braithwaite's  Pr.  74. 


REPLICATION. 


833 


has  been  pre-s^ously  left  for  entry,  in  the  cause-book  kept  by  the 
Clerks  of  Records  and  Writs.^ 

Replication  must  be  filed  within  the  times  following :  within 
four  weeks  after  the  answer,  or  the  last  of  the  answers  required  to 
be  ])ut  in  by  a  defendant,  is  held  or  deemed  to  be  sufficient ;  ^  or, 
where  the  plaintiif  has  undertaken  to  reply  to  a  plea,  within  four 
weeks  after  the  date  of  his  undertaking ;  ^  or,  where  a  traversing 
note  has  been  filed,  within  four  weeks  after  the  filing  of  the  trav- 
ersing note  ;  *  or,  where  he  has  amended  his  bill  without  requiring 
an  answer,  within  one  week  after  the  expiration  of  the  time  within 
which  the  defendant  might  have  answered,  but  does  not  desire  to 
answer,^  or  within  fourteen  days  after  the  reftisal  of  further  time 
to  put  in  his  answer,^  or  within  fourteen  days  after  the  filing  of 
the  answer:  unless  the  plaintiflT  has,  within  such  fourteen  days, 
obtained  a  special  order  to  except  to  such  answer,  or  to  reamend 
the  bill.^ 

The  plaintiff  may,  however,  in  all  these  cases  apply  by  motion, 
or  by  summons  in  Chambers,  upon  notice  to  the  defendants,  for  an 
order  to  enlarge  the  time  for  filing  replication.^ 

In  computing  the  fourteen  days,^  within  which  the  plaintiff  must 
file  replication,  in  cases  where  he  has  amended  his  bill,  without 
requiring  an  answer  to  the  amendments,  and  the  defendant  has 
answered  the  amendments,  vacations  are  not  reckoned ;  ^°  but  in 
computing  the  time  in  all  other  cases,  they  are  reckoned." 

By  not  filing  replication  within  the  time  allowed  for  so  doing, 
the  plaintiff  subjects  himself  to  an  application  for  the  dismissal  of 
his  bill  for  want  of  prosecution  ;  ^^  but  the  replication  vnU.  be  re- 
ceived and  filed  at  any  time  at  the  Record  and  Writ  Clerks'  Ofl^ce, 
if  it  appears  by  the  books  of  that  office  that  the  cause  is  in  a  state 
to  admit  of  its  being  filed,  even  after  notice  of  motion  to  dismiss 
lias  been  served  ;  and,  indeed,  to  do  so,  and  tender  the  costs  of  the 
motion,  is  generally  the  best  Avay  of  meeting  it.^* 

In  reference  to  extending-  the  time  to 
reply,  in  New  York,  see  The  Sea  Ins.  Co. 
r.  Day,  9  Paifje,  247 ;  Kane  v.  Van  Vran- 
ken,  ")  Paifje,  63. 

Ifllie  plaintiff  wishes  to  amend  his  bill, 
and  a  special  implication  to  the  Court  for 
leave  to  do  so  is  necessHrv,  he  should  not 
(ile  a  refilicMtioii,  hut  should  ohtain  an  or- 
der to  extend  the  time  for  filing- the  rep- 
lication, until  after  the  decision  of  the 
C'lurt  upon  the  application  to  amend. 
Vermilyea  v.  Odell,  4  Paifje,  122.  If  the 
plaiiitifV  files  a  replicntion  to  the  answer 
alter  he  is  apprised  of  the  necessity  of  an 
amendment  of  his  hill,  he  prechides  him- 
self frum  makinffsuch  amendment.  Ver- 
milyi^ii  i".  Odell,  vfd  s/ipni. 

•3"  Hraithwaite'a  I'r.  78;  and  see  ante, 
p.  805. 


C.  XXT. 


Times  limited 
for  tiling ; 

after  a  suflS- 
cient  answer; 

after  under- 
taking to 
reply  to  plea; 

after  a  trav- 
ersing note ; 

after  time  to 
voluntarily 
answer 
amendments : 

and  answer 
not  in; 

and  further 
time  refused; 

or  answer  in. 

Extension 
of  time  for 
tiling. 

Vacations : 
when  reck- 
oned in  time 
for  filing 
replication. 


Consequences 
of  not  filing,  . 
within  time. 


1  IJraithwjiite's  Pr.  74. 

2  Ord.  XXXIII.  10(1);  an^e, p.  828, note. 
8  Or  I.  XXXIII.  10(2). 
*  Onl.  XXXIII.  10(1). 
6  Ord.  XXXIII.  12  (1);  XXXVII.  7. 

6  Ord.  XXXIII    1-2  (2). 

7  Old.  XXXIII.  12  (3).  As  to  filing 
replication  in  aiitifip;ition  of  some  of  the 
answers,  see  IJraithwaite's  Pr.  74. 

»  Ord.  XXXIII.  10.  12;  Ord.  XXXVII. 
17;  see  Stint^n  v.  Taylor,  4  Hare,  608, 
610;  lO.Iur.  886;  Dalton  v.  H;iyter.  9.1ur. 
1000,  M.  K.  For  form  of  summons,  see 
Vol.  III. 

'■>  rnderO'-d    XXXIII.  12  (3). 

10  Ord   XXXVII.  13  (4). 

"  Stiii'titi  V.  Tavlor,  uhi  .tup. 

12  See  6Glh  Koliity  Kule  of  the  United 
States  Courts;  Rule  17,  Mass.  Chancery 
Kules. 


63 


834 


REPLICATION. 


C.  XXI. 


Witlulnnviiii; 
n-pliaition, 
for  tlu> 
|uirj>os("  of 
imii'iuliiit; 
bill; 


or  of  setting 
down  cause 
on  bill  and 
answer ; 

or  without 
prejudice  to 
evidence 
taken. 

AVhere  repli- 
cation is 
omitted  to  be 
filed  before 
evidence 
entered  into. 


Ko  excep- 
tions to 
answer,  afler 
replication. 
Replication  to 
answer  to 
supplemental 
statement. 
EflFect  of 
Bankruptcy 
Act,  with 
respect  to     * 
rejoinder. 


AVi>  li;n-o  soon  l)oloro,  (1i;it  :\\}cv  a  n'|ilic:iti()ii  lias  Ijccu  \'\\v(\,  a 
plaiiititV,  it"  lu'  wishes  to  wilhdraw  it  and  anuiid  his  bill  ruither 
than  by  addiiiLj  parties,  must  make  a  spocial  application  by  sum- 
mons for  U'avo  to  do  so  :  ^  in  whii-li  case,  in  addition  to  the  afti(hivit 
i>rdinarily  rociuired  upon  an  ap]»lication  to  amend,  a  lurther  alli(hivit 
is  necessary,  sliowinLi^  that  tlie  matter  of  the  proposed  amenthueut 
is  material,  and  could  not,  with  reasonable  diligence,  have  been 
sooner  introdtu-ed  into  the  bill.-  Afler  the  evidence  is  closed,  the 
ap])lication  will  be  n't'used  ; "  but  where,  during  the  time  for  tak- 
ing the  evidence,  the  jdaintiff  discovered  an  iiujjortant  mistake  of 
flicts  in  the  bill,  the  Court,  thinking  that  the  j)laintiff  had  not  shoAvn 
such  want  of  diligence  as  to  preclude  it  from  giving  him  leave  to 
amend,  gave  liberty  to  withdraw  replication  and  amend  the  bill, 
on  the  terms  of  the  plaintiff  paying  the  costs  of  the  suit  then  in- 
curred, including  the  costs  of  the  application.* 

A  plaintiff  has  also  been  permitted,  on  motion,  to  withdraw 
his  replication,  and  set  his  cause  down  for  hearing  upon  bill  and 
answer.^ 

Where  replication  is  withdrawn,  after  evidence  under  it  has  been 
entered  into,  the  order  should  provide  that  the  withdrawal  is  to  be 
without  prejudice  to  such  evidence. 

It  has  sometimes  happened  that,  even  after  witnesses  have  been 
examined,  it  has  been  discovered  that,  owing  to  a  mistake,  no  rep- 
lication has  been  filed :  in  such  cases,  the  Court  has  permitted  the 
replication  to  be  filed  nunc  pro  tunc.^  And  it  seems  that  the  Court 
has  permitted  this  to  be  done  after  the  cause  has  come  on  for  hear- 
ing, and  the  reading  of  the  j^roofs  has  been  commenced.'' 

After  replication  has  been  filed,  exceptions  cannot  be  taken  to 
the  answer  for  insufficiency.^ 

Replication  may  be  filed  to  an  answer  put  in  to  a  supplemental 
statement.® 

By  the  Bankruptcy  Consolidation  Act,  it  is  enacted  that,  in  all 
suits  in  Equity,  other  than  a  suit  brought  by  the  assignees  for  any 
debt  or  demand  for  which  the  bankrupt  might  have  sustained  a 
suit  in  Equity  had  he  not  been  adjudged  bankrupt,  and  whether 
at  the  suit  of  or  against  the  assignees  of  a  bankrupt,  no  proof 


1  Woods  V.  Woods.  1.3  L.  J.  Ch.  98,  V. 
C.  E.;  AVil=on  v.  Parker,  9  Jur.  769,  V.  C. 
K.  B.;  Ord.  XXXV.  61 ;  ante,  p.  417.  For 
form  of  summons,  see  Vol.  III. 

'■^  Ord.  IX.  15.  For  form  of  affidavit,  see 
Vol.  III. 

8  Gascovne  v.  Chandler,  3  Swanst.  418, 
420,  n.;  Bousfield  v.  Mould,  1  I)e  G.  &  S. 
347;  11  Jur.  902;  Ilorton  v.  Brocklehurst 
(No.  1),  29  Beav.  .503. 

*  Cliamptiey."  v.  Buchan,  3  Drew.  5. 

6  Rogers  v.  Gore,  17  Ves.  130;  Brown 
r.  liicketts,  2  John.  Ch.  425. 


6  Wvatt'sP.  R.  .376;  Armistead  u.  Boz- 
man,  1  Ired.  Eq.  (N.  C)  117. 

^  Kodne}'  v.  Hare,  Mos.  296;  see  also 
Ilealey  v.  Jaeger,  3  Sim.  494,  497.  The 
like  permission  lias  also  been  given  after 
the  cau«e  has  been  set  down  for  hearing 
on  bill  and  answer,  ami  a  reference  ordered. 
Pierce  v.  West,  1  Peters  C.  ('.  351 ;  Smith 
V.  West,  .3  John.  Cli.  363;  Doody  v.  Pierce, 
9  Allen,  141,  143,  144. 

8  Ord.  XVI.  7 ;  ante,  p.  695,  note. 

9  Braithwaite's  Pr.  74. 


REPLICATION.  835 

shall  be  required,  at  the  hearing,  of  the  petitioning  creditor's  debt,  C.  XXI. 
or  of  the  trading  or  act  of  bankruptcy  respectively,  as  against  any 
of  the  parties  in  such  suit,  except  such  parties  as  shall,  within  ten 
days  after  rejoinder,  give  notice  in  writing  to  the  assignees  of  their 
intention  to  dispute  some  and  which  of  such  matters.^  Rejoinder 
beinf  abolished  in  Equity,^  it  seems  that  the  notice  must  be  given 
within  ten  days  after  the  filing  of  replication.® 

1  12  &  13  Vic.  c.  106,  §  235.  S  Pennell  v.  Home,  3   Drew.   337  ;    see, 

2  Ord.  XVII.  2;  ante,  pp.  829,  830,  note.       however,  Lee  v.  Dounistoun,  29  Beav.  465. 


CHAPTER  XXII. 


EVIDENCE. 


Section  I.  —  Admissions. 


tiled. 


Course  to  be  TnE  cnusc  being  at  issue,  by  the  filing  of  the  replication,  the 
n"pTicatknf "  next  Step  to  be  taken  by  the  plaintiff  is  to  prepare  his  proofs.  The 
defendant  also,  if  he  has  any  case  to  establish  in  opposition  to 
that  made  by  the  ])laintift',  must,  in  like  manner,  pre])are  to  sub- 
stantiate it  by  evidence.-^  For  this  })urpose,  both  parties  must  first 
consider :  what  is  necessary  to  be  proved ;  and  then,  the  manner 
in  which  the  proof  is  to  be  effected;  and,  in  treating  of  these  sub- 
jects, it  will  be  convenient  to  consider,  shortly,  the  general  rules  of 
evidence.  With  respect  to  the  first  point,  it  may  be  laid  down  as 
an  indispiitable  proposition,  that  whatever  is  necessary  to  su])port 
the  case  of  the  plaintiff,  so  as  to  entitle  him.  to  a  decree  against 
the  defendant,  or  of  a  defendant,  to  su]iport  his  own  case  against 
.  that  of  the  plaintiff,  must  be  proved :  ^  unless  it  is  admitted  by 
the  other  party .^ 

In  Massachusetts,  the  evidence  in  pro- 
ceedings in  Equity  is  required  to  be  taken 
in  tlie  same  manner  as  in  suits  at  I>aw, 
unless  the  Court  for  special  reasons  other- 
wise directs;  but  this  does  not  prevent  the 
use  of  affidavits  where  they  liave  hereto- 
fore been  allowed.  Genl.  Sts.  c.  131,  §  60. 
In  this  latter  State,  the  plaintiff  and  the 
defendatit,  at  any  time  after  the  filing  of 
the  answer,  in  a  suit  in  Equity,  may  file 
in  the  clerk's  office  interrogatories  for  the 
discovery  of  facts  and  documents  material 
to  the  support  or  defence  of  the  suit,  to  be 
answered  on  oath  bv  the  adverse  party. 
St.  1S62,  §  40.  The"  rules  of  the  Court  of 
Chancery  in  New  Jersey  provide  for  the 
fding  ol^  interrogatories  to  the  plaintiff. 
Rule  59;  2  iMcCarter,  525;  so  in  England 
such  interrogatories  for  the  examination 
of  the  plaintiff  may  be  filed  under  15  & 
16  Vic.  c.  86,  §  19.  See  ante,  p.  758,  and 
post,  p.  840. 

■■2  For  what  is  sufficient  to  throw  upon 
the  defendant  the  07ms  of  denying  the 
plaintiffs  case,  see  Hell  v.  Wilson,  11 
Jur.  N.  S   437,  V.  C.  K. 

8  Nelson  v.  Pinegar,  30  111.  473. 


1  In  New  Hampshire  the  rules  in  Chan- 
cery provide  for  the  trial  of  the  cau=e  on 
depositions.  "  The  ])laiiitifF's  depositions 
in  chief  shall  be  taken  within  two  months 
from  the  expiration  of  the  time  allowed 
for  the  delivery  of  the  replication,  and  the 
defendant's  depositions  in  chief  within 
three  months  from  the  same  time,  unless 
further  time  shall  be  allowed  by  the  Court, 
or  by  a  .Justice  on  petition  and  notice  to 
the  other  partv."  Rule  23  of  Chancery 
Practice.  "  Rebutting  evidence  may  be 
taken  by  either  party,  within  one  month 
after  the  expiration  of  the  time  allowed 
for  taking  the  depositions  in  chief  of  the 
defendant.  Special  orders  may  be  made 
by  the  Court  or  by  a  Justice,  upon  peti- 
tion and  due  notice,  enlarging  or  reducing 
the  time  of  taking  testiuiouv  of  either  or 
both  the  parties."  Rule  24,  '38  N.  H.  60S, 
610. 

In  Maine,  "  all  testimony  is  to  be  taken 
in  writing,  by  virtue  of  a  commission  is- 
sued on  interrogatories  filed  with  the 
clerk,"  &c.  The  formalities  to  be  ob- 
sers-ed  in  taking,  filing,  abstracting,  and 
producing  the  evidence  are  minutelv  point- 
ed out  in  Rules  13,  14,  15,  16,  17,  18, 
Chancery  Rules,  Maine,  37  Me.  585,  586. 


ADMISSIONS. 


837 


Our  object  at  present,  therefore,  must  be  to  consider  what  ad- 
missions by  the  parties  will  preclude  the  necessity  of  proofs ;  and 
it  is  to  be  observed  that,  if  evidence  is  gone  into  to  prove  what 
is  admitted,  or  at  an  unnecessary  or  improper  length,  the  costs 
of  such  evidence  will  be  disallowed.^ 

Admissions  are  either:  I.  Upon  the  Record ;  or,  II.  By  Agree- 
ment between  the  Parties. - 

I.  Admissions  on  the  Record  may  be :  Constructive,  namely, 
those  which  are  the  necessary  consequence  of  the  form  of  pleading 
adopted ;  or,  Actual,  namely,  those  which  are  positively  contained 
in  the  pleading. 

With  respect  to  constructive  admissions,  the  most  ordinary 
instance  of  them  is,  where  a  plea  has  been  put  in  by  a  defendant, 
either  to  the  whole,  or  part  of  the  bill :  in  that  case,  as  we  have 
seen,'  the  bill,  or  that  part  of  it  which  is  pleaded  to,  so  far  as 
it  is  not  controverted  by  the  plea,  is  admitted  to  be  true.^  A 
plaintiff,  therefore,  where  he  has  replied  to  a  plea,  may  rest  sat- 
isfied with  that  admission,  and  need  not  go  into  evidence  as  to 
that  i^art  of  his  case  which  the  plea  is  intended  to  cover ;  ^  unless 
the  plea  is  a  negative  plea :  for  in  that  case  it  v^ill  be  necessary  for 
him  to  prove  the  matter  negatived,  for  the  purpose  of  disproving  the 
plea,  in  the  same  manner  as  he  may  enter  into  evidence,  for  the 
purpose  of  disproA^ng  matter  whicTi  has  been  pleaded  affirmatively.^ 


C.  XXII.  §  1. 
Admissions. 


Division  of 
admissions. 

I.  Admis- 
sions on  the 
record : 


Constructive 
admissions : 


In  the  case 
of  pleas. 


1  Ord.  XIX.  1;  Harvey  v.  Mount,  8 
Beav.  439,  453;  9  Jur.  741;  Smith  v. 
Chambers,  2  Phil.  221,  226;  S.  C.  nom. 
Cliaiiibers  v.  Smith,  11  Jur.  359;  Mayor, 
&c.,  of  Berwick  v.  Murrav,  7  l)e  G.,  M. 
&  G.  497,  514;  3  Jur.  iN.  S.  1,  5. 

2  As  to  admissions  generally,  see  the  fol- 
lowing works  on  evidence;  Taylor,  §  653 
et  seq. ;  Be?t,  §§  543,  632 ;  Gresley,  I't.  I. 
Chaps.  1,2;  Powell,  151. 

8  Ante,  p.  614. 

*  Gresley  Eq.  Ev.  (Am.  ed  )  9.  Where 
the  bill  charges  a  tact  to  be  within  the 
knowleilge  ot  ihe  defendant,  or  which  may 
fairly  be  pre-umed  to  be  so,  it  the  answer 
is  silent  as  to  the  fact,  it  will  be  taken  as 
admitteil.  It  is  otherwise,  where  tlie  fact 
is  not  within  the  kiiowk-dge  of  the  de- 
fendant, nor  |)resumed  to  be  so.  Moore  v. 
Lockelt,  2  Bibb,  07,  69;  .Mitchell  v.  Mau- 
pm,  3  Monioe,  lb7;  ILirdy  r.  Heard,  15 
Ark.  164;  liooth  v.  Booth,  3  Litt.  57; 
Moseley  r.  Ga.s.seit,  1  .1.  J.  Mar-h.  212, 
215;  >rCanipbell  v.  Gill,  4  J.  .1.  Marsh. 
87,  90;  Keniicdy /■..M<.reiJith,3  liibtj,  466; 
Pierxon  r.  Meau.x,  3  A.  K.  Marsh.  6;  Wil- 
8<'n  I'.  (Jarver,  4  llayw.  92;  Neal  v.  Ilag- 
thorp,  3  tiland,  551;  Bank  of  M'bili:  r. 
Planters'  and  Merchants'  Bank,  b  Ala. 
772;  Sniilie  r.  Siler,  35  Alii.  fcH.  But  see 
Garniile  v.  .Johnson,  9  MIshou.  605;  Nel- 
son I'.  I'iiiegar,  3o  111.  473;  Dc  Wolf  v. 
Long,  2  Giluiari,  679.  liy  Huh-  i-,  Chan- 
cery Practice  in  New  llanipshire,  all  fads 
well  iilli-ge<l  in  the  bill,  an<l  not  denied  or 


explained  in  the  answer,  will  be  held  to 
be  admitted."  Where  a  fact  is  admitted 
by  the  answer,  the  defendant  cannot  ques-' 
tion  or  deny  it  bv  the  proots.  Lippencott 
r.  Kidsway,  3  S'tockt.  (X.  J.)  526;  Wel- 
der V.  Clark,  27  111.  251.  The  answer  of  a 
defendant  in  Chancer}',  being  a  confes- 
sion, is  always  evidence  against  him,  when 
pertinent,  w_hoever  may  have  been  the 
parties  in  the  cause  in  which  it  was  inter- 
posed. Kiddie  v.  Debrutz,  1  Havw.  4^0; 
.\Iims  V.  Mims,  3  J.  J.  Marsh.  "l03,  109, 
llU;  Roberts  v.  Tennell,  3  Monroe,  247, 
249;  Hunter  i'.  Jones,  6  Band.  541;  1 
Phil.  Ev.  (Cowen  and  Hill's  ed.  1839) 
359,  note  642,  in  2  ibid  ;  Cowen  and  Hill's 
notes,  926.  An  answer,  admitting;  the  cor- 
rectness of  a  copy  of  a  deed  made  tij'  an- 
other person,  and  to  which  there  was  no 
subscribing  witness,  is  evidence,  both  of 
the  contents  ami  ol  the  executiv>n  of  the 
deed,  a<!ainst  the  person  making  such  ad- 
mission. Adam>  I'.  Shelby,  10  Ala.  47b; 
see  Clark  v.  S|iears,  7  Blackf.  96.  The 
answer,  not  under  oath,  may,  in  relation  to 
its  ailmissions,  be  u.--ed  airanist  the  dct'end- 
anl  as  if  it  were  under  oath.  Smith  v. 
Pott'-r,  3  Wis.  432.  And  the  plaintiff  may 
avail  liimself  of  such  admi>sions  without 
thereby  inakmg  the  denials  evidence  Ibr 
the  defendant.      J/tnl. 

^  Tne  plaintiH  may,  however,  as  we 
have  seen,  go  into  evidence  as  to  his  whole 
ca.se;  ((nle,  p.  614. 

6  Ante,  p.  614. 


838 


EVIDENCE. 


r.  xxu.  5 1. 


When  bill 
mav  be  read. 


Effect  of  ref- 
erence to 
document 
itself,  "  for 
greater  cer- 
tainty." 


When  de- 
fendant may 
read  plain- 
tiff's bill  at 
Law; 


and  in 
Equity. 


Actual  admissions  on  tlio  rocofd  are  those  wliieli  aj){)oar,  either 
in  the  Mil,  or  in  the  answer. 

Tlie  facts  alleged  in  a  bill,  wliere  tliey  are  alleged  jtositively, 
are  admissions  in  iiivor  of  the  defendant,  of  the  facts  so  alleged ; 
and,  therefore,  need  not  be  i)roved  by  other  evidence;  for,  whether 
they  are  true  or  not,  the  plaintiff,  by  introducing  them  into  his 
bill,  and  making  them  part  of  the  record,  precludes  liimself  from 
at\erwards  disputing  their  truth. 

The  ])laintitl^  of  course,  cannot  read  any  part  of  his  own  bill  as 
evidence  in  support  of  his  case,  unless  where  it  is  corroborated  by 
the  answer;^  as,  where  the  bill  states  a  deed,  or  a  will,  and  the 
defendant,  in  his  answer,  admits  the  deed  or  will  to  have  been 
properly  executed,  and  to  be  to  the  tenor  and  effect  set  forth  in 
the  bill :  in  such  case,  the  plaintiff,  having  read  the  admission 
from  the  answer,  may  read  his  bill,  to  show  the  extent  of  the 
admission  made  by  the  defendant.  In  strictness,  however,  this 
can  hardly  be  called  reading  the  bill  on  the  part  of  the  plaintiff: 
since  the  reading  is  only  allowed  because  the  defendant,  by  ad- 
mitting the  statement  to  be  true  as  set  forth  in  the  bill,  has,  to 
that  extent,  made  that  portion  of  the  bill  a  part  of  his  answer.^ 

In  general,  where  a  defendant  refers  to  a  document  for  greater 
certainty,  he  has  a  right  to  insist  ujjon  the  document  itself  being 
read ;  ^  but  the  plaintiff  need  not,  on  that  ground,  reply  to  the 
answer,  but  may  set  the  cause  down  for  hearing  on  bill  and  answer, 
and  obtain  an  order  to  prove  the  document  viva  voce  or  by  affi- 
davit at  the  hearing :  *  provided  it  be  such  a  document  as  by  the 
rules  of  the  Court  hereafter  to  be  noticed,  can  be  proved  in  that 
manner.^ 

With  respect  to  the  right  of  a  defendant  to  make  use  of  the 
plaintiff's  bill  as  an  admission  of  the  facts  therein  stated,  it  is  to 
be  observed,  that,  at  Common  Law,  the  general  rule  is,  that  a  bill 
in  Chancery  will  not  be  evidence,  except  to  show  that  such  a  bill 
did  exist,  and  that  certain  facts  were  in  issue  between  the  parties, 
in  order  to  introduce  the  answer,  or  the  depositions  of  witnesses ; 
and  that  it  cannot  be  admitted  as  evidence  to  prove  any  facts, 
either  alleged  or  deioied  in  the  bill.''     In  Courts  of  Equity,  how- 


1  The  answer  of  a  party  in  Chancery  is 
proper  evidence  ngiiiust  him,  and  so  much 
of  the  bill  as  is  necessary  to  explain  the 
answer.  AIcGoweu  v.  Young,  2  Stewart, 
276. 

2  Where,  however,  an  order  has  been 
obtained  to  take  tlie  bill  pi-o  confesso, 
the  bill  niM}-  be  rend  in  evioence,  as  an 
aiiswer  admitting  the  tacts.  11  Geo.  IV. 
&  1  Will.  IV.  c.  36,  §  14;  ante,  p.  531.    . 

8  Cox  V.  AUingham,  Jac.  337,  339;  Lett 
V.  Morris,  4  fciim.  307,  611;  and  see  ante, 
p.  726. 


4  Fielde  v.  Cage,  cited  Wyatt's  P.  R. 
219;   a7ite,  p.  828. 

6  Post,  p.  908  et  seq. 

6  Buileau  v.  Ruilin,  2  E.xch.  665;  2 
Phil,  on  Evid.  37,  38;  Taylor  on  Evid. 
§  786;  1  rtiil.  Ev.  (Cowen  and  Hill's  ed. 
1839)  368,  359,  note  640  in  2  ibid. ;  Cowen 
and  Hill's  notes,  923,  924;  Kankin  v.  Miix- 
well,  2  Marsh.  (Ken.)  488,  489;  lielden  v. 
Davies,  2  Hall  (N.  Y.),  444;  Owens  v. 
Dawson.  1  Watts,  149,  150;  Kees  v.  Law- 
less, 4  Litt.  218. 


ADMISSIONS. 


839 


ever,  a  diffei'ent  rule  prevails,  and  the  bill  may  be  read  as  evidence, 
for  the  defendant,  of  any  of  the  matters  therein  positively  averred.^ 

But  although  a  defendant  has  a  right  to  read  the  plaintiff's  bill 
as  evidence  against  him,  such  right  is  confined  to  the  bill  as  it 
stands  on  the. record.  If  the  bill  has  been  amended,  the  amended 
bill  is  the  only  one  upon  the  record,  and  the  defendant  has  no 
right,  in  that  case,  to  read  the  original  bill  in  evidence.^  It  seems, 
however,  that  where  the  consequence  of  the  amendment  has  been 
to  alter  the  eifect  of  the  answer  to  the  original  bill,  or  to  render  it 
obscure,  the  defendant  has  a  right  to  read  the  original  bill,  for  the 
purpose  of  explaining  the  answer ;  *  and  in  a  cause  in  the  Court  of 
Chancery  in  Ireland,  Sir  Anthony  Hart  L.  C.,in  deciding  upon  the 
question  of  costs,  read  from  the  defendant's  office  copy  certain 
charges  in  the  original  bill  wliich  had  been  expunged  by  amend- 
ment, for  the  purpose  of  ascertaining  quo  animo  the  bill  had  been 
filed.* 

A  bill  may  also  be  read  in  evidence  against  a  plaintiff,  although 
filed  by  him  in  another  suit.  In  such  case,  however,  it  will  be 
necessary  to  prove  that  it  was  exhibited  by  the  direction,  or  with 
the  privity,  of  the  party  plaintiff  in  it :  "  for  any  person  may  file  a 
bill  in  another  person's  name."  ^ 

Although  a  plaintiff,  by  his  replication,  denies  the  truth  of  the 
whole  of  the  defendant's  answer,  he  does  not  thereby  preclude 
himself  from  reading  whatever  portion  of  it  he  thinks  will  support 
his  case :  except  the  answer  be  that  of  an  infant,  which,  as  we 
have  seen,  can  never  be  read  to  establish  a  fact  which  it  is  against 
the  infant's  interest  to  admit.®  The  answer  of  the  person  under 
whom  he  derives  title,  may,  however,  be  so  read ;  and  there- 
fore it  has  been  held,  that  ifj  in  a  suit  to  establish  a  will  against  the 
heir,  the  heir  puts  in  his  answer  admitting  the  will,  and  dies  before 
the  hearing,  the  derivative  heir,  though  an  infant,  will  be  bound  by 
the  admission,  and  the  execution  of  the  will  need  not,  in  such  case, 
be  proved.'  Of  course,  if  an  infant  heir  is  bound  by  the  admission 
of  his  ancestor,  such  an  admission  will  be  equally  binding  upon  an 
adult.  • 

Where  a  plaintifi"  proposes  to  read  a  passage  from  the  defend- 
ant's answer  as  an  admission,  he  must  read  all  the  circumstances 
stated  in  the  passage  ;  and  if  the  passage  contains  a  reference  to 
any  other  ])assage,  that  other  passage  must  be  read  also."     But 


C.  XXII.§  1. 


1  Ives  V.  Medcalle,  1  Atk.  63,  65. 

2  Hales  V.  I'orafret,  Uaii.  141. 
8   Ibiil. 

*  Fitzgerald  v.  O'Kliilierty,  1  Moll.  347. 

6  \Voli<-t  V   Roberts,  1  Ch.  Ca.  64. 
«  Ante,  |).  ir;y. 

7  Kobiii'oii    V.    Cooper,    4     Sim.    131; 
Lock  V.  Foote,  ib.  132;  ante,  p.  172. 


8  Biirtlett  V.  Gillanl,  3  Russ.  149;  see 
also  Lfid}'  Ormond  r.  lluti'liin^un,  13  Ves. 
47,53;  Rude  «.  VVhitcliurcli,  3  Sim.  502; 
Nurse  V.  IJunn,  5  Sim.  225;  Freumun  ti. 
'J'atham,  5  Hare,  3'2!»,  335;  10  .lur.  6f>5; 
and  see  Taylor  on  Kvid.  §  000;  1  I'liil. 
Ev.  (Cowen  &  Mill'.s  ed.  ltJ3U)  35U,  360, 
note  643  in  2  id.  020-928.    If  on  excep- 


Where,  after 
amendment, 
original  hill 
may  be  read. 


Where  hill  in 
another  suit 
may  be  read. 


Admissions 
by  answer; 


but  not  of  an 
infant. 


When  pas- 
sages of 
answer,  in 
qualification, 
must  be  read. 


840 


EVIDENCE. 


C.  XXII.  §  1. 


Answer  to 
cn.>ss-bill  of 
disco viTV,  or 
to  cross-mter- 
rt)giitories, 
may  bo  used, 
like  answer 
to  bill  lor 
relief. 


Admissibility 
of  miswer,  as 
evidence  for 
defendant. 


What  is  sufB- 
cient  admis- 
sion of  a  fact 
by  answer: 


belief; 


information 

without 

belief. 


wlu'fo  :i  ]il:iiiitiiV,  in  ivnding  a  ]):iss:ige  from  a  ilefondant's  answer, 
li;is  \)vvn  oliligvd  lo  read  an  allegation  whidi  makes  against  his 
case,  he  will  be  permitted  to  read  evidence  to  dis[trove  such  allega- 
tion.^ 

There  was  formerly  a  distinction  between  bills  for  relief  and  bills 
for  discovery,  in  the  right  of  the  ])laintiff  to  read  the  answer  of 
the  defendant ;  but  now,  where  a  defemlant  in  E(]iiity  tiles  a  cross- 
bill for  discovery  only  against  the  plaintill"  in  E(|iiity,  or  exhibits 
interrogatories  for  his  examination,  the  answer  to  such  cross-bill 
or  interrogatories  may  be  read  and  used  by  the  party  filing  such 
cross-bill,  or  exhibiting  such  interrogatories,  in  the  same  manner, 
and  under  the  same  restrictions,  as  the  answer  to  a  bill  praying 
relief  may  be  read  antl  used.'^ 

Formerly,  when  the  parties  to  a  cause,  could  not  be  witnesses, 
questions  as  to  reading  the  answer  of  the  defendant  frequently 
arose  ;  *  but  they  are  now  of  no  practical  importance  :  the  answer 
being  almost  invariably  made  evitlence  in  the  cause.* 

With  respect  to  what  will  be  considered  as  such  an  admission 
by  an  answer  as  will  dispense  with  the  necessity  of  other  prooij  it 
may  be  stated,  that,  besides  those  expressions  which  in  words 
admit  tlie  fact  alleged  to  be  true,  a  statement  by  the  defendant 
that  "  he  believes,"  or  that  he  has  been  "  informed  and  believes," 
that  such  fact  is  true,  will  be  sufficient :  unless  such  statement  is 
coupled  by  some  clause  to  prevent  its  being  considered  as  an 
admission.®  A  mere  statement,  however,  in  an  answer,  that  a 
defendant  has  been  informed  that  a  fact  is  as  stated,  without  an 
answer  as  to  his  belief  concerning  it,  will  not  be  such  an  admission 
as  can  be  read  as  evidence  of  the  fact.®  Such  an  answer  is,  in 
effect,  insufficient ;  and  if  the  plaintiff,  upon  reading  the  pleadings, 
finds  such  a  statement  as  to  a  fact  with  respect  to  which  it  is  im- 
portant to  have  the  defendant's  belief,  he  should  except  to  the 
answer  for  insufficiency. 


tions  being  taken,  a  second  answer  is  put 
in,  the  defendant  may  insist  upon  iiaving 
that  also  read,  to  explain  what  he  swore  in 
his  first  answer.  1  Fhil.  Kv.  359,  note  644, 
in  2  id.  928. 

1  i'rice  V.  Lvtton,  3  Russ.  206;  see  1 
Pliil.  Ev.  {Cowen  &  Hill's  ed.  1839)  359, 
note,  643  in  2  id.  926,  927.  Where  an  an- 
swer admits  a  fact  and  insists  on  a  distinct 
fact  by  w:iy  of  discharge  or  avoidance,  the 
latter,  even  if  part  of  toe  same  traii.-action, 
must  be  proved  by  evidence  aliunde. 
I'arkes  v.  Gorton,  3  li.  I.  27 ;  Walker  v. 
Berry,  8  Kicli.  (S.  C.)  33;  Cummins  v. 
Cummins,  15  ill.  33;  Stevens  v.  i'ost,  1 
Beasley  (N.  J.),  408,  410,  411;  Hart  v. 
Ten  Eyck,  2  John.  Ch.  62;  Millerj;.  VVack, 
Saxt,  (N.  J.)  209;  Beckwith  v.  Butler,  1 


Wash.  224;  Thompson  v.  Lamb,  7  Ves. 
587. 

2  Ord.  XIX.  6. 

8  Davis  V.  Spurling,  1  II.  &  M.  64,  68; 
Miller  V.  Gow,  1  y.  &  C.  C.  C.  56,  59; 
Coniiop  V.  iiayward,  ib.  33,  34;  AUfrey  v. 
Alifre_v,  1  M'N.  &  G.  87,  93;  13  Jur.  269. 

^  See  ])Ost,  p.  843,  n.  3. 

6  See  Potter  v.  i'otter,  1  Ves.  S.  274; 
Hill  V.  Binney,  6  Ves.  738;  and  see  VVood- 
hatcli  V.  l-ree"land,  11  W.  li.  398,  V.  C.  K.; 
see  also  Bird  v.  Lake,  1  li.  &  M.  111.  An 
answer  admitting  a  verbal  agreement  al- 
leged in  the  bill,  but  insisting  on  the  Stat- 
ute of  Frauds,  cannot  be  read  as  an  admis- 
sion of  the  agreement.  Jackson  u.  Oglander, 
2  11.  &  M.  465. 

6  1  I'liil.  Lv.  (Cowen  &  Hill's  ed.  1839) 
360,  note. 


ADMISSIONS. 


841 


It  has  been  before  stated,  that  the  answer  of  an  infant,  being  in 
fact  the  answer  of  his  guardian,  cannot  be  read  against  hini.^  The 
answer,  however,  may,  it  seems,  be  read  against  the  guardian ;  and 
in  Beasley  v.  Magrath^  the  answer  of  an  infant,  by  his  mother 
and  guanlian  in  another  cause,  was  read  against  the  mother  in  her 
own  capacity.  And  it  seems,  that  where  a  defendant,  being  an 
infant,  answers  by  guardian,  and,  at  full  age,  neither  amends  nor 
makes  a  new  answer,  as  he  may  do,  but  prays  a  hearing  of  the 
cause  de  novo,  his  answer  is  evidence  against  huu.^ 

The  answer  of  an  idiot  or  lunatic,  })ut  in  by  his  committee,  may 
be  read  against  him ;  and  it  has  been  held,  that  the  answer  of  a 
person  of  weak  intellect,  put  in  by  his  guardian,  could  also  be  read 
against  him;*  but  it  is  doubtful  if  this  decision  would  now  be 
followed.^ 

For  the  rules  of  practice  with  regard  to  reading  the  answer  of 
married  persons,  the  reader  is  referred  to  a  former  portion  of  this 
Treatise.® 

The  plaintiii*  cannot,  of  course,  read  the  answer  of  one  defendant 
against  a  co-defendant  as  an  admission : ''  and,  as  a  general  rule,  it 
cannot  be  read  as  evidence,  except  on  motion  for  a  decree,  where 


1  Ante,  p.  169;  Gresley  Eq.  Ev.  (Am. 
ed. )  323. 

-  2  Sch.  &  Lef.  34. 

8  Hinde,  422. 

*  Levin^  v.  Caverley,  Piec.  in  Ch.  229. 

6  Ante,  pp.  177,  178;  Mickleihwaite  v. 
Atkinson.  1  Coll.  173;  Percival  v.  Cunev, 
4  De  G.  &  S.  610;  14  Jur.  1056,  1062;  Is. 
C.  nom.  Stanton  v.  Percival,  3  W  R.  391; 
24  L.  .1.  Ch   369,  H.  L. 

6  Ante,  pp.  184,  185. 

"  .Jone.s  V.  'f  urberville,  2  Sumner's  Ves. 
Jr.  II,  note  (6j;  4  Bro.  C.  C.  115,  S. 
C;  1  Greeul.  Kv.  §  178;  1  Phil.  Ev. 
(Cowen  &  Hill's  ed.  1839),  362,  note 
650,  in  2  id.  931;  Porter  v.  liank  of 
Kutland,  19  Vt.  410;  Blodget  r.  Hohart, 
18  Vt.  414.  It  seems  to  be  a  well  estab- 
li'ihed  general  princi[)le,  that  the  an- 
swer ol  one  det'eiidaiit  cannot  be  read  in 
evidence  again~t  a  co-defemlant,  il'  there 
is  no  joint  interest,  ])rivity,  fraud,  eolhi- 
sion,  or  combinaii'in  betwet-n  them,  .lones 
e.  Joni-s,  13  Iowa  (5  With.),  276;  Kust»\ 
Mansfield,  25  111.  336;  Williamson  v.  llav- 
cock,  11  Iowa  (3  With.),  40;  .Mobley». 
Dubuque,  &c.,  Co.,  11  Iowa  (3  With.),  71; 
Judd  V.  .Seaver,  8  Paige,  54M;  Hayward«. 
Carroll,  4  llarr.  &  .).  51f^;  Sin^ielon  r. 
Giyle,  8  Porti-r,  271;  Conner  i\  Clinse,  15 
Vt.  764;  i'li'iinasson  v.  Tucker,  2  Hlackf. 
172;  AL'Selcy  v.  Armstrong,  3  Monroe, 
389;  Kobin<on  v  Siimpsi-n,  23  Maine,  388; 
Webb  ('.  Pell,  3  Paige,  36S;  Collier  v. 
Cnnpman,  2  Stew.  163;  Ctiambliss  v. 
Sniitti,  30  .\l:i.  366;  Graham  r.  Sublett,  6 
.1.  .1.  Marsh.  145;  M'Kiin  v.  Thompson,  1 
Bland,  160;  Calwell  v.  Uoyer,  8  Gill  &  J. 


136;  Dexter  v.  Arnold,  3  Sumner,  152; 
Felch  V.  Hooper,  20  Maine,  159;  Clarke  v. 
Van  Keimsdyk,  9  Granch,  152,  156;  Leeds 
V.  Mar.  Ins.  Co.  of  Alex  ,  2  Wheat.  380, 
383 ;  Dade  v.  Madison,  5  Leigh,  401 ;  Dan- 
iel 11.  Boullard,  2  Dana,  296;  Field  v.  Hol- 
land, 6  Cranch,  8;  Fanning  i'.  Pritchett, 
6  ^lonrod,  79,  80;  Roundlett  v.  Jordan,  3 
Greenl.  47;  Mills  v.  Gore,  20  Pick.  34. 
The  answer  of  one  defendant  is  not  evi- 
dence against  the  other  defendant,  though 
])rior  to  the  tiling  of  Che  answer  the  former 
may  have  transferred  to  the  latter  all  his 
interest  in  the  subject-matter  ol'  the  con- 
troversy. Jones  V.  Hardesty,  10  Gill  &  .1. 
404;  see  also  lla  worth  v.  Bostock,  4  Y. 
&  C.  1;  Lewis  r.  Owen,  1  Ired.  Eq.  290; 
ll'iare  v.  Johnstone,  2  Keen,  553;  Osborne 
V.  U.  States  Bank,  9  W^heat.  738.  But 
the  answer  of  a  defendant,  which  is  re- 
sponsive to  the  bill,  is  admissible  as  evi- 
dence in  /(Ivor  of  a  co-defendant,  more 
especially  where  such  co-defendant,  being 
the  depositary'  of  a  chattel  claimed  bj'  the 
plaintiff,  defends  himself  under  the  title 
cif  the  other  defendant.  Mills  v.  Gore,  20 
Pick.  28;  but  see  Morris  v.  Ni.von,  1  How. 
U.  S.  118;  Cannon  ;'.  Norton,  14  Vt. 
17^^.  Tiie  (lepositioTi  of  a  party  in  Chancer}', 
read  without  objection,  is  evidence  lor  his 
co-iJefendant.  I'letctier  v.  Wier,  7  Dana, 
354;  see  Wolley  y.  Browidiill,  13  Price, 
500;  S.  ('.  1  M'Lel,  317.  If  a  defendant 
in  his  argument  relies  on  the  answer  of 
his  co-deleiidant,  he  thereby  makes  it  evi- 
dence against  himself.  Chase  v.  Man- 
hardt,  IBland,  336. 


C.  XXII.  §  I. 

Infant's 
answer : 
may  be  read 
against 
guardian ; 
where  evi- 
dence against 
infant. 


Answer  of 
person  of 
weak 

intellect,  or 
idiot,  or 
lunatic. 


Answer  of 
husband  and 
wife. 


In  what 
ca.ses  the  an- 
swer of  one 
defendant 
may  be  read 
against 
another. 


842 


EVIDENCE. 


r.  XXII.  §1.  notioe  of  tlio  intention  to  road  it  has  boon  givon.^  Thus,  in 
'~" — >^ — — '  J/orse  V.  Jioyal^'  tlie  answor  of  an  executor  was  offered  as  evi- 
dence against  tlio  residuary  legatee,  who  luxd  been  made  a  party 
t(Mhosuit;  but  Lord  Krskino  rofusoci  to  receive  it  for  any  otlier 
jiurpose  tlian  tliat  of  sliowing  wliat  funds  came  to  tlie  hands  of  the 
executors,  what  debts  there  were,  and  tlie  value  of  the  estate.  In 
cases,  however,  where  the  right  of  the  plaintiflj  as  against  one 
defendant,  is  only  j)revented  from  being  complete  by  some  ques- 
tion between  the  ])laintitf  and  a  second  del'endant,  the  plaintiff"  is 
permitted  to  read  the  answer  of  such  second  defendant,  for  the 
pur})ose  of  completing  his  claim  against  the  first ; '  and  where 
several  persons  are  mutually  interested  as  partners,  or  jointly 
liable  as  the  co-obligors  of  a  bond,  the  declarations  or  answers  of 
one  may  be  admissible  against  the  others.* 

Cases,  moreover,  have  occurred,  in  Avhich  a  defendant  has,  by 
the  form  of  his  answer,  made  the  answer  of  a  co-defendant  evi- 
dence against  himself;  as,  where  a  defendant  stated  in  his  answer 
that  he  was  much  in  years,  and  could  not  remember  the  matter 
charged  in  the  bill,  but  that  J.  S.  was  his  attorney  and  transacted 
the  matter,  whereupon  J.  S.  was  made  a  defendant,  the  answer 


MTiere 
answer  of 

another  de- 
fendant is 
rulerred  to. 


1  15  &  16  Vic.  c.  86,  §  15;  Cou.sins  v. 
Vasey,  9  Hnre  Ap.  61;  Dawkins  v.  Mor- 
tan,  i  J.  &  H.  339;  Stephens  ».  Heathcote, 
1  Dr.  &  S.  138;  6  Jur.  N.  S.  312;  ante,  p. 
821;  see  FieJden  v.  Shiter,  L.  R.  7  Eq. 
523. 

2  12  Ves.  355,  361 ;  see  also  M'Intosh  v. 
Great  Western  Railway  Companv,  4  De 
G.  &  S.  544;  Wych  v.  Meal,  3  P.  Wms. 
310;  and  Gibbons  v.  Waterloo  Bridge 
Company,  1  C  P.  Coop.  t.  Cott.  385, 
where  the  answer  of  the  officer  of  a  cor- 
poration was  not  allowed  to  be  rend 
against  the  corporation.  Taylor  on  Evid. 
§  684. 

8  Green  v.  Pledger,  3  Hare,  165,  170; 
8  Jur.  801 ;  sind  generally,  concerning 
the  circumstances  in  which  the  l^ourt 
will  try  and  decide  a  case  between  co-de- 
fendants, see  Cottingham  v.  Lord  Shrews- 
bury, 3  Hare,  627,  638;  Lord  Cliamley  v. 
Lord  Dunsany,  2  Sch.  &  Lef.  690,  706,  709, 
H.  L. ;  Farquharson  v.  Seton,  5  Russ.  45, 
62;  Smith  v.  Baker,  1  Y.  &  C.  C.  C.  223, 
228;  Fletcher  V.  Green  (No.  2),  33  Beav. 
513. 

4  Crosse  V.  Bedingfield,  12  Sim.  35,  39; 
5  Jur.  836;  but  the  answer  of  a  defendant 
who  has  become  bankrupt,  and  ceased  to 
be  a  partner,  cannot;  Parker  v.  Moirel),  2 
Phil.  453,  463;  12  Jur.  253;  see  1  (ireeiil. 
Ev.  §  178;  Clarke  v.  Van  Reimsdvk,  9 
Crunch,  153,  156;  Williams  v.  Hodgson,  2 
Harr.  &  J.  474,  477;  Van  Reimsdvk  v. 
Kane,  1  Gall.  630;  Hutchins  v.  Childless, 
4  Stew.  &  P.  34;  Gilmore  v.  Patterson, 
36  Maine,  544;  Clayton  v.  Thompson,  13 
Geo.  2^*1.  Upon  a  bill  in  Efjuity  by  one 
partner  against  his  copartners  for  an  ac- 


count, the  answer  of  one  of  the  defendants 
will  not  be  evidence  to  charge  another. 
Chapin  v.  Colman,  11  Pick.  331.  But  if 
it  appears  that  the  defendants,  as  consti- 
tuting a  partnership  among  themselves, of 
the  one  part,  were  in  [lartnership  with  the 
pluintifl"  of  the  other  part,  the  answer  of 
one  of  the  defendants  would  be  evidence 
to  charge  the  others.  Ibid. ;  see  also  Judd 
V.  Seaver,  8  Paige,  548;  Van  Reimsdvk  v. 
Kane,  1  Gall.  630;  Winchesters.  Jiickson, 
3  Hayw.  310;  Rector  v.  Rector,  3  Gilman, 
105.  The  answer  of  a  wife  is  not  evidence 
against  her  husband.  The  City  Bank  v. 
Bangs,  3  Paige,  36.  Nor  is  the  answer  of 
an  obligee,  evidence  against  his  previous 
assignee,  a  party  in  the  same  suit.  Fan- 
ning V.  Pritchet't,  6  Mi^nroe,  79;  Turner  v- 
Holman,  5  Monroe,  411.  Nor  is  the  an- 
swer of  a  principal  debtor,  admitting  his 
insolvency,  evidence  against  his  surety, 
a  co-defendant,  at  the  suit  of  a  co-surety 
for  contriljution.  Daniel  v.  Bullard,  2 
Dana,  296.  A  fortiori,  it  follows  that  the 
mere  silence  of  one  defendant  is  no  evi- 
dence against  his  co-defendant.  Timber- 
lake  ».  Cobbs,  2  J.  J.  Marsh.  136;  Blight 
V.  Banks,  6  Monroe,  192;  Harrison  v.  John- 
son, 3  Litt.  286. 

The  rule  that  the  answerof  one  defend- 
ant cannot  be  read  in  evidence  against 
his  co-defendant,  does  not  apply  where  the 
latter  claims  through  him  whose  answer  is 
ofliered  in  evidence.  1  (Jreeni.  l'>.  §  178. 
Nor  where  one  defendant  in  his  answer 
refers  to  the  answer  of  his  co-defendant. 
Anon.,  1  P.  Wms.  301;  Dunham  v.  Gates, 
3  Barb.  Ch.  196;  Blakeney  v.  Ferguson, 
14  Ark.  641. 


ADMISSIONS. 


843 


was  allowed  to  be  read  against  the  original  defendant :  Lord 
Cowper  being  of  opinion,  that  the  words  in  the  first  answer 
amounted  to  a  reference  to  a  co-defendant's  answer.^ 

Interpleader  suits  form  an  exception  to  this  rule ;  and  the  answer 
of  one  defendant  may  be  read  against  a  co-defendant,  to  show  that 
adverse  claims  are  made.^ 

It  is  to  be  observed,  that  where  an  answer  has  been  replied  to 
generally,  it  cannot  (except  by  consent)  be  read  as  evidence  on 
the  part  of  the  defendant  himself.^  In  disposing  of  the  question 
of  costs,  however,  the  Court  will  permit  the  defendant's  answer 
to  be  read  in  his  own  behalf;  *  and  it  has  been  held,  that  a  peer's 
answer  upon  protestation  of  honor. may  also  be  read  on  the  ques- 
tion of  costs,  on  behalf  of  the  defendant  who  has  put  it  in.^ 
Moreover,  the  Court  itself  will  look  at  the  answer:  not  as  evi- 
dence, but  as  what  may  regulate  its  discretion  with  respect  to  the 
further  investigation  of  particular  facts.® 

Although  a  defendant  cannot  read  his  own  answer  as  evidence 
for  himself,  as  to  any  other  point  than  that  of  costs,  he  is  entitled 
to  have  the  benefit  of  his  answer,  so  far  as  it  amounts  to  a  denial 
of  the  plaintifi''s  case,  unless  the  denial  by  the  answer  is  contra- 
dicted by  the  evidence  of  more  than  one  witness:  the  rule  of 
Courts  of  Equity  being,  that  where  the  defendant,  in  express  terms, 
negatives  the  allegations  in  the  bill,  and  the  evidence  is  that  of 
only  one  person  affirming  what  has  been  so  negatived,  the  Court 
will  not  make  a  decreed     The  denial,  however,  by  the  answer, 

Cooke  r.  Clav worth,  18  Ves.  12;  Holder- 
iiesse  V.  Riinkiii,  2  De  G.,  F.  &  J.  258,  272; 
6  Jur.  N.  S.  903;  iind  see  Williams  v. 
Williams,  10  Jur.  N.  S.  608;  12  W.  U.  663, 
V.  C.  K.  Where  a  replication  is  put  in, 
unci  the  piirties  proceed  to  a  hearing,  sill 
the  allegations  of  the  siuswer  which  are 
responsive  to  the  bill,  shall  be  taken  as 
true,  unless  they  are  disproved  In'  evidence 
of  greater  weight  than  the  testimony  of  a 
single  witness.  This  may  result  from  the 
testimonj'  of  two  witnesses,  or  of  one  witli 
coiroi)oriitiiig  circumstances;  or  from  cor- 
roboitiiing  ciicumstances  alone;  or  from 
do(;unientiirv  evidence  alone.  Pierson  v. 
(Jutler,  5  V  t.  272;  Dunham  v.  Gates,  1 
ll.;tf.  Ch.  188  ;  Hart  v.  Ten  Eyck,  3 
Juhn.  Ch.  92  ;  Watkins  v.  Stockett,  6 
Harr.  &  J.  435;  Hushesr.  Blake,  6  Wheat. 
468;  Tiersiin  «.  Clayes,  15  V't.  ii3;  Gould 
V.  Williamson,  21  Mniue,  273;  Johnson  i'. 
Richardson,  38  N.  H.  363;  Moors  f.  Moors, 
17  N.  H.  483;  Kobinsnn  r.  Stewart,  10  N. 
Y.  189;  Miles  v.  Miles,  32  N.  II.  147; 
(Jamp  V.  Simon,  34  Ala.  126;  Davis  n. 
Sti-vens,  3  Clarke  (Iowa),  Ij.'^;  l'aiit(ui  v. 
Teftr,  22  III.  366;  Tusey  v.  Wright,  31 
IViin.  (State)  387;  Si)eiico  v.  Doild,  19 
Ark.  166;  Hill  v.  Hush,  19  Ark.  .'.22;  1 
Green).  Kv.  §  260;  Grrslcy  Iv).  Kv.  4; 
Clarke  V.  Van  lieimsdyk,  9  Crauch,  160; 


C.  xxir.  §  1. 


In  inter^ 
pleader  suits. 


Answer 
replied  to, 
cannot  be 
read  by 
defendant 
himself; 
except  on 
question  of 
costs. 


Where  only 

one  witness 
in  opposition 
to  defend- 
ant's answer: 


1  Anon.,  1  P.  Wms.  301. 

2  Mastermaii  v.  Price,  1  C.  P.  Coop.  t. 
Cott.  383 ;  Chevet  v.  Jones,  ibid. ;  6  Mad. 
267;  and  see  post.  Chap.  XXXIV.  §  3, 
BilU  of  Inltrpltadtr. 

8  Where  a  defendant  has  filed  an  an- 
swer, and  it  has  been  replied  to,  it  is  now 
a  commoi)  practice  to  file  a  short  afiidavit 
by  him,  verifying  the  statementsof  his  an- 
swer, in  order  to  make  it  evidei.ce  on  his 
own  behalf.  Barrack  v.  M'Culloeh,  3  K. 
&  J.  110;  3  Jur.  N.  S.  180;  and  see  Wil- 
liams f.  Williams.  10  Jur.  N.  S.  608;  12 
W.  H.  663,  V.  C.  K.  For  forms  of  affida- 
vit, see  Vol.  III. 

■*  Vancouver  v.  Bliss,  11  Ves.  458; 
Howell  y.  George,  1  Mad.  1,  13;  and  see 
Mor^ran  &  Davev,  85;  and  jKist,  Chap. 
XXXI.  §  1,   Cost's. 

6  Uaw-on  V.  Kills,  IJ.  &  W.  624,  526. 

6  Miller  V.  (iow,  1  Y.  &  C.  C.  C.  56,  59. 

'  Pemiier  v.  Matlier-i,  1  Bro.  C.  C.  52; 
pee  also  King'lomei".  Boakes,  Prec.  in  Cli. 
IM  ;  Wiikeliii  r.  U  althal,  2  Cli.  Ca.  8; 
Alam  V.  .lourdau,  I  Vt-rn.  161;  (Jlirist's 
Coll.  (Jam.  r.  Widdringion,  2  Vern.  283; 
Hitie  t\  l)od(|,2  Atk.  276;  lilyrin  v.  BanK 
of  Kiiglaiid,  2  Ves.  .S.  38;  Mortimer  w.  Or- 
chard, 2  Ves.  J.  243  ;  Lord  (!raiistiiwn  v. 
Johnston,  3  Ve.s.  170;  Cooth  v.  Jackson,  6 
Yen.  40;  Kvans  «.  Bicknell,  Ui.  174,  lh3; 


no  decree,  if 
answer  posi- 
tive, 


844 


EVIDENCE. 


c.  XXII.  §  1.    must  ill  such  cases  be  ])ositive  :  othcnvisc,  the  rule  will  not  apjily  ; 


•J  Storv  Va\.  .Tur.  §  1528;  Hollistor f.  Hark- 
loy,  11  N.  II.  501;   l,im^;.i<.ii  i\  (uxliliinl,  2 
Sti>rv,  2ii7;   KolnTts  v.  Siilisbiirv,  ;i  Ciill  & 
.1.   425;   I'liircil   r.    I'urocli,  4  Ik-ii.  &  iM. 
(>U7:  M'l'.'W.ii   V.   Young,   2  Stow.  &  1'. 
Itil ;  Aloxaiitlcr  r.  WullMtc,  10  YiTsjer,  116; 
Daiiii'i  i:  Miicliol),  1  Stwiv,  172;  i^ovillor. 
l>iMiiiMitt,  1  liri'on  C'li.  :!22;  Hi-tty  v.  Tay- 
lor, 6  l>ana,  ^l!t^;  liray  r.  Fans,  7  Yer. or, 
155;  .lohn.son  i'.  Sliiwscn,  1  Uailey  Eq.  403; 
JIasoii  r.  I'eck,  7  .1.  .1.  MmisIi.  301;  8u)iy 
Kq.  I'i.  §§  (<4!i  (1,875  a;  IStatl'ordr  Hryaii, 
1  I'liigo,  2311;  Clark  i'.  Oiikk-y,  4  Ark.  231!; 
Towiie  r.  Smitii,  1  Wood.  <S:  SI.  115;  (iieen 
V.   I  aimer,  8  Met.  422;  Cushing  r.  .Smitii, 
8  Story,  556 ;  Hough  v.  Kiclmrdson,  3  Story, 
65U,  0y2;  Gould  c  Gould,  3  Story,  516,  540; 
Joiie'^  t'.  Belt,  2  Gill,  106;  Menitee  «?  Meni- 
fee, 3  English,  i>;    Mnrgiin  v.    litdon,  3 
McLean,    339  ;    Ajipleton    r.    Horton,   25 
Maine,  23;  Eastman  v.  McAIpice,  1  Kelly, 
157;  Tobev  v.  Leonard,  2  WiiUiiee  U.  S. 
423;    O'H'annnn    v.   Myer,   36  Ala.   651; 
Benson  r.  Woolverton,  2  McCarter  (N.  J.), 
158;  Bird  v.  Styles,  3  C.  K.  Green  (N.  J.), 
297;  Vaudegnft  v.  Herbert,  3  C.  K.  Green 
(N.J.),466;  Hvnsoii  v.  Voshell,  26  Md.  83, 
94;  De  Hart  v.  Baird,  4  C  E.  Green  (N. 
J.),   423;    Hughes  r.   Blackwell,  6  Jones 
Eq..  (N.  C.)  73;  Hill  v.  Williams,  6  Jones 
Eq.  (N.  C)  242;  Stephens  v.  Onnan,  10 
Florida,  9 ;  Barton  v.  Mo>s,  32  111.  50 ;  Dun- 
la])  r.  Wilson,  32  111.  517;  .Myers  r.  Kinzie, 
26  111    36;  White  v.   ilanip'ton,  10  Jowa, 
238;  (;ilk-tt  V.  Knbbins,  12  Wis.  319.     The 
right  ot  a  defendant  in  a  bill  in  Chancery 
to  have  his  answer  thereto  taken  in  evi- 
dence, is  co-extensive  with  his  obligation 
to  answer.    Blaisdell  v.  Bower^,  40  Vt.  126. 
The  statute  of  Vermont,   providing  that 
parties  shall  not  testily  in  their  own  beliali, 
in  certain  cases,  does  not  apply  to  an  an- 
swer to  a  bill  in  Chancery,  but  the  an- 
swer, when  responsive,  is  evidence,  and  is 
I  ot  atiiected  by  that  statute.     Blaisdell  v. 
Bowers,  nbi  supra.     The  plaintiff  is  not 
allowed  to  impeach  the  character  of  the 
dbfeulaiit,  for  truth  and  verucii}',  but  must 
overcome  his  answer  by  stronger  evidence. 
Vandej;rift  r.  Herbert,  3  C.  E.  Green  (N. 
J.),  469;    Brown  v.  Bulklev,  1  McCarter 
(N.  J.),  294;  Chambers  r.  VVarren,  13  III. 
321;  Butler  v.  Catling,  1  Root,  310;  Sal- 
mon V.  Glaggett,  3  Bland,  165 ;  but  see  Mil- 
ler?;. Tolleson,  1  Harp.  Ch.  146.  The  opera- 
tion of  the  defend:int's  answer  is  the  same, 
although  the  equity  of  the  plaintiff's  bill  is 
grounded  on  the  allegation  of  fraud.  Dilly 
V.  Barnard,  8  Gill  &  J.  171;  M'Uoiiald  v. 
M'Cleod,  1  Ired.  Eq.  226;  I^ewis  v.  Owen, 
1   Ired.  Eq.  290;  Murray  v.  Biatchford,  1 
Wend.  583;    Cunninglniin  v.  Freeborn,  3 
Paige,  557 :  Graham  v.  Berrj-nian,  4  C.  li. 
Green  (N.  J.),  29;  Blanton  v.  Brackett,  6 
Coll.  2.32;  Green  v.   Vaughan,  2   B.ackf. 
324;  Hart  v.  Ten  Evck,  2  John.  Ch.  92; 
Wight  V.  I'rescott,  2  Barb.  Cli.  196.     The 
defenoant   is   as   much  bouid  to  answer 
the  charging  part  as  the  stating  part  of  the 
bill;  and  his  answer  to  the  charging  part, 


if  responsive  thereto,  is  evidence  in  his 
own  favor,  if  an  answer  on  oath  has  not 
been  waived  by  the  j)laintilf.  Smith  v. 
Clnrk,  4  I'aige,  368;  Kich  r.  Austin,  40  Vt. 
416;  Adams  v.  Adams,  22  Vt.  68.  Where, 
liowevi  r,  the  answer  I'i'  the  defendant  is 
not  responsive  to  the  bill,  or  sets  up  allirm- 
ative  allegations  of  new  matter  not  stated 
or  inquired  of  in  the  bill,  in  ojjposition  to, 
or  in  avoidance  of,  the  plaintitf's  demand, 
and  is  replied  to,  the  iinswer  is  of  no  avail 
in  respect  to  sucli  allegations;  and  the  de- 
fendant is  as  much  bound  to  estalilish  the 
allrgati'ins  so  made,  by  independent  testi- 
mony, as  the  plaintiff  is  to  sustain  his  bill. 
Bellows  V  htoiie,  18  N.  H.  465;  Wakeman 
V.  Grover,  4  raige,23;  New  England  Bank 
V.  Lewis,  8  Tick.  113;  Hart  v.  Ten  F>yck, 

2  John.  Cli.  89;  Dickey  v.  Allen,  1  Green 
Ch  406 ;  Bradley  v.  Webb,  63  Maine,  462 ; 
O'Brien  v.  lilliot,  15  Maine,  126;  Lucas  v. 
Bank  of  Darien,  2  Stewart,  280;  Wirians 
V.  VVinans,  4  C.  F^.  Green  (N.  J.),  220; 
Pierson  v.  Clayes,  16  Vt.  93  ;  Wells  v. 
Houston,  37  Vt.  246;  M'Danielw.  Barnam, 
6  Vt.  279;  Tobin  v.  VValkin.shaw,  1  McAU. 
C.  C  (Cal.)  26 ;  Pusey  v.  Wright,  31  Penn. 
St  387;  Garlick  v.  McArthur,  6  Wis.  450; 
Ives  V.  Hazard,  4  K.  I.  14;  Dease  v.  Moody, 

31  Miss.  (2  George)  617;  Fisler  v.  Porch,  2 
Stockt.  ( N.  J  )  243 ;  Voorhees  v.  Voorliees, 

3  C.  E.  Green  (N.  J  ),  223;  Miles  v.  Miles, 

32  N.  H.  147;  Busbv  v.  Littlefield,  33  N. 
H.  76;  Rogers  v.  Mftchell,  41  N.  H.  157; 
Leach  V.  hobes,  11  Gray,  509;  M'Donald 
V.  M'Donald,  16  Vt.  630;  Randall  v.  Phil- 
lips, 3  Mason,  378;  Gordon  v.  Sims,  2 
M'Cord  Ch.  156  ;  Clarke  v.  White,  12 
Peters,  178;  Lampton  v.  Lampton,  6  Mon- 
roe, 620;  Purcell  v.  Purcell,  4  Hen.  &  M. 
511;  Hagthorj)  t'.  Hook,  1  Gill  &  J.  272; 
Alexander  v.  Wallace,  10  Y'erger,  105; 
Carter  v.  Sleeper,  5  Dana,  2ti3;  Flagg  v. 
Mann,  2  Sumner,  487  ;  Cocke  i>.  Trotter,  10 
Yerger,  213  ;  Gould  v.  Williamson,  21 
Maine,  273;  Story  Eq.  PI.  §  849  a;  Jones 
V.  Jones,  1  Ired.  Eq.  332;  Johnson  v.  Pier- 
son,  Dev.  Eq.  364;  Miller  y.  Wiick,  1  Sax- 
ton  (N.  J.),  204  ;  Pierce  v  Gates,  7 
Biackf  162;  Dunn  v.  Dunn,  8  Ala.  784; 
Sanborn  tv  Kittredgc,  20  Vt.  632;  Fitzhugh 
V.  M'Pherson,  3  Gill,  408  ;  Patton  v.  Ash- 
ley, 3  F>ngli.sh,  290;  Brooks  v.  Gillis,  12 
Sm.  &  iM.  53b.  The  bill  set  out  an  agree- 
ment, and  called  upon  the  detcn  lant  to 
admit  or  deny  it,  but  not  to  state  what  it 
Was,  and  the  defendant  in  his  answer  set 
forth  another  agreement ;  such  statement  of 
the  latter  agi cement  is  not  responsive  to 
the  bill,  and  is  not  evidence  for  the  de- 
fendant. Jones  y.  Beet,  2  Gill,  106.  An 
answer,  in  stating  the  i)articular3  of  a 
transaction  charged  and  inquired  into  by 
the  bill,  is  responsive.  Merritt  v.  Brown, 
4  C.  F:.  Green  (N.  J.),  286,  289  ;  Youle 
V.  Richards,  Saxton  (N.  J.),  639.  If 
the  bill  requires  the  defendant  to  state 
an  account  between  the  parties,  the  ac- 
count so  stated  is  re.-ponsive  to  the 
bill.     Bellows  v.  Stone,  18  N.  II.  465.     If 


ADMISSIONS. 


845 


as  where  a  defendant,  by  his  answer,  denies  a  fact  as  to  his  belief  C.  xxii.  §  i. 


the  defendant  might  have  fully  answered 
the  plaintiff's  bill,  and  left  out  any  par- 
ticular allegations  of  new  matter  in  his 
answer,  then  those  allegations  are  not  re- 
sponsive, but  all  allegntion<!  are  responsive, 
the  absence  of  which  in  the  answer  would 
furnish  just  ground  for  exception.  Bellows 
V.  Stone,  18  N.  H.  465.  But  when  the 
case  is  heard  upon  the  bill  and  answer 
alone,  the  answer  must  be  taken  as  true, 
whether  responsive  to  the  bill  or  not,  be- 
cause the  defendant  is  precluded  from 
proving  it.  Lowrv  v.  Armstrong,  2  Stew. 
&  P.  297 ;  Cheny'  r.  Belcher,  5  Stew.  & 
P.  134;  M'Gowen  v.  Young,  3  Stew. 
&  P.  161;  Paulling  i-.  Sturgis,  3  Stew.  & 
P.  95;  Stone  v.  Moore,  26  111.  165;  Doo- 
little  V.  Cooking,  10  Vt.  275;  Slason  v. 
Wright,  14  Vt.  208  ;  Wright  v.  Bate.s.  13 
Vt.  341;  D«le  v.  M'Evers,  2  Cowen,  118  ; 
Reed  r.  Keed.  1  C.  E.  Green  (N.  J.),  248  ; 
Jones  V.  Mason,  5  Rand.  577 ;  Kennedy  v. 
Savior,  1  Wash.  162;  Copelami  v.  Crane, 
9  iMck.  73;  Tainter  v.  Clark,  5  All-^n,  66; 
Perkins  r.  Nichols,  11  Allen,  542;  Russell 
V.  Moffit,  6  Howard  (Miss.).  303;  Trout  v. 
Emmons,  29  III.  433:  Buntain  r.  Wood,  29 
III.  504;  Gaskill  r.  Sine,  2  Bea.slev  (N.  J), 
130;  Ma.son  v.  McGore,  28  111.  322l  DeWolf 
V.  Long,  2  Oilman,  679 ;  Rogers  v.  Mitchell, 
40  N.  H.  154;  Rogers  r.  Mitchell.  41  N.  H- 
154  Still,  general  allegations  in  an  an- 
swer, containing  matters  of  bdif-f  and  con- 
clusions from  facts  not  particularly  stated, 
are  said  bv  Wilde  J.  in  Copelaud  r.  Crane, 
9  Pick.  73",  78,  to  be  entitled  to  liitle  or  no 
weight  in  a  hearing  on  the  bill  and  answer. 
See  Beford  v.  Crane,  1  C.  E.  Green  (N.  J.), 
265.  Such  an  answer,  however,  is  sutK- 
cient  to  put  the  plaintiff  to  the  proof  of  his 
case;  the  Court  in  such  a  case,  will  believe 
what  the  defendant  believes,  nothing  being 
found  to  the  contrary  Buttrick  v.  Holden, 
13  Met.  355,  357.  And  so  far  as  his  answer 
is  a  mere  denial  of  the  plaintift''s  case,  of 
course  it  prevails.  It  is  for  the  plaintiff  to 
prove  the  allegations  in  the  bill  which  are 
denied  by  the  answer.  But  when  the 
answer  admits  the  plaintitrs  case,  and 
seeks  to  avoid  it,  by  general  allegations  of 
the  character  above  alluded  to  by  Mr.  .Jus- 
tice Wilde,  then  the  question  of  its  effect, 
as  an  answer,  properly  arises,  and  un- 
doubted 1  v.  in  such  a  case,  it  wr)uld  be  en- 
titled to  liut  little  weight.  See  Giveiis  v. 
Tidniore,  8  Ala.  745.  .\n  answer,  which 
alleges  as  facts  what  the  defendant  could 
not  personally  know,  though  responsive  to 
the  bill,  merely  jints  the  plainiilf  upon  the 
proof  of  his  own  allegations.  Diigan  v. 
Gittings,  3  (Jill,  138;  see  l>rurv  t'.  Conner, 
6  Harr.  &  .1.  288,  2'Jl.  Sr.  of"a  denial  by 
the  defendant  upon  information  and  belief, 
not  founded  on  the  personal  knowledge 
of  the  defentlant.  Coleman  r.  Ross,  46 
Penti.  St.  1>*0;  Newman  j'.  .lames,  12 
Ala.  2'J;  Townsend  i'.  Mcintosh,  14  Iiid. 
57;  llarlwell  f.  VShitniaii,  36  Ala.  712; 
nee  B.-llows  v.  Stone,  18  N.  II.  465, 
479.     As  to  the  elluct   of  the  answer  of 


a  corporation  being  put  in,  not  under  oath, 
but  under  the  common  seal  of  the  corpora- 
tion, see  Haight  r.  Proprietors  of  Morris 
Aqueduct,  4  Wash.  C.  C  601;  Angell  & 
Ames  Corp.  §  665;  Lovett  f.  Steam  Saw 
Mill  Ass.,  6  Paige,  54  ;  State  Bank  i-.  Ed- 
wards, 20  Ala.  512;  Union  Bank  v.  Geary, 
5  Peters,  99  Such  answer  has  no  other 
force  and  effect  than  that  of  an  individual 
not  under  oath.  Maryland  and  New  York 
Coal  and  Iron  Co.  v.  Winsert,  8  Gill,  170. 
As  to  the  effect  of  an  answer,  made  by  one 
incompetent  to  give  testimony  in  any  case, 
and  incapable  of  making  oatli,  see  Salmon 
V.  Clagett,  3  Bland,  l'25.  The  oaths  of 
two  plaintiffs  in  the  same  cause,  ma<le,  by 
the  statute  of  New  Jersey,  competent  wit- 
nesses for  themselves,  will  not  be  considered 
as  destroying  the  effect  of  the  responsive 
denial  of  the  answer,  unless  they  seem  to 
the  Court  to  be  entitled  to  the  weight  of 
the  oaths  of  two  credible  witnesses;  and, 
in  considering  their  weight,  the  fact  of  the 
interest  of  these  witnesses  as  parties  to  the 
suit,  must  be  taken  into  consideration. 
Vandegrift  v.  Herbert,  3  C.  E  Green  (N. 
J.),  466.  It  has  been  stated  above,  in  this 
note,  that  the  plaintiff'  will  not  be  aliowed 
to  discredit  the  answer  by  impeaching  the 
character  of  the  dMendaiit  for  truth  and 
veracitv.  This  subject  was  very  fullv  ex- 
amined by  Chancellor  Green,  in  Brown  v. 
Bulkley,  1  McCarter  (N.  J.).  294,  and  he 
entirely  sustains  this  position  But  in  the 
arguiTient  of  the  point  he  said:  "Perhaps 
the  most  plausible  reason  in  favor  of  a 
change  of  the  practice  will  be  found  in  the 
fact,  that  now  by  statute  the  parties  may 
offer  themselves  as  witnesses.  And  as  the 
defendant  may  discredit  the  plaintiti''s  evi- 
dence by  impeaching  his  character,  the 
plaintiff"  should  have  the  like  privilege  of 
disiTediting  the  defendant's  answer  by 
impeaching  his  character.  But  it  must  be 
borne  in  mind  that  the  liberty  of  being  a 
witness  for  himself,  is  a  privilege  accorded 
to  the  plaintiff,  and  he  can  surely  ask  no 
greater  advantage  on  that  account,  nor 
can  he  ask  to  stand  in  a  better  position 
than  a  disinterested  witness.  It  is  obvious, 
moreover,  that  as  the  rule  was  established 
and  J^cted  upon  when  the  plaintiff  was  ex- 
cluded from  being  a  witness,  there  is  less 
reason  for  a  change  now  that  the  plaintiff 
has  the  benefit  of  his  own  testimonv."  1 
McCarter,  307. 

Under  the  Practice  Act  in  California, 
a  sworn  answer  is  no  evidence  lor  the 
defendant.  Goodwin  t'.  Hammond,  13 
Cal.  168;  Bostic  tv  Love,  16  Cal.  69. 
And  in  .Missouri  the  oM  rule  with  re- 
s))ect  to  the  weight  of  an  an-wer  in  Chan- 
cery has  been  done  avf  >y  with  by  the 
new  code.  W.alton  v.  Walton,  17  Miss. 
(1  Bennett),  376.  So  in  Iowa,  the  rule 
requiring  two  witnesses,  or  one  and  strong 
corro|)orating  circumstances,  to  overcome 
tin-  answer,  do.;s  not  f.\ist;  though  such 
answer  throws  u[)ou  the  plaintitf  the  imut 
of  sustaining  his  malerial  charges  by  com- 


S'iG 


EVIDENCE. 


r.  XXII.  §1.   only  ;^  or  where  it  is  a  more  constructiA'e  denial,  liy  the  filing  of 
a  traversing  note."-^ 

The  reason  for  the  adoption  of  this  rule,  by  the  Courts,  was : 
because,  there  being  a  single  deposition  only,  against  the  oath  of 
the  defendant  in  his  answer,  the  denial  of  facts  by  the  answer  was 
equally  stri>ng  with  the  attinnation  of  them  l)y  the  deposition.* 
Where,  tlierefore,  there  were  any  corroborative  circumstances  in 
fivor  of  the  ]>laintitt''s  case,  which  gave  a  preponderance  in  his 
favor,  the  Court  departed  from  the  rule,  and  either  made  a  decree, 
or  directed  an  issue.^     Tlius,  where  a  bill  was  filed  for  the  specific 


petont  proof.  Graves  v.  .Alden,  13  Iowa 
(■')  With),  573:  Jones  v.  Jones,  13  lowii  (5 
AVitli  ),  276;  Ohenvette  v.  Mason,  4  Green 
(lowii),  231;  Cnlhertson  v.  Luckev,  13 
Iowa  (5  AVith.).  12;  White  v  Hampton,  10 
Iowa,  238;  Gilbert  i'.  Mosier,  11  Iowa,  498. 
A  sworn  answer  in  Chancery,  if  nnt  de- 
mamled,  only  puts  in  issue  the  allegations 
of  tlu'  bill.  Wilson  I'.  Holcomb,  13  Iowa 
(5  With.),  110;  Connelly  v  Carlin,  ib  383. 
An  answer  in  Chancery  without  an  oath  is 
a  mere  pleading,  ami  of  no  effect  as  evi- 
dence.   Morris  v.  H())'t,  11  Mich.  9. 

1  Arnot  V.  Biscoe,  1  Ves.  S.  95,  97. 
Hughes  V.  Garner,  2  Y.  &  C.  Ex.  328, 
335.  Where  the  answer  does  not  state 
facts  positively,  or  as  within  the  defend- 
ant's own  knowledge,  or  does  state  them 
inferenthiliy  merely,  or  only  according 
to  the  defendant's  best  knowledge  and 
belief,  the  rule  requiring  two  witnesses,  or 
one  witness  with  corroborating  circum- 
stances, to  counteract  its  effect,  does  not 
apply.  The  onlv  effect  of  the  answer  in 
such  case  is,  to  put  the  plaintiff  to  the 
necessity  of  proving  the  facts  alleged  in 
his  bill.  Waters  v.  Creach,  4  Stew.  & 
P.  410;  Hughes  V.  Garner,  2  Y.  &  C. 
127;  Knickerbacker  v  Harris,  1  Paige, 
209;  Stevens  v.  Post,  1  Beasley  (N.  J.), 
408;  Pearce  v.  Nix,  34  .\la.  183;  Wiitson 
V.  Palmer,  5  Ark.  501,  505.  506;  Drurv  v. 
Conner,  6  Har.  &  J.  288;  Phillips  v.  Rich- 
ardson, 4  J.  J.  Marsh.  213;  Copeland  v. 
Crane,  9  Pick.  73,  78;  Parkman  v.  Welch, 
19  Pick.  231:  Norwood  v.  Norwood,  2 
Harr.  &  J.  328;  Pennington  v.  Gittings, 
2  Gill  &  J.  208;  BelloWs  v.  Stone,  18  N. 
H.  465;  Hunt  v.  Rousmanier,  3  Mason, 
294;  Brown  v.  Brown,  10  Yerger,  84; 
Combs  r.  Buswell,  2  Dana,  474;  Young 
V.  Hopkins,  6  Monroe,  22;  Martin  v. 
Greene,  10  Mifsou.  652.  The  same  is 
true  where  the  answer  is  evasive,  or  so  ex- 
pressed as  not  to  amount  to  a  positive 
denial.  Wilkins  v.  Woodfin,  5  Munf  183; 
M'Campbell  t'  Gill,  4  Monroe,  90;  Sallee 
V.  Duncan.  7  Monroe,  383;  Hutchinson  v. 
Sinclair,  7  Monroe,  293;  Ncal  v.  Ogden,  5 
Monroe,  362;  Lvon  v.  Hunt,  11  Ala.  295; 
Hartwell  «.  Whitman,  36  Ala.  712;  Mar- 
tin V.  Greene,  10  Missou.  652.  So  where 
the  answer  is  merely  formal  to  put  in  issue 
the  allegations  of  the  bill.  Reynolds  v. 
Pharr,  9  Ala.  560.     The  answer  of  a  cor- 


poriition,  being  put  in  under  its  common 
seal  only,  cai\not  be  used  as  evidence,  but 
puts  in  issue  the  allegations  to  which  it 
responils,  and  imposes  on  the  pliiintitf  the 
burden  of  proving  such  allegations.  Balti- 
more &  Ohio  R.  K.  V.  Wheeling,  13  Grat- 
tan  (Va.),  40.  Where  an  answer  on  oath 
is  waived,  the  ansAver  is  not  evidence  in 
favor  of  the  defendant  for  any  purpose. 
Patterson  v.  Gaines,  6  How.  U.  S.  550; 
Larsh  v.  Brown,  3  Ind.  234;  Moore  v. 
McClintock,  6  Ind.  209;  Doon  v.  Bayer, 
16  Md.  144;  although  in  fact  put  in  under 
oath;  Gerrish  v.  Towne,  3  (Jray,  82; 
Armstrong  v.  Scott,  3  Iowa,  433;  Wilson 
V.  Holcomb,  13  Iowa,  110;  Connelly  v. 
Carlin,  ib.  383;  but  as  a  pleading,  the 
plaintiff  may  avail  himself  of  the  admis- 
sions and  allegations  contained  therein, 
which  establish  the  case  miule  bv  the  bill. 
Bartlett  i;.  Gale,  4  Paige,  503;"Miller  v. 
Avery,  2  Barb.  Ch.  582;  Wilson  w.  Towle, 
36  N.  H.  129;  Durfee  v.  McClurg,  6  Mich. 
223;  Smith  v.  Potter,  3  Wis.  432;  see 
also  Union  Bnnk  of  Georgetown  v.  Geary, 
6  Peters,  99, 11 0-1 12;  Story  Eq.  PI  §  875  a, 
and  note.  It  seems  to  be  doubted  by  Mr. 
Justice  Story,  whether  the  plaintiff  should 
have  the  power  to  deprive  the  defendant 
of  the  effect  of  his  answer  by  dispensing 
with  the  oath,  and  at  the  same  time  use 
the  answer  for  the  benefit  ofjiisown  case. 
Story  Eq.  PI.  §  875  a ;  see  also  as  to  the 
effect  of  the  answer  of  an  infant,  who  is 
not  compellable  to  make  answer  under 
oath,  Bulkley  v.  V.  Van  Wyck,  5  Paige, 
536. 

2  See  ante,  p.  514. 

3  Walton  V.  Hobbs,  2  Atk.  19. 

4  Pember  t).  Mathers,  Walton  f.  Hobbs, 
Hine  v.  Dodd,  nbi  snpra,  and  Jiinson  v. 
Riiny,  2  Atk.  140;  see  also  Ee  Barr's 
Trust,  4  K.  &  J.  219;  Dunn  v.  Graham, 
17  Ark.  60;  1  Greenl.  Ev.  §  260:  1  Phil. 
Ev.  (Cowen  &  Hill's  ed.)  154,  155,  and 
notes  referred  to;  Sturtevant  v.  Water- 
bnrv,  1  Edw.  Ch.  442;  Columbia  B:mk  v. 
Bhick,  2  M'Cord  Ch.  344,  350;  Smith 
V.Shane,  l"M'Lean,  ^7;  (-lark  v.  Van 
Reimsdyk,  9  Cranch,  160;  Neilson  v. 
Dickinson,  1  Desaus.  163;  Union  Bank  of 
Georgetown  v.  Geary,  6  Peters,  99;  Clark 
V.  Hunt,  3  .1.  J.  Marsh.  560;  Young  v. 
Hopkins,  6  Monroe,  22 ;  Watson  v.  Stock- 
ett,  6  Harr.  &  J.  435 ;  Roberts  v.  Salisbury, 


ADMISSIONS.  847 

performance  of  an  agreement,  which  the  defendant  denied  by  his   C.  XXll.  §  i. 

answer,  hut  the  agreement  was  proved  by  one  witness,  and  there    "" y " 

was  also  evidence  to  prove  the  defendant's  confession  of  it,  besides 
other  corroborative  circumstances,  a  decree  was  made.^  So,  where 
a  defendant  had  denied  notice  of  a  previous  mortgage,  which,  hoAv- 
ever,  was  proved  by  a  single  witness,  and  it  was  also  proved,  by 
other  evidence,  that  upon  an  application  being  made  to  the  defend- 
ant on  behalf  of  the  previous  mortgagee  for  an  account,  he  ob- 
served :  "  You  have  no  right,  for  your  mortgage  is  not  registered," 
Lord  Redesdale  held,  that  the  testimony  of  the  witness,  who 
proved  the  notice  directly,  was  confirmed  by  that  observation, 
which  showed  that  the  defendant  had  investigated  the  subject, 
and  relied  on  the  neglect  to  register  the  mortgage.^ 

Upon  the  same  princiijle,  where  a  parol  agreement,  with  part-  as  where 
performance,  is  insisted  upon  in  a  bill,  and  the  agreement  is  denied  performance 
by  the  answer,  yet,  if  it  is  proved  by  one  witness,  and  supported  of  a  parol 
by  circumstances  of  part-performance,  such  as  delivery  of  posses- 
sion, the  specific  performance  of  the  agreement  has  been  decreed.® 
In  such  cases,  however,  if  the  defendant,  by  his  answer,  denies  the 
agreement  set  up  by  the  bill,  and  his  denial  is  confirmed  by  cir- 
cumstances, the  Court  will  not  decree  a  specific  performance, 
although  the  case  made  by  the  bill  is  corroborated  by  one  wit- 
ness.* And  where  a  particular  agreement  by  parol,  namely,  an 
agreement  to  grant  a  lease  for  three  lives,  was  stated  in  the  bill, 
and  proved  by  one  Avitness,  and  confirmed  by  acts  of  part-per- 
formance, but  the  answer  admitted  an  agreement  for  one  life  only, 
and  was  supported  by  the  testimony  of  one  witness,  the  Court 
refused  to  decree  for  the  plaintift':  the  evidence  of  part-perform- 
ance being  equally  applicable  to  either  agreement.^ 

Sometimes,  the  Court  gave  the  defendant  an  opportunity  of  try-  issue, 
ing  the  case  at  Law,  when  the  plain tifrs  case  was  supported  by  ^^"""ly) 

directed ; 

3  Gill  &  J.  425 ;  McXeil  v.  Magee,  5  Ma.son,  edge.     Long  «.  White,  5  J.  J.  Marsh  238 ; 

244;  Pierson  r.  Catlin,3  Vt.  272;  Dunham  Roliinsnn  v.  Stewart,  10  N.  Y.  189;  Robin- 

».  Jackson,  6  Wend.  72;    Turner  v.   llol-  son  v.  Hardin,  26  Geo.  344;    Roberts  v. 

man,  6  Monroe,  410;   Hutchin.son  v.  Sin-  Kellv,  2  I'.  &  H.390;  see   also  Sturtevant 

clair,  7  Monroe,  204;   Drurv  «.  Connor,  6  v.  Waterburv,  1  Ed.  442;  Brown  tv  Brown, 

Harr.&J.288;  VVilkinsf.Woodlin,5Munf.  10  Yerger,  i5'4;  Dunham  y.  Gates,  1  HoflF. 

183;  Love  I'.  Braxton,  5  Call,  527;  V'^Hnce  Ch.     188;    Cnnningliam    v.    Freeborn,   3 

V.  Vance,  5  Monroe,  523;   Cunninghams.  Paige,  5(54;    S.    C.  on  appeal,   11   Wend. 

Freeborn,  3  Paige,  557  ;  Estep  ».  VVatkins,  251;  Gould  y.  Willi;imson,  21  Maine,  276  ; 

1   Bland,  488.      The  answer  that  dt^iies,  Preschbaker  v.  Freemiin,  32  III.  475. 

may  contain  the  circumstances  to  corrobor-  l  Only  tJ.  VVa'.ker,  3  Atk.  407,  408. 

ate  the  pl-iintifTs  proof,  sd  as  to  overcome  2  Biddulph  v.  St.  John,  2  Sch.  &  Lef. 

itself,  when  taken  in  tonnecfion  with  tliMt  532. 

proof.    Pierson  t'.  (Jallin,  3  Vt. 'i72;  Maury  8  Morphett    v.    Jones,    1    Swanst.    172, 

V.  Lewis,  10  Yerger,  115;  .Savre /).  Fre(l-  182. 

cricks.  1  C.  E.  Green  (N.  J.'),  205.    Cir-  ■•  Pilling  v.   Armitage,   12  Ves.  78,79; 

cumstance*    alone,    in    the   iihsence   of  a  Money  v.  Jordan,  2   l)e  (i.,  M.  &  G.  318; 

positive  wi'neMH,  may  be  sudlcieut  to  over-  S.  C.  rwm.  Jordan  v.  Money,  6  H.  I>.  Ca. 

come  the  denial  of  the  answer,  even  of  a  185. 

person  who  answers  on  his  own  knowl-  6  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1,  7. 


848 


EVIDENCE. 


('.  XXll.  §  1. 


Question  now 
of  rare 

oi'currence. 


II.  Admis- 
sions by 
agreement : 

Should  be 
clear  and 
distinct. 


Are  general!}' 
in  writing, 
and  signed 
by  the  par- 
ties, or  their 
solicitors; 
whether 
necessarily 
in  writing, 
qucere. 


tlio  ovidonoe  of  only  one  witness  and  covroboratin<;  cironnistnnccs;^ 
and  sonu'linies  tho  Court  dirocti'd  tlie  answer  of  the  defendant  to 
be  read  as  evidenee.'-  As  the  practice  of  direct injjj  an  issue,  in  a 
case  of  tliis  descri]»tion,  was  intended  solely  for  the  satisfaction  of 
the  detendant,  it  was  by  no  means  compulsory  u|)on  the  defendant 
to  take  one;  and  if  the  defenda)it  declined  an  issue,  the  Court 
itself  was  bound  to  pve  judgment  upon  the  question  whether  the 
circumstances  outweighed  the  eftect  of  the  rule,  so  as  to  authorize 
a  decree  against  the  denial  in  the  answer. 

It  must  be  remembered,  that  the  parties  to  a  cause  can  now  be 
witnesses  on  their  own  behalf;^  so  that  such  questions  as  we 
have  just  been  considering,  are  of  very  rare  occurrence,  in  modern 
practice. 

II.  Admissions  by  agreement  between  the  parties  are  those 
which,  for  the  sake  of  saving  expense  or  preventing  delay,  the 
parties,  or  their  solicitors,  agree  upon  between  themselves.^ 

With  respect  to  admissions  of  this  description,  as  they  must  de- 
pend entirely  upon  the  circumstances  of  each  case,  little  can  now 
be  said  respecting  them  beyond  drawing  to  the  practition^-'s  notice 
the  necessity  there  exists  that  they  should  be  clear  and  distinct.  In 
general,  they  ought  to  be  in  writing  and  signed  either  by  the  par- 
ties or  their  solicitors  ;  and  the  signature  of  the  solicitor  employed 
by  the  party  is  considered  sufficient  to  lynd  his  principal ;  the 
Court  inferring  that  he  had  authority  for  tliat  purpose.^  It  does 
not,  however,  appear  to  be  necessary  that  an  agreement  to  admit 
a  particular  fact  should  be  in  writing ;  and  where,  at  Law,  the 
plaintiff's  attorney  swore  that  he  had  j^roposed  that  the  defendant 
should  acknowledge  a  warrant  of  attorney,  so  as  to  enable  the  de- 
ponent, if  it  should  become  necessary,  to  enter  up  judgment 
thereon,  and  that  the  defendant  had  accepted  his  offer,  it  was  con- 
sidered well  proved  that  the  defendant  had  agreed  to  acknowledge 


1  East  India  Company  v.  Donald,  9  Ves. 
275,  283,  284;  Ibbottson  v.  Rhodes,  1  Eq. 
Ca.  Ab.  229,  pi.  13;  2  Vern.  554;  Pember 
V.  Mathers,  1  Bro.  C.  C.  52;  Savage  v. 
Brocksnpp,  18  Ves.  335-337;  post,  "  Trial 
of  Questimis  of  Fact ;  "  Lancaster  v.  Ward, 
Overton,  430;  Smith  v.  Betty,  11  Gratt. 
Va.  752. 

2  Ibbottson  V.  Rhodes,  ubi  sup.  The 
answer  cannot  be  rciid  unless  an  order  is 
miule  to  that  effect.  lilnck  v.  Lamb, 
1  Beasley(N.  .1.),  108;  Giesley  Kq.  Ev. 
227;  see'kule  33  of  the  Rules  of  Practice 
in  Chancery  in  Massachusetts;  Gamble 
V.  Johnson,  9  Missou.  605;  Kinsev  v. 
Grimes  7  Blackf.  290.  In  Marston  v. 
P.rackett,  9  N.  II.  350,  the  Court  re- 
niarked  that  "the  manner  of  proceeding 
to  tlie  trial  of  issues  from  Chancery  is 
under  the  control  of  the  (,'ourt.  Orders 
may  be  made  respecting  the  admission  of 


testimony,  and  an  order  may  be  made  for 
the  examination  of  one  or  both  of  the 
parties;  but  tliis  may  be  refused.  If  the 
party,  after  the  evidence  has  been  taken 
for  the  hearing,  moves  for  a  trial  by  the 
Jury,  we  are  of  opinion  the  case  should  be 
tried  there  upon  the  same  evidence  upon 
which  It  would  have  been  tried  had  it  taken 
the  usual  course  of  cases  in  Chancery,  and 
been  examined  by  the  Court;  unless  the 
Court,  upon  cause  shown,  make  an  order 
permitting  further  evidence  to  he  intro- 
duced. Any  other  course  would  lead  to 
great  abuse,"  &c;  see  post,  Trials  of 
Questio7is  of  Fact. 

3  See  14  &  15  Vice.  99,  §  2. 

■*  Greslev  Kq.  Ev.  (Am.  ed.)  38  et  seq. 

6  Young' V.  Wright,  1  Camp.  N.  P.  139; 
Gainsford  v.  (iammer,  2  id.  9;  Laing  v. 
Kaine,  2  Bos.  &  P.  85.  For  form  of  ad- 
mission, see  Vol.  III. 


ONUS    PROBAXDI. 


849 


the  instrament  for  all  purposes,  and  that  the  plaintiff  ^ras  at  liberty 
to  act  upon  the  instrument  without  the  necessity  of  producing-  the 
subscribing  witness.-^ 

It  is  to  be  remarked,  that  although  the  Courts  are  disposed  to 
give  every  encouragement  to  the  practice  of  parties  or  their  solici- 
tors agreeing  upon  admissions  among  themselves,  they  vriW  not 
sanction  an  agreement  for  an  admission  by  Avhich  any  of  the  known 
principles  of  Law  are  evaded  ;  and,  therefore,  where  a  husband 
was  wiUing  that  his  wife  should  be  examined  as  a  witness,  in  an 
action  against  him  for  a  maUcious  prosecution,  Lord  Hardwicke 
refused  to  allow  her  examination :  because  it  was  against  the  policy 
of  the  law  to  allow  a  woman  to  be  a  witness,  either  for  or  against 
her  husband.'^  Ui^on  the  same  princij^le,  where  the  law  requires 
an  instrument  to  be  stamped,  the  Court  will  not  give  eifect  to  an 
agreement  between  the  solicitors  to  waive  the  objection  arising 
fi'ora  its  not  being  stamped.' 

To  save  expense,  it  has  been  recently  enacted,  that  where  all 
the  j^arties  to  a  suit  are  competent  to  make  admissions,  any  party 
may  call  on  any  other,  by  notice,  to  admit  any  document,  saving 
all  just  exceptions.* 

All  written  admissions  of  evidence,  whereon  any  order  is  founded, 
must  be  indorsed  by  the  Registrai-,^  and  be  then  filed  at  the  Re- 
port Office,®  and  a  note  thereof  made  on  the  order,  by  the  Clerk  of 
Reports.'^ 


C.  XXII.  §  2. 


Must  not  be 
contrary  to 
policy  of  the 
law : 


therefore 
agreement 
to  waive 
objection  for 
want  of  a 
stamp,  is 
void. 

Admissions, 
under  21  &  22 
Vic.  c.  27. 


Identity  and 
presers-ation 
of  written 
admissions. 


Sectiox   II.  —  27ie  Onus  Prohandi. 


Having  ascertained  what  matters  are  to  be  considered  as  admitted 
between  the  parties,  either  by  the  pleadings  or  by  ngreemoit,  the 
next  step  is  to  consider  what  proofs  are  to  be  adduced  in  suj)2)ort 
of  those  points  wliich  are  not  so  admitted.^ 

In  considering  the  question  of:  what  matters  are  to  be  jn-oved    Onm 
in  a  cause,  the  first  point  to  be  ascertained  is,  ui)on  whom  the  bur-  ^'■'^*""<^*  • 
den  of  the  proof  lies  V     And  here  it  may  be  laid  down,  as  a  gen- 


1  Marshall  t>.  Cliff,  4  Camp.  N.  P.  133; 
but  it  may  be  doubted  wlieilier  it  is  not 
necesswry,  in  Chancer}",  th>it  nil  adiiiis- 
Bionsshould  be  in  writing,  see  Ord  111.  11. 

'^  Barker  r.  Dixie,  Kep.  t.  Hardwicke, 
2<34.  As  to  the  present  law,  with  reg;ird 
to  husband  and  wife  giving  evidence  for  or 
against  each  other,  see  IfJ  &  17  Vic.  c.  b3. 

'*  Owen  V.  Thomas,  3  M.  &  K.  353, 
3i)7;  see,  however,  Ornnge  v.  I'ickford, 
and  Tiiomjisoti  v.  VVel)stcr,  citeiJ  .Setoii, 
Iti;  see  a.Ui)  jxml,  p.  8S0,  and  Cliap.  XXV. 
Utavini)  Cnu»ni. 

*  21  ■&  22  Vic.  c.  27,  §  7;  sec  post,  p. 
870. 

VOL.  I.  64 


6  Reg.  Regul.  15  March,  1S60,  r.  23. 
I'"or  form  of  entering  admissions,  see  Se- 
ton,  24. 

«  Urd.  I.  44. 

7  Ord.  XXIII.  2.3. 
•*  The  rule-;  of  evidence  are  the  SMnie  in 

Courts  of  Ei|uity  as  in  Courts  ot  J^uw, 
Morrison  t'.  Hart,  2  Uibb,  5;  Ivcmiister  v. 
Hurckhart,  2  Bibb,  28;  Dwight  v.  Pome- 
ro.v,  17  Mass.  303;  Meed  i'.  Clark,  4  Mon- 
roe, 20;  [Stevens  y.  Cooper,  1  Joiin.  Ch. 
420;  ISaugh  v.  liamsey,  4  Monroe,  137; 
Kveleth  i'.  Wil-on,  15  Mai<s.  lOU. 


rests,  ni  gen 
eral  upon  the 
party  assert- 
nig  the 
alliniiative. 


850 


EVIDENCE. 


C.  XXII.  $3. 


Where  a 
prima  facie 
case  is  made, 
onus  prohanm 
is  upon  the 
opposite 
party ; 
as  a  person 
disputing  a 
deed  or 
instrument 


crnl  piv^positioii,  that  tlu>  jioint  in  issuo  is  to  ho  proved  by  tlio 
p.irty  who  assorts  tho  atriiiuativo,  acoonlin<;"  to  tlio  uiaxiin  of  the 
Civil  Law:  "jfeV  incumbit  probatlo  qui  ilicif,  non  qui  negate  ^ 
This  rule  is  comniou,  as  well  to  Courts  of  E(piity  as  to  Courts  of 
Law  :  ami  aooordin<;ly,  when  a  (lefonchmt  insists  upon  a  purchase 
for  a  vahiable  considoration,  without  notice,  the  fact  t)f  tlie  defend- 
ant, or  those  under  Avhoni  he  chiinis,  having  had  notice  of  the 
j)h^intiif 's  title,  must  be  proved  by  the  })laintitt'.''^  So  where  a/eme 
covert,  having  a  separate  property,  had  joined  with  her  husband  in 
a  security  for  money  which  it  was  the  object  of  the  bill  to  recover 
fi'om  her  (her  husband  being  dead),  and  the  defendant,  by  her 
answer,  admitted  that  she  had  signed  the  security,  but  alleged  that 
she  had  done  so,  not  of  her  own  free-will,  but  under  the  intiuence 
of  her  husband.  Sir  John  Leach  M.  R.  held,  that  it  lay  upon  the 
wife  to  repel  the  eifect  of  her  signature,  by  evidence  of  undue  intiu- 
ence, and  not  upon  the  plaintitf  to  prove  a  negative.^ 

In  general,  it  may  be  taken  for  granted,  tliat  wherever  Si  prima 
facie  right  is  proved,  or  admitted  by  the  pleadings,  the  onus  pro- 
handi  is  always  upon  the  person  calling  such  right  in  question.* 
And  here  it  may  be  observed,  that  a  Court  will  always  treat  a 
deed  or  instrument  as  being  the  thing  which  it  purports  to  be, 
unless  the  contrary  is  shown  ;  and,  therefore,  it  is  incumbent  upon 
the  party  impeachuig  it,  to  show  that  the  deed  or  instrument  in 
questii)n  is  not  what  it  purports  to  be ;  thus,  where  a  bond,  which 
was  \ipon  the  face  of  it  a  simple  money  bond,  Avas  imjieached  as 
being  intended  merely  as  an  indemnity  bond,  it  was  held,  that  the 
Inxrden  of  proving  it  to  be  an  indemnity  bond,  lay  on  the  party 


1  On  tills  subject,  see  the  following 
works  on  evidence:  1  Phillips,  552;  Tay- 
lor, §  337  el  seq.  ;  Best,  §  ^17 1 ;  Gresley, 
388;  Starkie,  586;  Powell,  180.  This  is 
a  rule  of  convenience,  adopted,  not  be- 
cause it  is  impossible  to  prove  a  negative, 
but  becau-e  a  ni'gative  does  not  admit  of 
the  direct  and  simple  proof  of  which  the 
atiirmafive  is  capable.  1  Grceiil.  Ev.  §74; 
Drariquet  v.  I'rudliomme,  3  La.  83,  86; 
see  1  Stark.  Kv.  (5th  Am.  ed.)  362-366; 
1  Phil.  Ev.  194-200;  2  Phil.  Ev.  (Co wen 
&  Hill's  notes,  ed.  1839)  475  et  seq.; 
Phelps  V.  Havtwell,  1  Mass.  71 ;  Blaney  v. 
Sargeant,  1  .Mass.  335;  Loringu.  Steinman, 
1  .Met.  204,  211;  Phillips  ».  Ford,  9  Pick. 
39.  Regard  is  to  be  had  in  this  matter  to 
the  substance  of  the  issue  rather  than  to 
the  form  of  it;  for  in  many  ca'es  the  party, 
by  makmg  a  sliglit  change  in  his  pleading, 
may  give  the  issue  a  negative  or  affirma- 
tive fonn,  at  his  pleasure.  1  (ireenl.  Ev. 
§  74.  To  this  general  rule,  that  the  bur- 
den of  proof  is  on  the  party  holaing  the 
affirmative,  there  are  some  exc-ptions. 
1  Greenl.  Ev.  §  78.  One  class  ot  these 
exception-!  will  be  found  to  include  those 


cases  in  which  the  part}-  groundsills  right 
of  action  upon  a  negative  allegation,  and 
where  of  course  the  establishment,  of  this 
negative  is  an  essential  element  of  his 
case.  1  Greenl.  Ev.  §  78;  Lane  ?i.  Crom- 
bie,  12  Pick.  177 ;  Kerr  v.  Freeman,  33 
Miss.  (4  George)  292.  So  where  the  neg- 
ative allegation  involves  a  charge  of  crim- 
inal neglect  of  dntv,  whether  official  or 
otherwise;  orfrand;  or  the  wroiigl'ul  vio- 
lation of  actual  lawful  possession  of  prop- 
erty, the  party  making  the  allegation  must 
prove  it.  1  Greenl.  Ev.  §  80.  There  is 
no  difference  in  respect  to  the  burden  of 
proof,  between  proceedings  at  Law  and 
in  Ecjuity;  in  both  the  p.irty  maintaining 
the  affirmative  of  the  issue  has  it  cast 
upon  him.  Pusey  v.  Wright,  31  Peiin. 
St.  387.  A  party  in  Equity,  pleading 
matter  in  avoidance,  takes  upon  himself 
the  burden  of  proof  of  the  matter  so 
pleaded.     Peck  v.  Hunter,  7  Ind.  2!J5. 

^  Eyre  v.  Doljihin,  2  Pall  &  H  303; 
Saunders  v.  Leslii-,  i/j.  515;  ««<«,  p.  098. 

8  Field  r.  Sowle,  4  Russ.  112. 

4  Banbury  Peerage,  IS.  &  S.  153,  155. 


ONUS    PROBANDI. 


851 


impeaching  it.-^  So,  if  a  pai'ty  claims  two  legacies  under  two  diiFor- 
ent  instrnments,  the  burden  of  showing  that  he  is  only  entitled 
to  one,  will  lie  upon  the  person  attempting  to  make  out  that  prop- 
osition :  for  the  Court  will  assume  that  the  testator  having  given 
the  two  legacies  by  different  documents,  meant  to  do  so,  till  the 
contrary  is  established.- 

Indeed,  in  all  cases  where  the  presumption  of  Law  is  in  favor  of 
a  party,  it  will  be  incumbent  on  the  other  party  to  disprove  it : 
though  in  so  doing  he  may  have  to  prove  a  iiegative,^  therefore, 
where  the  question  turns  on  the  legitimacy  of  a  child,  if  a  legal  mar- 
riage is  proved,  the  legitimacy  is  presumed,  and  the  party  assert- 
ing the  illegitimacy  ought  to  prove  it*  for  the  presumption  of  Law 
is,  that  a  child  born  of  a  manied  woman  whose  husband  is  within 
the  four  seas,  is  legitimate,  unless  there  is  irresistible  evidence 
against  the  possibility  of  sexual  intercourse  having  taken  place.^ 

It  is  uuportant,  in  this  place,  to  notice,  that  in  cases  where  it  is 
sought  to  impeach  a  will,  or  other  instrument,  on  the  ground  of 
insanity,  the  rule  as  to  the  onus.'prohandi  is :  that  "  where  a  party 
has  ever  been  subject  to  a  commission,  or  to  any  restraint  permit- 
ted by  Law,  even  a  domestic  restraint,  clearly  and  plainly  imposed 
upon  him  in  consequence  of  undisputed  insanity,  the  proof,  show- 
ing sanity,  is  thrown  upon  him."  On  the  other  hand,  where  in- 
sanity has  not  been  imputed  by  relations  or  friends,,  or  even  by 
common  fame,  the  proof  of  insanity,  which  does  not  appear  to  have 
ever  existed,  is  thrown  upon  the  other  side : '  which  is  not  to  be 


c.  xxn.  §  2. 


Where  pre- 
sumption of 
Law  is  in 
favor  of  one 
party, 
burden  of 
proof  must  be 
upon  the 
other. 


Where  an 
instrument  is 
impeached  tor 
insanity,  &c. ; 


1  Nicol  V.  Vaughan,  G  Bligh  N.  U  104; 
1  CI.  &  F.  49. 

2  l.ee  V.  Pain,  4  Hare,  216;  Hooley  v. 
Hatton,  t  Dick  461.  Where  two  legucies 
arc  given  to  the  same  Legatee,  by  tlie  same 
instrument,  the  presumption  is  the  other 
■way.     lb.  46"i2. 

»  Wlienever  there  is  a  presumption  tiiat 
a  fact  exists,  he  who  mnkes  an  allegation  to 
the  contrary  must  prove  it.  Higdon  v. 
Higdofi,  6  J.  J.  Marsh.  51.  I>eeds  are 
pre->uined  to  be  delivered  on  tlie  day  of 
tlieir  date.  Au  alli'gation  ot  another  day 
must  be  proved.     Ihid 

<  1  Plid.  on  Evid.  197;  1  Greenl  Kv. 
§  81.  So  where  infancy  is  alleged.  Ibid. 
So  in  case  a  party  once  proved  to  be  living 
isadeged  to  l>e  dead,  the  presumption  of 
life  not  yet  being  worn  out  by  lapse  of 
time;  lliel»ur.len  of  proif  is  on  the  |)arty 
making  the  allegation,  notwithstanding  its 
negative  character.     Ibid. 

6  Head  V.  !lea<l,  1  S.  &  .S.  150;  T.  &  R. 
13«;  »e.;  al-o  lUiry  y.  I'hilip  't,  2  M.  &  K. 
349,  <I.J2;  Jlargrave  «.  Ilargrave,  9  IJcav. 
652;  10  .lur.  957;  I'lowes  «.  liosscy,  2  Dr. 
&S.  145;  hJur.  N.S.  ao2,  V.  C  K. ;  Atdi- 
ley  v.  Sprigs,  lO.Jur.  N.  S.  144,  V.  C.  Iv. 
A»  10  other  iiisiai-ci's  of  pre'>um|)tioiiH  of 
law,  «e(3  the  fullowiiig  works  on  evidence: 


1  riiillips,  467  lit  seq. ;  Taylor,  §  61  ct 
seq.  ;  liest,  §  305  tt  seq. ;  Gresley,  473; 
Powell,  47. 

•J  Where  one  is  under  guardianship  as 
non  compos,  the  presumption  is  that  he  is 
incapable  of  making  a  will.  Breed  v. 
Pratt,  la  Pick.  115.  Vet  this  dues  not 
prevent  his  making  a  will  it  his  mind  is 
actually  sound.  Ibid  ;  Stone  v.  Damon,  12 
.Mass.  486;  2  Greenl.  Ev.  §  690;  Orown- 
ingshield  v.  Crcjwningshield,  2  Gray,  531; 
sea  Ste«  art  v.  Lispeiiard,  26  Wend.  255. 
The  commission  oi  suicide  bj'  the  testatur 
is  not  conclusive  evidence  of  insanity, 
lirooks  V.  Barrett,  7  Pick.  94;  DulHeld  v. 
Kobi-son,  2  llarring.  683;  see  2  Greenl. 
Ev.  §§  689,  690. 

7  See  2  Greenl.  Ev.  §§  689,  690;  i'helps 
V.  Ilartwell,  1  Mass.  71;  Hubbard  f.  Hub- 
bard, 6  .Mass.  397  ;  Bleed  v.  I'latt,  18  I'lck. 
115;  Kogers  v.  Thomas,  1  H.  iMomoe, 
394;  .Morse  i'.  Slasuii,  13  Vt.  290;  Jackson 
V.  King,  4  Coweii,  207 ;  Stevens  v.  Van 
Cleve,4  Wash.  V,.  G.  262;  Hmtun  v.  Scott, 
3  lliiiid.  399;  .Jackson  v.  Van  Duseii,  6 
.John.  144;  Mo-e  v.  lislier,  1  Peters  (J.  C. 
163;  I'ettest).  Bingliam,  10  N.  11.  514;Ger- 
rish  V.  Mason,  •^•i  Maine,  438;  iJiooksc. 
Barrett,  7  I'ick.  94,  99;  Commonwcaiih 
V.   Eddy,  7  Gray,  663;   baxter  i'.  Abbott, 


852 


EVIDENCE. 


0.  XXII.  §  3.  made  out  Uy  rniubling  tliroiigh  tlie  Avliolo  life  of  the  party,  but  must 
be  applieil  to  the  partieuhir  date  of  the  trausaetion.^ 

It  has  also  been  heUl,  that  where  general  lunacy  has  been  estab- 
lished,  ami  a  parly  insists  ui)on  an  aet  done  dining  a  hicid  interval, 
the  proof  is  thrown  u]»on  the  ]>arty  alleging  the  luoid  interval  ;  and 
that,  in  order  to  establish  such  an  interval,  he  must  prove  not 
jnerely  a  cessation  of  violent  symptoms,  but  a  restoration  of  mind 
to  the  party,  sufficient  to  enable  him  to  judge  soundly  of  the  act.^ 

It  may  also  be  stated,  generally,  that  whenever  a  person  obtains 
by  voluntary  donation  a  benelit  from  another,  the  onus probandi  is 
upon  the  former,  if  the  transaction  be  questioned,  to  prove  that  the 
transaction  was  righteous,®  and  that  the  donor  voluntarily  and  de- 
liberately did  the  act,  knowing  its  nature  and  effect.  Moreover, 
where  the  relation  of  the  jiarties  is  such  that  undue  influence  might 
have  been  used,  the  onus  ptrohandi,  to  show  that  such  influence  was 
not  exerted,  is  upon  the  person  receiving  the  benefit.* 


■where  a  lucid 
iiiten'al  is 
allegi'd. 


Where  a 

voluntary 
donation'  is 
impeached. 


Section   III.  —  Confined  to  Matters  in  Issue. 


Facts,  not 
noticed  in  the 
pleadings, 
cannot  be 
proved ; 


It  is  a  fundamental  maxim,  both  in  this  Court  and  in  Courts  of 
Law,  that  no  proof  can  be  admitted  of  any  matter  which  is  not 
noticed    in    the    pleadings.^      This   maxim  has  been  adopted,  in 


7  Gray,  71.  Under  the  statutes  of  Massa- 
chusetts, it  has  been  held  that  the  burden 
of  proving  the  sanity  of  the  testator  is 
upon  him  who  otters  the  will  for  probate. 
Crowningshield  V.  Crowiiingshield,  2  Gray, 
624;  see  Comstock  v.  Hudlyme,  8  Conn. 
261.  But  in  the  absence  of  evidence  to 
the  contrary,  the  legal  presumption  is  in 
favor  of  the  sanity  o!  the  testator.  Baxters. 
Abbott,  7  Gray,' 71;  see  the  notes  on  this 
subject  of  presunip'ioii  of  sanity  on  proof 
ot  wills  in  1  Jarnian  AVills  (4th  Am.  ed.), 
75-81.  If  it  is  idleged  that  the  testator  had 
no  knowledge  ot  the  contents  of  the  will  he 
has  executed,  or  that  he  was  induced  to 
execute  it  by  misrepresentiition,  the  bur- 
den of  proof  is  on  tiiose  who  oljject  to  the 
will.     Pettesv.  Bingham,  10  N.  H.  514. 

1  Whiter.  WiLson,  13  Yes.  87,  88;  and 
see  the  Attorney-General  ru  I'arnther,  3 
Bro.  C.  C.  441,  443;  Jacobs  v.  Richiirds, 
18  Beav.  300;  18  Jur.  527. 

2  Hall  V.  Warren,  0  Ves.  605,  611; 
Clark  V.  I'isher,  1  I'aige,  171;  Ilalley  v. 
Webster,  21  Maine,  461;  Biyd  u.  Eby,  8 
Watts,  66;  Jackson  v.  Van  Dusen,  6  John. 
144,  159;  2  Greenl.  Ev.  §  689;  Goble  v 
Grant,  2  Green  Ch.  629;  Whitenach  v. 
Stryker,  1  Green  Ch.  8;  Dufliekh;.  Kobe- 
eon,  2  Harring.  375;  Hiirden  v.  Hays, 
9  Barr,  151;  1  .larman  Wilis  (4th  Am. 
ed.),  67  tt  seq.,  and  notes;  Jencks  v.  Pro 
bate  Court  2.  R.  I.  255.  The  rule  does 
not  apply  to  a  case  of  insanity  caused  by 


violent  disease.  Ilix  v.  VVhittemore,  4 
Met.  545;  Townshend  v.  Townshcnd,  7 
Gill,  10. 

3  Cooke  V.  hamotte,  15  Beav.  234. 

4  lloghton  V.  Hoghton,  ib.  278;  Not- 
tidge  V.  Prince,  2  Gitf.  246;  6  Jur.  N.  S. 
1066;  Walker  w.  Smith,  29  Beav.  394. 

6  V\  haley  v.  Norton.  1  Vern.  484;  Gor- 
don ?;.  Gordon,  3  Swanst.  472;  Clarke  v. 
Turton,  11  Ves.  240;  Williams  v.  Llewel- 
lyn, 2  Y.  &  J.  68;  Hall  v.  Maltby,  6 
Pri.  240,  259  ;  Powys  v.  Mansfield,  6  Sim. 
565;  see  Story  Eq.  PI.  §§  28,  257; 
Langdon  v-  Goddard,  2  Story,  267 ;  James 
t'.  M'Keinon,  6  John.  543;  Lyon  v  Tall- 
maclge,  14  John.  501;  1  Phil.  Ev.  (Cowen 
&  Hill's  ed.  1839)  169  et  seq.  and  notes,  2 
ib.  (Cowen  &  Hill's  notes)  429  et  seq.  and 
cases  cited;  1  Greenl.  Ev.  §  51  et  seq.  ; 
Gresley,  Eq  Ev.  159  et  seq.;  Barque  Chu- 
san,  2  Story,  456;  Barrett  v.  Sargeant,  18 
Vt  365;  Pinson  v.  Williams,  23  Miss.  (1 
Cush.)  64;  Kidd  v.  Manley,  28  Miss.  (6 
Cush.)156;  Surget  V.  Byers,  1  Hemp.  715; 
Craiger.  Craige,6  Ired.  Eq.  191;  Moores 
V.  Moores,  1  C.  E.  Green  (N.  J.),  276; 
Chandler  v.  Herrick, 3  Stockt  (N.  J.)497; 
Burnham  v.  Dalling,  3  C.  E.  Green  (N. 
J.),  134.  Proofs  taken  in  a  cause  mu.st  be 
pertinent  to  the  issue  in  that  cause,  secun- 
dum alkyata.  Underhillv.  Van  Cortlandt, 
2  John.  Ch.  339;  Parsons  v.  Heston,  S 
Stockt.  (N.  J.)  165.  Evidence  relative  to 
matters  not  stated  in  the  pleadings,  nor 


CONFINED    TO    MATTERS    TX    ISSUE. 


853 


order  to  obvi"ite  the  great  inconvenience  to  whicli  parties  woiiM 
be  exposed,  if  they  were  liable  to  be  affected  by  evidence  at  the 
hearing,  of  the  intention  to  produce  which  they  had  received  no 
notice.  In  a  former  part  of  this  Treatise,  the  operation  of  this 
rule,  in  requiring  the  introduction  into  a  bill  of  every  fict  which 
the  plaintiff  intends  to  prove,  has  been  pointed  out.^  It  has  also 
been  shown,  that  the  same  rule  applies  to  answers,  and  that  a 
defendant  who  has  put  in  an  answer,  cannot  in  strictness  avail 
himself  of  any  matter  in  his  defence  which  is  not  stated  in  his 
answer,  although  it  appears  in  his  evidence.^  In  certain  cases, 
however,  evidence  of  particular  facts  may  be  given  under  general 
allegations,  and,  in  such  cases,  therefore,  it  is  not  necessary  that 
the  particular  tacts  intended  to  be  proved  should  be  stated  in  the 
pleadings.''  The  cases  in  which  this  exception  to  the  general  rule 
is  principally  applicable,  are  those  where  the  character  of  an  indi- 
vidual, or  his  general  behavior,  or  quality  of  mind  comes  in  ques- 
tion :  as  where,  for  example,  it  is  alleged  that  a  man  is  non  coin- 
pos,  particular  acts  of  madness  may  be  given  in  evidence,  and  not 
general  evidence  only  that  he  is  insane.'*  So,  also,  where  it  is 
alleged  that  a  man  is  addicted  to  drinking,  and  liable  to  be  imposed 
upon,  the  evidence  shoidd  be  confined  to  his  being  a  drunkard, 
but  particular  instances  may  be  given.^  In  like  manner,  where 
the  charge  in  a  bill  was,  that  the  defendant  was  a  lewd  woman, 
evidence  of  particular  acts  of  incontinence  was  allowed  to  be  read.® 
In  cases  of  this  nature,  however,  it  is  necessary,  in  order  to  enti- 
tle the  party  to  read  evidence  of  particular  facts,  that  they  should 
point  directly  to  the  charge ;  and  therefore,  it  has  been  held,  that 
an  allegation  in  a  bill,  that  a  wife  had  misbehaved  herself,  did  not 
imply  that  she  Avas  an  adulteress,  and  that  a  deposition  to  prove 
her  one  ought  not  to  be  read.''  And  so,  the  mere  saying  that  a 
wife  did  not  behave  herself  as  a  virtuous  woman,  will  not  entitle 
her  husband  to  prove  that  she  has  committed  adultery,  unless  there 
is  an  expi-ess  charge  of  the  kind  :  ^  for  the  virtue  of  a  woman  does 
not  consist  merely  in  her  chastity.^ 

The  question,  how  far  particular  acts  of  misconduct  can  be  given 

nffiril  a  ground  for  inquiry,  before  a  final 
decree. 

3  Moores  v.  Moores,  1  C.  E.  Green  (N". 
J).  275;  Hewett  v.  Adams,  50  JIaitie,  271, 
276;  Greslev  Kq.  Ev.  (Am.  ed.)  ICl  elseq.  ; 
StiTV  Eq.  I'l.  §§  28,  2.52. 

*  Clarke  v.  l^eriam,  2  Atk.  3.33,  340. 

"  Clarke  V.  Periam,  ul/i  stip.,  and  tlie 
Cfl.ses  there  cited. 

7  /hi'/.;  Sidncv  v.  .Sidnev,  3  I*.  ^\'In•^. 
2M,  270;   1  C.  I'."  Coop.   t.  ("ott.  5M,  n. 

"  Lord  Doiicrail  v.  La'ly  boiierail,  cited 
2  Atk.  338. 

»  I'er  Lord  Ilardwicke,  in  2  Atk.  339. 


C.  XXII.  §  .3. 


fairly  within  their  general  allegations,  is 
impertinent,  and  cannot  be  made  the 
foundation  of  a  decree.  Vansciver  v. 
FJryan,  2  Beaslev  (N.  J.),  434;  and  see 
the  following  worics  on  evidence:  Taylor, 
§  239  et  seq.  ;  Best,  §  253  ttseq.  ;  Greslev, 
230;  Powel,  220. 

1  Ante,  p.  320. 

2  Anlt,  p.  711;  Smith  v.  Clarke,  12  Ves. 
477,  480.  From  the  case  of  the  London 
and  Hinnint;liam  Kailway  Company  v. 
Winter,  C.  &  1'.  57,  '12,  it  seems,  tliat  a 
fact  l)rou;.'ht  to  the  attention  of  the  Court 
by  the  evidence,  but  not  stated  upon  the 
answer,  will,  under  some  circumstances, 


exceptions: 


where  charac- 
ter, behavior, 
or  quality  of 
mind  is  in 
question ; 
as,  insanity; 


or  a  habit  of 
drinkiutr ; 


or  lewdness ; 


but  special 
facts  must  be 
pointed  to 
the  general 
charge. 


When  mis- 
behavior in 
office  is 
charged. 


8n4  EVIDENCE. 

c.  XX[I.  §  r>.    i„  ovitleiu'o  umlor  n  gcMiornl  oli;ir«o  of  misbehavior,  appears  to  have 

■^ ^^       '    Ihhii  imuli  discussed  before  Lord  Talbot,  in    Wheeler  \.  Trotter'.'^ 

wliieh  Avas  tlie  case  of  a  bill  filed  for  the  sjiecific  performance  of  an 
agreement  to  grant  a  de]>utation  of  the  oilice  of  llegistrar  of  the 
Consistory  Court ;  and,  amongst  other  defences  set  up  by  the 
defendant's  ansAver,  it  was  alleged  that  the  plaintiff  was  not  en- 
titled to  tlie  assistance  of  the  Court  because  he  had  not  accounted 
for  divers  fees  which  ho  had  receiAH'd  under  a  deputation  author- 
izing him  to  execute  the  office,  and  had  taken  several  fees  which 
were  not  due,  and  concealed  several  instruments  and  writings 
belonging  to  the  office.  Upon  the  defendant's  attempting  to  read 
proofs  as  to  the  misbehavior  alleged  in  such  general  terms  by  his 
answer,  it  Avas  objected,  on  the  part  of  the  jilaintiff,  that  the 
charges  were  too  general,  as  the  plaintiff  could  not  tell  AA^hat  proof 
to  make  against  them,  iinlcss  he  examined  every  particular  fee  he 
had  received,  and  also  cA^ery  instrument  that  had  come  to  his 
hands ;  and  that  the  defendant  shoidd  haA'e  pointed  out  the  pai*- 
ticular  facts  in  his  answer,  so  that  the  plaintiff  might  be  enabled 
to  know  how  to  clear  himself  by  his  j^roof ;  and  the  case  was 
assimilated  to  that  of  an  action  at  Common  Law  for  a  breach  of 
covenant  to  repair,  where,  if  the  defendant  pleads  that  he  left  tlie 
premises  in  repair,  the  plaintiff  must,  in  his  replication,  show 
particularly  what  part  is  out  of  repair ;  and  to  an  indictment  for 
baiTatry,  Avliich  may  be  general,  yet  the  prosecutor  is  ahvays 
obliged  to  giA'^e  the  defendant  a  list,  upon  oath,  of  the  particular 
matters  that  are  intended  to  be  proved  :  but  the  Lord  Chancellor 
lield,  that  although  the  matters  intended  to  be  proved  might  have 
been  more  precisely  put  in  issue,  by  enumerating  the  particular 
facts,  yet,  as  they  Avere  not  intended  to  charge  the  plaintiff  with 
any  particular  sums  received  more  than  were  accounted  for,  but  to 
show  a  general  misbehaAdor  of  the  jilaintiff  in  his  office,  so  that  a 
Court  of  Equity  should  not  help  him,  he  thought  that,  for  this 
purpose,  they  were  sufficiently  put  in  issue. 
Where  notice  The  cases  in  which  evidence  of  particular  ficts  may  be  given 
is  charged,  under  a  general  allegation  or  charge,  are  not  confined  to  cases  in 
which  the  character,  or  quality  of  mind,  or  general  behavior  of  a 
party  comes  in  issue.  The  same  thing  may  be  done,  Avhere  the 
question  of  notice  is  raised  in  the  pleadings  by  a  general  allega- 
tion or  charge.  Thus,  where  the  defence  was  a  purchase  for  a 
valuable  consideration,  without  notice  of  a  particular  deed,  but,  in 
order  to  meet  that  case  by  anticipation,  the  bill  had  suggested 
that  the  defendant  pretended  that  she  was  a  purchaser  for  a  valu- 
able consideration,  without  notice,  and  simply  charged  the  con- 

1  3  Swanst.  174,  n. 


CONFINED    TO    I^IATTERS    IN    ISSUE. 


855 


trary :  the  deposition  of  a  witness,  who  proved  a  conversation  to 
have  taken  place  between  himself  and  a  third  j^erson,  who  Avas 
the  solicitor  of  the  defendant,  and  the  consequent  production  of 
the  deed,  was  allowed  to  be  read  as  evidence  of  notice.'^  In  such 
a  case,  the  question  whether  the  party  has  notice  or  not,  is  a  feet, 
which  should  be  put  in  issue,  but  the  mode  in  which  it  is  to  be 
proved  need  not  be  put  upon  the  record:  for  the  rule  that  no 
evidence  will  be  admitted,  in  support  of  any  facts  but  those  which 
are  mentioned  in  the  pleadings,  requires  that  the  facts  only  in- 
tended to  be  proved  should  be  put  in  issue,  and  not  the  materials 
of  which  the  proof  of  those  facts  is  to  consist.^  Thus,  in  a  case  of 
pedigree,  if  Robert  Stiles  is  alleged  to  be  the  son  of  John  Stiles, 
that  foct  may  be  proved  in  any  mode  which  the  rules  of  CAddence 
will  allow,  and  it  is  not  necessary  to  state  that  mode  u])on  the  record. 

It  is  upon  this  jsrinciple  that  documentary  evidence,  or  letters 
themselves,  are  not  specifically  put  in  issue.^  Indeed,  a  party  may 
prove  his  case  by  written  or  parol  evidence,  indiiferently,  and 
is  under  no  more  restrictions  in  one  case  than  in  another.  It  is 
not  necessary  to  put  every  wa-itten  document  in  issue;*  thus, 
where  a  bill  chai-ges  an  agreement  for  the  purpose  of  establishing 
a  lien,  the  general  rule  has  been  laid  down  that  whatever  would 
be  evidence  of  the  agreement  at  Law  is  evidence  in  Equity ;  sub- 
ject to  this :  that  if  one  party  should  keep  back  evidence  which 
the  other  might  explain,  and  thereby  take  him  by  surprise,  the 
Court  will  give  no  effect  to  such  evidence,  without  first  giving  the 
party  to  be  affected  by  it  an  opportunity  of  controverting  it.^ 

Although  letters  and  writings  in  the  hands  of  a  party  may  be 
proved  and  used  as  evidence  of  facts,  yet,  if  they  are  intended  to 
be  used  as  admissions  or  confessions  of  facts  by  the  opposite  party, 
they  ought  to  be  mentioned  in  the  pleadings,®  in  order  that  the 
party  against  whom  they  are  intended  to  be  read,  may  have  an 
opportunity  to  meet  them  by  evidence  or  explanation.'  In 
M^Malion  v.  Burchell^^  however.  Lord  Cottenham  allowed  certain 
letters  to  be  used  as  evidence  of  admissions,  though  not  men- 
tioned in  the  pleadings:  observing,  that  "he  i30uld  not  go  the 
length  of  saying  that  evidence  of  an  admission  was  not  admissible, 
merely  because  it  was  not  j»ut  in  issue." 

This  principle  is  not  confined  to  writings,  but  applies  to  every 


1  Huglies  V  Garner,  2  Y.  &  C  Ex.  328, 
335. 

■•^  Blacker  ».  Phepoe,  1  M>ill.  354;  see 
Story  llfi.  I'l.  §§  28,  252,  203,  265,  «. 

3  'Ibid 

^  I'er  Sir  Anthony  Iliirt,  in  Kitzgeriild 
».  0"l''iiil)(;rty,  1  Moll.  350;  see  al-o  Lord 
Cranstown  v.  Johnston,  3  Ves.  170,  176; 
Dey  V.  Dunham,  2  John.  Ch.  188;  Pardee 


V.  l)e  Cola,  7  Paige,  132 ;   Kelli>g<r  v.  AVood, 
6  Paige.  578. 

6  Malcolm   v.    Scott,  3    Hare,  63;  S.  C. 
noiiu  Scott  V.  .Miilcolm,  8  Jnr.  1059. 

"  Iloulilitch    V.  Marqnis  oC  Uonegal,  1 
Moil.  .304;  Whitley  f.  Martin,  3  Heav.  220. 

7  Hlacker  r.  I'lu'ijoe,  wit  »•«/>. 

«  2  Phil.  127,  133;  1  C.  P.  Coop.  t.  Cott. 
475. 


C.  XXII.  §  3. 


the  fact,  only 
should  be  put 
in  issue ; 


not  the 
materials  of 
proof. 


Letters,  and 
other  docu- 
mentary 
eyidence 
admitted  as 
eyidence, 
without  being 
specifically 
noticed  in  the 
pleadings. 


Letters  not,  in 
general,  used 
as  admis- 
.'iions,  if  not 
mentioned 
in  the 
pleadings. 


Same  rule 
applies  lo  all 
admissions. 


S')!) 


EVinKNTE. 


C.  XXII.§  3. 


Convorsii- 
tions,  when 
u'lieii  upon  a3 

luust  bo 
.-tatoil  in  the 
pleadings; 


but  not  where 
the  conversa- 
tion is  in 
itself  evidence 
of  the  fact. 


Substance  of 
the  case  must 
be  proved; 


but  only  so 
much  of  the 
allegations  as 
will  entitle 
the  plaintiff 
to  a  decree. 


c-iiso  wlioro  the  :idmissiou  or  conic'ssiou  of  :i  parly  is  to  be  made 
iiso  of  against  him ;  thus,  it  has  been  hehl,  tliat  evidence  of  a  con- 
tossioii  by  a  party  that  he  was  guilty  of  a  fraud,  couhl  not  be  read: 
because  it  was  not  distinctly  put  in  issue.^  So,  also,  evidence  of 
alleged  conversations  between  a  witness  and  a  }»arty  to  the  suit, 
in  which  such  party  admitted  that  he  liad  defrauded  the  other, 
was  rejected:  because  such  alleged  conversations  had  not  been 
noticed  in  the  jileaditigs."  "No  man,"  observes  Sir  Anthony  Hart, 
''  would  be  safe,  if  he  coidd  be  affected  by  such  evidence.  Lord 
Talbot  said,  long  ago,  that  if  you  are  to  oust  a  defendant  for  fraud 
alleged  against  him,  and  the  fraud  is  proved  by  the  acknowledg- 
ment of  the  defendant  that  he  had  no  right  to  the  matter  in  litiga- 
tion, the  plaintiff  must  charge  that,  on  the  record,  to  give  hiui  the 
opportunity  to  deny  or  exjjlain  and  avoid  it."  * 

It  is  only  when  conversations  are  to  be  used  as  admissions,  that 
the  rule  which  requires  them  to  be  stated  on  the  record  applies. 
"Where  the  conversation  is  in  itself  the  evidence  of  the  fact,  it  need 
not  be  specially  alluded  to  :  as  in  the  case  of  Hughes  v.  Garner,* 
where  the  notice  was  communicated  to  the  defendant  by  a  convei'- 
sation,  which  was  made  use  of  to  prove  the  fact  of  the  conversa- 
tion having  taken  place,  and  not  as  an  admission  by  the  party  that 
he  had  received  notice. 

Another  rule  of  evidence,  which  may  be  noticed  in  this  ])lace, 
is,  that  the  substance  of  the  case  made  by  the  pleadings  must  be 
proved;  that  is,  all  the  facts  alleged  upon  the, pleadings  which  are 
necessary  to  the  case  of  the  party  alleging  them,  and  which  are 
not  the  subject  of  admissions,  either  in  the  pleadings  or  by  agree- 
ment, must  be  established  by  evidence.^  In  the  case  of  a  plaintiff, 
however,  it  is  sufficient  to  prove  so  much  only  of  the  allegations 
in  the  bill  as  ai-e  necessary  to  entitle  him  to  a  decree.^    Thus, 


1  Hall  V.  Maltbv,  6  Tri.  240;  MulhoUand 
V.  Hendrick,  1  Moll.  359. 

2  Farreil  v. ,  1  Moll.  363;  M'Mahon 

V.  Burchell,  2  Phil.  127;  1  C.  P.  Co'.p.  t. 
Cott  475;  Laiigley  v.  Fisher,  9  Beav.  90, 
101;  Graham  v.  Oliver,  3  Beav.  124,  129. 
But  it  Ins  been  held  in  the  United  States 
by  Mr.  Justice  Story,  up m  full  considera- 
tion, that  the  confessions,  conversations, 
aiid  admissions  of  the  defendant  need  not 
be  expresslv  charged  in  a  bill  in  Equitv,  in 
order  to  enable  the  plaintiff  to  use  them  in 
proof  of  facts  chariied,  and  in  issue  therein. 
Smith  f.  Buniham,  2  Sumner,  612;  Jen- 
kins v.  Eliiredge,3  Story,  183, 283,  284;  see 
Story  Eq.  PI.  §  265,  a,  and  note;  Brown 
V.  Chambers,  Hayes  Exch.  597;  .Malcolm 
V.  Scott,  3  Hare,  J59,  63;  Brandon  i'.  Cabin- 
ess,  10  Ala.  155;  Camden  &  Amboy  U.K. 
Co.  V.  Stewart,  4  C.  E.  Green  (N.  J.),  343, 
346,  347. 

8  Farreil  v. ,  ubi  sup. 


4  2  Y.  &  C.  Ex.  328,  335;  Graham  v. 
Oliver,  ubi  sup. 

5  See  the  tlillowing  works  oa  evidence: 
Taylor,  §  173  et  seq. ;  Best,  §  280  et  seq.  ; 
Powell,  185  et  seq. ;  1  Phil.  Ev.  (Cowen  & 
Hill's  ed.  1839)  200  ei  seq.  and  notes;  1 
Greenl.  Ev.  §  56  et  seq. ;  Gresley  Kq.  Ev. 
( Am.  ed. )  167  et  seq.  The  rule  at  Law,  that 
the  evidence  must  substantially  support 
the  plaintirt"'s  declaration,  is  applicable  to 
bills  in  (Jhancery.  Moffet  v.  Claberts,  1 
Scam.  384;  Mansvv.  Mason,  8  Porter.  Ill; 
Shelbys  Shelby  ^^  1  B.  Mon.  278;  Thomp- 
son V.  Thompson,  2  B.  Mon.  174;  Beers  v. 
Botsfiird,  13  Conn.  146;  Simplot  v  Sim- 
plot,  14  Iowa  (6  With.),  449;  Chaffin  V. 
Kimball,  23  III.  36. 

"  See,  however,  Edneyv.  Jewell,  6  Mad. 
165,  where  an  unnecessary  stiitement  was 
required  to  be  proved.  Gresley  Eq.  Ev. 
(Am.  ed.)  167-169,  172. 


CONFIXED    TO    MATTERS    IX    ISSUE. 


857 


Triiere  the  sr.it  is  for  an  account,  all  the  evidence  necessary  to  be  C.  XXII.  §  3. 

read  at  the  hearing  is  that  which  proves  the  defendant  to  he  an    ' y 

accounting  party,  and  then  the  decree  to  account  follows  of  course ; 
and  any  evidence  as  to  the  particular  items  of  an  account,  how- 
ever useful  tliey  may  be  in  a  subseqilent  stage  of  the  cause,  would 
be  irrelevant  at  the  original  hearing.^  For  this  reason,  where  the 
suit  is  against  an  administrator,  or  an  executor,  all  that  it  is  neces- 
saiy  ta  prove,  on  the  part  of  the  plaintiff,  is,  that  the  defendant 
fills  and  has  acted  in  that  character.  This  point  was  miich  dis- 
cussed before  Lord  Gifford  M.  R.  in  Laio  v.  Hunter.'^  There  the 
defendant,  who  had  principally  acted  as  executor  of  the  testator, 
admitted  that  he  had  received  personal  estate  of  the  testator  to 
the  amoimt  of  from  35,000?.  to  45,0007. :  and  the  plaintiff,  having 
gone  into  very  voluminous  e\'idence  to  show  how  much  of  the 
personal  estate  of  the  testator  had  come  into  the  defendant's  hands, 
in  order  to  prove  that  he  had  received  assets  to  a  much  larger 
amount  than  that  admitted  by  the  answer,  proposed  to  enter  such 
evidence  as  read ;  but  the  Master  of  the  Rolls  would  not  permit  it 
to  be  done,  as  the  only  tendency  of  such  evidence  was  to  show  the 
state  of  the  account,  which  the  Court  itself  could  not  inquire  into, 
but  must  refer  to  the  Master,  as  the  proper  person  for  taking  the 
account.^  The  same  principle  was  afterwards  acted  upon,  by  the 
same  learned  Judge,  in  Walker  v,  'Woochoard^^  where,  upon  a  bill 
for  an  account,  the  liability  to  account  having  been  admitted  by 
the  defendant,  he  had  entered  into  evidence  to  prove  items  of  his 
discharge,  but  was  not  suffered  to  read  them  at  the  hearing. 

Where,    however,    through    inadvertence    or    negligence,   the  where  proofs 
plaintiff  has  omitted  to  prove  some  particular  fact  which  is  nee-  deficient, 

1  •  1        /^  •  -11  •     1  •        leave  some- 

essary  to  support  his  case,  the  Court  sometnnes  will  permit  him  times  given 
to  supply  the    defect,  by  giving   him    leave   to    prove    the  fact  ^*^fe"t. 


1  Gresley  Eq.  Ev.  168 ;  Dubourg  De  St. 
Colombe  v.  United  States,  7  Peters,  625, 
626;  Hudson  v.  Trenton,  &c,  Manuf.  Co., 
1  C  K.  Green  (N.  J  ),  475;  Lockett  v. 
Lockett,  L.  li.  4  Ch.  Ap.  336.  The  Court 
shoiihl  be  satisfied  that  the  plaintift"  is  en- 
titled to  have  irn  account  taken.  If  the 
Court  is  .satisfied  upon  that  point  the  prac- 
tice is  to  refer  the  ciise  to  a  Master  to  state 
the  details  of  the  account,  and  ascertain 
tlie  balance.  Hut  the  Chancellor  may,  if 
he  sees  fit,  take  the  account  himself.  He 
not  only  iniiy,  liowever,  Imtouf^lit  to  refuse 
an  acciiuni,  if  he  is  siitisfied  upon  the  evi- 
dence that  nothing;  is  due  the  plaintiff,  or 
that  for  any  cau-^e  wn  account  outrht  not 
\f>  be  r|ecr(!ed.  Campbell  v.  Cam|)bcll,  4 
Iliilst.  Ch.  (N.  .1.)  743;  .see  Wrielit  v.  Mc- 
K.;:in,  2  Hea-ley  (N.  .1.),  259.  Where  the 
evidence  has  lieen  tiiken  on  both  sides  be- 
fore tht!  heirint;,  without  olijectinn,  it  may 
be  u'-tnl  hy  the  Court,  so  fur  as  inav  he 
necessary,  in  giving  directions  to  the  blas- 


ter, as  to  the  manner  of  taking  the  account, 
and  the  principles  by  which  lie  should  be 
governed  in  taking  it.  The  decree  must 
direct  to  what  matters  the  account  shall 
extend,  and  ill  decreeinga  general  account, 
special  directions  will  be  rendered  proper 
and  necessary  by  the  particular  circum- 
stances of  the  case.  Hudson  v.  Trenton, 
&c.  Manuf.  Co.,  1  C.  E.  Green  (N.  J.), 
475,  477,  478;  Fzarrl  v.  Bodine.  1  Stockt.  (N. 
J.),  311;  Shwrpt'  Morrow,  6  Monroe,  300; 
Itemsen  i'.  ReiU'-en,  2  .lohn.  Ch.  501. 

2  1  Russ.  100,  102. 

*  lluilson  V.  Trenton,  &c.  Manuf.  Co.,1 
C.  E.  Green  (N.  .1.),  475,  477. 

■*  1  Russ  107,110;  Smith  v.  Chambers, 
2  I'hil.  221,  226;  S.  C.  mnn.  Chambers  v. 
Smith,  11  .lur.  359;  see,  however,  the  ob- 
servations of  Sir  J.  Wigram  V.  C.  in  Tom- 
lin  V.  Tonilin,  1  Hare,  241,245  ;  and  see  (6. 
241,  n.;  see  also  Forsyth  v.  Kllice,  2  M'N. 
&  G.  209,  214. 


858 


EVIDENCE. 


r.  xxn.$ ;!. 


Application 
to  supply 
proot:  liow 
made. 


Mode  of 
proof. 


Inquiry  into 
the  fact; 


Dinittt'd.^  This  is  froquoiUly  done  in  the  case  of  wills  tlisjiosing 
ol'  ii';il  I'stiih','-  Nvlieiv  I'ilhiT  the  plaintiff  has  relied  ui)pn  an 
admission  of  the  Avill  by  answer,  which  the  Court  thinks  not  suf- 
iieiently  full,**  or  where  the  absence  or  death  of  one  of  the  wit- 
nesses to  the  will,*  or  the  testator's  sanity,^  has  not  been  proved.^ 
The  ]>raetice  of  the  Court,  in  this  resj)eet,  is  not  eonlined  to  cases 
of  wills:  a  eaiise  has  been  ordered  to  stand  over,  tor  the  purpose 
of  allowing:  proof  of  the  due  execution  of  a  deed,  or  the  death  of  a 
party,"  or  the  fact  of  trading;*  and  we  have  before  seen,^  that 
where  the  plaintiff  has  omitted  to  give  due  proof  at  the  hearing 
of  the  fact  of  the  defendant  being  out  of  the  jurisdiction,  he  has 
been  allowed  to  ])rove  it.  So,  where  the  ])laintiif  had  relied  upon 
the  admission  of  facts  by  the  answers,  and  it  was  held  that,  some 
of  the  defendants  being  married  Avomen,  the  admissions  in  their 
answers  would  not  bind  them,  the  Court  of  Exchequer  allowed 
the  cause  to  stand  over,  Avith  liberty  to  the  plaintiff  to  su])ply  the 
requisite  proof.^'^  And  Avhere  the  evidence  read  at  the  hear- 
ing, to  prove  the  loss  of  a  deed,  was  held  not  sufficiently  strong  to 
entitle  the  party  to  read  secondary  evidence  of  its  contents,  Sir 
Thomas  Plumer  M.  R.  gave  the  plaintiff  leave  to  prove  the  loss 
of  the  deed  more  strictly." 

In  general,  orders  of  this  nature  are  made  upon  a  simple  a])pli- 
cation  by  counsel  at  the  hearing  of  the  cause;  the  application 
may,  hoAvever,  be  made  before  the  hearing  :^^  in  which  case  it 
Avas  formerly  made  on  motion ;^^  or  by  petition;^*  and,  it  is 
presumed,  may  noAv  be  made,  either  by  motion,^'-  or  by  summons 
in  Chambers.^^  Formerly,  when  the  evidence  in  causes  Avas  taken 
on  interrogatories,  the  plaintiff  was  permitted  to  exhibit  an  in- 
terrogatory to  prove  the  fact  desired;  noAv,  he  is  permitted  to 
prove  it,  either  viva  voce^  or  by  affidavit.^^ 

In  JEdney  v.  Jewell^'^  the  Court,  instead  of  directing  an  inter- 
rogatory to  be  exhibited  to  prove  the  fact  omitted,  directed  an 


1  See  Seton,  1118. 

2  Lecliinere  v.  Brasier,  2  J.  &  "W.  288; 
Chichester  v.  Chichester,  24  Bt-av.  289. 

8  Potter  V.  Potter,  1  Ves.  S.  274;  Belt's 
Sup.  147;  and  see  Hood  v.  Pimm,  4  Sim. 
101,  110. 

4  AVood  V.  Stane,  8  Pri.  613. 

6  Abrams  v.  Witislmp,  1  Russ.  .526; 
Wallis  r.  Hodgson,  ih  527   n. ;  2  Atk.  .50. 

6  See  Giesley  Eq.  Ev.  (Am.  ed)  132- 
138,  where  many  instances  are  given  of 
relief  in  cases  of  defects  or  omissions, 
whether  they  are  broujrht  to  light  and  be- 
come material  in  consequence  of  something 
wiiich  arises  unexpectedly  in  the  course  of 
the  proceeilings,  or  were  cau-^ed  l)y  acci- 
dent or  inadvertence 

"  Moons  ?;.  De  Bernales,  1  Russ.  301. 

8  Lechmere  v.  Brasier,  vhi  sup. 


9  Anie,  p.  152 ;  Hughes  v.  Eades,  1  Hare, 
486,488;  6  ,hir.  455. 
1"  Hodgson  V.  Merest,  9  Pri.  663. 

11  Cox  V  Allingham,  .I.-c.  337,  341,  345. 

12  Douglas  V.  Archbutt,  23  Beav.  2j3. 

13  Attorney-General  j;  Tlmrnall,2Cox,  2. 

14  Cox  V.  Ailingham,  ubi  sup. 

15  See  15  &  16  A'ic.  c.  80,  §  26;  15  &  16 
Vic  c.  86,  §  38.  F<'r  forms  of  notice  of 
motion  and  summons,  see  Vol.  III. 

16  See  13  &  14  Vic.  c.  35,  §  28;  15  &  16 
Vic.  c.  86,  §§  38-41;  Oni.  XIX.;  Onl.  5 
Feb.,  1861.  In  Smith  ?'.  Bhickman,  cited 
Seton,  1117,  the  Court  would  not  allow  the 
testator's  will  to  be  proved  at  the  hearing 
by  attidavit;  but  gave  leave  to  exhibit  an 
interrogatory  for  that  purpose. 

i'^  6  Mad.  166. 


CONFINED    TO    MATTERS    IN    ISSUE. 


859 


inquiry  into  the  fact:  and  it  seems  that,  in  some  cases,  the 
deficiency  of  proof  against  infants  may  be  supplied  in  the  same 
manner.^  It  is  not,  however,  the  practice  to  direct  inquiries 
as  to  any  facts  which  are  the  foundation  of  the  relief:  such  as  the 
execution  of  a  will,  or  the  fact  of  trading.^  The  course,  in  such 
case,  is  to  order  the  cause  to  stand  over,  and  direct  the  proofs  to 
be  supplied :  in  which  case,  the  cause  must  be  again  set  down.* 
In  JSIUler  v.  Priddon;  *  however,  where  the  plaintiffs  claimed  to 
be  the  children  of  a  certain  marriage,  but  did  not  j^rove  that  they 
were  so,  an  inquiry  was  directed. 

In  some  cases,  the  Court,  instead  of  ordering  the  cause  to  stand 
over  for  the  purpose  of  supph-ing  the  deficient  evidence,  will 
make  a  decree  as  to  all  that  part  of  the  case  which  is  in  a  situa- 
tion to  be  decided  upon,  and  give  liberty  to  prove  the  rest.  This 
has  been  frequently  done  in  the  case  of  a  will,  where,  althoiigh  it 
was  not  sufiiciently  proved  to  affect  the  real  estate,  the  Court  has 
decreed  an  account  of  the  personal  estate,  with  liberty  to  supply 
the  deficiency  of  proofs  In  Martin  v.  Whichelo^  Lord  Cotten- 
ham,  in  reference  to  the  cases  on  this  subject,  said :  "  It  is  im- 
possible to  reconcile  the  cases,  or  to  extract  any  principle  upon 
which  any  fixed  rule  can  be  founded.  The  Court  has  exercised 
a  wide  discretion  in  gi^ang  or  refusing  leave  to  supply  the  defect 
of  e\idcnce :  in  doing  which,  the  merits  of  the  case,  upon  the 
plaintiff's  own  showing,  ought  to  have  a  leading  influence."  The 
last-mentioned  case  was  a  creditor's  suit,  where  the  plaintiff  had 
taken  the  bill  pro  confesso  against  one  of  the  defendants,  who  was 
the  executor,  but  had  adduced  no  evidence  of  his  debt  as  against 
the  other  defendants,  who  were  the  devisees  of  the  testator's  real 
estate,  and  who  did  not  sufficiently  admit  the  debt ;  and  his  Lord- 
ship refused  to  allow  the  plaintiff  an  opportunity  of  going  into 
new  evidence  against  the  devisees,  and  dismissed  the  bill  with 
costs  against  them :  as  the  plaintiff,  on  her  own  statement,  ap- 
peared to  be  a  simple  contract  creditor,  suing  the  devisees  of  the 
real  estate  more  than  six  years  after  the  debt  accrued :  although 
the  personal  representative  had  received  ample  assets,  and  a 
judgment  de  bonis  testatoris,  et,  si  nan  de  bonis  propriis,  had  ])een 
obtained  against  liim.  In  Davies  v.  Davies,''  Sir  J.  L.  Knight 
Bruce  V.  C.  allowed  evidence  of  the  due  execution  of  a  will  to  be 
supplied ;   but  thouglit  that  the  defendants  were  entitled  to  have 


C.  XXII  §  3. 


In  what  cases 
the  Court  will 
make  a  par- 
tial decree. 


1  See  Qiiantockt'.  I5ull(,n,r,M;i(l.  81,82; 
Gnscovne  v.  Lamb,  1 1  .Iijr.  'j02,  V.  ('.  K.  B. 

2  Leclimcre  ?•.  Mrasier,  2  .1.  &  \V.  2>-'J; 
Holdon  r.  Hearn,  1  He:iv.  445,  45C;  Ciuip- 
Dian  V.  (^;haprnan,  13  Beav.  308. 

*  Lcclimere  v.  Brasier,  nOi  sup. 

*  1  M'N.  &  G.  687 ;  and  see  obsen-atjons 


of  Lord  Tnirn  in  Fowler  v.  Itevniil,  3  M'N. 
&  G.  500,  511;  15  .Tiir.  lOlii,  i(i21. 

5  Lechinere  r.  15iasier,  2  J.  &  W.  289; 
Rossiter  V.   I'itt,  2  Jlafi.  165. 

0  C.  &  P.  257,  261;  HPc  al.so  Simmons  «. 
Simmons,  6  Hare,  360;  12  .rur.  8, 11 ;  Wil- 
liams r.  Knijie,  5  Benv.  278,  276. 

7  3  De  G.  &  S,  698. 


800 


EVIDEXCE. 


0.  XXII.  §4.    tl'.o  ovidonoo  sujijliol  iji  wlmlevor  maniior  tlioy  jni^;lit  elect  ;   and, 

*- — > '   in  noconlauce  with  tlieii-  desire,  directed  the  plnintitrs  to  bring  an 

;U'ti(>n  ot'  ejectment.^ 


Section  IV. —  Of  the  Effect  of  a  Variance. 


Of  varianoe 
between  the 
statement 
and  proof. 


TVhere  rights 
founded  on 
prescription. 


It  is  not  only  necessary  that  the  substance  of  the  case  made  by 
each  party  sliould  be  proved,  but  it  must  be  substantially  tlie 
same  case  as  that  which  lie  has  stated  u])on  the  record  :  '^  for  the 
Court  will  not  allow  a  ^larty  to  be  taken  by  sur])rise,  by  the  other 
side  proving  a  case  dilferent  from  that  set  up  in  the  pleadings.^ 
Thus,  the  specific  performance  of  an  agreement,  to  grant  a  lease 
for  three  lives,  cannot  be  decreed  upon  what  amounts  to  evidence 
of  an  agreement  to  grant  only  for  one  life.*  The  principles 
which  guide  the  Court,  in  matters  of  this  description,  are  clearly 
stated  by  Lord  Redesdale,  in  his  judgment  in  Deniston  v.  Little^ 
where  his  Lordship  observes,  that  the  general  practice  of  the 
Court  is  to  compel  parties,  who  come  for  the  execution  of  agree- 
ments, to  state  them  as  they  ought  to  be  stated,  and  not  to  set 
up  titles  which,  when  the  cause  comes  to  a  hearing,  they  cannot 
support. 

We  have  seen,  in  a  former  part  of  this  Treatise,  that,  in  bills 
where  the  rights  asserted  are  founded  on  prescription,'  a  con- 
siderable degree  of  certainty  is  required  in  setting  out  the  plain- 
tiff's case  ;  ®  to  which  may  be  added,  that,  in  general,  the  proof 
must  correspond  in  certainty  with  the  case  so  set  out.''  Thus, 
the  Court  of  Exchequer,  in  deciding  upon  tithe  questions,  was 
in  the  habit  of  requiring  that  the  proof  of  a  modus  should  cor- 
respond with  the  modus  as  laid  in  the  bill.^  And  so,  in  other 
cases,  where  particular  customs  are  prescribed  for,  the  evidence  is, 


1  See  Seton,  1117,  where  the  cases  (in 
the  subject  of  supplying  defective  evidence 
are  collected. 

2  Greslev  Eq.    Ev.  (Am.  ed.)  170-173; 

1  Greenl.  Ev.  §  63  tt  seq. ;  1  I'hil.  Ev. 
(Cowen  &  Hill's  ed.  1839)  205  et  seq.  find 
notes;  Hobart  v.  Andrews,  21  Pick.  526, 
634;  Bellows  v.  Stone,  14  N.  H.  175;  Cro- 
thers  V.  Lee,  29  Ala.  337;  Bowman  v. 
O'Reilly,  31  Miss.  (2  George)  261 ;  Hcv- 
nolds  V.  Morris.  7  Ohio  (N.  S.),  310;  Wil- 
liams V.  Sfarr,  5  Wis.  534;  Gurney  v.  Ford, 

2  Allen,  576;  Andrews  v.  Earnham,  2 
Stockt.  (N.  J.)  91;  .AloWhorfer  v.  McMa- 
han,  10  Paige,  386;  Sears  v.  Barnum,  1 
Clark.  139;  Simplot  v.  Siinplot,  14  luwa 
(6  With.),  449;  Feckhan  v.  Buffum,  11 
Mich.  529;  Holman  v.  Vallejo,  19(Jal.  498; 
Singlfton  v.  Scon,  11  Iowa  (3  With.),  589; 
Ohling  V.  Luitjens,  32  111.  23. 

3  As  to  variance  generally,  see  the  fol- 


lowing ■\Vorks  on  evidence:  1  Phillips,  569 
et  seq. ;  Tavlor,  §  172  et  seq. ;  Best,  §  287; 
Gresley,  242;   Powell,  193. 

*  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1; 
see  also  Mortimer  v.  Orchard,  2  Ves.  J. 
243;  Legh  v.  Haverfield,  5  Ves.  453,  457; 
Woolliim  V.  Hearn,  7  Ves.  211;  Deniston 
V.  Little,  2  Soh.  &  Lef.  11,  n.;  Savage  v. 
Carroll,  2  Ball  &  B.  451;  Daniels  v.  Davi- 
son, 16  Ves.  249,  256;  Story  Eq.  PI.  §  394, 
n.;  Harris  v.  Knickerbocker,  5  Wend.  638. 

5  2  Sch.  &  Lef  11,  n. 

6  Ante,  p.  309. 

7  1  Greenl.  Ev.  §§  71,  72. 

8  Scott  V.  Fenwick,  3  Eagle  &  Y.  1318; 
Uhthoif  V.  Lord  Huntingtield,  2  lb.  649; 
cited  1  Pri.  237;  Prevost  v.  Benett,  3 
Eagle  &  Y.  705;  1  Pri.  2-36;  Blake  v. 
Veysie,  3  Dow,  189;  2  Eagle  &  Y.  699; 
Miller  v.  Jackson,  1  Y.  &  J.  65. 


EFFECT    OF    A    VARIANCE.  801 

in  general,  required  to  be  in  conformity  with  the  statement  in  the   C.  XXII.§  4. 

pleadings.     In  The  Dean  and   Chapter  of  Ely  v.   Warren^  bow-   " r ' 

ever,  Lord  Hardwicke  said,  that  the  Court  of  Chancery  would  not 
l^ut  i^ersons  to  set  forth  a  custom  with  so  much  exactness  as  is 
requisite  at  Law,  or  with  so  much  nicety  as  the  Court  of  Excheq- 
uer expects. 

We  have  seen  before  that,  in  some  cases,  where  a  plaintiff  has  Where  parol 
allesred  a  <lifferent  aon-eemcnt,  in  his  bill,  from  that  which  has  been  y^""''itio?^ 

®  o  7  7  ^  from  written 

admitted  by  the  answer,  the  Court  has  i)ermitted  the  plaintifi'  to  contract  set 
amend  liis  bill,  by  abandoning  the  first  agreement  and  insisting  "^' 
upon  that  stated  upon  the  answer;^  and  when  the  defendant  sets 
up  a  parol  variation  from  the  written  contract,  it  will  depend  on 
the  particular  circumstances  of  each  case  whether  that  is  to  defeat 
the  jjlaintiff 's  title  to  specific  j^erfonnance,  or  whether  the  Court 
will  perfonn  the  contract:  taking  care  that  the  subject-matter  of 
this  parol  agreement  or  understanding  is  carried  into  eflect,  so 
that  all  parties  may  have  the  benefit  of  what  they  contracted 
for.^  When,  however,  there  is  a  material  variance  in  a  written 
agreement,  it  is  the  ordinary  practice  to  dismiss  the  bill  with  costs, 
without  prejudice  to  the  plaintiff's  bringing  anew  bill.*  In  Morti- 
mer V.  Orchard^  however,  where  the  plaintiff  had  prayed  the  spe- 
cific performance  of  an  agreement  stated  in  the  bill,  but  proved  a 
parol  agreement  which  was  quite  different.  Lord  Rosslyn,  although 
he  thought  the  bill  ought  to  be  dismissed,  yet,  as  there  had  been  a 
partial  execution  of  some  agreement  between  the  parties,  by  the 
building  of  a  house,  directed  a  reference  to  the  Master,  to  settle  a 
lease  pursuant  to  the  agreement  confessed  in  the  answer. 

The  rules  which  have  just  been  discussed,  relate  to  the  general   Other  general 
aim  or  tendency  of  the  proof  to  be  adduced.     There  ai'e  other  "^  ^^' 
rules  relating  to  the  medium  of  proof,  indei:)endently  of  its  ten- 
dency, Avhich  might  properly  be  introduced  in  this  i)lace,  such  as 
the  General  Rules  :  that  the  best  evidence  which  the  nature  of  the  ^^^^  evidence 

case  admits,  ought  to  be  produced,  and  that  hearsay  of  a  fact  is  '""st  be  pro- 

.  duced" 

not  admissible ;  but  a  discussion  of  these  rules  would  extend  this  hearsay  not 

Treatise  beyond  all  reasonable  limits.      The  reader  is,  therefore,  admissible. 

referred  to  the  Treatises  on  the  Law  of  Evidence ; "  and  it  is  to  be 

observed,  that  what  he  will  find  to  be  laid  down  in  any  of  those 

1  2  Atk.  190.  Woollam  v.  Ream,  7  Ves.  211,222;  Denis- 

2  Anlt:,  p.  408;   Bellows  v.  Stone,  14  N.        ton  v.  Liitle,  2  Sch.  &  Lef.  11,  n. 

H.  175;  (iuch  iiinciidment  may  be  allowed  ^  2  Ves.  J.  243;  see  htory  \Li\.  I'l.  §  394 

even  after  n  hearing  u])Oii  bill,  answer,  and  and  note. 

evidence.     Ibvl.  "J  As  ti)  kest  evidence:  see  1  Phillips, 

"  London    and    liirniingliam    Railwaj'  Clmp.     IX.;    Taylor,   §§   3(i3-3y7;    IJesf, 

Company  w.  Winter,  C.  &   1'.  02;  and  .see  §§  87-107  ;  Gresley,  217.     As  to  iikaksay  : 

Benson  v.  (jlastonOurv  Cmal  (Jompan^',  1  see  1  l'hilli|)S,  Chap.  Vlll.;  Taylor,  §§  507- 

C.  P.  Coop.  t.  Colt.  360;  C.  P.  Ciiop.  42.  642;    Best,    §    407;     llubback,    048-711; 

*  Lindsay  t).  Lynch,  2  Sch.  &  Lef.  1;  Gresley,  304-326 ;  Powell,  84-U3. 


862 


EVIDENCE. 


C.  XXII.  §  5.    Tivatisos  to  bo  the  rule  of  evidonco  in  Courts  of  Law,  will  o;cner- 
ally  bo  :ij)plioablo  to  oasos  in  Courts  of  Equity.^ 


Section  V.  —  Documentary  Evidence  which 2:)roves  itself. 


Gonpral  na- 
ture of  proofs. 


Doeumentan- 
evidence : 
does  not 
include 
depositions  of 
witnesses ; 


nor  evidence 
bv  aflidavit. 


Division  of 

documentary 

evidence. 


Documents 
which  prove 
themselves : 

copies  of  Acts 
of  Parlia- 
ment; 


Ilavinu;  oiuloav<.)ro(l  to  diroct  the  praetitioner''s  attention  to  the 
matters  wliicli  it  will  be  neeossary  for  him  to  prove  in  the  cause, 
tlie  next  thing  to  be  considered  is  the  evidence  by  which  such 
matters  are  to  be  substantiated.  This  evidence  may  be  cither: 
I.  ]3oouuiontary ;  or,  11.  The  testimony  of  witnesses. 

Documentary  evidence  consists  of  all  those  matters  which  are 
submitted  to  the  Court  in  th«  shape  of  written  documents.  It  is 
not,  of  course,  intended  to  include  in  this  definition  the  depositions 
of  witnesses  examined  in  the  cause :  for  although,  hj  the  practice 
of  Courts  of  Equity,  the  evidence  to  be  derived  from  the  parol 
examination  of  witnesses  is  set  down  in  writing,  and  brought  be- 
fore the  Court  in  that  form,  yet  this  does  not  vary  the  nature  of 
the  evidence  itself:  which,  being  spoken  by  the  witness  viva  voce 
to  the  person  by  whom  he  was  examined,  does  not,  from  the  cir- 
cumstance of  its  being  committed  to  writing,  for  more  convenient 
use  before  the  Judge,  lose  its  parol  character.  Neither  is  it  in- 
tended to  include  evidence  by  affidavit:  which  is  now  the  most 
usual  form  in  which  the  evidence  of  the  witnesses  is  adduced. 
Such  evidence  is,  in  lact,  a  simple  and  easier  mode  by  which  the 
parol  evidence  of  witnesses  is  communicated  to  the  Court. 

Some  descrijjtions  of  documentary  evidence  are  admitted  by  the 
Court,  without  the  necessity  of  any  proof  being  gone  into  to 
establish  their  validity ;  whilst  others  require  the  supjiort  of  parol 
testimony,  before  they  can  be  received.  It  is  proposed,  in  this 
section,  to  consider  documentary  evidence  of  the  first  description ; 
and,  in  the  next  section,  to  treat  of  documents  which  require  parol 
proof. 

All  cojjies  of  public  or  private  Acts  of  Parliament,  purj^orting 
to  be  jjrinted  by  the  Queen's  printer,  and  all  copies  of  the  journals 
of  Parliament,  and  of  Royal  proclamations,  pui-jjorting  to  be  printed 
by  the  Queen's  i)riuter,  or  by  the  printers  of  either  House  of  Par- 
liament, are  admitted  as  evidence  thereof."    And  it  is  to  be  observed, 


1  Manning  v.  Lechmere,  1  Atk.  453; 
Glynti  V.  Hank  of  England,  2  Ves.  S.  41; 
Morrison  v.  Hart,  2  Bibb,  5;  Lemaster  v. 
liurckhart,  2  Bibb.  28 ;  Dwight  v.  Pomeroy, 
17  M.iss.  303;  1  Greenl.  Ev.  §  U8  et  seq.  ; 
Gresley  Eq.  Ev;  (Am.  ed.)  218  el  stq. 

2  b  &  9  Vic.  c.  113,  §  3;  13  &  14  Vic.  c. 
21,  §  7;  Taylor  on  Evid.  §§   1308,  1371, 


1372;  2  Phil,  on  Evid.  135,  194.  Private 
Acts  of  Parliament,  not  printed  by  the 
Queen's  printer,  ureproved  byan  examined 
copv,  compared  with  the  oriu;inal  in  the 
Parliament  Office  at  Westmin.ster  Taylor, 
§  1368;  llubback,  U13;  see  1  Greenl.  Ev. 
§5  479,  482. 


DOCUMENTARY   EVIDENCE    WHICH   PROVES    ITSELF. 


863 


that  copies  of  the  statutes  of  Great  Britain  and  of  Ireland  respec- 
tively, before  the  Union,  are  received  as  conclusive  evidence  of  the 
several  statutes,  in  the  Courts  of  either  kingdora.'^ 

Exemplified  copies  of  records  in  other  Courts  of  Justice  under 
the  Great  Seal  of  Great  Britain,  or  under  the  seals  of  the  Courts 
themselves,-  and  the  seal  of  the  Queen,  and  of  the  superior  Courts 
of  Justice,  and  of  the  Courts  established  here  by  Act  of  Parlia- 
ment, are  admitted  in  evidence,  "without  extrinsic  proof  of  their 
genuineness.^ 

In  like  mannei*,  all  proclamations,  treaties,  and  other  acts  of 
State,  of  any  Foreign  State,  or  of  any  British  colony:  and  all  judg- 
ments, decrees,  orders,  and  other  judicial  proceedings  of  any 
Court  of  Justice  in  any  Foreign  State,  or  in  any  British  colony, 
and  all  affidavits,  pleadings,  and  other  legal  documents  filed  or 
deposited,  in  any  such  Court :  may  be  j^roved  by  examined  or 
authenticated  copies :  that  is  to  say,  in  the  case  of  a  proclamation, 
treaty,  or  other  act  of  State,  the  authenticated  copy  must  puiport 
to  be  sealed  with  the  seal  of  the  Foreign  State  or  Bi-itish  colony  to 
which  the  original  document  belongs ;  but  if  the  document  sought 
to  be  proved  be  a  judgment,  decree,  order,  or  other  judicial  pro- 
ceeding of  any  Foreign  or  Colonial  Court,  or  an  affidavit,  pleading", 
or  other  leading  document,  filed  or  deposited  in  any  sucli  Court, 
the  authenticated  copy,  to  be  admissible  in  evidence,  must  purport, 
either  to  be  sealed  with  the  seal  of  the  Foreign  or  Colonial  Court, 
to  which  the  original  document  belongs,  or,  in  the  event  of  such 
Court  having  no  seal,  to  be  signed  by  the  Judge,  or  if  there  be 
more  than  one  Judge,  by  any  one  of  the  Judges ;  and  the  Judge 
must  attach  to  his  signature  a  statement  in  writino;  on  the  said 


c.  xxn.  §  5. 


Journals  of 
Parliament; 
and  Procla- 
mations. 
Copies  of  Bri- 
tish and  Irish 
statutes,  be- 
fore the 
Union. 
Copies  of 
records  under 
seal. 

Foreign  and 
colonial  acts 
of  State, 
judiiments, 
&c.^ 


1  41  Geo.  III.  c.  90,  §  9;  1  Greenl.  Ev. 
§  480;  Young  v.  Bank  of  Alexanilria,  4 
Cranch,  388;  Biddis  v.  James,  G  Binnev, 
321,320;  Grt-sley  Eq.  Ev.  (.\m.  ed.)  302- 
80r>;  1  Phil.  Ev.  (Cowen  &  Hills  ed. 
ISSy)  317  et  si'j.  It  is  n.-t  the  duty  uf 
Cotfi'ts  to  taki'juilicial  noiiceot  the  execu- 
tion of  a  public  statiile.  Canal  Cumpaiiy 
V.  Kiiilroad  Company,  4  Gill  &  J.  7;  see  1 
Greenl.  Ev.  §  481.  In  Mass-achusetts,  the 
printed  copies  of  nil  statutes,  act.s,  and 
resolves  oCthe  Commonwealth,  whether  of 
a  public  or  a  private  ii:itur.',  which  snail 
be  published  under  the  autliority  of  the 
government,  shall  be  admitteil  assutlicii  nt 
evidence  thenof,  in  all  Courts  of  ].,aw,  and 
on  all  occasions  whatever.  Genl.  Sts.  c. 
131,  §  C2. 

Ah  to  the  proof  of  foreign  laws,  of  the 
laws  <>t  sister  States,  of  the  hiws  of  Conj^ress 
in  the  State  Courts,  and  of  the  laws  of  the 
States  in  the  Courts  of  the  United  Stale-", 
Sfe  1  (irecnl.  Ev.  §§  480,  4^7,  4H«,  481),  4S>0. 
In  SIas;4:i(:liusttts,  ])rinted  copit-s  of  the 
Statute  Laws  ol  any  other  State,  and  of 


the  United  States,  or  of  the  territories 
thereof,  if  purporting  to  be  published  under 
the  authnrity  of  the  respective  govern- 
ments, or  if  commonly  iidmitied  and  re;id 
as  evidence  in  tiieir  Courts,  shall  be  admit- 
ted in  all  Courts  of  Law,  and  on  all  otlier 
occasions,  in  that  State,  tis  prima  J acie  evi- 
dence of  such  laws.  Genl.  Sts.  c.  131,  §  63. 
For  the  mode  of  authenticating  tlie  records 
and  judicial  proceedings  of  one  State  to  be 
used  in  the  Courts  of  other  States,  see  1 
Greenl.  Ev.  §§  5U4-500. 

■■^  See  1  Greenl.  Ev.  §  501. 

3  2  Phil,  on  Evid.  Iu7;  Taylor,  §§  409, 
1378;  1  Greenl.  Ev.  §  003.'  As  to  the 
proof,  of  British  treaties,  charters,  letters- 
pateuf,  grants  from  the  Crown,  pardons, 
and  connnissions,  see  I'aylor,  §  1371;  of 
tile  general  records  of  the  realm,  in  the 
custody  ol  the  Master  of  the  Kolls,  see  1 
&  2  Vic.  c.  94,  §§  12,  13;  Taylor,  §  1377; 
and  of  docnnienis  belonging  to  the  Com- 
mon Law  side  of  the  Court  of  Chancery, 
see  12  &  13  Vic.  c.  109,  §§  11,  13;  Taylor, 
§  1380. 


864 


EVIDENCE. 


C.  XXII.  §5. 


Foreign  law. 


Ireland. 


Registers, 
and  certifi- 
cates of 
repister,  of 
British 
vessels. 


Certified 
copies  or  ex- 
tract: when 
admissible  in 
evidence : 


copy, '' tliMt  tlio  Court  wlioro(>riu'  is  n  Jiidgo,  lias  no  seal."  And 
nvIk'iv  the  authonticali'd  copie.s  piirjjoft  to  be  sealed  or  signed 
as  above  mentioned,  tlie  same  are  to  bo  admitted  as  evidence,  in 
every  case  in  wliich  tlie  original  document  could  have  been  re- 
ceived in  e\  idiMu'e,  without  any  proof  of  the  seal,  Avhere  a  seal  is 
nei-essary,  or  of  the  signature,  or  of  the  truth  of  the  statement 
attached  thereto,  where  such  signature  and  statement  are  neces- 
sary, or  of  the  judicial  character  of  the  ])erson  appearing  to  have 
made  such  signature  and  statement.-^ 

It  may  be  t)bserved  here,  that  (piestions  of  Foreign  Law  are 
questions  of  fact,  which  must  be  deterniineil,  in  each  case,  on  the 
evidence  adduced  in  it :  and  for  this  purpose,  a  decision  on  a  for- 
mer case,  or  the  evidence  then  made  use  of,  is  not  available.'^ 

Documents  which  are  admissible  without  formal  proof  in  Eng- 
land, are  also  admissible  in  Ireland,  and  vice  versa  ;^  and  such 
documents  are  in  like  manner  admissible  in  Colonial  Courts.* 

Kegisters  of  British  vessels,  and  certificates  of  register,  purport- 
ing to  be  duly  signed,  are  received  in  evidence  as  prima  facie 
proof  of  all  the  matters  contained  or  recited  in  such  register,  and 
of  all  the  matters  contained  or  recited  in  or  indorsed  in  such  cer- 
tificate of  registry,  without  proof  of  the  signature.^ 

Whenever  any  book  or  other  document  is  of  such  a  public 
nature  as  to  be  admissible  in  evidence,  on  its  mere  production 
from  the  proper  custody,  any  copy  thereof  or  extract  therefrom  is 


1  14  &  15  Vic.  c.  99,  §  7  ;  Tavlor,  §§  1372, 
1398;  see  1  Greenl.  Ev.  §  "514.'  It  the 
foreign  document  sought  to  be  proved  by  a 
copy  does  not  fall  within  the  language  of 
section  7,  evidence  must  be  given  that  it 
is  a  public  writing,  deposited  in  sumeregis- 
tr}'  or  place,  whence,  by  the  law,  or  the 
established  usage  of  the  country,  it  cannot 
be  removed ;  and  the  copy  must  then  be 
shown  to  iiave  been  duly  examined.  Tay- 
lor, §  1398. 

2  Earl  Nelson  v.  Lord  Bridport,  8  Beav. 
527,  654;  M'Cormick  v.  Garnett,  5  De  G., 
M.  &  G.  278;  and  see  Sussex  I'eerage 
Case,  11  Cl.  &  F.  85;  Di  Sora  v.  Phillips, 
10  H.  L.  Ca.  624;  Taylor,  §§  1280,  1281, 
1370;  United  fetntes  of  America  «.  lil'llae, 
L.  K.  3  Ch.  Ap.  85,  80.  English  Courts 
may  now  ascertain  what  the  foreign  law  is, 
by  sending  cases  for  the  opinion  of  foreign 
Courts;  but,  unless  they  are  in  countries 
under  tne  guverunient  of  tiie  (iueen,  a  con- 
vention must  first  be  enteied  into  with  tlie 
foreign  government.  22  &  23  Vic.  c.  63; 
24  &  25  Vic.  c.  11;  and  see  ^josl,  Chap. 
XXVII.  Trials  of  Questions  of  Fact.  Itis 
believed  that  no  such  convention  has  yet 
been  made.  In  Massachusetts,  the  unwrit- 
ten or  common  lawof  wny  oiherof  the  Uni- 
ted States,  orol  the  terriinries  thereof,  may 
be  proved  as  facts  by  parol  evidence ;  and 
the  books  of  reports  of  cases  aojudged  in 


their  Courts  may  also  be  admitted  as 
evidence  of  such  law.  Genl.  Sis.  c.  131, 
§  64.  The  existence,  tenor,  or  eflccr,  of 
all  foreign  laws,  may  be  proved  as  tact-,  by 
parol  evidence;  but  if  it  appears  that  the 
law  in  question  is  contained  in  a  written 
statute  orcodi-,  the  Court  may  in  its  dis- 
cretion reject  any  evidence  of  such  law 
that  is  not  accompanied  by  acojjy  thereof. 
JO.  §  65. 

Where  the  plaintiff  relies  upon  a  con- 
tract made  in  another  State,  and  the  de- 
fendant claims  that  it  is  void  by  the 
laws  of  that  btate,  he  must  show  its 
invalidity  as  well  by  his  pleadings  as 
by  his  prool'.  It  is  not  sufficient  for  the 
defendant  to  sdlege  in  his  answer  that  the 
contract  is  void  by  the  laws  of  the  land; 
because  that  only  Oraws  the  attention  of 
the  Court  to  the  laws  of  the  State  in  which 
the  proceedings  are  pending.  Courts  will 
not  eic  tij/iciu  Uka  notice  ot  foreign  laws. 
Campion  v.  Kille,  1  McCar!er(N.  J.),  229. 
For  form  of  case,  see  Vol.  Ill 

3  14  «&  15  Vic.  c.  99,  §§9,  10;  AVMahon, 
9  Hare,  459.  As  to  Scotch  Bankruptcy 
proceedings,  see  19  &  20  Vic.  c.  79,  §§  47, 
73,  140,   147,  174;    Taylor,  10   B.   1400  A. 

4  14  &  15  Vic.  c.  9!^,  §  11. 

6  14  &  15  Vic.  c.  99,  §  12;  17  &  18  Vic. 
c.  104,  §  107 ;  Taylor,  §  1451. 


DOCUMENTARY    EVIDENCE    WTIICH    PE0\T:S    ITSELF. 


865 


admissible  in  evidence,  if  it  be  proved  to  be  an  examined  copy  or  C.  xxri.  §  5. 

extract,  or  if  it  purport  to  be  signed,  and  certified  as  a  true  copy    "- y — —^ 

or  extract,  by  the  oificer  to  whose  custody  the  original  is  intrusted.^   parish 
Thus,  extracts  from  parish  registers,  certified  by  the  rector,  vicar,   ^^^S'^ters. 
or  curate  to  be  true  extracts,  are  evidence  of  the  baptism,  mar- 
riage, or  burial  referred  to ;  and  it  is  not  necessary  to  prove  that 
the  rector,  vicar,  or  curate  is  the  person  entitled  to  have  the  cus- 
tody of  the  register.-^ 

Certified  copies  of  entries,  purjDorting  to  be  sealed  or  stamped   Under  Gen- 
with  the  Seal  of  the  General  Register  Ofiice,  are  evidence  of  the  Act. 
birth,  death,  or  marriage  to  which  the  same  relate,  without  any 
further  proof  of  such  entry ;  but  no  certified  copy,  purporting  to 
be  given  in  the  ofiice,  is  of  any  force  or  effect,  unless  it  is  so  sealed 
or  stamped.^ 

Copies  or  extracts,  certified  and  sealed  with  thes%al  of  the  Com-  Patents,  spe- 
missioners,  of  letters-patent,  specifications,  disclaimers,  and  memo-  ^^^gfaimere 
randa  of  alterations,  and  all  other  documents  recorded  and  filed  in   and  other 
the  Commissioners'  Office,  or  in  the  Office  of  the  Court  of  Chan-  ^^^er  Patent 
eery  appointed  for  the  filing  of  specifications,  are  to  be  received  in  ■'^^ts. 
evidence,  in  all  proceedings  relating  to  letters-patent  for  inven- 
tions, without  further  proof  or  production  of  the  originals.* 

Whenever,  by  any  Act  now  in  force,  or  hereafter  to  be  in  force,  Certain  docu- 
anv  certificate,  official  or  public  document,  or  document  or  pro-  ^ents  to  be 

•'  '  ...  received  m 

ceeding  of  any  corporation  or  joint-stock  or  other  company,  or  any  evi<lence, 

without  proof 


1  14  &  15  Vice.  99,  §  14;  Dorrett  v. 
Meux,  15  C.  B.  142;  Scott  v.  Walker,  2 
E.  &  B.  555.  Section  14  aUo  proviiles, 
that  the  officers  shall  I'uniish  certiticd 
copies  or  extracts,  on  payment  of  not  more 
than  4(/  perlolioof  ninety  words;  see,  for 
cases  under  this  section,  Kej;.  v.  M  linwar- 
iiig,  1  Dears.  &  B.  132;  2  Jur.  N.  S.  123t>; 
Reeve  V.  Hod.-on,  10  Hare  Ap.  19.  For  a 
list  of  public  books  and  documents,  the 
contents  of  which  are  now  provable, 
either  by  examined  or  by  certified  copies, 
under  14  &  15  Vic.  c.  99,  §  14,  >ee  Taylor, 
§  1438.  I'or  a  list  of  the  principal  public 
registers  and  documents,  certilie'l  copies 
ol  which  are  receivable  in  evidence  by  vir- 
tue ol  some  enactment  h;iving  special 
reference  to  them,  see  ih.  §§  1439-144U. 
As  to  the  stiitualjle  metlind^  ot  proof  of 
record"  or  other  pruceedinns  of  particular 
tribunals,  or  of  public  records  and  docu- 
ments, see  ib.  §  1391  tl  acq.;  and  as  to 
the  pr'of  of  certificates,  under  ."-tiitutes 
having  special  reference  to  tiiem,  see  ib. 
1441  tt  seq. ;  see  (jenl  Sts.  Mass.  u.  21, 
§  6;  St.  Mass.  1S67,C.  213. 

'•i  He  Neddy  Hall's  Kstate,  17  .lur.  29, 
L.  JJ.;  1  Greeiil.  Ev.  §§  4b3-4H5,  4y3,498, 
607,  608.  The  case  appeiirs  to  be  incor- 
rectly reported  in  2  We  G  ,  M.  &  U.  748; 
sec  He  Porter's  Trusts,  2  .Jur.  N.  S.  349, 
V.    C.    W.;    Seton,   16.      The   certilicate 

VOL.    I. 


should  express  that  the  person  signing  it  is 
the  rector,  ifcc,  of  the  parish  nr  place;  see 
Jie  Neddy  Hall's  Estate,  2  Ue  G.,M.  &  G. 
749;  Sugd.  V.  &  P.  420,  n.  As  to  burials 
in  cemeteries,  see  10  &  11  Vice.  65,  §§32, 
33;  27  &  28  Vic.  c.  97.  A  stamp  duty  of 
one  penny  is  imposed,  by  23  &  24  Vic  c. 
15,  §§  1,  2,  !ind  Sched.,  on  every  certificate 
of  birth,  baptism,  marriage,  drath,  or  bur- 
ial ;  it  is  payable  by  the  part\'  requiring 
the  certificate,  and  is  to  be  denoted  by  an 
impri'ssed  or  adhesive  stamp,  to  be  can- 
celled by  the  person  who  grants  the  cer- 
tilicate. For  form  of  certificate,  see  Vol. 
IH. 

3  6  &  7  Will.  IV.  0.  86,  §  38.  The  iden- 
tity of  the  person  named  in  the  certificate 
must,  01  course,  be  proved.  Parkinson  v. 
Francis,  15  Sim.  160;  Seton,  15.  E.\tracrs 
from  the  district  registries  were  not  for- 
merly received  as  evidence  by  the  Court, 
but  they  are  now  generally  a  Imittcil :  i/jid. ; 
Peg.  V.  iMainwaiing,  1  Dears.  &  15.  132;  2 
Jur.  N.  S.  1136;  and  see  6  i^c  7  Will.  IV. 
c.  86,  §36;  not  however,  it  sei-ins,  at  the 
lioll-i.  As  to  the  stamp  duty  on  the  certili- 
cate, .see  suprn.  As  to  extracts  from  non- 
parochial  regi>tc'rs,  deposited  with  the 
Kegi.strar-General,  under  the  3  &  4  Vic.  c. 
92,   see  §§    9-15;    2  Phil,   on   Evid.   145; 


of  seal  or 
;ignature. 


Taylor,  §  1440 
*  16&  17 


Vic.  c.  115,  §  4. 


55 


866 


EVIDENCE. 


C.  XXIT.  5  5. 


Judicial  no- 
tice to  be  ta- 
ken of  signa- 
ture of  Equity 
or  Common 
Law  Judges. 

Depositions 
of  witnesses 
in  other 
Courts. 


Depositions 
of  witnesses 
in  other 
Courts:  how 
introduce  d ; 


where  the 
depositions 
have  been 
taken  under  a 
commission. 


eortifiod  copy  of  any  documont,  by-liuv,  (Mitry  in  any  register  or 
other  book,  or  of  any  otlier  proceeding,  is  or  sliall  be  receivable  in 
evidence  of  any  partituilar  in  any  Conrt  of  Jnstice,  or  in  any  judicial 
proceeding,  the  same  are  respectively  to  be  admitted  in  evidence, 
provided  they  respectively  purport  to  be  sealed  or  impressed  with 
a  stamp,  or  sealed  and  signed,  or  signed  alone,  as  recjuired  or  im- 
j)ressed  with  a  stamp  and  signed,  as  directed  by  the  respective 
Acts,  without  any  proof  of  the  seal  or  stani}),  where  a  seal  or  stamp 
is  necessary,  or  of  the  signature,  or  of  the  official  character,  of  the 
person  ajipearing  to  have  signed  the  same.^ 

All  Courts,  Judges,  and  other  judicial  officers,  are  bound  to 
take  judicial  notice  of  the  signature  of  any  of  the  Equity  or  Com- 
mon Law  Judges  of  the  Superior  Courts  at  Westminster,  where 
such  signature  is  attached,  or  appended  to  any  decree,  order,  cer- 
titicate,  or  otli^'r  judicial  or  official  document.'^ 

Amongst  the  records  of  other  Courts  of  Justice,  copies  of  which 
the  Court  of  Chancery  is  in  the  habit  of  receiving  as  evidence, 
may  be  ranked  the  depositions  of  witnesses,  and  proceedings  taken 
in  causes  in  other  Courts  of  Equity  of  concurrent  jurisdiction.  The 
rules  by  which  the  Court  is  governed,  in  receiving  evidence  of 
this  description  are  the  same  as  those  adopted  by  it  in  cases  where 
depositions  taken  in  the  Court  of  Chancery  in  one  cause  are  of- 
fered to  be  I'ead  in  another ;  *  but  no  depositions  taken  in  any  other 
Court  are  to  be  read,  unless  by  ordei'.^ 

The  method  of  proving  dejjositions  taken  in  one  Court  of  Equity, 
upon  the  hearing  of  a  cause  in  another,  is,  by  producing  a  certi- 
fied copy  of  the  bill  and  answer,  if  one  has  been  put  in  :  unless  the 
depositions  are  so  ancient  that  no  bill  and  answer  can  be  forth- 
coming, or  unless  the  defendant  has  been  in  contempt,  or  has  had 
an  opportunity  of  cross-examining,  Avhich  he  chose  to  forego  :  in 
wliichL  case  the  depositions  may  be  read  after  proving  the  bill  only.^ 
Where  the  depositions  have  been  taken  on  interrogatories,  under 
a  commission  issuing  out  of  another  Court,  they  are  not  admissi- 
ble without  the  production  of  the  commission,  under  the  authority 
of  which  they  were  taken :  unless  the  depositions  are  of  long  stand- 
ing, so  that  the  commission  may  be  pi-esumed  to  have  been  lost.^ 
It  is  to  be  noticed,  however,  that  depositions  may  be  used  as  evi- 
dence against  a  party  to  the  suit,  or  for  the  pur[)Ose  of  contra- 


1  8&9  Vice.  113,  §  1. 

2  8  &  9  Vic.  c.  113,  §  2. 

3  See  post,  p.  867. 

*  Ord.  XIX.  4;  seCj  however,  Good- 
enouf^h  v.  Alway,  2  S.  i^  S.  481;  Williams 
V.  Broadhead,  1  Sim.  151;  Manby  v.  Be- 
wicke,  3  Jur.  N.  S.  685,  V.  C.  W.;  in  Lake 
V.  Peisley,  L.  K.  1  Eq.  173;  11  Jur.  N.  S. 
1012,  M.  li.,  an  order  to  read  depositions 
taken  in  bankruptcy  was  made  on  an  ex 


parte  motion ;  and  in  Stephens  v.  Biney, 
L.  K.  2  Eq.  303;  12  Jur.  N.  S.  428,  V.  C. 
W.,  an  order  of  course  to  read  depositions 
taken  in  the  Palatine  Court  of  Lancaster, 
was  discharged  as  irregular. 

6  2  Pl]il.  on  Evid.  210,  211;  Taylor, 
§  1413;  Goodenough  v.  Alway,  ubi  snp. 

G  2  I'hil.  on  Evid.  210,  211;  Taylor, 
§  1415;  1  Greenl.  Ev.  §  517. 


DOCUMENTARY    EVIDENCE    WHICH    PROVES    ITSELF. 


867 


dieting  the  witness,  -n-ithout  proof  of  the  bill  and  answer,  although  C.  XXII.  §  5. 

some  proof  of  the  identity  of  the  person  will  be  reqiiired.^  ' y -' 

It  has  been  before  stated,  that  the  Court  of  Chancery  pays  atten-  Proceedings 
tion  to  its  own  proceedings,  although  they  are  not  actually  re-  ^"  ancery. 
corded :  ^  in  illustration  of  which  it  may  be  stated,  that  all  the 
proceedings  •f  the  Court,  in  the  cause,  which  are  requu-ed  as  evi- 
dence, may  be  used  as  such,  without  further  testimony  to  establish 
them  than  the  production  of  the  proceeding  itself;  or  of  an  office 
copy  of  it,  signed  by  the  officer  in  whose  custody  such  proceed- 
ing properly  is,  according  to  the  practice  of  the  Court. 

According  to  the  former  practice  of  the  Court,  it  was  necessary,  Proceedings 
when  any  proceedings  in  one  cause  were  to  be  given  in  e\'idence  |.°^g° 
in  another,  that  the  foundation  for  the  production  of  them  should 
be  laid,  by  proving  the  bill  and  answer  in  the  cause  in  which  they 
were  taken.  Gradually,  however,  this  rule  has  been  relaxed ;  and 
the  Court  will  now  dispense  with  the  strict  proof  of  the  bill  and 
answer,^  and  make  an  order,  that  the  party  shall  be  at  liberty,  at 
the  hearing,  to  read  the  proceedings  in  the  former  cause.  Such 
an  order  is  not,  however,  necessary  to  entitle  a  party  to  read  a  de- 
cree or  order.* 

A  decree  or  order  of  the  Court  of  Chancery,  determining  a  mat- 
ter of  right,  is  good  evidence  as  to  that  right,  not  only  against  the 
party  against  whom  the  decree  was  made,  but  against  all  those  ^vhen  they 
claiming  under  him.^  But  although  a  decree  between  other  par-  ^^e  evidence, 
ties  cannot  be  read  as  evidence,  yet  it  may  be  read  as  a  precedent.^ 
And  it  is  not  in  any  case  necessary,  in  order  that  it  should  be  ad- 
missible as  evidence,  that  the  parties  to  it  should  have  tilled  the 
relative  situations  of  plaintiff  and  defendant :  if  the  present  plain- 
tiff and  the  defendant  were  co-defendants  in  the  former  cause,  the 
decree  in  that  cause  may  be  read,  though  not  as  conclusive  evi- 
dence." "  It  frequently  hapi)ens,"  observes  Lord  Ilardwicke,  "  that 
there  are  several  defendants,  all  claiming  against  the  plaintiff,  and 
having  also  different  rights  and  claims  among  one  another :  the 
Court  then  makes  a  decree,  settling  the  rights  of  all  the  parties ; 


Decrees  or 
orders  in 
another  suit: 


1  2  Phil,  on  Evid.  210,  211;  Taylor, 
§  141.3;  see  Davison  v.  Robinson,  3  .Jur.  X. 
S.  791,  V.  C.  W.;  6  W.  K.  C73,  L.  C. ;  1 
Greenl.  Ev.  §  1-56. 

■■^  Ante,  p.  688.  The  final  decree  of  a 
Court  of  Equity  may  be  given  in  evidence 
in  another  suit,  althougii  such  decree  has 
not  been  formally  enrolled,  bates  f.  Dela- 
van,  1  Paige,  299. 

8  Ord.  XIX.  4;  Seton,  980  e<  se/j. ;  Tay- 
lor. §  1413. 

*  Ord.  XIX.  4;  Brooks  v.  Taylor,  Mos. 
188;  see  Green  v.  Green,  6  Ihnn.  278. 

^  liorough  V.  Whichcole,  3  Uro.  P.  C.ed. 
Toinl.  595;  Maule  v.  IJruce,  2  C.  P.  Coop. 


t.  Colt.  215;  see  1  Greenl.  Ev.§§  522,  523, 
536;  1  Phil.  Ev.(Cowen&  Hill's ed.  1839) 
358,  note,  1339  in  2  ib.  915  et  setj.  Eor  the 
mode  of  proving  decrees  and  answers  in 
Chancery,  see  1  Greenl.  Ev.  §§  611,  512. 
A  decree  in  Chancery,  being  the  act  of  a 
Court  of  a  sister  State,  must  be  authentica- 
ted according  to  the  statute  of  the  United 
States,  1790,  Mav  26,  1  U.  S.  Htat.  at 
Large,  122  ( 1  (ireeiil.  ICv.  §  504),  to  be  ad- 
missible in  evidence.  Barbour  v.  Wiitls, 
2  A   K.  Marsh.  290. 

"  Austen  v.  Nicholas,  7  ih.  9. 

7  Askew  I".  Poulterers'  Company,  2  Ves. 
S.  89;  Belt's  Sup.  299. 


S68 


EVIDENCE. 


»\  XXII.  §  f). 


Depositions 
of  witnesses, 
in  another 
oj»use,  be- 
tween same 
parties. 


Depositions 
in  anotlier 
cause  cannot 
be  read, 
unless  person 
against  whom 
tliey  are  to  be 
read  was  par- 
ty or  privy. 


but  n  (loclaratiou  for  that  piif])osc  could  not  be  nindc,  if  this  ob- 
joc'tion  (('/;:.,  to  rcMH'iviug  the  docree  as  evidonco,  because  made 
botAvoen  co-defctnlants)  holds :  whidi  would  be  very  fatal,  as  it 
would  occasion  the  splitting  one  cause  into  several."^ 

The  depositions  of  witnesses,  which  have  been  taken  in  another 
cause,  may,  as  well  as  other  proceedings,  be  read  at*  the  hearing, 
under  an  order  to  be  obtained  for  that  purj)ose,'-  if  the  two  suits 
are  bi'tw  I'cn  the  same  parties  or  their  privies,  and  the  issue  is  the 
same  ; ''  and  such  depositions  are  admissible  in  evidence  in  the 
former  cause.*  Thus,  evidence  which  has  been  taken  in  a  cross- 
cause  niay,  by  order,  be  read  at  the  he.iring  of  the  original  cause,^ 
and  vice  I'ersd,  provided  the  point  in  issue  is  the  same  in  each  case. 
Where  the  matter  in  issue  is  not  the  same,  the  depositions  taken 
in  one  cause  cannot  be  read  in  the  other ; "  and  even  where  two 
suits  related  substantially  to  the  same  matters,  one  suit  being  in- 
stituted by  the  first  tenant  for  life  in  remainder,  and  the  other  by 
the  lirst  tenant  in  tail  in  remainder;  Sir  J.  L.  Knight  Bruce  V.  C. 
refused  to  allow  the  evidence,  taken  in  one  suit,  to  be  used  in  the 
other.'  Where  the  person,  against  Avhom  the  evidence  is  offered, 
was  neitlier  a  party  to  such  other  cause,  nor  privy  to  a  person  who 
was  a  party,  the  depositions  taken  in  that  cause  cannot  be  read  ; 
thus,  where  a  father  is  tenant  for  life  only,  depositions  taken  in  a 
cause  to  which  he  was  a  party,  cannot  be  read  against  his  son  who 
claims  as  tenant  in  tail.^  The  rule  with  regard  to  reading  deposi- 
tions in  another  suit,  appears  to  be  the  same  as  that  with  respect 
to  reading  verdicts  at  Common  Law,  namely :  "  that  nobody  can 
take  a  benefit  by  it,  who  had  not  been  j^rejudiced  by  it  had  it  gone 
contrary."^  Thus,  it  has  been  held,  that  if  A.  prefers  his  bill 
against  B.,  and  B.  exhibits  his  bill  against  A.  and  C,  in  relation  to 
the  same  matter,  and  a  trial  at  Law  is  directed,  C.  cannot  give  in 

S. 


1  }bid. ;  see  also,  Chamley  v.  Lord  Dun- 
sany,  2  Sch.  &  Lef.  710,  H.  L.;  Farquhar- 
son  V.  Seton,  5  Russ.  45,  63. 

2  See  post,  p.  871;  Leviston  v.  French, 
45  N.  H.  21. 

8  Mackworth  v.  Penrose,  1  Dick.  50; 
Lade  v.  Lingood,  1  Atk.  203;  Humphreys 
V.  Pensam,  1  M.  &  C.  580,  586;  Hope  v. 
Liddell  (No.  2),  21  Beav.  180;  VViUiams 
V.  Williams,  10  Jur.  N.  S.  608;  12  W.  K. 
663,  V.  C.  K. ;  Maule  v.  Bruce,  2  C.  P. 
Coop.  t.  Cott.  215;  Hrooks  v.  Cannon,  2  A. 
K.  Marsh.  525;  Levi.ston  v.  French,  45  N. 
H.  21;  Giesley  Eq.  Ev.  (Am.  ed.)  186, 186; 
1  Phil.  Ev.  (Coweii  &  Hill's  ed.  183.9)  364, 
and  notes  in  'lib.  934,  935;  Harrington  v. 
Harrington,  2  Howard,  701;  Payne  v. 
Coles,!  Munf.  373;  Dale  v.  Kosevelt,  1 
Paige,  36;  Roberts  v.  Anderson,  3  John. 
Ch.  376 ;  see  Luke  v.  Peisley,  L.  K.  1  Eq. 
173;  11  Jur.  N.  S.  1012,  M.  K.;  Stephen- 
son V.  Biney,  L.  li.  2  Eq.  303;  12  Jur.  N. 

S.,  V.  c.  w. 


*  Williams  v.  Williams,  10  Jur.  N. 
608;  12  W.  K.  603,  V.  C.  K. 

5  Lubiere  v.  Genou,  2  Ves.  S.  579,  in 
which  case  the  cross-bill  had  been  dis- 
missed. Holcombe  v.  Holcombe,  2  Stockt. 
(N.  J.)  284;  sdGpost,  Ch;ip.  XXXIV.  §  1, 
Cross  Bills.  For  form  of  Oi'der,  see  Sf  ton, 
1275,  No.  2.  'I'he  order  does  not  extend 
to  an  answer  not  put  in  evidence.  Moore 
V.  Harper,  1  W.  N.  56:  14  W.  K.  306,  V. 
C.  W. 

''  Christian  v.  Wrenn,  Bunb.  321. 

'  Blagrave  v.  Blagrave,  1  De  6.  &  S. 
252,  259;  11  Jur.  744;  and  see  Hope  v. 
Liddell,  21  Beav.  180. 

8  Peterborough  v.  Norfolk,  Prec.  in  Ch. 
212;  Coke  v.  Fountain,  1  Vern.  413;  and 
see  Rhodes  v.  Rhodes,  14  W.  K.  515,  V. 
C.  W. 

9  Gilb.  on  Evid.  28;  Buller,  N.  P.  229; 
2  Phil,  on  Evid.  8. 


DOCUMENTARY   EVIDENCE   WHICH    PROVES   ITSELF. 


869 


evidence  the  depositions  in  the  cause  between  A.  and  B.,  but  the 
trial  must  be  entirely  as  of  a  new  cause.^ 

This  rule  appears  to  be  somewhat  at  variance  with  what  is  stated 
in  Coke  v.  Fountain^  to  be  a  common  one,  namely,  that  where 
one  legatee  has  brought  his  bill  against  an  executor,  and  proved 
assets,  and  afterwards  another  legatee  brings  his  bill,  that  the 
last-named  legatee  should  have  the  benefit  of  the  depositions  in 
the  former  suit,  though  he  was  not  a  party  to  it ;  but  it  is  to  be 
observed,  that  the  case  of  the  legatee  is  different  from  the  case  of 
a  plaintiff  in  ordinary  circumstances  ;  for  although  the  legatee  was 
not  actually  a  party  to  the  original  suit,  yet  he  was  so  virtually  : 
his  interest  in  the  first  suit  having  been  represented  by  the  executor. 
In  fact,  in  the  case  of  the  legatee,  the  suit  is  in  pari  materia  ;  and, 
with  respect  to  the  subject  in  dispute,  the  plaintiff  in  the  second 
suit  stands  in  the  same  situation,  with  regard  to  the  defendant,  as 
the  plaintiff  in  the  first. 

The  same  jjrinciple  appears  to  have  been  acted  upon  in  other 
cases,  besides  those  of  legatees.  Thus,  in  Terwit  v.  G-resham^ 
depositions  taken  in  an  old  cause,  where  the  same  matters  were 
under  examination  and  in  issue,  were  permitted  to  be  read,  al- 
though the  plaintiff  and  those  under  whom  he  claimed  were  not 
parties  to  the  former  cause  :  inasmuch  as  the  terre  tenants  of  the 
same  lands  were  then  parties ;  and  so  even  at  Law,  in  the  case,  of 
tithes,  an  answer  to  a  bill  filed  in  the  Court  of  Exchequer,  in  a  suit 
instituted  by  a  vicar  against  the  rector  and  others,  owners  of  the 
lands,  M*as  evidence  in  an  action  for  tithes,  by  a  succeeding  rector, 
against  the  owners  or  occui)iei's  of  the  same  lands.*  In  like  man- 
mer,  in  a  case  before  Sir  Anthony  Hart,  in  Ireland,^  dejjositions 
which  had  been  taken  in  a  suit  by  one  tenant  in  common  against 
another  were  admitted  in  evidence,  in  a  suit  by  another  tenant  in 
common,  against  the  same  defendant.  In  such  cases,  however,  it 
must  be  proved,  that  the  depositions  are  touching  the  same  land 
or  tithes.'* 

It  seems  not  to  be  important  what  character  the  individual, 
against  whom  the  depositions  in  the  former  suit  are  offered,  filled 
in  that  suit,  whether  that  of  plaintiff  or  defendant,  provided  he 
had,  in  such  character,  an  opportunity  of  cross-examining  the  wit- 
ness. If  he  was  a  party  to  the  first  suit  as  a  co-defendant,  and 
becomes  a  ])laiiitift'  in  tlie  second  suit,  making  his  co-defendant  in 


C.  XXII.  §  5. 


Stcus,  in  the 
case  of  a  bill 
by  a  legatee, 
after  dotTce 
for  another; 


and  in  other 
cases. 


Rule  as 
iK'tween  co- 
defendauts. 


1  Rusliworth  V.  Countess  of  Pembroke, 
Ilardres,  472.  For  the  reason,  why  a  ver- 
dict is  not  eviilence  for  or  against  a  person 
who  was  not  a  party  to  it,  see  2  piiil.  on 
Evid.  8. 

8  1  (ha.  Ca.  73. 

*  Lady  Dartmouth  v.  Roberts,  16  East, 


334;  see  also  Travis  r'.  Chnlleiior,  3.  (Jwill. 
1237;  Asiiby  e.  I'owor,  ih.  123U;  Uenson 
V.  Olive,  2  (Glwill.  7oi;  VaiyX  of  Sussex  v. 
Temple,  1  Lord  Rayin.  310. 

''  IJ^'rne  v.  Frere,  2  Moil.  157 ;  and  see 
Bishop  of  Lincoln  v.  FIlis,  Buiib.  110. 

0  Benson  v.  Olive,  Uunb.  2«4. 


870 


EVIDENCE. 


C.  XXII.  §  5. 


Examination 
of  liot'endaiit, 
in  another 
cause,  may  be 
used  against 
him,  on 
motion  for 
decree. 
Not  neces- 
sary that 
witnesses 
should  be 
dead,  quare. 


Rule,  where 
the  l)ill  has 
been  dis- 
missed. 


the  first  suit  a  dofoTnlntit,  lio  m:iy,  if  siicli  oo-dofonrliint  sots  up  the 
sMino  (lot'ence  th.it  lio  did  in  the  original  suit,  road  the  evidence 
taken  in  that  suit  as^ainst  such  co-defendant.  Tlius,  where  the 
creditors  of  a  testator  tiled  their  bill  against  the  residuary  legatees, 
and  also  against  a  purchaser  from  the  testator,  praying  to  have 
their  debts  paid,  and  the  conveyances,  alleged  to  have  been  exe- 
cuted by  the  testator  to  the  piu'chaser,  set  aside  for  fraud,  and 
obtained  a  decree  accordingly,  and  afterAvards  the  residuary  lega- 
tees tiled  another  bill  against  the  jmrchaser,  praying  for  an  account 
of  tlie  residue,  and  to  set  aside  the  conveyances  :  upon  the  question 
arising,  whether  the  depositions  taken  in  the  former  cause,  as  to 
the  fraud  in  obtaining  the  conveyances,  could  be  read  in  the  second 
cause,  for  the  legatees  against  the  purchasers,  who  were  co-defend- 
ants in  the  former  cause,  it  was  held,  that  as  there  was  the  same 
question  and  the  same  defence  in  both  the  causes,  the  dejiositions 
ought  to  be  read.^ 

Where  a  cause  had  been  set  down  for  hearing  on  motion  for  a 
decree,  the  Court  allowed  the  plaintiff  to  use  the  examination  of 
the  defendant,  taken  in  another  cause  ;  but  gave  leave  to  the 
defendant  to  tile  attidavits  in  explanation,  subject  to  the  right  of 
cross-examination.'^ 

It  may  be  stated  here,  that  where  the  depositions  of  witnesses 
in  another  suit  are  offered  to  be  read  at  the  hearing,  against  per- 
sons who  were  parties  to  such  other  suit,  or  those  claiming  under 
them,  it  does  not  appear  to  be  necessary  that  the  witnesses,  Avhose 
depositions  were  offered  to  be  read,  should  be  proved  to  be  dead. 
This  appears  to  have  been  the  effect  of  the  detennination  of  the 
House  of  Lords  in  the  City  of  London  v.  Perkins^  and  of  Sir 
John  Leach  V.  C.  in  Williams  v.  Bvoadhead^  In  the  subsequent 
case  of  CarHngton  v.  Gornock^  however,  Sir  Lancelot  Shadwell 
V.  C.  seems  to  have  entertained  a  different  opinion  from  that  ex- 
pressed by  Sir  John  Leach,  in  Williams  v.  Uroadhead /  and  it  is 
to  be  remarked,  that  at  Law,  the  depositions  of  a  witness,  taken  in 
a  suit  in  Chancery,  cannot,  without  a  special  order,  be  read,  if  the 
witness  is  alive,  even  though  he  is  unable  to  attend  by  reason  of 
sickness.® 

Some  doubt  seems  to  have  been,  at  one  time,  entertained  whether 
the  depositions  of  witnesses,  taken  in  a  cause  where  the  bill  had 
been  subsequently  dismissed,  could  be  read  at  the  hearing  of  another 
cause ;  and  the  rule  appears  to  have  been  -laid  down,  that  if  the 


1  Nevil  I'.  .Johnson,  2  Vem.  447 ;  and  see 
Askew  V.  Poulterers"  Company,  2  Ves.  S. 
89,  90. 

2  Watson  V.  Cleaver,  20  Beav.  137. 
8  3  Bro.  P.  C.  ed.  Toml.  602. 

*  1  Sim.  151. 


fi  2  Sim.  567;  and  see  Blagrave  v.  Bla- 
grave,  1  De  G.  &  S.  252;  11  Jur.  744; 
Lawrence  v.  Maule,  4  Drew.  472,  480. 

«  2  Phil,  on  Evid.  124;  Taylor,  §  445; 
Gresley  Eq.  Ev.  (Am.  ed.)  186,  187. 


DOCUMENTARY    EVEDENCE    WHICH   PROVES    ITSELF.  871 

dismissal  was  upon  merits,  evidence  of  the  facts  which  have  been  C.xxii.  §  5. 

proved  in  the  cause  may  he  used  as  evidence  of  the  same  facts,  in    "^ ^ ' 

another  cause  between  tlie  same  parties  ;  ^  but  where  a  cause  lias 
been  dismissed,  not  upon  merits,  but  upon  the  gi-ound  of  in-eo-u- 
larity  (as,  for  instance,  bemuse  it  comes  on  by  revivor,  where  it 
ought  to  have  come  on  by  )riginal  bill),  so  that  regularly  there  was 
no  cause  in  Court,  and  consquently  no  proofs  properly  taken,  such 
proofs  cannot  be  used.^  If,  however,  upon  a  bill  to  perpetuate 
testimony,  the  cause  shoull  be  set  down  for  hearing,  and  the  bill 
dismissed  because  it  ought  lot  to  have  been  set  down,  the  plaintifi" 
may,  notwithstanding  the  lismissal,  have  the  benefit  of  the  depo- 
sitions.^ 

An  order  for  leave  to  cad,  at  the  hearing,  the  depositions  or  Order  to  read 
proceedings  in  another  caue,  is  granted  upon  motion  of  course,  or  <^epo^"j."ns  or 

^  .   .  r.  -r>    Ti       A  1  proceedings: 

on  petition  of  course  at  tie  Kolls;*  and  must  be  served  upon  iiowob- 
the  adverse  party :  who  nxy,  if  there  is  any  irregularity  in  it,  or  *^"*®'^' 
in  the  mode  in  which  it  has  been  obtained,  apply  by  motion  to 
discharge  it.  As,  howevei  it  is  possible  that  the  irregularity  of 
such  an  order  may  not  appar  till  it  is  acted  upon  at  the  hearing, 
when  it  would  be  too  lat  to  discharge  it,  the  order  is  always 
made  "sawdng  all  just  excptions:"^  the  effect  of  which  is,  to 
leave  it  open  to  the  partyiigainst  whom  the  evidence  is  offered, 
to  make  any  objection  to  te  reading  of  evidence  under  it  which 
the  nature  of  the  case  willadmit,  in  the  same  manner  that  he 
might  have  done  had  no  sue,  order  been  made. 

Where  either  party,  plaintf  or  defendant,  obtains  an  order  to  ^  , 
use  the  depositions  of  witness  taken  in  another  cause,  the  oppo-  able  by  oppo- 
site party  may  hkewise  use  tl  same  without  motion:  unless,  u2)on  *'^^  ^^^^^' 
special  reason  shoAvn  to  theCourt  by  the  party  obtaining  such 
order,  the  opposite  party  be  pihibited  by  the  same  order  fi-om  so 
doing.® 

When  proceedings  or  deposions  in  another  cause,  in  the  Court  Office  copies 
of  Chancery,  are  ordered  to  bread  as  evidence  at  the  hearing,  it  alurproeccd- 
will  be  sufficient  to  produce  thoffice  copies  of  them.     Such  office  '"«■'' '"  'han- 
copies,  however,  must  be  signe  by  the  proper  officer:  otherwise,  usSl'h/an-  ° 
they  cannot  be  read ; "  and  if  athe  hearing  of  a  cause,  it  is  found  ?,?'"'''  '''■",'^^' 

1  Lubiere    v.    Gcnou,   2  Ves.    S.    579  6  Hand.  114,  115;   see   form   of  order, 
M'Intosli  r.  Great  Western  Kail  way  Com  Seton,  1275,  Nos.  1,  2. 
pany,  7  I)e  G.,  M.  &  G.  737.  6  Qrd.  XIX.  5. 

2  Backhouse  v.  Mi<l<lleton,  1  Gha.  Ca  ^  Attorney-General  v.  Milward,  1  Cox, 
173-175;  3  Cha.  Kep.  22;  (iresley  K(i.  Ev  437.  Since  18  &  19  Vic.  c.  134,  §  6.  office 
(Am.  etl.)  1&7 ;  Hopkins  i'.  Strump,  2  Ilarr  copies  of  decrees  and  orders  t'mm  tlie  Repis- 
&  .1.  301.  trars'   books,    are  to  be    ccrtiliid  bv  the 

3  Hull  V.  Hoddesdon.  2  P.  Wms.  162  Clerks  of  Hecords  and  Writs.  Siton,  16. 
gee  also  Vaugban  i'.  Fitzgerald,  1  Sch.  &  The  f)ffice  copy  of  an  ordrr,  or  of  a  report 
Lcf.  310.  confirmed  by  "fiat,  slf,nii'd  by  liie  Hc;,'i-trar 

<  P'or  forms  of  or<ler  on  motion,  see  Se-  in  Lunacy,  and  scaled  or  stamped  wilii  Iho 
ton.  1275,  Nos.  1,  2;  and  for  forms  of  mo-  seal  of  his  odice,  is  admissildi-  as  evidence 
lion  paper  and  petition,  see  Vol.  III.  of  such  order  or  report,  without  further 


sigue 


872 


EVIDENCE. 


C.  XXII.§ 


Proiliu'tion  of 
(locuniciits  in 
I  ho  Court  of 
(.Mianoery  or 
its  ollioos: 
liow  ob- 
tained. 


rroiluction  of 
C'l\ancory 
(loi-unionts  at 
Law :  how 
obtained. 


Proceedings 
in  Chancery; 
how  proved 
at  Law ; 
distinction 
between 
criminal  and 
civil  cases. 


that  the  office  copy  of  a  proqecnling,  -whicli  one  party  relied  upon 
as  evidence,  has  not  been  ])roperly  signed,  the  Court  Avill  allow 
the  cause  to  stand  over  for  the  purjtorie  of  j)roeuring  the  j^ropcr 
signature.^ 

No  person  may  take  out  of  the  office  of  the  Clerks  of  Records 
and  AVrits  any  rei-ovd  or  document  filed  there,  excei>t  hy  direction 
of  the  Court.-  Where  any  record  or  (jther  document,  filed  or  de- 
posited in  that  office,  is  required  to  hi.  produced  in  the  Court  of 
Chancery,  or  in  any, of  its  offices,  a  ninnorandum  bespeaking  an 
attendance  therewith  should  be  left  rith  the  Record  and  Writ 
Clerk,  and  tbe  jiroper  fee  be  paid,  oi  arranged  to  be  paid ;  an 
attendance  in  Court  with  records,  horcver,  is  made  only  at  the 
request  of  the  Judge.^ 

Where  a  record  or  other  document,  h  the  custody  of  the  Record 
and  W^rit  Clei-ks,  is  required  to  be  pii)duced  out  of  the  Court  of 
Chancery  or  its  offices,  an  order  authorKHig  such  production  must 
be  obtained,  on  motion  of  course,  or  onpetition  of  course  at  the 
Rolls,  supported  by  an  affidavit  to  the  efect  that  such  production 
is  necessary  as  evidence ;  *  but,  as  a  rle,  no  such  order  will  be 
made  for  production  of  original  docuients,  if  certified  or  exam- 
ined copies  will  answer  the  purpose.^  ^o  subpoena  need  be  issued ; 
but  the  officer  will  attend,  on  the  ordi",  and  a  memorandum  be- 
speaking his  attendance,  being  left  wit  him,  and  on  the  office  fees, 
and  his  reasonable  expenses  (if  any)  feing  paid.^ 

With  respect  to  the  production  i  proceedings  in  Chancery, 
upon  trials  in  Common  Law  Courts,  imay  here  be  observed,  that 
there  is  a  difference  between  crimial  and  civil  cases:  in  the 
former,  it  is  necessary  that  the  oi^inal  record  should  be  pro- 
cured ;  in  the  latter,  a  copy  signed  >d  certified  by  the  officer  to 
whose  custody  the  original  is  intrufsd,''  or  proved  by  the  person 
putting  it  in  to  have  been  examird  with  the  original  record,  is 


proof.     16  &  17  Vic.  c.  70,  §  100;  and  see 
lb.  §  101 ;  and  25  &  26  Vic  c.  86,  §  29. 

1  Attornev-General  v.  Milward,  ubi  sup. 

2  Ord.  L  42. 

3  Biaitiiwaite's Pr.  512.  A  fee  of  10s., 
in  fee  fund  stamps,  is  payable  upon  every 
application  for  the  officer's  attendance  in 
a  Court  of  Equity,  and  for  his  attendance, 
per  die7n.  Kegul.  to  Ord.  Sched.  4.  For 
fiirm  of  memorandum  bespeaking  the  at- 
tendance, see  Vol.  IIL 

i  Bniithwaite's  Pr.  514;  Gresley,  192. 
For  forms  of  motion  paper,  petition,  and 
affidavit,  see  Vol.  IIL 

6  Ikaithwaite's  Pr.  514;  Attorney-Gen- 
eral V.  Kay,  0  Beav.  335;  Anon.,  13  Beav. 
420 ;  Biddulph  v.  Lord  Camoys,  19  Beav. 
467. 

6  Braithwaite's  Pr.  513,  514.  A  fee  of 
\l.  is  payable  on  every  application  for  the 
officer's'attendance  in  Courts  of  Law,  per 


an,  and  for  his  attendance,  besides  his 

isonable  expenses.    Reg.  to  Ord.  Sched. 

'.  These  expenses  are:    one  guinea  per 

Af,  and  travelling  expenses  (first  class), 

the  attendance  is  in  the  country;    and 

If  a  guinea  per  day,  without  travelling 

.penses,  if  the  attenclatice  is  ina  Court  of 

aw  in  London    or  Middlesex.     Braith- 

aite's  Pr.  513,  514.     The  office  fees  are 

lid  in  stamps;  the  officer's  fees  are  paid 

I  him  in  money:  ibid.;    and  he  may  rc- 

uire  the   solicitor   or  party  desiring  his 

ttendance  to  deposit  with  him  a  siifiicient 

jm  to  cover  his  just  fees,  charges,  and 

xpenses,  and  undertake  to  pay  anv  further 

fes,  &c.,  not  (\x\\y  answered  thereby.  Ord. 

.  43.     For  form  of  memorandum  bespeak- 

ng  attendance,  see  Vol.  III. 

7  14  &  15  Vic.  c.  99,  §   14;    Reeve  v. 
lodson,  10  Hare  Ap.  19 ;  mite,  p.  b65. 


DOCUMENTARY   EVIDENCE    WHICH    PROVES    ITSELF. 


873 


sufficient;^   and   for    this  reason,   an-  application  for   production  C. XXII. §5. 

of  the  original  dej)ositions,  at  the   trial  of  a  civil   action,  was  ' r — ~^ 

refiised.- 

The  documents  which  have  been  before  enumerated  as  requiring  Peecls,  &c., 

.  ,  ,  11        •  1  •  1  thirty  vears 

no  evidence  to  prove  them,  are  all,  either  m  a  greater  or  less  old, iV brought 
degree,  public  documents.  Private  documents  which  are  thirty  c^i^"odv°^'^'^ 
years  old  from  the  time  of  their  date,  also  prove  themselves.* 
This  rule  aj^plies,  generally,  to  deeds  concerning  lands,  and  to 
bonds,  receipts,  letters,  and  all  other  writings:  the  execution  of 
which  need  not  be  proved,  provided  they  have  been  so  acted  upon, 
or  brought  from  such  a  place,  as  to  afford  a  reasonable  presumjj- 
tion  that  they  were  honestly  and  fairly  obtained  and  jireserved  for 
use,  and  are  free  from  suspicion  of  dishonegty.^  Lord  Chief  Baron 
Gilbert,  however,  upon  this  point,  says,  that  "  if  possession  hath 
not  gone  along  with  a  deed,  some  account  ought  to  be  given  of 
the  deed  ;  because  the  presumption  fails  where  there  is  no  posses- 
sion ; "  ^  and  he  adds  a  caution,  that  "  if  there  is  any  blemish  in  an 
ancient  deed,  it  ought  to  be  regularly  proved ;  or  where  it  imports 
a  fraud :  as,  where  a  man  conveys  a  reversion  to  one,  and  after- 
wards conveys  it  to  another."  ® 

The  rule  of  computing  the  thirty  years  from  the  date  of  a  deed,  ^^^^^  applica- 
is  equally  applicable  to  a  will."'     Some  doubt  appears  formerly  *' 

to  have  been  entertained  on  this  point,  on  the  ground  that  deeds 
take  effect  from  their  execution,  but  wills  from  the  death  of  the 
testator.*  In  HancUff  v.  Parkins^  Lord  Eldon  observes,  that, 
in  a  Coiu't  of  Law,  "  a  will  thirty  years  old,  if  the  possession  has 
gone  under  it,  and  sometimes  without  the  possession,  but  always 
with  possession,  if  the  signing  is  sufficiently  recorded,  proves 
itself.  But  if  the  signing  is  not  sufficiently  recorded,  it  would 
be  a  question  whether  the  age  proves  its  validity ;  and  then, 
possession  under  the  will,  and   claiming   and    dealing   with   the 


1  2  Phil,  on  Evid.  208,  209;  Taylor, 
§§  1379, 1382-1384. 

2  Attorney-General  v.  Ray,  6  Beav.  335; 
see  3  Hare,  33.5. 

8  2  Pliil.  on  Evid.  245 ;  Taylor,  §§  74, 
75. 

*  2  Phil,  on  Evid.  246;  Taylor,  §  75; 
Bcc  also,  as  to  letters,  Fcnwick  v-  Reed,  6 
Mad.  7,  8;  Attornev-GenerHl  v.  Stephens, 
6  De  G.,  M.  &  G   1 11 ;  2  Jur.  N.  S.  51. 

6  Gilb.  on  Evid.  >-0;  and  see  Taylor, 
§§  74,  699,  000;  (Jresiev  Eq.  Ev.  (Am.  ed.) 
124,  125;  1  I'liil.  Ev.  (Cowen  &  Hill's  ed. 
1839)  477,  note  903,  in  2  ib.  1310  H  seq., 
and  ca«es  cited  ;  1  Grccnl.  Ev.  §§  21,  670, 
and  cases  cited;  M'Kenire  v.  Eraser,  9 
Sumner's  Ves.  6,  note  {a).  It  is  not  nec- 
essary to  call  the  siib.scribing  witnt'!.ses, 
though  ttiev  be  living:.  .liickson  v.  Christ- 
man,  4  Wi-n<l.  277,  2H2,  283;  Fetherlv  t'. 
Waggoner,  11  Weud.  003;  1  Greeul.  Ev. 


§§21,  570;  Jackson  v.  Blanshan,  3  John. 
292;  Winn  v.  Patterson,  9  Peters,  674, 
675;  Bennet  v.  Runj-oii,  4  Dana,  422,  424; 
Cook  V.  Torton,  6  Dana,  110;  Thurston  v. 
Masterton,  9  Dana,  233;  Hinde  v.  Vattier, 
1  M'Lean,  115;  Northop  v.  Wright,  24 
Wend.  221;  1  Phil.  Ev.  (Cowen  &  Hill's 
ed.  1839)  478. 

6  Gilb.  on  Evid.  89;  and  see  Tavlor, 
§74;  1  Phil.  Ev.  (Cowen  &  Hill's  ed.  1839) 
478,  note  900,  in  3  ib.  1317,  1318;  1  Greenl. 
Ev.  §  21,  670;  Gresley  Eq.  Ev.  (Am.  ed.) 
124,  125. 

7  Man  V.  Ricketts,  7  Beav.  93,  101; 
Orange  v.  Pickford,  4  Jur.  N.  S.  649,  V. 
C.  K.;  Doe  V.  Burdett.  4  Ad.&El.  1;  Doe 
V.  Wollev,  8  B.  &  (;.  22. 

»  2  I'fiil.   on  Evid.    246;    M'Kenire  v. 
Fruser,  9  Ves.  5. 
9  6  Dow,  202. 


874 


EVIDENCE. 


but  not  to 
soiUs  of 
corporations, 
stmble. 


C.  XXII.  §  6.  pvoiHM'ty  as  if  it  had  passod  under  f  lio  will,  would  be  coo-ont 
evidence  to  prove  the  due  signing  of  the  will,  though  it  shoidd 
not  be  recorded."  • 

It  appears  to  be  doubted,  Avhether  the  seal  of  a  Court  or  corj)o- 
ration  is  within  the  rule  as  to  thirty  years ;  and  in  Hex  v.  27ie 
Inhahitattts  of  liarth tricky-  Lord  Tentei-dcTi  said,  "  that  it  might 
be  argued  that  it  was  not  within  the  principle  of  the  rule:  because, 
although  the  witnesses  to  a  private  deed,  or  persons  acquainted 
with  a  private  seal,  may  be  sup])osed  to  be  dead,  or  not  capable  of 
being  accounted  for,  after  such  a  lajise  of  time,  yet  the  seals  of 
Courts  and  of  corporations,  being  of  a  permanent  character,  may 
be  proved  by  persons  at  any  distance  of  time  from  the  date  of  the 
instrument  to  which  they  are  affixed."  ^ 


Sectio^sT  VI.  —  Documentary  Evidence  lohich  does  notpi'ove  itself. 


Proof  of  doc- 
uments, gen- 
erally the 
same  as  at 
Law. 


Rules  in 
Equit_v  with 
respect  to 
wills  of  real 
estate : 


Having  pointed  out  the  species  of  documentary  proofs  which 
may  be  used  in  Courts  of  Equity,  without  the  aid  of  any  other 
evidence  to  authenticate  them,  or  which,  in  other  words,  "  prove 
themselves :"  the  next  subject  for  consideration  is  the  nature  of 
the  proofs  requisite,  to  enable  a  party  to  make  use  of  documents 
which  do  not  come  under  the  same  description.  The  rules  upon 
this  subject  are,  in  general,  the  same  in  Equity  as  at  Common  Law; 
and  will  be  found  more  fully  set  forth  in  any  Treatise  upon  the  Law 
of  Evidence.* 

With  respect  to  the  cases  in  which  different  rules  prevail  in 
Courts  of  Equity,  from  those  which  are  adopted  at  Law,  the  most 
important  are  those  of  wills  devising  real  estates.^  At  Law,  it  is 
sufficient  to  examine  one  witness  to  prove  a  will,  if  he  can  prove 


1  1  Phil.  Ev.  (Cowen&  Hill's  ed.  1839) 
503 ;  1  Greenl.  Ev.  §  21,  and  cases  in  notes, 
§  570,  and  note ;  Jackson  v.  Blanshan,  3 
John.  392;  Doe  v.  Deakin,  3  G.  &  P.  402; 
Doe  V.  Wollev,  8  B.  &  C.  22. 

2  2  B.  &  Ad.  648. 

8  2  Phil,  on  Evid.  247;  Taylor,  §  74;  1 
Greetd.  Ev.  §  570. 

4  2  Phil,  on  Kvid.  242  et  seq. ;  Tavlor, 
§§  1368-1472,  1060-1679;  Best,  §§  245- 
250 ;  Gresley,  173  et  seq. 

5  The  Courts  of  Probate  in  Massachu- 
setts have  complete  jurisdiction  over  the 
probate  of  wills,  of  both  real  and  personal 
estate,  and  their  decrees  are  conclusive 
upon  all  parties,  and  notre-examinable  in 
any  other  Court.  Tompkins  v.  Tompkins, 
1  "Storv,  547;  see  Osgood  v.  Breed,  12 
Mass.  525,  533,  5.34;  Laughton  v.  Atkins, 
1  Pick.  535,  547,  548,  549.  So  in  Connect 
icut.       Bush    V.   Sheldon,   1    Day,    170; 


Brown  v.  Lannan,  1  Conn.  476.  So  in 
Rhode  Island.  Tompkins  v.  Tompkins,  1 
Story,  547.  So  in  New  Hampshire.  Pop- 
lin V.  Hawke,  8  N.  H.  124.  So  in  Ohio. 
Bailey  v.  Bailey,  8  Ohio,  239.  See  as  to 
Kentucky',  Robertson  v.  Barbour,  6  Monr. 
527;  Case  of  Wells's  Will,  5  Litt.  273.  In 
North  Carolina,  said  to  be  prinid  facie  evi- 
dence. Stanlej'  v.  Kean,  Taylor,  73.  Illi- 
nois, see  Robertson  v-  Barbour,  6  Monr. 
527,  528.  Alabama,  see  Tarver  v.  Tarver, 
9  Peters,  174.  It  is  not  necessary'  in  Vir- 
ginia that  a  will  should  be  proved  in  a 
(Jourt  of  Probate  in  order  to  give  it  valid- 
ity as  a  will  at  Law.  Bogwell  v.  Elliot,  2 
Rand.  196.  As  to  New  York,  see  Dubois 
V.  Dubois,  6  Cowen,  494;  2  Rev.  St.  57, 
§  7,  ih.  58,  §  15;  see  further  on  this  sub- 
ject, 1  .Tarman  on  Wills  (Perkins's  ed. ), 
23,  note  (2),  and  cases  cited. 


DOCUMENTARY   EVIDENCE    WHICH    DOES    NOT    PROVE    ITSELF. 


875 


the  clue  execution  of  it,  unless  it  is  impeached  ;  ^  hut,  in  Equity,  in 
order  to  establish  the  will  against  the  heir,  all  the  witnesses  must 
be  examined.- 

This  rule,  although  general,  admits  of  necessary  exceptions,  and 
perhaps  does  not  apply  where  the  will  is  not  wholly,  but  only 
partially,  in  question,^  The  rule  also  does  not  apply,  in  cases 
where  one  of  the  witnesses  is  dead,  or  is  abroad :  ^  in  which  cases, 
proof  of  his  handwriting  has  been  held  sufficient.^  It  seems,  how- 
ever, that  in  such  a  case,  the  more  regular  course  is  not  to  declare 
the  will  proved,  but  to  enter  the  evidence  of  the  witnesses  as  read, 
and  then  to  direct  the  trusts  of  the  ^\dll  to  be  carried  into  execu- 
tion.** Where  a  witness  has  become  insane,'^  or  has  not  been  heard 
of  for  many  years,  and  cannot  be  found,  his  evidence  has  been 
dispensed  mth.*  It  is  also  necessary,  in  Equity,  where  the  object 
of  the  suit  is  to  establish  a  will  against  the  heir,  to  prove  the 
sanity  of  the  testator.® 

We  have  seen  before,'^"  that  in  some  cases,  where  the  proof  of  a 
will  is  defective,  leave  will  be  given  to  supply  the  defect  at  the 
hearing;  ^^  and  we  have  also  seen,  that  it  is  the  common  practice 
of  the  Court  to  carry  the  trusts  of  a  will  into  execution,  without 
declaring  the  Avill  well  proved.^^     Where  the  heir  admits  the  will. 


C.  XXII.  §6. 


Proof  of 
sauity. 


Course, 
where  proof 
is  defective. 


Admission  of 
will  by  heir. 


1  Seton,  227,  citing  Peake's  Evid. 
401;  2  Greenl.  Ev.  §  694;  Jackson  v.  La 
Grange,  19  John.  386;  Dan  v.  Brown,  4 
Cowen,  483;  Jackson  v.  Betts,  6  Cowen, 
377;  Turnipseed  v.  Hawkins,  1  jrCord, 
272.  In  Pennsylvania,  two  witnesses  are 
required  in  proof  of  every  testamentary 
writing,  whether  in  the  general  probate, 
before  the  Register  of  Wilis,  or  upon  the 
trial  of  an  issue  at  Common  Law;  anil  each 
witness  must  sepiirately  depose  to  nil  tlie 
facts  necessary  to  complete  the  chain  of 
evidence,  so  that  no  link  m:iy  depend  upon 
the  credibility  of  but  one.  Lewis  v.  Maris, 
1  Dall.  278;  Hock  v.  Hock,  4  Serg.  &  K. 
47.  And  if  there  are  three  witnesses,  and 
the  proof  is  full}'  made  by  two  only,  it  is 
enough  without  calling  the  third.  Jackson 
V.  Vandyke,  1  Cox,  28;  Fox  v.  Evans,  3 
Teates,  506.  Hut  if  one  or  both  witnesses 
are  dead,  the  will  may  be  proved  by  the 
usual  secondary  evidence.  Miller  v. 
Caruthers,  1  Serg.  &  li.  205. 

2  Buotle  V.  niundell,  19  Ves.  505;  G. 
Coop.  136,  137;  see  also  Ogle  v.  Cook,  1 
Ves.  S.  177;  Townshend  v.  Ives,  1  Wils. 
216;  Bullen  v.  Michel,  2  Pri.  491;  2 
Groenl.  Kv.  §  694,  and  note.  Any  person 
interested  in  the  estate  of  the  testator,  nuiy 
insist  upon  the  [iroductum  of  all  the  ,sub- 
Bcribing  witnes'-es  to  a  will,  at  the  jirobate 
thereof,  if  they  are  living,  and  subject  to 
the  process  of  the  Cnurt.  Chase  v.  Lin- 
coln, 3  Miiss.  236.  If  it  be  impossilde  to 
f)rocure  any  one  of  the  witnesses,  or  he 
1)18  become  incompefetit,  the  Court  will 
proceed  without  him  ex  necessitate  rei,  and 


resort  to  the  next  best  evidence  of  which 
the  case  will  admit.  Ibid. ;  Sears  v.  Bel- 
lingham,  12  Mass.  358;  Brown  v.  Wood, 
17  Mass.  68;  see  Swift  v.  Wiley,  1  B. 
Monr.  116;  Brown  v.  Chambers,  Hayes, 
P^xch.  597;  Powell  v.  Cleaver,  2  Bro. 
C.  C.  (Perkins's  ed.)  504,  note  (/;);  Lord 
Carrin^ton  v.  Payne,  5  Sumner's  Ves.  404, 
Perkins's  note  (a),  and  cases  cited. 

3  Per  Lord  Eldon,  in  Bootle  v.  Blundell, 
tibi  sup. 

4  Jbid. 

6  Lord  Carrington  v.  Payne,  5  Ves.  404, 
411;  sec  also  Billing  v.  Brooksbank,  cited 
19  Ves.  505;  Fitzherbert  v.  Fitzlierbert  4 
Bro.  C.  C.  231 ;  and  (irayson  v.  Atkinson, 
2  Ves.  S.  454,  where  it  was  held,  that  a 
commission  should  have  been  sent  to 
examine  the  witness  abroad;  but  the 
rule  in  Lord  Carrington  v.  Payne  seems  to 
be  the  one  now  acted  upon.     Seton,  227. 

6  Hare  v.  Hare,  6  Beav.  529,  630;  7  Jur. 
336. 

"  Bernett  v.  Taylor,  9  Ves.  381. 

8  James  v.  VmwW,  T.  &  R.  417;  M'Ken- 
irc  V.  Fraser,  9  Ves.  5. 

9  Harris  v.  Inglcdew,  3  P.  Wms.  93; 
Wallis  V.  Hodgeson,  2  Atk.  56;  Seton, 
228. 

1"  A7ite,  p.  858. 

11  Chichester?;.  Chichester, 24  Beav.  289 
where  the  will  was  allowed  to  bt;  proved 
vird  voce  at  the  hearing;  sec,  however,  Se- 
ton. 228,  and  Smith  v.  Blackmail,  ante, 
p.  794,  n.  (?■)• 

•■^  See  ante,  p.  232;  Ord.  VII.  1;  Seton, 
228;    Binficld   v.   Liimbert,   1   Dick.  337; 


876 


EVIDENCE. 


c.  XXII.  §  r.. 


"Will  niado 
and  pwvod  in 
the  colonies. 


Where  suit 
is  not  to 
establish  will. 


TJifi:ht  of  heir 
to  an  issue. 


Court  has 
now  power, 
and,  semble, 
is  bound,  to 
determine 
itself  the 
validity  of 
wiU. 


Wills  of  copy- 
hold estates. 


tlic  Court  Avlll  establish  it,  -witliout  tloclaring  it  Avcll  proved  ;^  but 
tlio  adnussion  of  a  Avill  in  the  se})arate  answer  of  a  luarried  wo- 
man, who  was  the  heiress-at-law,  has  been  held  insufficient  to 
enable  the  Court  to  declare  the  will  established.^ 

The  Coiu't  of  Chaneery  will  establish  a  will  made  and  i)roved  in 
the  colonies,  on  the  production  of  a  duly  authenticated  copy  of  it : 
})rovidcd  the  due  execution  and  attestation  of  the  original  are 
l>roved  by  the  attesting  witnesses.^ 

The  rule  that,  Avhere  a  will  is  to  be  established  against  an  heir, 
it  must  be  proved  by  all  the  witnesses,  or  by  producing  evidence 
of  their  death  and  handwriting,  does  not  apply  when  proof  of  the 
will  is  required  for  other  purposes :  in  such  cases,  one  witness  to 
prove  it  is  sufficient.* 

The  rule,  that  all  the  witnesses  must  be  examined,  extends  also 
to  the  trial  of  an  issue  devisamt  vel  non  before  a  jury.^  In 
Tathwn  v,  Wright,^  however,  where  the  bill  was  not  filed  by  the 
devisee  to  establish  the  will,  but  by  the  heir  to  set  it  aside,  the 
defendant  called  one  tV'itness,  and  produced  the  other  two,  offering 
them  to  the  plaintiff  to  call  and  examine  them,  which  he  declined, 
not  wishing  to  make  them  his  own  witnesses  :  upon  a  motion  for  a 
new  trial,  the  cause  was  held  to  have  been  sufficiently  tried.' 

Formerly,  whenever  the  heir-at-law  was  a  party  to  the  suit,  he 
was  entitled,  as  a  general  rule,  to  an  issue  demsavit  vel  non ;  ^  but 
under  the  present  practice,  the  Court  of  Chancery  has  power,^  and 
it  would  seem  is  bound,^°  to  determine  the  question  itself,  either 
withi  or  without  a  jury,  as  it  may  think  fit :  ^^  though  it  may  direct 
the  question  to  be  tried  at  the  assizes,  or  at  a  sitting  in  London  or 
Middlesex,  where  it  apjiears  to  the  Court  that  the  question  may  be 
more  conveniently  so  tried.^^ 

With  respect  to  wills  of  copyhold  estates,  it  seems  that  it  is  not 
the  practice  to  establish  them  against  the  heir-at-law ;  but  what 


Bird  V.  Butler,  ib.  n. ;  Fitzherbert  v.  Fitz- 
herbert,  4  Bro  C.  C  231 ;  Wood  v.  Stane, 
8  Pri.  613;  Bo3'se  v.  Rossborough,  Kav, 
71;  3  DeG.M.  &  G.  817;  18  Jur,  205; 
S.  C.  nom.  Colclough  v.  Boyse,  6  II.  L.  Ca. 
1;  3.1ur.  N.  S.  373. 

1  Seton,  228.  For  form  of  decree  in 
case,  see  ib.  224,  No.  2. 

2  Brown  v.  Hayward,  1  Hare, 432;  ante, 
pp.  184,  185. 

8  Rand  v.  Macmahon,  12  Sim.  553;  6 
Jur.  450. 
*  Concannon  v.  Cruise,  2  Moll.  332. 

5  I'emberton  v.  Peinberton,  11  Ves.  53; 
Bootle  V.  Blundell,  19  Ves.  505;  G.  Coop. 
137. 

6  2  R.  &  M.  1,  17. 

7  Greslev  Kg.  Ev.  (Am.  cd.)  123,  124; 
2  Greenl.  Ev.  §  C93. 

8  ^t^post,  Chap.  XXVII.  §  1,  Trials  of 


Questions  of  Fact ;  and  see  Man  v.  Ricketts, 
7  Beav.  93,  102;  8  Jur.  159;  S.  C.  nom. 
Ricketts  v.  Turquand,  1  H.  L.  Ca.  472. 

9  21  &  22  Vic.  c.  27,  §§  3,  4;  and  see 
Ord.  XLI.  26,  52;  f\n&  post,  Chap.  XXVII. 
§  1,  Trials  of  Questions  of  Fact. 
I  W  25  &  26  Vic.  c.  42,  §  1;  post.  Chap. 
XXVII.  §  1,  Trials  of  Questions  of  Fact ; 
Bavlis  V.  Watkins,  8  Jur.  N.  S.  1165, 
L.  JJ.;  Egmoiit  v.  Darell,  1  II  &  M.  563; 
Eaden  v.  Firth,  ib.  573;  Young  v.  Fernie, 
1  DeG.,J.  &Sm.  .353;  10  Jur.  N.  S.  58;  Re 
Catholic  Publishing  Companv,  10  Jur.  N. 
S.  192,  M.  K.;  Williams  v.  Williams,  12 
W.  R  140  M.  R.;  33  Beav.  306;  and  see 
Curie  wis  V.  Carter,  9  Jur.  N.  S.  1148;  12 
W.  R.  97,  V.  C.  S. 

11  21  &  22  Vic.  c.  27,  §  5;  and  25  &  26 
Vic.  c.  42,  §  3 

12  25  &  26  Vic.  42,  §  2. 


DOCTBIENTART    EVIDENCE    WHICH    DOES    NOT    PROVE    ITSELF. 


877 


will  be  a  siifficient  proof  to  induce  the  Court  to  act  upon  them,  when 
their  validity  is  not  admitted  by  the  heir-at-law,  does  not  seem 
quite  clear.^ 

The  Ecclesiastical  Courts  had  no  jurisdiction  to  detennine  the 
validity  of  wills  of  real  estate ;  and  the  production  of  probate  was, 
therefore,  no  evidence  of  the  vaUdity  of  the  will  as  to  real  estate.'^ 
But  the  Court  of  Probate  has  such  jurisdiction  confen-ed  upon 
it ;  ^  and  wlien  probate  of  a  will,  not  confined  to  personalty,  has 
been  granted  in  solemn  fonn,  the  probate  is  conclusive  evidence, 
in  aU  Courts,  of  the  validity  of  the  will  as  to  real,  as  well  as  to 
personal  estate.^  And  when  the  will  is  not  proved  in  solemn 
form,  if  ten  days'  notice  of  the  intention  to  read  the  probate  of 
the  will,  or  copy  thereof,  stamped  with  any  seal  of  the  Court  of 
Probate,^  as  evidence,  is  given,  it  will  be  conclusive  evidence 
against  the  person  to  whom  notice  is  given:  unless  such  per- 
son, within  four  days  after  receiAdng  such  notice,  gives  notice 
that  he  disputes  the  validity  of  the  devise.®  The  consequence 
of  the  above-mentioned  alterations  in  the  law  is,  that  the  practice 
of  estabhshing  a  will  in  Chancery  is  of  comparatively  rare  oc- 
currence. 

Where  an  original  will  is  required  to  be  produced  in  the  Court 
of  Chancery,  the  attendance  with  it  of  the  i:)roper  officer,  in  whose 
custody  it  is  deposited,''  may  be  procured,  as  in  the  other  cases 
where  the  production  of  an  original  record,  or  instrument  m  the 
nature  of  a  record,  is  required.  Formerly,  however,  the  practice 
was  for  the  Court  to  make  an  order  upon  the  officer  of  the  Eccle- 
siastical Court  to  deliver  the  original  will  to  the  solicitor  m  the 
cause,  upon  his  giving  security  (to  be  approved  by  the  Judge  of 
that  Court)   to  return  it  safe  and  undefaced  within  a  particular 


C.  XXII.  §  0. 


Court  of 
Probate  can 
determine 
validity  of 
■will  of  realty. 

Effect  of  pro- 
bate in  sol- 
emn form,  as 
to  realty. 

Effect  of 
notice  in 
other  cases, 
of  intention 
to  read. 


Establishing 
will  in 
Chancery  is 
novr  rare. 


Production  of 
original  will: 
how  obtained. 


1  Archer  v.  Slater,  10  Sim.  624;  11  Sim. 
607;  Jervoise  v.  Duke  of  Northumberland, 
1  J.  &  W.  070. 

2  Tavlor  on  Evid.  1-565,  A. 

8  20 '&  21  Vic.  c.  77,  §§  61-66;  Dodd  & 
Brooke,  595,  641;  see  also  21  &  22  Vic. 
c.  95.  As  to  wills  of  personal  estate,  the 
Court  of  Chancery  has  looked  at  the  orig- 
inal, for  the  purp  ise  of  determining  the 
con^itructiun,  in  I'liilMp-*  v.  Cliambeibiiiie, 
4  V'es.  57;  Compton  v.  Bloxham,  2  Coll. 
201,  204;  Oppenheim  v.  Martin,  9  Hare, 
802,  n.;  Manning  v.  Pursell,  7  De  G.,  M.  & 
G.  65;  see,  however,  Gann  v.  Gregory,  3 
De  G.,  .M.  &  <i.  777,  7b0;  18  Jur.  1063. 

*  20  &  21  Vic.  c.  77,  §  62.  As  to  the  ad- 
vantage of  proving  a  will  in  solemn  form, 
see  Dod'l  &  iSrooke,  641,  n.  (a);  and  for 
the  practice,  ib.  641-652. 

6  The  stamp  is  only  required  for  the 
conv.     Ki|>pon  v.  l'rie»t,  3  F.  &  F.  644. 

6  20  &  21  Vic.  o.  77,  §  64;  see  iMiibv  i'. 
Poole,  10  NV.  K.  515,  V.  C.  S.;  Uirra- 
clougli  V.  Greenaugh,   1  W.  N.  319;    15 


VV.  R.  21,  Q.  B.  Office  copies  of  wills  are 
not  collated  with  the  original,  unless  spe- 
cially required;  every  copy  so  required  to 
be  examined  will  be  ceriilicd  under  the 
hand  ol  one  of  the  principal  Kt'gi>trius  lo 
be  an  examined  cop}';  and  the  se:d  of  the 
Court  is  not  to  be  atfixed  to  itn  office  copy 
unless  the  fame  has  been  so  certified. 
Court  of  Probate  Rules,  30  July,  1862, 
rr.  bO,  Si ;  Dodd  &  Brooke,  lu76.  An 
office  copy  not  so  certified  and  sealed  is 
not,  therefoie,  usually  received  in  evi- 
dence. All  extra  fee  of  7s.  6(/.  is  cliiirgcd 
lor  a  certified  office  copj';  and  see  20  &  21 
\\c.  c.  77,  §  69.  For  lonns  of  notice, 
under  section  64,  see  Vol.  111. 

'  A  snhpcena  duces  ttcuia  will  be  issued 
for  this  purpose.  Wigan  r.  Kowlaml,  10 
Hure  Ap.  is,  19;  17  .liir.  bl6.  For  the 
fees  payable  to  the  officer  of  the  Court  of 
Probate  attending  with  the  will,  see  (Jourt 
of  I'robate  Kule.i,  3U  July,  1*562;  Dodd  & 
Brooke,  1161,  1230;  8  Jur.  N.  S.  Pt.  2, 
392,  397. 


878 


EVIDENCE. 


C.  XXII.  §6. 


AMien  the 
original 
cnniiot  bo 
obtained : 


Proof  of 
execution. 

Secondary 
evidence  of 
contents. 


Secondary 
evidence  of 
written  docu- 
ments : 

Practice  at 
Law; 

Notice  to 
produce. 


timo.^  In  Fmapder  v,  7'i/nte^'  Lord  Eldon  seomod  at  n  loss 
to  account  for  tliis  deviation  from  the  onlinary  course,  whicli  lie 
thought  might  be  inoi)erative  if  the  officer  of  the  Ecclesiastical 
Court  refused  to  obey  the  order;  and  he  declined  to  extend  it  to 
any  other  case  than  that  of  a  will. 

There  are  several  cases  in  Avhich  a  Court  of  E(}uity  has  estab- 
lished a  will,  Avithout  the  i)roduction  of  the  original,  Avhere  the 
fact  of  the  will  having  been  proved  and  retained  abroad,  or  other 
circumstances,^  have  rendered  it  ini])ossiblc  to  bring  the  original 
before  the  Court ;  *  but  it  seems  that,  in  such  cases,  strict  proof  of 
the  execution  and  attestation  must  be  given,  unless  they  are 
admitted,  or  unless  the  will  is  old  enough  to  prove  itself^  The 
contents  of  the  will  must  be  proved  to  the  satisfaction  of  the 
Court;*  and,  in  the  absence  of  the  original,  there  are  various 
means  of  secondary  evidence  aj^plicable  for  this  purpose.  In 
Pullan  V.  Mcnclbis^  sufficient  secondary  evidence  was  given,  by 
means  of  a  copy  admitted  to  probate  in  this  country,  certified  by 
the  Registrar  of  the  place  where  the  original  was  deposited. 

Secondary  evidence  of  the  contents  of  written  documents  is 
admitted,  both  at  Law  and  in  Equity,  when  the  party  has  not  the 
means  of  producing  them,  because  they  are  either  lost  or  destroyed, 
or  in  the  possession  or  power  of  the  adverse  j^arty.  At  Law, 
where  it  is  not  known  till  the  time  of  trial  what  evidence  will  be 
oifered  on  either  side,  a  party,  in  order  to  entitle  himself  to  give 
secondary  evidence  of  the  contents  of  a  written  document,  on  the 
ground  of  its  being  in  the  possession  of  his  adversary,  ought  to 
give  him  notice  to  produce  it :  for  otherwise,  non  constat  that  the 
best  evidence  might  not  be  had.^  But  even  at  Law,  when,  from 
the  nature  of  the  proceeding,  the  party  must  know  that  the  con- 
tents of  a  written  instrument  in  his  possession  will  come  into 
question,  it  is  not  necessary  to  give  any  notice  for  its  production ; 
and,  therefore,  in  an  action  of  trover  for  a  deed,^  or  upon  an  in- 
dictment for  stealing  a  bill  of  exchange,^"  it  has  been  held,  that, 
without  previous  notice,   jjarol   evidence   may   be   given   of  the 


1  Morse  v.  Roach,  2  Sh-ange,  961;  1 
Dick.  65 ;  Frederick  v.  Aynscombe,  1  Atk. 
627;  I'eirce  ».  Watkin,  2  Dick.  485;  Lake 
f.  Causlield,  3  13ro.   C.   C.  263 ;  Forder  v. 

Wade,  4   iiro.  C.  C  476;  Hodson  v. , 

6  Ves.    135;    Ford  v.  ,  ih.    802;    see 

also  Seton,  226;  and  for  forms  of  orders, 
see  2  Van  iiey.  361,  362. 

2  7  Ves.  292;  and  see  6  Ves.  135;  ib. 
802. 

3  Ellis  V.  Medlicott,  cited  4  Beav.  144. 

*  A  codicil  destroyed  witliout  the  testa- 
tor's consent  was  established  in  Clark  v. 
Wright,  3  Pick.  67  (2d  ed.),  69,  note  (1), 
and  cases  cited. 


5  Rand  v.  Macmahon,  12  Sim.  553,  556; 
6  Jur.  450. 

6  Ihe  evidence  of  the  entire  contents  of 
the  will  must,  in  such  cases,  be  most  clear 
and  satisfactory.  Davis  v.  Sigourney,  8 
Met.  487;  Durfee  v.  Durfee,  8  xMet.  490, 
note;    Huble  v.  Clark,  1   Hagg.  Eecl.  116. 

'•  4  Beav.  142,  where  the  cases  are  col- 
lected. 

8  1  Phil.  F:v.  (Cowen  &  Hill's  ed.  1839) 
439  et  stq.  ;  3  ib.  1182,  note,  834,  and 
cases  cited ;  1  Greenl.  Ev.  §  560. 

»  How  V.  Hall,  14  East,  274. 

1"  Aickles's  case,  1  Leach,  294. 


DOCUMENTARY    EVIDENCE    WHICH    DOES    NOT    PROVE    ITSELF. 


879 


contents  of  the  instrument  Avhich  is  tl\e  foundation  of  the  pro- 
ceeding.^ 

The  same  exception  to  the  general  rule  appears  to  be  equally 
applicable  in  Courts  of  Equity :  for  there  it  is  held,  that  when, 
either  fi-om  the  pleadings  or  depositions,  a  party  is  apprised  that 
it  is  the  intention  of  the  opjjosite  party  to  make  use  of  secondary 
evidence  of  the  contents  of  a  document  in  his  possession,  such 
secondary  e^ddence  may  be  used  at  the  hearing,  without  serving 
the  party  in  whose  possession  it  is  with  notice  to  produce  it.- 
This  point  was  much  considered  by  Sir  William  Grant  M.  R.  in 
Wood  V.  Strickland^^  where  a  witness,  w^ho  had  been  examined  on 
the  part  of  the  defendant,  deposed  to  the  contents  of  a  certain 
letter  which  had  been  written  by  the  plaintiff  to  the  witness, 
which  the  witness  stated  that  he  had  himself  subsequently  re- 
turned to  the  i^laintiff,  who  immediately  thi*ew  it  into  the  fire  and 
destroyed  it.  At  the  hearing,  an  objection  was  taken,  on  the  part 
of  the  plaintiff,  to  the  admissibility  of  this  evidence,  on  the  ground 
that  there  was  no  proof  of  the  letter  being  lost  or  destroyed,  nor 
of  any  notice  given  to  the  plaintiff  to  produce  it;  but  the  objection 
was  overruled  by  the  Master  of  the  Rolls,  on  the  ground  that  the 
plaintiff  must  have  seen,  by  the  dejjositions,  that  the  evidence 
of  the  case,  set  up  as  a  defence  to  the  bill,  consisted  of  certain 
written  communications  which  had  taken  place  on  the  subject  of 
the  suit,  ^nd  that  it  was  impossible,  therefore,  that  he  could  have 
been  taken  by  surprise,  or  could  not  be  prepared  to  produce  any 
letter  that  might  be  in  his  possession.  It  is  right,  however,  to  state, 
that,  in  Uawkesicorth  v.  Deiosnap^^  Sir  Lancelot  Shadwell  V.  C. 
came  to  a  decision  which  was  contrary  to  that  in  Wood  v.  StricJc- 
land ;  ^  and  that,  in  Stulz  v.  iStulz,^  he  referred  with  apjirobation 
to  his  own  decision  in  IIav;kesworth  v.  Dewsnap :  though  he  ex- 
pressed himself  willing  to  have  the  point  again  argued,  in  order 
that  the  practice  miglit  be  settled.  The  jioint,  however,  was  not 
argued,  the  objection  having  been  waived. 

It  may  be  mentioned,  with  reference  to  this  subject,  that,  in 
Parkhurst  v.  LovMn^  Lord  Eldon  appears  to  have  thought, 
that  wlien  a  defendant  adinitted  a  deed  to  be  in  his  possession, 
but  decHned  to  produce  it,  on  the  ground  that  it  might  convict 
him  of  simony,  or  any  other  criminal  offence,  secondary  evidence 
of  its  contents  might  be  received. 

Where  written  documents  are  not  admitted,  and  do  not  prove 

1  See  Taylor  on  Evid.  §§   379,  379;  1  <  Cited  5  Sim.  4G0, 

Greenl.  Kq.  §  .001.  6  2  Mer.  461. 

'^  See  Gresley  Eq.  Ev.  (Am.  ed.)  118.  6  5  Sim.  460. 

8  a  .Mer.  461,405;  and  seeLyne  v.  Lock-  7  2  Swanst.  213. 
woo  1,  2  Moll.  321;  Davison  v.  Kobin»on, 
e  W.  W.  673,  L.  C. 


C.  XXII.  §  6. 


Practice  in 
EquitVjWhere 
party  is 
apprised  of 
the  intention 
to  prove  the 
contents. 


Production  of 
document, 
where  it  may 
convict  the 
party  of  a 
crime. 


In  what  man- 
ner written 
docinniiits 
ai'e  proved. 


880 


EVIDENCE. 


C.  XXII.  §  6. 

< Y -> 


Proof  of 
exi'cution  by 
attostiiig  wit- 
ness, lU>t  lU'C- 
essjirv  wlioiv 
nttostation 
unnoeossary ; 
except  on 
expartt 
applications. 

Notice  to 
admit  under 
21  &  -22  Vic. 
c.  27. 


Objections 
for  want  of 
stamp. 


themselves,  they  must  he  jn-oveil  hy  the  snmc  evideiiee  as  nt 
Law :  ^  tlie  evidenee,  however,  heiiig  taken  aeeorthng  to  tlie  prac- 
tiee  of  the  Court  of  Chaneevy. 

AVhere  an  instrument,  to  the  valulity  of  wh'u-li  attestation  is  not 
requisite,  has  been  attested,  such  instnmuiii  may  he  proved  by 
admission,  or  otherwise,  as  if  tliere  had  been  no  attesting  witness 
thereto ;  -  and  it  is  not  requisite  to  prove  it  by  the  attesting  wit- 
ness, except  in  the  case  of  ex  jxirte  applications :  on  which  the 
evidence  of  the  attesting  witness  will  still  be  required,^  unless  it 
can  be  shown  that  there  is  a  ditticulty  in  procuring  it.* 

To  avoid  unnecessary  expense  in  the  ])roof  of  documents,  it  has 
been  enacted  that,  where  all  parties  to  a  suit  arc  competent  to 
make  admissions,  any  party  may  call  on  any  other  party,  by  notice, 
to  admit  any  document  saving  all  just  exceptions ;  and  that,  in 
case  of  refusal  or  neglect  to  admit,  the  cost  of  proving  the  docu- 
ment shall  be  paid  by  the  party  so  neglecting  or  refusing,  whatever 
the  result  of  the  cause  may  be :  unless  the  Court  shall  certify  that 
the  refusal  to  admit  was  reasonable  ;  and  that  no  costs  of  proving 
any  document  shall  be  allowed,  unless  such  notice  be  given  :  ex- 
cept in  cases  Avhere  the  ojnission  to  give  the  notice  is,  in  the 
0|)inion  of  the  Taxing  Master,  a  saving  of  expense.^ 

Any  document  requiring  to  be  stamped  will  not  be  received  in 
evidence,  until  it  has  been  stamped,®  except  for  a  collateral  pur- 
pose ; ''  and  upon  the  ])roduction  of  any  document  (except  such 
as  cannot  be  stamped  after  execution,  on  jjayment  of  the  duty  and  a 
penalty,^  as  evidence  at  the  trial  of  any  cause,  it  is  the  duty  of  the 
officer  of  the  Court,  whose  duty  it  is  to  read  such  document,  to 
call  the  attention  of  the  Judge  to  any  omission  or  insufficiency  of 
the  stamp ;  and  the  document,  if  unstamped,  or  not  sufficiently 
stamjied,  will  not  be  received  in  evidence  until  the  whole,  or  the 
deficiency  of  the  stamp  duty,  and  the  penalty  required  by  statute, 
together  with  the  additional  jienalty  of  one  pound,  has  been  paid ; 
and  thereupon  such  document  is  admissible  in  evidence,  saving  all 


1  See  ante,  p.  874,  and  note;  1  Greenl. 
Ev.  §  589  €t  seq.  and  note;  Gresley  Eq.  Ev. 
(Am.  ed.)  11^,  119  et  seq. 

2  17  iS:  lb  Vic.  c.  125,  §  26;  see  Homer 
V.  Wallis,  11  Ma's.  309. 

8  Jie  Keay,  1  Jiir.  N.  S.  222;  3  W.  R. 
312,  V.  C.  K.;  Pedder  v.  Pediler,  cited 
Seton,  16. 

*  Be  Dierdon,  10  Jur.  N.  S.  673;  12  W. 
R.  978,  V.  C.  W.;  Jearriird  v.  Tracv,  11 
\V.  K  97,  V.  C.  K.  In  Jie  Hall,  9  W.  K. 
776,  V.  C.  K.,  where  no  solemnities  were 
required  fur  the  execution  of  a  puwer,  a 
fund  was  directed  to  be  paid  out  of  Court, 
without  the  evidence  of  the  attesting  wit- 
ness; and  see  Taylor,  §  1640. 

6  Artie,  p.  849;  21  &  22  Vic.  c.  27,  §  7; 
Ord.  XLl.  39,  and  Sched.  N.  No.  6;  Tay- 


lor, §  707  A.  Section  7  is,  in  tprms,  gen- 
entllj'  applicable,  and  has  been  so  acted 
upon;  Seton,  21;  it  is  framed  on  the  Com- 
mon Eaw  Proceduje  Act,  1852  (15  &  16 
Vic.  c.  76),  §  117;  and  see  Common  Liiw 
Kules  of  H.  T.  1853,  r.  30;  17  Jur.  Pt.  2, 
9;  Taylor,  §  703.  For  the  cases  at  Law 
on  the  construction  to  be  put  on  §  117, 
and  the  practice  thereunder,  see  Tavlor  on 
Evid.  §§  704-707;  Chitty's  Arch.  319-323; 
Cliitty's  Forms,  140-145.  For  forms  of 
notice,  admission  thereunder,  and  allidavit 
of  service,  see  Vol.  III. 

6  Smith  V.  Henle}',  1  Phil.  391,396;  8 
Jur.  434. 

'  Hlair  v.  Bromley,  11  Jur.  617,  L.  C, 
and  cases  there  cited. 

8  See  Seton,  16. 


PROVING    EXHIBITS    AT    THE    HEARING,  UNDER    AN    ORDER. 


881 


just  exceptions  on  other  grounds.^     Xo  new  trial  will  be  granted  C.  XX ii.  § 
by  reason  of  the  ruling  of  any  Judge  that  the  stamp  upon  any 
document  is  sufficient,  or  that  the  document  does  not  require  a 
stamp.- 

Section  YII. — Proving  Exhibits  at  the  Hearing,  under  an  Order. 

Written  documents,  essential  to  the  justice  of  the  cause,  may 
in  certain  cases  be  proved  at  the  hearing  as  exhibits,  viva  voce,  or 
by  affidavit.^  This  course  may  be  adopted,  where  the  cause  is 
heard  on  bill  and  answer,^  or  where  the  documents  have  not  been 
proved  before  the  evidence  in  the  cause  is  closed. 

Amongst  the  documents  which  may  be  thus  proved,  may  be 
classed :  "  all  ancient  records  of  endowments  and  institutions, 
whether  they  are  oiFered  to  be  proved  as  original  instruments,  or 
as  they  are  found  collected  and  recorded  in  register  books  of  gi-eat 
antiquity,  dejjosited  in  the  registries  of  the  archbishops  and  bishops, 


Proving 
exhibits  at 
the  heariiiff. 


What  ex- 
hibits may 
be  proved, 
viva  voce, 
and  by 
affidavit: 


1  The  Stamp  Act,  1870  (33  &  34  Vic.  c. 
97),  §  16,  on  and  after  1  Jan.  1871.  The 
17  &  18  Vic.  c.  125,  §§  28,  29,  is  repealed 
on  and  from  that  date,  b}'  33  &  34  Vic.  c. 
99.  It  seems  there  is  no  officer  of  the 
Court,  strictly  answering  the  description 
in  §  16;  the  Registrar  clearly  does  not. 
Seton,  16.  The  practice  in  the  Court  of 
Chancery  is  to  direct  the  cause  to  stand 
over,  or  to  allow  it  to  proceed  on  the 
undertaking  of  the  solicitor  to  procure 
the  document  to  be  properly  stamped ;  see 
Seton,  16;  and  see  ante,  pp.  848,  849; 
Owen  V.  Thomas,  3  JI.  &  K.  353 ;  Coles 
V.  Trecothick,  9  Ves.,  234,239;  Carring- 
ton  V.  Pell,  2  De  G.  &  S.  512  ;  Browne  v. 
Savage,  5  Jur.  X.  S.  1020,  V.  C.  K.;  see 
also  Nixon  v.  Albion  ]\Iarine  Insurance 
Company,  L.  II.  2  Exch.  338.  Receipts 
for  payments  not  duly  stamped,  and 
which  could  not  be  stamped  either  witli 
or  without  a  penaltj',  were  received  in 
evidence  by  consent,  in  Orange  v.  Pick- 
ford,  and  Thompson  v.  Webster,  cited 
Seton,  16. 

2  17  &  18  Vic.  c.  125,  §  31.  In  Carpen- 
ter V.  Snelling,  97  Mass.  452,  it  was  lield 
that  the  provision  of  the  United  States 
Sts.  1866,  c.  184,  §  9,  tiiat  no  instrument 
or  document  not  duly  stamped,  as  renuired 
by  the  internal  revenue  laws  of  tiie  t  nited 
States,  shall  be  admitted  or  used  as  evi- 
dence in  any  Court  until  tlie  requisite 
stamps  shall  liave  been  aflixcd  tliercto, 
applies  only  to  tlie  (Jourts  of  tlie  United 
States.  Higelow  C.  .J.  in  this  case  said: 
"  We  entertain  grave  doubts  whether  it  is 
within  the  constitutional  authority  of  Con- 
gress to  enact  rules  regulating  the  com- 
petency of  evidence  on  the  triiil  of  cases 
in  the  Courts  of  the  several  States  which 
shall  be  obligatory  upon  them."  See  also 
Lynch  v.  Morse,  97  Mass.  .458  in  note; 
Diflbrow  v.  .lohnson,  3  (J.  E.  (Jreen  (N.  .1.), 
36;  Davy  v.  Morgan,  56  Barb.  (N.  Y.) 
218. 

8  The  practice  of  proving  such  docu- 
ments by  uflidavit  was  introduced  by  the 

VOL.  I. 


43d  Order  of  August,  1841;  Sand.  Ord. 
886;  3  Beav.  xxv.,  which  directed  that, 
"  In  cases  in  which  any  exhibit  may,  by 
the  present  practice  of  the  Court,  be 
proved  viva  voce  at  the  hearing  of  a  cause, 
the  same  may  be  proved  by  tiie  affidavit 
of  the  witness  who  would  be  competent  to 
prove  the  same  viva  voce  at  the  hearing." 
This  order  is  not  included  in  the  Consol- 
idated Orders;  but  the  Prel.  Ord.  r.  5, 
which  preserves  any  e-tablislied  practice 
originated  in,  or  sanctioned  by,  the  Orders 
thereby  abrogated,  would,  it  is  conceived, 
authorize  the  adoption  of  the  practice, 
•where  necessary;  see  Seton,  14;  see  also 
13  &  14  Vic.  c.  35,  §  28 ;  and  orders  to 
prove  exhibits  viva  voce  or  by  affidavits 
are  frequently  made;  for  recent  instances, 
see  Jegon  v.  V^ivi.in,  M.  R.,  17  Dec.,  1869, 
Rolls'  Lib.;  Feltham  v.  Turner,  M.  R., 
2  .July,  1870,  Rolls"  Lib.  Courts  of  Chan- 
cery have  always  hud  the  power  to  ex- 
amine witnesses  viva  voce,  for  the  purpose 
of  proving  certain  written  instruments. 
Levert  v.  l{edwood,  9  Porter,  80;  Hughes 
v.  Phelps,  3  Bibb.  199  ;  Gresley  Eq.' Ev. 
(Am.  ed.)  126;  Latting  v.  Ilall,  9  Paige, 
483;  Dana  v.  Nelson,  1  Aiken,  254;  see 
De  Peyster  v.  Golden,  1  Edw.  Cli.  03; 
Nesmith  v.  Calvert,  1  Wood.  &  M.  34; 
Gafnev  v.  Reeves,  6  Ind.  (Porter)  71;  Mor- 
ton i\"\Vhite,  5  Ind.  (Porter)  338. 

It  is  provided,  that  the  late  change  in 
the  mode  of  tidcing  evidence  in  I'.qnity  in 
Massachusetts  shall  not  prevent  the  use 
of  affidavits  where  they  have  heretofore 
been  allowed.     Genl.  Sts.  c.  131,  §  00. 

By  Chancery  Rule  9  of  New  .Fersey,  no 
documentary  evidence,  which  is  not  made 
an  exhibit  before  theM:ister,  shall  be  read 
at  the  hearing  of  the  cause.  2  McCarter, 
529. 

■•  Ante,  p.  828;  Rowland  v.  Sturgis,  2 
Hare,  520;  Chalk  »;.  Raine,  7  I  Lire.  393; 
13  .Jur.  981  ;  Neville  v.  Pitzgerald,  2  Dr. 
&  War.  530;  Wvatt's  P.  R.  219;  contra, 
Jones  V.  Griffith, "14  Sim.  262;  8  Jur.  733. 


5G 


882 


EVIDENCE. 


(  .  XXM.  ? 


am-u'iit 
rooonls  and 
writings. 


Copii's  of 
rotonls 
sii^iu'il 
liy  iJiMper 
oiliivr. 


Heeds, 
li'ttor.-:,  and 
vouchers. 


Nothing  can 
be  proved 
rii'(i  Viice 
that  requires 
anv  evidence 
besides  that 
ol'  signature ; 


or  of  the  (loans  and  chapter.s  of  oollo^iati'  cluirclios,  or  of  llif  Ec- 
I'lesiastioal  Courts,  bulls  of  the  l*o|»i's,  records  from  the  l^odleian, 
UarU'ian,  and  Museum  lilirmics,  or  from  any  of  the  ]iul)lic  libraries 
beloniiing  to  the  two  universities,  or  ironi  the  libi'ary  at  Lambeth: 
all  or  any  of  which  ancient  documents  must  be  produced  by  those 
persons  in  whose  imnu'diate  custody  they  are,  who  must  l)e  sworn 
to  identify  the  j»articular  record  protluced  in  his  custody,  before  the 
same  can  be  read."  ^ 

So,  in  like  manner  may  be  proved,  as  exhibits,  office  copies  of 
records-  fiDm  any  of  the  Courts  at  Westminster,  or  of  grants  or 
enrolments  from  the  rolls  or  other  records  deposited  in  the  Public 
Record  Offices,  or  of  records  or  proceedings  from  Courts  of  inferior 
jurisdiction  in  England  :  as  those  of  the  counties  palatine  of  Ches- 
ter, Lancaster,  or  Durham,  or  of  the  Courts  of  Great  Session  in 
Wales,  or  of  the  Courts  of  the  universities  of  Oxford  and  Cam- 
bridge, or  of  the  City  of  London,  or  of  the  Cinque  Ports.^ 

Deeds,  bonds,  promissory  notes,  bills  of  exchange,  letters,  or 
receipts,  of  which  proof  must  be  made  of  the  handwriting  of  the 
persons  Avriting  or  executing  the  same,  are  all  considered  as  ex- 
hibits, and  may  be  proved  at  the  hearing.* 

With  the  exception  of  documents  coming  out  of  the  custody  of 
a  public  officer  having  the  care  of  such  documents  (which  are 
proved  by  the  mere  examination  of  the  officer  to  that  fact),  no 
exhil)it  can  thus  be  proved  that  requires  more  than  tlie  proof  of 
the  execution,  or  of  handwriting,  to  substantiate  it :  ^  if  it  be  any 
thing  that  admits  of  cross-examination,  or  that  requires  any  evi- 
dence besides  that  of  handwriting,  it  cannot  be  received.®  This 
rule  is  strictly  adhered  to ;  and  in  many  cases,  Avhere  an  instru- 
ment which,  ^:»rima  yacie,  a])pears  to  be  an  exhibit,  retjuires  more 
formal  proof,  it   cannot  be  received  as  one.''     Thus,  the  Court  re- 


1  2  Fowl.  Ex.  Pr.  157. 

"  Tlie  olKce  copies  here  mentioned  are 
the  copies  of  tliose  records  of  which  it  is 
the  duty  of  proper  (jfficers,  apiiointed  by 
the  law,  to  furnish  copies  for  general  use, 
and  are  not  tliose  copies  wliich  it  is  the 
duly  of  the  officer  of  the  Court  to  make 
for  the  convenience  of  suitors  in  tiiat 
Court,  such  as  the  ordinary  office  copies 
of  pleadings  and  depositions  in  the  Court 
of  Chancevy  ;  wiiicli,  altiiougli  thej'  are 
admi-sible  in  the  ('ourts  to  uhich  the 
officer  belongs,  are  not  aihnissibJe  in  oiher 
Courts  withuut  further  proof  ot  tlieir  ac- 
curacy- 2  Pliil.  ou  Evid.  107 ;  Taj'lor,  § 
1382. 

3  2  Fowl.  Ex.  Pr.  158. 

*  2  Fowl.  Ex.  Pr.  158;  Ilinde,  370. 

^  See  Ellis  v.  Deane,  3  Moll.  62;  Emer- 
son V.  Berklev,  4  Hen.  &  M.  441. 

6  LMke  f.^Skinner,  1  J.  &  \V.  9,  15; 
Bowser  t'.  Colby,  1  Hare,  lO'J,  132.  It 
seems,  however,  that  the  Court  will,  up'in 
the  suggestion  of  counsel,  put  questions  to 
the  witness;  see  Turner  v.  Burleigh,  17 
Ves.  354. 


T  Bloxton  V.  Drewit,  Prec.  in  Cha.  64; 
Ellis  V.  Deiine,  3  Moll.  03;  Enier.-on  r. 
Berkley,  4  Hen.  &  M.  441;  Gresley  Eq. 
Ev.  (Am.  ed  )  132  ^199].  It  is  said  not  to 
be,  strictly  spe^iking,  correct  to  Siiy,  that  no 
questions,  wliich  will  admit  of  a  cross- 
examination,  may  be  asked  a  witness  thus 
proving  exhibits;  but  the  fact  is,  that  the 
examination  is  restricted  to  three  or  four 
very  simple  points,  such  as  the  custody 
and  identity  of  an  ancient  docnment  pro- 
duced by  a  Iibr;irian  or  registnir,  the  ac- 
curacy of  an  olHce  copy  produced  by  the 
proper  officer,  the  execution  of  a  d'-ed 
where  the  exiimiiiant  is  the  attesting  wit- 
ness, the  handwriting  of  a  letter,  or  receipt, 
or  promissory  n"te,  &c  ,  &c.  Creslev  Eq. 
Ev.  (Am.  ed  )  126. 

Where  a  minor  is  a  party,  the  Court 
will  not  permit  a  witness  to  be  examined 
■vied  vuce  aftlie  hearing  of  the  cuu.se,  to 
prove  a  deed  or  exhibit,  which  must  be 
proved  at  the  office,  by  an  examination 
of  the  witness  u(K)ii  interrogatories.  White 
V.  Baker,  1  Irish  Eq.  282. 


PROVING   EXHIBITS    AT    THE    HEARING,  UNDER    AN    ORDER.  883 

fused  to  admit  certain  receipts  to  be  pi-oved  viva  voce,  although  C.  XXII.  §  7. 
ordinarily  they  might  be   taken   as   exhibits:    because,  in   order   '~    "^      ' 
to  make  them  evidence  of  the  fact  they  were  intended  to  sub-  ortiiatadmisi 
stantiate,  a  further  fact  must  have  been  proved,  whicli  the  other  examination. 
side  would  have  had  a  right  to  controvert  and  to  cross-examine 
upon.^     So  also,  where  a  power  was  required  to  be  exercised  by 
a  deed  executed  in  the  presence  of,  and  attested  by  witnesses,  it 
was  held  that  the  deed  by  which  the  jiower  Avas  exercised  could 
not  be  proved  viva  voce  at  the  hearing  of  the  cause ; "  and  where  a 
book,  in  which  the  collector  of  a  former  rector  had  kept  accounts 
of  the  receipt  of  tithes,  was  offered  to  be  proved  viva  voce,  it  Avas 
rejected,  because,  besides  j^roving  the  handwriting,  it  would  be 
necessary  to  prove  that  it  came  out  of  the  projier  custody,  and  that 
the  writer  was  the  collector  of  the  tithes.^ 

For  the   same  reason,  a  Avill  of  real  estate  cannot  be  proved  as  Will  cannot, 
an  exhibit  at  the  hearing:  because,  besides  the  mere  execution  of  "hifs^proved •** 
the  will,  the  sanity  of  the  testator  must  be  established,  and  the 
heir  has  a  right  to  cross-examine  the  witnesses.*     Under  the  pres-  but  has  been 
ent  practice,  however,  a  will  has  been  allowed  to  be  proved  at  the  hearlif"'^  with 
hearing,  with  liberty  to  the  heir  to  cross-examine  the  witnesses.^       liberty  to 

If  a  document  is  impeached  by  the  answer  of  a  defendant,  it  can-  examhie™* " 
not  be  ijroved  viva  voce,  on  the  i)art  of  the  plaintiff,  against  such  T^ 

1  '  ^  ...      Documents 

defendant.     Thus,  where  the  answer  of  one  of  the  defendants  in  a  impeached, 
cause  insisted  that  a  covenant  was  fraudulently  inserted  in  a  deed,  proved  viva 
the    Court   refused   to    admit   such  deed  to  be  proved  viva  voce  f^ce. 
against  that  defendant :  although  it  was  held,  that  it  might  have 
been  so  proved  against  the  other  defendant,  who  had  not  im- 
peached its  authenticity.^     So,  where  a  bill  was  filed  for  the  pay- 
ment of  an  annuity,  the  circumstances  under  which  the  annuity 
deed  was  executed  being  dis})uted  by  the  j)arties,  the  plaintiff  was 
not  allowed  to  prove  the  deed  viva  voce  as  an  exhibit ;  but  leave 
was  given  to  file  interrogatories  for  that  purpose,'' 

It  is  only,  however,  where  the  execution  or  the  authenticity  of  secu/,  where 
a  deed  is  impeached,  that  it  caimot  be  proved  as  an  exhibit :  if  "";  ^i^i'il'ty 

.  .  .         .  .  onlv  IS  in 

tlie  validity  of  it  only  is  disj)ute(l,  it  may  be  so  proved ;  ^    and  que'stion. 
upon  this  principle,  the  plaintiff,  in  a  foreclosure  suit,  was  allowed  Mortpige 
to  prove  by  affidavit  the  mortgage  deed  under  which  he  claimed,  '*i*^"'' '"  u-t"^^" 
where  it  was  neither  admitted  nor  denied  by  the  defendant.'' 

It  is,  howevever,  necessary,  in  order  to  authorize  the  jnoving  of 

1  Earll'omfret  V.  Lord  Windsor,  2  Ves.  6  Barfield   v.  Kelly,  4  Kiis's.  3r)5,  357; 

S.  '17J,   47'.*;  :iiid  sec  Hloxton  v.  Drewit,  Joly  v.  Swift,  3  .lo.  &  I/.it  120;  ILlclicock 

Tree   in  (Jh.  04.  v.  C:irew,  Kay  A|).  14. 

■i  ISrace  v.  iSiick,  7  Sim.  GIG.  7  Maber  v.  Houbs,   1  Y.  &  C.  Kx.  585, 

3  L.ke  V.  Skinner,  1  J.  &  W.  9.  15.  586. 

■•  Ilarrit   v    Iti>;Iim1i'w,   3    1*.  Wnis.  93;  8  Attorney-General  t;.  Pearson,  7  Sim. 

Niblctt  r.  Iliiiiiel,  I'.iinl).  310;   2  Fowl.  Kx.  30'.t. 

I'r.  l.jS;  utile,  pn.  K71,  x'^i.  '•'  Rowland    v.   Sturgis,    2    Hare,    520; 

fi  Chiclie'*ter    v.    Cliidiester,    24    IJeav.  amlnt   .loiies  v.  (iridilli,    14    Sim.    2ti2;  8 

289;  see   also   Hope  v.  Liddell,  20  IJeav.  .Jiir.  733;  and  i-ee  Chalk  v.  liainc,  7  Hare, 

438.  393;  13  Jur.  981. 


884 


EVIDENCE. 


C.  XXII.  §7. 

« , -> 

OnliM-  to 
juMvo :  lunv 
olitaiiioil : 

only  liv  party 
intomliiij;  to 
uso  exhil>its. 

When  oiiior 
lias  not  liion 
olitained  be- 
fore heariug. 

I'onn  of 
or.lor. 

Service. 


Proof:  how 
aiKUicotl; 


is  continod  to 
the  iloeii- 
nieiits 
mentioned, 
saving  just 
exceptions. 

Attendance  of 
■witness :  how 
enforced. 


;in  exhibit  nt  the  hoarino-  of  :i  cause,  that  tlie  party  intending  to 
ni.iko  use  of  the  cxliihit  should  i)reviously  o))tain  an  order  for  tliat 
pinpose.^  This  order  may  be  obtained,  by  the  party  requiring  it, 
on  motion  of  course,  ov  on  petition  of  course,  at  the  Rolls,"  and  it 
may  be  granted  during  tlie  hearing  of  the  cause:"  in  wliich  case, 
the  cause  -will  either  be  ordered  to  stand  over  for  the  ])urposc  of 
enabling  the  order  to  be  served  and  acted  upon,  or,  if  the  Avitness 
is  in  Court,  it  may  be  acted  upon  immediately.'* 

Tlie  order,  Avhen  drawn  up,  must  describe  minutely  the  exhibits 
to  be  proved ;  ^  and  it  is  always  made,  as  of  course,  "  saving  all 
just  exceptions."  ^ 

The  order,  being  drawn  up,  passed,  and  entered,  a  copy  thereof 
must  be  served,  in  the  usual  manner,  u})on  the  adverse  solicitor, 
two  days  previous  to  the  hearing  of  the  cause.'' 

When  the  cause  is  called  on,  the  original  order,  the  exhibit 
described  therein,  and  the  witness  to  prove  the  same,  must  be  pro- 
duced in  Court;  and  the  Registrar  then  administers  the  oath 
and  examines  the  witness ;  ^  or,  if  proved  by  affidavit,  the  order 
and  exhibit  must  be  produced  with  the  affidavit.*^ 

No  documents  but  those  mentioned  or  described  in  the  order, 
can  be  thus  proved  at  the  hearing;^"  and  as  the  order  saves  just 
exceptions,  all  objections  which  can  be  taken  to  the  admissibility  of 
the  document  as  evidence,  may  then  be  urged  by  the  opposing  party. 

The  attendance  of  an  unwilling  witness,  to  prove  an  exhibit  at 
the  hearing,  may  be  enforced  by  suhpcena^'^  and,  unless  an  order 
to  prove  viva  voce  at  the  hearing  has  been  obtained,  an  order  for 
leave  to  issue  the  suhpoRna  appears  to  be  necessary,  and  may  be 
obtained  on  ex  parte  motion.^-  The  suh^ycena  is  prepared  and 
issued  in  the  manner  hereafter  explained :  ^^  and  is  made  return- 


1  Hinde,  370;  Clare  v.  Wood,  1  Hare, 
314;  see  Emerson  v.  Berklej^  4  Hen.  & 
M.  441;  Barrow  v.  Hliinelfinder,  1  John. 
Ch.  559;  Gresley  Eq.  Ev.  {Am.  ed.)  131 
[188].  The  order  may  be  obtained  after 
the  affidavit,  in  proof  of  the  exhibits,  is 
made.    S.  C. 

2  See  Graves  v.  Budoiel,  1  Atk.  444. 
For  form  of  order,  see  Seton,  1237,  No.  3. 

3  Bank  v.  Far(|ues,  Amb.  145. 

■4  But  see  Bird  v.  Lake,  1  H.  &  M. 
111. 

6  As,  if  a  deed,  the  date  and  parties' 
names;  if  a  letter,  the  date,  and  the 
names  of  the  persons  by  whom  it  was 
written,  and  to  whom  it  was  addressed. 
Greslev,  188;  Gresley  Eq.  Ev.  (Am.  ed.) 
131  [188].  To  authorize  a  party  to  produce, 
at  the  henrinf;,  documentary  evidence 
which  is  not  made  an  exhibit  before  the 
Examiner,  nor  distinctly  referred  to  in  the 
pleadings,  the  notice  of  intention  to  make 
use  of  Such  evidence  should  state  suflicient 
of  the  substance  of  the  document  intended 
to  be  produced  to  enable  the  adverse 
party  to  see  that  it  is  evidence  of  some 


fact  asainst  him.    Miller  v.  Avery,  2  Barb. 
Ch.  582. 

6  Hinde,  370. 

7  Hinde,  370;  Gresley,  188;  Ord.  III.  1. 

8  Hinde,  371 ;  Bowser  v-  Colby,  1  Hare, 
132  n.  (n).  A  witness  may  be  examined 
to  prove  exhibits,  though  examined  be- 
fore in  the  cause.  Neep  v.  Abbot,  C.  P. 
Coop.  191.    For  form  of  oath,  see  Vol.111. 

y  The  order  should  be  entered  as  read 
in  the  decree.  Seton,  14;  i6.  24,  No.  9. 
The  Registrar  will  indorse  each  exhibit 
produced  in  evidence;  for  a  form,  see 
Seton,  26. 

10  Hinde,  371;  Wyatt's  P.  K.  186. 

11  Hiiuie,  371. 

12  Hinde,  371;  Gresley,  191;  Seton,  14; 
but  see  Holden  v.  Ilolden,  5  W.  K.  217,  V. 
C.  K.;  7  De  G.,  M.  &  G.  397;  Seton,  14; 
Volley  V.  Jerram,  C  W.  K.  734;  no  formal 
order  is  drawn  up;  a  note  signed  by  the 
Registrar  of  the  direction  of  the  Court 
being  sufficient;  Raymond  v.  Brown,  4 
De  G.  &  J.  530. 

13  See  2^o$t,  pp.  905  et  seq. 


SVnO    MAY    BE    WITNESSES. 


885 


able  at  the  time  and  place  specified  in  an  accompanying  notice ;  C.  xxii.  §  8. 
being  usually  the  day  on  which  the  cause  will  be  in  the  paper  for  "^      ^ 

healing,  and  the  Court  of  the  Judge  who  is  to  hear  it.^  The 
order  to  prove  viva  voce,  or  to  issue  the  subjyoena,  as  the  case  may 
be,  must  be  produced  at  the  time  the  stibpceiia  is  sealed.  Personal 
ser^-ice  is  necessary,  and  a  tender  of  expenses,  as  in  the  case  of  an 
ordinary  subpoena  ad  testificandimi." 

The  adverse  party  has  no  right,  in  the  absence  of  special  cii--  As  to  produc- 
curastances  to  compel  the  production,  before  the  hearing,  of  an  g'°{Jj^|fg 
exhibit,  however  it  has  been  proved  :  ^  unless,  perhaps,  where  the 
deposition  proving  it  sets  it  out  verbatim  ;  *  nor  even  to  inspect  it : 
for  he  is  not,  before  the  hearing,  to  "  see  the  strength  of  the  cause, 
or  any  deed  to  pick  holes  in  it,"  ^ 


Section  VIII.  —  Who  may  be  Witnesses. 


Formerly,  persons  interested  in  the  matters  in  question  in  the  Removal 
suit,  or  i)arties  thereto  ;  ^  or  who  had  been  found  guilty  of  certain  restrfaions. 


1  Sched.  to  Ord.  E.  No.  2. 

2  See  post,  p.  90G. 

8  I'orrester  v.  Helme,  M'Cl.  558;  Lord 
V.  Colvin,  2  Drew.  205;  5  De  G.,  M.  &  G. 
47;  18  Jur.  253. 

*  Hodsoa  V.  Earl  of  Warrington,  3  P. 
"Wms.  34. 

5  Gresley,  192,  citing  Davers  v.  Davers, 
2  P.  Wms.  410;  2  Str.  764;  Wiley  v. 
Pistor,  7  Ves.  411;  Fencott  v.  Clark'e,  G 
Sim.  8;  Lord  r.  Colvin,  ubi  sup.;  and  see 
pvst,  p.  896;  Bell  r.  Johnson,  1  J.  &  H. 
682. 

6  In  Chancer}',  parties  to  the  record 
were  alwaj-s  subject  to  examination,  as 
witnesses,  niucii  more  freely  tlian  at  Law. 
A  plaintiff  might  obtain  an  order  as  of 
course,  to  examine  a  defendant,  and  a  de- 
fenilant  a  co-defendant,  a"!  a  witness,  upon 
aflidavit  that  he  was  a  material  witness, 
and  was  not  interested  on  the  side  of  the 
applicant,  in  the  mat'er  to  which  it  was 
proposed  to  examine  liiin;  the  order  being 
made  subject  to  all  just  exceptions.  If  tlie 
answer  of  tlie  (h-lendaiit  Innl  been  replied 
to,  the  replication  must  be  withdrawn  be- 
fore the  plaintitl' could  examine  him.  But 
a  plaintiff  couM  not  be  examined  by  a 
defendant,  except  by  consent,  unless  he 
was  merely  a  trustee,  or  had  no  benelicial 
interest  in  the  matter  in  rjuestion.  Nor 
could  a  co-pliiintitf  be  examined  b}'  a 
plaintiff,  without  the  consent  of  the  de- 
fendant. The  course  in  the  latter  of  such 
cases  was  to  strike  out  his  name  as  plain- 
tiff, and  make  him  a  <lefeiulant,  and  in  the 
former  to  tile  a  cross-bill.  1  (ireenl.  V.v. 
§  Wl;  1  Smith  Ch.  I'r.  .'i4.'!,  :!44;  Kcklf.rd 
V.  Dckav,  <;  I'aige,  r<n:,;  see  Mill  v.  Hill,  'J 
Gill  &'.I.  81;  UeWolf  V.  Johnson,  10 
Wheat.  3G7;  (Jresiey  Kq.  Ev.  (Am.  ed.) 
242  et  seq.;  Second  v.  First  Cong.  Society 


in  Hopkinton,  14  N.  H.  315.  Where  one 
party  was  examined  as  a  witness  against 
another  party  in  the  same  cause,  he 
might  be  cross-examined  like  any  other 
witness  by  the  party  against  whom  he 
was  called,  and  his  evidence  could  not  be 
used  iu  his  own  favor.  Benson  v.  Leroy, 
1  Paige,  122.  But  where  a  party  was  ex- 
amined before  a  Master  in  relation  to  his 
own  rights,  and  the  examination  was  in 
the  nature  of  a  bill  of  discovciy,  he  could 
not  be  cross-examined  by  his  own  coun- 
sel, nor  could  he  give  evidence  in  his  own 
favor,  any  further  than  his  answers  were 
responsive  to  the  questions  put  to  him. 
Jbid.  lie  must,  however,  accompany  his 
answer  by  explanations  responsive  to  the 
interrogatory,  which  might  be  necessarj' 
to  rebut  anv  imjjroper  inference  arising 
from  such  answer,  jbid.;  see  Arrasby  v. 
Wood,  1  Ilopk.  229. 

If  there  were  more  defendants  than  one, 
an  examination  of  a  defendant  might  be 
had,  and  a  decree  obtained  against  an- 
other defendant  upon  the  facts  elicited  by 
such  examination;  but  a  decree  could  not 
be  had  against  the  jiarty  examined,  em- 
bracing such  facts.  Palmer  v.  Van  Doren, 
2  Edw.  Ch.  102;  Bradley  v.  Root,  5  Paige, 
033.  Where  a  defendant  had  been  exam- 
ined under  the  usual  order,  as  a  witness, 
a  plaintiff  might  have  a  decree  against 
him  upon  other  matters,  to  which  he  was 
not  examined.  Palmer  r.  Van  Doren,  2 
Edw.  Cli.  192.  The  rule  that  a  iJainliff 
Could  not  have  a  decree  against  a  defend- 
ant, whrmi  he  had  examined  as  a  witness 
in  the  cause,  diil  U'-t  apply  to  the  ca'^e  of  a 
mere  formal  dijfendani,  as  an  executor  or 
trustee,  against  whom  no  personal,  decree 
was  sought,  and  who  had  no  personal  in- 
tercut in  the  (piestion,  us  to  which  he  was 


8  so 


EVIDENCK. 


Witnossos: 
how  sworn, 


or  atlinuod. 


A  poor  nius 
1)0  sworn. 


I'.  XXH.  §  S.   crimes,^  m-cvo  incom]iotont  to  give  oviilcneo;  l)ut  tlicsc  rostvictions 
have  been  ivmoviHl.- 

Tho  witiu'ssos  slioulcl  be  swoni  in  sucli  I'oini,  nu^]  witli  such 
oeroinoiiios,  as  thoy  may  doolare  to  be  biiuliiiL!:  on  their  con- 
sciences;^ and  any  jhtsoii  competent  to  be  a  witness  may,  if  he 
objects  to  take  an  oatli,  or  is  objected  to  as  incom])etent  to  take  an 
oath,  and  the  presiding  Judge  ■*  is  satisfied  that  the  taking  of  an 
oath  would  liave  no  binding  effect  on  his  conscience,  give  evidence 
t      uj)on  his  ]>roinise  and  dechiration.^     A  peer,  altliongh  privileged  to 

State  I'.  DeWolf,  8  Conn.  93;  Common- 
wealth r.  Hill,  14  Miiss.  207;  1  I'hil.  Ev. 
(Coweii  &  Hill's  ed.  1839)  19,  and  note 
(49).  A.s  to  the  competeiu-y  of  I'iiiklren,  1 
(Jroeiil.  I'^v.  §307;  Greslev"Kq.  l'",v.  (.Am. 
ed,)  237;  1  Pliil.  Kv.  (Cowon  &  Hill's  ed. 
i;>3i))  19,  20,  iiDtps  (50),  (T)!),  (02). 

-  3  &  4  Will.  IV.  c.  42,  §§  26,  27 ;  6  &  7 
Vic.  c.  85;  14  &  15  Vic.  c  99;  16  &  17 
Vic.  c.  83;  see  Taylor,  §§  1211-1219.  As 
to  the  competency  of  witnesses,  see  Tnvlor, 
§§  1210-1257;  liest,  §§  1S7-271;  Powell, 
25  et  seq.  By  a  late  statute  of  IMassiichu- 
setts,  no  person  of  suflicient  understanding 
shall  be  excluded  from  giving  evidence  as 
a  witness,  in  any  civil  proceeding,  in  (Jourt 
or  before  a  person  having  autiiority  to  re- 
ceive evidence;  subject  to  thequalilic:ition 
that  neither  husband  nor  wife  sh;ill  be 
allowed  to  testify  as  to  private  conversa- 
tions with  each  other;  and  the  conviction 
of  a  -witness  of  any  crime  may  be  shown 
to  iilfect  his  credibility.  A  party  to  a 
cause  who  shall  call  the  adverse  party  as 
a  witness,  shall  be  allowed  the  same  liberty 
in  the  examination  of  such  witness,  as  is 
now  allowed  upon  cross-examination.  St. 
Mass.  1870,  c.  393,  §§  1,  3,  4;  see  Metier  v. 
Metier,  3  C.  E.  Green  (N.  J.),  270,  276;  S. 
C.  4  C.  E.  Green  (N.  J),  457;  Harrison  v. 
Johnson,  3  C  E.  Green  (N.  J.),  42U ;  Hird 
V.  Davis,  1  McCarter  (N.  J.),  467;  Marlott 
V.  Warwick,  3  C  E.  Green  (N.  .1.),  108; 
Doodv  V.  Pierce,  9  Allen,  141;  Bailey  v. 
Mvrick,  52  Maine,  132. 

3  1  &  2  Vic.  c.  105.  Such  is  the  law  by 
statute  of  Massachusetts.  Genl.  Sts.  c. 
131,  §  12.  In  this  State,  the  oath  is  ordi- 
narily administered,  with  the  ceremony  of 
holding  up  the  hand.  (ienl.  Sts.  c.  131,  §  8. 
But  where  tlie  witness  is  a  Konian  Catlio- 
lic,  the  oath  is  administered  to  him  on  the 
IIclj-  Evangelists,  on  the  ground  that  those 
who  profess  that  faith,  generally  regard 
this  to  be  the  most  solemn  form  of  admin- 
istering an  oath.  Commonwealth  v.  Buz- 
zell,  16  Pick.  153.  So  in  any  case  where 
the  Court  or  magistrate  before  whom  a 
person  is  to  be  sworn,  is  satisfied  that  such 
person  has  any  peculiar  mode  of  swearing 
which  is  in  his  opinifin  more  solemn  or 
obligatory  than  holding  up  the  hand,  they 
may  adopt  that  mode  of  administering'the 
oath.     Genl.  Sts.  c.  131,  §  9. 

4  This  expression  includes  any  person 
or  persons  having  by  law  authority  to  ad- 
minister anoa'.h  for  the  taking  of  evidence; 
see  The  Evidence  Amendment  Act,  1870 
(33  &  34  Vic.  c.  49),  §  1. 

5  The   Evidence  Further   Amendtiient 


examined  as  a  witness  against  his  co-de- 
fendants: nor  to  the  case  of  a  defendant, 
who,  by  liis  answer,  admitted  his  own  lia- 
bility, or  who  suffered  the  bill  to  be  taken 
as  confessed  against  liim.  Bradley  i'. 
Koot,  5  Paige.  633;  Pingree  v.  Collin,  12 
Gray,  288.  Where  a  defendant  admitted 
that  he  was  primarily  liable  to  the  plain- 
titl'  for  the  payment  of  the  demand,  for 
which  the  suit  was  brought,  he  might  be 
examine  i  either  by  the  ])laintifl'  or  l)y  his 
co-defendants,  as  a  witness  in  the  cause. 
Bradley  r.  Koot,  5  Paige,  033;  see  Regan 
V.  Echols,  5  Geo.  71;  Palmer  v.  Van 
Doren,  2  Edw.  Ch.  192;  Fulton  Bank  v. 
Sharon  Canal  Co.,  4  Paige,  127;  Ormsb}' 
V.  Bakewell,  7  Ohio,  98. 

An  order  allowing  a  defendant  to  ex- 
amine his  co-defendant  as  a  witness 
would  ahvays  be  granted  upon  a  su(/i/es- 
iion  that  the  party  to  be  examined  had  no 
interest  in  the  cause,  leaving  the  question 
of  interest  to  be  settled  at  the  hearing, 
upon  the  proofs.  Nevill  v.  Demerit  t,  1 
Green  Ch.  321;  Ch.  Kule  of  New  Jersey, 
78,  2  McCarter,  529;  see  Harrison  v.  John- 
son, 3  C.  E.  Green  (N.  J.),  420;  Graham 
V.  Berryman,  4  C.  E.  Green  (N.  J.),  29. 
The  adverse  party  might  at  the  hearing 
object  to  the  competency  of  a  defendant's 
examination,  and  if  he  appeared  to  be  in- 
terested in  the  matters  to  which  he  was 
examined,  the  objection  might  be  taken 
at  the  hearing,  though  it  had  not  been 
made  before.  Mohawk  Bank  v.  Atwater, 
2  Paige,  54. 

The  evidence  of  a  co-defendant  is  not 
rendered  incompetent  by  the  fact  that  no 
order  was  made  for  his  examination. 
Since  the  New  .fersej'  Act  removing  the 
disqualification  of  interest  in  a  witness,  as 
a  party  or  otherwise,  no  onler  for  his  ex- 
amination is  necessaPi'  in  that  State.  Giv- 
eans  v.  IMcJIurtry,  I'C  E.  Green  (N.  •!.), 
468.  Nor  i.s  it  any  objection  to  the  com- 
petency of  a  co-dei'enilant  to  testifj',  that  he 
has  net  answered  the  bill,  but  has  suffered 
a  decree  pro  confesso  against  him.  The 
plaintiff  may,  at  his  discretion,  require 
him  to  answer.  But  if  he  do  not,  the  de- 
fendant, by  failing  to  answer,  cannot  de- 
prive his  co-defendant  of  his  testimony,  or 
disqualify  him  as  a  witness  in  the  cause. 
Giveans  v.  McMurtry,  ubi  supra. 

1  As  to  per.-ons  laboring  under  defect  of 
understanding,  see  1  Greenl.  Ev.  §  305; 
Greslev'Eq.  Ev.  (Am.  ed.)  237;  1  Phil. 
Ev.  (Cowen  &  Hill's  ed.  1839)  18, 19,  notes 
(47),  (48).  As  to  the  competency  of  deaf 
and  dumb  persons,  see  1  Greenl.  Ev.  §  366; 


MANNER    OF,  AND    TIME    FOR,  TAKING    EVIDENCE. 


887 


put  in  his  answer  upon  liis  attestation  of  honor,  must,  when  called   C.  XXll.  §  !) 
upon  to  give  evidence  as  a  witness,  do  so  upon  oath.^ 

It  is  a  contempt  of  Court  to  publish,  wliile  a  cause  is  pondinsx, 
comments  upon  the  evidence  which,  being  calculated  to  injure  the 
litigants'  cases,  or  to  create  ill  feeling  against  the  witnesses,  may 
tend  to  hinder  the  course  of  justice,- 


PuWicationof 
attack  on 
witnesses: 
when  a 
contempt. 


Section  IX.  —  Planner  of,  and  Time  for,  taJdng  Evidence. 


Fonmerly,  the  general  mode  of  examining  witnesses  in  Equity  Former 
was  by  interrogatories  in  writing,  exhibited  by  the  party,  plaintiff  practice; 
or  defendant,  or  directed  by  the  Court  to  be  proposed  to  or  asked 
of  the  witnesses  in  a  cause.^     This  practice  has  been  abolished, 
and  a  new  system  substituted  in  its  place.'*     The  Court  may,  how-   may  still  be 
ever,  if  it  shall  think  fit,  order  any  particular  witness,  either  within  particuk"'  ^" 
or  out  of  the  jurisdiction,  to  be  examined  upon  interrogatories;   cases; 
and  with  respect  to  such  witness  or  witnesses,  the  former  j^ractice 
of  the  Court  in  relation  to  the  examination  of  witnesses  continues 
in  full  force,  save  only  so  far  as  the  same  may  be  varied  by  any 
General  Order  of  the  Lord  Chancellor  in  that  behalf,  or  by  any 


Act,  1869  (32  &  33  Vic.  c.  08),  §  4;  and 
see  beforti  this  Act.  7  &  8  Will.  HI.  c.  ?A, 
§  1 ;  8  Geo.  I.  c.  6.  §  1 ;  22  (Jeo.  II.  c.  30,  § 
1;  ib.  c.  46,  §  36;  9  Geo.  IV.  c.  32,  §  1 ;  3 
&  4  Will.  IV.  c.  49,  ib.  c.  82;  1  &  2  Vic. 
c.  77;  ib.  c.  103;  17  &  18  Vice.  125,  §  20; 
Taylor,  §  12-56.  In  Massachusetts,  every 
person  who  declares  tluit  he  has  conscien- 
tious scruples  sij^ainst  takinij;  an  oath,  shall, 
when  culled  upon  tor  that  purpo-e,  be  per- 
mitted to  affirm  in  the  maimer  prescribed 
for  Quakers,  if  the  Court  or  magistrate  on 
inquiry  is  satisfied  of  the  truth  of  such 
dechiration.  Genl.  Sts.  c.  131,  §§  10,11. 
(Jonscieiitious  scruples  furnish  {ground  for 
substituting  an  affirmation  for  an  oath  in 
the  United  .States  Courts.  Rule  91  of  the 
I'/luity  Kules  for  United  States  Courts. 
As  to  the  effect  of  a  want  of  religious  be- 
lief, see  Madeii  v.  Catanach,  7  II.  &  N. 
360;  7  .Jur.  N.  S.  1107;  Gr.->Iev  Hq.  Kv. 
(Am.  ed.)  237,  238;  1  Greenl.  Ev.  §§ 
308-370,  and  notes  and  cases  cited;  1 
I'liil.  Kv.  (Co wen  &  Hill's  ed.  1839)  20- 
27,  and  note*;  Smith  v.  Coffin,  18  Maine, 
1.07. 

In  Massachusett",  every  person  not  a 
believer  in  any  religion  shall  bo  rcriuired 
to  testily  truly,  under  the  pains  and  penal- 
ties of  perjury;  anil  the  evidence  of  such 
person's  di-bnlief  in  the  existence  of  God 
may  be  received  to  affect  his  credibility  as 
a  witne-s.     (Jenl.  Sts.  c.  131,  §  12. 

1  Taylor,  §  1245. 

2  Anon.,  2  Atk.  409;  S.  C,  riom.  Roach 
V.  Garvim,  2  l)ick.  794;  Littler  »  Tlionq)- 
Bon,  2  I'.i'av.  129;  Ftdkin  v.  Lord  Herbert, 
10  Jur.  .N.  S.  02;   12  \V.  R.  241,  V.  C.  K. ; 


Tichborne  v.  Mostyn,  L.  R.  7  Eq.  55,  r.  (i), 
V.  C.  AV. 

3  Ante,  p.  836,  note. 

4  In  MMssachusetts,  "  in  proceedings  in 
Equity,  the  evidence  shall  be  taken  in  the 
same  manner  a*  in  suits  at  Law,  unless  the 
Court  for  special  reasons  otherwise  directs; 
but  this  shall  not  prevent  the  use  of  affi- 
davits where  thev  have  heretofore  been 
allowed."  Genl.'Sts.  c.  131,  §  60.  Under 
the  above  statute,  the  evidence  "  is  to  be 
taken  viva  voce  when  it  can  be  so  taken, 
and  when  depositions  would  be  allowed  in 
an  action  iit  Law,  they  may  be  taken  in 
Equity;  and  all  the  rules  of  Law,  as  to  the 
taking  and  filingof  depositions  at  Law,  will 
apply  in  Equity.  And  this  statute  neces- 
sarily supersedes  tlie  rules  of  Court,  as  to 
the  taking  and  filing  of  depositions  in 
Chancery."  And,  in  a  suit  in  Equity, 
where  a  commis-ion  was  applied  for  to 
take  the  testimony  of  a  witness  residing 
out  of  the  Commonwealth,  after  the  time 
fixed  by  the  rules  of  Court  for  setting  the 
cause  down  f  r  hearing,  the  Court  said: 
"The  plaintifl',  is,  therefore,  entitled  to 
have  a  commission  issue,  as  he  would  have 
been  according  to  the  estahlished  rule  and 
practice  at  Law,  where  testimony  is  to  bo 
tMken  out  of  the  jurisdiction  of  the  Court." 
Per  Shaw  C.  .1.  in  I'ingree  i'.  Coffin,  12 
Cush.  000,  001. 

In  Wisconsin,  each  part}'  to  a  suit  in 
Equity  has  a  right  to  have  his  witnesses 
examined  in  ojien  Court,  subject  to  the 
occasional  exci'ptions  ])rovided  for  in  cases 
at  Law.  Noonan  r.  Orton,  5  Wis.  60; 
Brown  v.  Runals,  14  Wis  693. 


888 


EVIDENCE. 


V.  \\U.  5  0. 


but  nuvly,  if 
OVlT,  is. 


ritsent  mode 
oftakiiiij 
eviiloiK'o, 
on  iiitorloi'U- 
tory  applioa- 
tiinis. 

At  tor  (U'lTOC. 


On  motion  for 
(IciToe. 


Where  issue 
lias  been 
joined. 

Evidence  in 
chief. 


In-efrnlar  to 
examine  wit- 
nesses for 
hearinfr,  be- 
fore notice  of 
motion  for 
decree,  or 
replication. 


Cross- 
examination. 


order  of  the  Court  with  reference  to  any  jiartieuhir  case.'*  The 
Court  has  rarely,  if  ever,  availoil  itself  of  this  j^ower  to  resort  to 
tlie  former  ]>ractice  in  the  examination  of  ])articular  witnesses.'^ 
It  is,  therefore,  thouglit  unilesirable  to  state  the  former  practice  in 
detail. 

The  evidence  on  interlocutory  api)lications,  in  causes  and 
matters  dependinc;  in  the  Court,  is  usiuUly  taken  by  ailidavit; 
but  it  may  be  taken  by  oral  examinatio'n  before  an  Examiner.^ 
And  after  a,  decree  in  a  cause,  the  evidence  may  be  taken,  either 
by  atlidavit,  or  by  oral  examination  before  an  Examiner,  or  Cliief 
Clerk  of  the  Judge.* 

AVe  have  already  seen,*  that  a  cause  may  be  brought  to  a  hear- 
ing on  motion  for  decree,  instead  of  replication  being  filed  in  the 
ordinary  way.  If  this  is  done,  the  evidence  is  adduced  by  affidavit,^ 
and  in  such  case  an  answer,  if  one  has  been  filed,  may  be  treated 
as  an  affidavit.' 

If  the  cause  is  brought  to  a  liearing  by  filing  replication,  the 
evidence  is  taken  by  aflidavit,  or  by  ex  2^ci'^t<^  examination  before 
an  Examiner,  except  as  to  any  facts  or  issues  ordered  to  be  proved 
by  evidence  taken  viva  voce,  at  the  hearing:^  the  parties  having 
the  advantage,  which  they  have  not  on  motion  for  decree,  that 
they  may  thus  have  an  ex  parte  oral  examination  of  a  witness  who 
refuses  to  make  an  aflidavit.^ 

Unless  an  order  to  take  his  evidence  de  bene  esse  "  has  been  ob- 
tained, it  is  irregular  to  examine  a  witness,  for  the  purposes  of  the 
hearing,  previously  to  serving  a  notice  of  motion  for  a  decree  or 
the  filing  of  replication,^^  and  the  power  to  examine  a  witness  for 
the  purpose  of  using  his  evidence  on  any  claim,  motion,  petition, 
or  other  ])roceeding  before  the  Court,^-  is  confined  to  those  cases 
in  which  the  evidence  is  to  be  used  on  a  claim,  motion,  petition, 
or  proceeding  which  is  actually  pending.^^ 

Witnesses  who  have  made  afiidavits,  or  been  examined  ex  parte 
before  the  Examiner,  are  liable  to  cross-examination  at  the  hear- 
ing ; "  and  where  a  party  has  given  notice  to  read  an  affidavit,  he 
will  not  be  allowed  to  witlidraw  the  affidavit,  and  so  prevent  the 


1  15  &  16  Vic.  c.  86,  §  28.  So  under 
the  amendment  of  the  67th  of  the  Rules  in 
Kquityof  the  Supreme  Court  of  the  United 
States. 

■■^  See  London  Bnnk  of  iSIexico  v.  Hart, 
L.  Ii.  6  Kq.  467,  V.  (J.  G. ;  where  a  com- 
mission according  to  former  practice  was 
refused. 

3  15&  16  Vic.  c.  86,  §  40;  Ord.  5  Feb., 
1861,  r.  22;  see/)Os<,  p.  905  and  note;  unit, 
p.  821,  note. 

4  15  &  16  Vic.  c.  86,  §  41 ;  15  &  16  Vic. 
c.  80,  §  30;  Ord.  5  Feb.,  1861,  r.  15. 

5  Anlt,  pp.  819  ti  stq.;  15  &  16  Vic.  c. 
86,  §§  15,  16. 

6  Coles  V.  Morris,  L.  R.  2  Ch.  Ap.  701, 
705,  L.  C. 

7  Ante.  821;  15  &  10  Vic.  c.  86,  §  15; 
Ord.  XXXIII.  5,  6,  7. 


8  Ord.  5  Feb.,  1861,  r.  4.  By  consent, 
imder,  r.  10,  the  examination,  or  cross-ex- 
amination, of  any  particular  witness  may 
be  taken  in  manner  provided  b}'  15  &  16 
Vic.  c.  86;  stepost,  p.  904. 

'■>  Coles  V.  Morris,  L.  R.  2  Ch.  Ap.  701, 
704,  L.  C. 

1"  As  to  taking  evidence  de  bene  esse,  see 
jwst,  pp.  932-941. 

11  Kcndle  v.  INIetropolitan  &  Provincial 
Bank,  W.  N.  (1867),  239;  16  W.  R.  1068, 
V.  C.  S. 

1^  See  15  &  16  Vic.  c.  86,  §  40. 

13  Coles  V.  Morris,  L.  R.  2  Ch.  Ap.  701, 
704. 

"  15  &  16  Vic.  c.  86,  §  38;  Ord.  5  Feb., 
1861,  rr.  7,  19 ;  and  see  Fielden  v.  Goschcn, 
18  W.  R.  85,  V.  C.  S. 


MANNER    OF,  AND    TIME    FOR,  TAKING    EVIDENCE. 


889 


Evidence  in 
chief:  when 
to  be  closed. 


witness  from   being  cross-examined  x;pon  it.^     There  can  be  no   C.  XXIT.  §  o. 
cross-examination,  however,  npon  an  affidavit  of  documents.^ 

No  affidavit  or  deposition  filed  or  made  before  issue  joined  in 
any  cause  will,  without  special  leave  of  the  Court,  be  received  at 
the  hearing  thereof,  unless  within  one  month  after  issue  joined, 
or  within  such  longer  time  as  may  be  allowed  by  special  leave  of 
the  Court,  notice  in  writing  has  been  given  by  the  party  intending 
to  use  the  same,  to  the  opposite  party,  of  his  intention  in  that  behalf.^ 
An  application  to  enlarge  the  month  may  be  made  by  summons :  ^ 
which  must  be  served  on  the  other  parties  with  whom  issue  is 
joined.  "Where  the  affidavit  has  been  sworn  before,  but  filed  after 
issue  was  joined,  it  was  allowed  to  be  iised,  though  the  notice  had 
not  been  given."  Where,  in  consequence  of  the  opposite  party 
ha-ving  absconded,  the  notice  could  not  be  served  upon  him,  leave 
was  given  to  advertise  it.® 

The  evidence  in  chief  on  both  sides,  in  any  cause  in  which  issue 
is  joined,  in  respect  of  flicts  and  issues  not  included  in  any  order 
for  taking  e^■idence  in  chief  viva  voce  at  the  hearing,  whether  taken 
by  affidavit  or  before  an  Examiner  (and  including  the  cross-exami- 
nation and  re-examination  of  any  witness  or  other  person)  must 
be  closed  within  eight  weeks  after  issue  joined,  unless  the  time  be 
enlarged  by  any  special  order.''  And  no  further  evidence,  ex- 
cept the  cross-examination  and  re-examination  of  a  witness  who 
has  made  an  affidavit,  or  been  examined  ex  'parte  before  the  Ex- 
aminer, will  be  received,  without  special  leave  of  the  Court,  pre- 
viously obtained  for  that  purpose.^ 

Where  the  eight  weeks  expire  in  the  long  vacation,  the  time  for 
closing  evidence  is  extended  by  a  General  Order,  to  the  fifth  day 
of  the  ensuing  Michaelmas  Term.^ 

As  a  general  rule,  new  evidence  is  only  allowed  to  be  received 
after  the  evidence  is  closed,  in  the  following  cases :  where  the 
party  who  desires  to  file  an  affidavit  has  not  had  an  opi^ortunity  of 
seeing  the  evidence  on  the  other  side;  where,  though  he  has  seen 
the  eviflence,  he  finds  that  it  raises  a  new  issue,  not  raised  by  the 
pleadings,  and  which  is  material  to  the  decision  of  the  case ;  Avhere 
an  affidavit  lias  been  filed  impeaching  the  character  of  a  witness, 
in  which  case  the  person  whose  character  is  assailed  is  entitled  to 


A^Hiere  the 
time  expires 
in  the  long 
vacation. 

Principles  on 
■\vhicii  affida- 
vits likd  after 
closing  of 
evidence  are 
received. 


1  Clarke  r.  Law,  2  K.  &  .J.  28;  2  Jiir.  N. 
S.  221 ;  National  Iti'-iirance  Association  v. 
Carflairs,  <.»  .lur.  N.  S.  9.5.5,  M.  U. 

2  Mitnl.y  f.  liewicke  (No.  2),  8  De  G., 
M.  &  G.  470;  2  .lur.  N.  8.  672;  overruling 
Khv  r.  Smith,  20  IJeav.  566. 

3'Ord   XI.X.  12. 

*  S-e  Ord.  XXXVII.  17. 

6  Nicholl  I'.  Jones,  36  L.  J.  Ch.  554,  V. 
C.  W. 

n  .Mnri-hv  v.   Vincent,    W.   N.   (1870), 

217,  V.  c.  n. 

7  Ord.  5  Feb.,  1861,  r.  5;  see  posl,  p. 
890.  WtnTc  tlie  time  is  enlarged,  after 
the  cause  has  been  set  down  for  beating, 


the  order  .should  be  produced  to  the  Order 
of  (Jourse  Clerk  in  the  Registrars'  office, 
wiio  will  make  a  note  tiiereof  in  the  cause- 
bi'ok  kept  there;  see  Keg.  Kegul.  21  Jan., 
1861. 

»  15  &  16  Vic.  c.  86,  §  .38;  Ord.  5  Feb., 
1861,  rr.  5,  19;  see  Thexton  v.  Edmonston, 
L.  K.  5  E(i.  :J7.S. 

'•'  Ord.  XX.WII.  15;  aixl  it  seems  the 
ride  a[)plies  wheie  the  ci^iht  weeks  have 
been  enlarged,  aud  the  enlarged  time  ex- 
pires in  tlie  long  vaoition;  see  (Murk  v. 
Malpiis,  cited  .Morgan,  553;  and  sec  Ilraitb- 
waite's  .Manual,  167,  n.  '46). 


890 


EVIDENCE. 


C.  XXII.  5  9. 


At  the 
heariiiir. 


Leave  to  use 
affidavits: 
how  obtained. 


Applieation 
to  enhiri;e 
time  to  take 
evidence : 
how  made. 

Sei-vice  of 
summons. 


Insufficient 
grounds  (or 
the  applica- 
tion. 


Xotice  to 
produce 
witness  or 
deponent 
for  cross- 
examination. 


ndtliicc  ovidcneo  to  meet  llio  ohargos;  and  wlicrc  new  facts  ma- 
torial  to  tlie  issue  liavo  arisen  after  the  closing  of  the  evidence.^ 
AVhere,  by  inadvertence,  an  ailidavit,  tliough  ])rcpar(.'(l,  was  not 
tiled  until  nine  days  ailer  the  time  for  takin<2;  evidence  was  closed, 
the  Court,  on  motion,  ;4a\e  leave  to  use  it,  on  payment  of  the  costs 
of  the  motion;-  and  it  is  C()nceived  that  the  Court  Mill  grant  such 
special  leave,  in  all  cases  where,  under  the  circumstances,  it  thinks 
that  justice  requires  it.''  Such  special  leave  was  refused  where  the 
apjilication  was  made  on  the  ground  that  a  material  witness  had 
been  discovered,  whose  evidence  the  apj)licant  had  no  means  of 
previously  knowing  to  be  attaiinible.^ 

The  Court  has  also  power,  if  it  thinks  fit,  to  allow  such  evidence 
to  be  used  at  the  hearing,  although  no  special  leave  has  been  pre- 
viously obtained;^  and  it  has  allowed  a  motion  fbr  this  purpose  to 
be  brought  on  with  the  cause.'' 

The  a])plication  for  leave  to  use  affidavits,  filed  after  the  evi- 
dence is  closed,  may  be  made  in  Chambers  by  summons,  or  in 
Court  by  motion ;  it  has,  hoAvever,  been  usually  made  in  Court.  The 
summons,  or  notice  of  the  motion,  should  be  served  on  all  i)artiesJ 

The  application  to  enlarge  the  time  for  taking  evidence  is  made 
in  Chambers  by  summons,^  supported  by  affidavit,  showing  the 
grounds  of  the  application.  The  costs  of  the  application  should  be 
disposed  of  at  the  time  it  is  heard  ;  and  will  in  general  be  made 
costs  in  the  cause.  The  summons,  Avhether  taken  out  by  the  ])lain- 
tiff  or  by  a  defendant,  must  be  served  by  the  applicant  upon  all  the 
other  parties  to  the  cause  with  whom  issue  is  joined. 

The  fiict  that  the  evidence  of  the  other  party  was  filed  at  the 
last  moment  allowed  for  so  doing,  is  no  ground  for  enlarging  the 
time  for  taking  evidence,  if  it  is  confined  to  matters  distinctly  i)ut 
in  issue  by  the  i:)leadings.^ 

Whenever  any  party  desires  to  cross-examine  any  witness  who 
has  made  an  affidavit,  or  been  examined  ex  ^mrte  before  the  Ex- 
aminer, he  must  give  notice,  within  certain  limited  times,  to  the 
party  by  whom  the  affidavit  was  filed  or  the  witness  examined,  to 
produce  the  witness  for  cross-examination ;  ^°  or  he  may  serve  the 
witness  with  a  si(b2)(e)ia,  requiring  him  to  attend  for  the  same  pur- 


1  Thexton  v.  Edmonston,  L.  R.  5  Eq. 
373,  375,  M.  R. ;  and  see  Scott  v.  IMayor  of 
Liverpool,  1  De  G.  &  J.  3G9;  3  Jur  N.  S. 
832,  L.  JJ.;  ib.  533,  V.  C.  S.;  Poupard  v. 
Fardell,  W.  N.  (1869),  236,  18  W.  R.  37, 
69,  V.  C.  iM.;  Philips  v.  Warde,  2  Jur.  N. 
S.  608,  V.  C.  S. 

2  Doiighis  V.  Archhutt,  23  Beav.  293. 

8  Scott  V.  ^Nlavor  of  Liverpoul,  1  Dc,  G. 
&  J.  369;  3  .Iur."N.  S.  832,  L.  JJ.;  Pliilif.s 
V.  Warde,  2  Jur.  N.  S.  608,  V.  C.  S. ;  Wat- 
son f.  Cleaver,  20  Heav.  137;  1  Jur.  N.  S. 
270;  Hope  v.  Thr-jfdl,  1  Sm.  &  G.  App. 
21;  17  Jur.  1021;  McLaclil m  v.  Lord,  14 
L.  T.  N.  S.  98,  V.  C.  S. ;  Hodges  v.  Doul- 
ton,  18  W.  K.  58,  V.  C-  M. 


4  Thexton  v.  Edmonston,  L.  R.  5  Eq. 
373,  M.  R. 

5  Bovse  w.  Colclouf,-h,l  K.  &  J.  124.144; 
Brtvley  w.  Ca<^s,  10  W.  R.  370,  wiiere  V.  C. 
Stuart  said  tliat  this  is  tlie  proper  time. 
See  mIsii  i'oupard  v.  Knrdeil,  \V .  N.(1809), 
236;   18  W.  H.  37.  59,  V.  C.  M. 

6  Hope  V.  Threhall,  1  Sm.  &  G.  App.  21; 
17  Jur.  1021. 

■^  See  Richards  v.  Curlewis,  18  Beav.  462. 

8  15  &  16  Vic.  c.  80,  §  26. 

8  Tliompson  v.  l'!irtrid</e,  4  De  G.,  M.  & 
G.  794;  17  Jur.  1108;  see  Scott  v.  Mavor 
of  Liverpool,  1  De  G  &  J.  371;  3  Jur.'N. 
S.  832;  and  S.  C,  before  V.  C.  Stuart,  3 
Jur  N.  S  533. 

1"  Ord.  6  Feb.,  1861,  r.  19. 


AFFIDAVITS  AND  EX-PARTE   EXAMINATIONS  BEFORE  EXAMINER. 


891 


pose.'^      For  the  details  of  the  practice  on  the  subject  of  cross-  C  XXII.  §10. 
examination,  the  reader  is  referred  to  the  section  on  viva  voce 
evidencf .'" 

A  phiintiff  cannot,  without  giving  notice,  use  the  evidence  ad- 
duced on  behalf  of  a  defendant  against  a  co-defendant.^ 


Section  X.  —  Affidavits  and  ex-parte  Examinations  before  an 

Examiner. 

An  affidavit  is  a  statement  in  writing  sworn  to,  or  affirmed,* 
before  some  person  having  authority  to  administer  oaths. ^  It 
must,  except  in  the  case  of  a  bill  which  is  required  to  be  accom- 
panied with  an  affidavit,®  be  made  in  some  cause  or  matter  actually 
pending  at  the  time  it  is  sworn  :  otherwise  it  cannot  be  received.'^ 
An  affidavit  will  be  received,  although  the  deponent  has  died  since 
it  was  sworn ;  but  the  Court  will  not  attach  so  much  Aveight  to  it 
as  it  would  have  done,  if  an  opportunity  for  the  cross-examination 
of  the  deponent  thei-eon  had  been  affiDrded.* 

Affidavits  may  be  sworn  before  any  of  the  persons  authorized  to 
take  answers  in  Chancery.  "Who  these  persons  are,  and  the  nature 
and  extent  of  their  authority,  has  been  already  stated.^ 

The  commissioner  before  Avhom  the  affidavit  is  sworn,  must  not 
be  a  solicitor  in  the  cause.^°  In  a  case  before  Lord  Hardwicke, 
where  the  affidavits,  in  support  of  a  petition,  had  been  sworn  before 
the  petitioner's  solicitor,  the  petition  was  dismissed,  and  the  costs 
were  directed  to  come  out  of  the  solicitor's  pocket.^^  And  in  the  case 
of  Wood  V.  Ilarpur^'-  Lord  Langdale  M.  R.  rejected  affidavits,  be- 


Right  of 

plaintiff  to 
use  against 
a  defendant 
evidence 
taken  by  a 
co-defendant. 

Nature  of 
affidavits : 

Must  be  made 
in  a  pending 
suit. 

Effect  of 
death  of 
deponent. 


Affidavits : 
before  whom 
tliey  may  be 
sworn. 

Commis- 
sioner must 
not  be  a 
solicitor  in 
the  cause. 


1  Sinier's  Sewing  Machine  Manufac- 
turing Companv  v.  WiUon,  2  H.  &  M. 
584;  11  .lur.  N."S.  58,  Y.  C.  W.;  and  see 
Cox  V.  Stephens,  9  Jur.  N.  S.  1144;  11  W. 
R.  929.  V.  C.  K. 

2  Post,  pp.  837  tl  seq. 

8  Fielden  v.  Slater,  L..R.  7  Eq.  523.529, 
V.  C.  .1. ;  but  see  Lord  v  Colvin,  3  Drew. 
222;  Sturgis  17.  Morse,  (No.  2),  26  Beav. 
662. 

<  17  &  18  Vic.  c.  125,  §  20;  and  ante,  p. 
887. 

6  In  Huight ».  Morris  .\quf  duct,  4  Wash. 
C.  C.  601,  it  wa-i  held  that  an  affidavit  in 
Chancery,  n'lt  sworn  before  ;i  .Iiidge  of  the 
Court,  or  a  commissioner  appointed  to  nd- 
miiiisfer  nn  oath,  could  not  be  received  in 
evidence.  AnaffidHvit  in  New  York  may 
be  sworn  to  before  a  State  senator,  he 
being  fx  oJJUin  n  .Judge  of  the  Court  t'or  the 
Correction  of  Krr'irs.  which  i«  a  (Jourt  of 
record,  (.'raig  v.  HriL'gs,  4  I'aige,  548. 
An  affidavit  taken  befoni  a  commissioner 
of  deeds  dtfiirlii,  for  a  city,  who  is  exer- 
cising such  office  under  color  of  an  ap- 
pointmpiit  l)y  the  (Jovernor  and  Senate, 
may  he  read  in  a  suit  between  other  per- 
sons; and  the  (,'ourr  will  nfit  in(|uire  col- 
liiterally  into  the  legality  of  such  apji'iint- 
mcnt.  I'urker  v.  Ihiker,  8  I'aige,  428. 
Oaths  are  to  be  a'Iminislered  in  a  reverent 
mnnner.     Ord.  XIX.  14. 

«  Ante,  392-39G. 


"  Francome  v.  P'rancorae,  11  Jur.  N.  S. 
123;  13  W.  H.  355,  L.  C;  overruling  Ken- 
nail  V.  Brown,  18  Jur.  1051,  V.  C.  W. 
Affiiiavits  filed  after  payment  in  of  fund, 
but  before  presentation  of  petition  fur  pay- 
ment out,  were  received,  lit  Varl>^v,  14 
AV.  R.  98,  V.  C.  K;  and  see  Re  We-tern 
Benefit  BuiMing  Society,  33  I5e-iv.  308. 

**  Abadom  v  Ahadoni,  24  Beav.  243; 
Williams  v.  Williams,  10  Jur.  N.  S.  608; 

12  \V.    R.  663,  V.   C.   K.;  Dnvies  v.  Otty, 

13  W.  R.  484,  M.  R.;  Kidley  v.  Ridley,  34 
Beav.  329;  and  see  Morlev  v.  Jlorlev.  5 
De  G  ,  M.  &  G.  610,  613,  614;  1  Jur."  X. 
S.  1097.  1098;  .see  al-o  Tanswell  v.  Scur- 
rah,  11  L.  T.,  N.  S.  701,  M.  li.;  Moore 
V.  Harper,  W.  X.  56;  14  W.  R.  3U6,  V. 
C.  W.;  Braithwaite  v.  Kearu*,  34  Beav. 
202. 

'•*  Ante,  pp.  743,  744. 

1"  Hut  this  rule  is  confined  in  New  York 
to  the  solicitor  on  record.  An  alfidavit 
may  be  sworn  to  licforc  :iny  prt)|)er  officer, 
although  he  is  counsel  for  one  i>l'  the  par- 
ties, or  is  a  pnrtner  of  the  solicitor  in  the 
cause.  The  People  v.  Spalding.  2  I'aige, 
326.     M'Laren  v.  Charrier,  6  I'M'ge,  030. 

"  In  re  Hogan,  3  Atk.  812;  but  see  ante, 
p.  749. 

1-  3  Benv.  200;  Hopkin  ?'.  Ilopkin,  10 
Hare  Ap.  2;  and  see  cases  collected,  2  G 
V.  Coop.  t.  Cott.  174,  I). 


802 


EVIDENCE. 


IV'foro  otlior 
riiuctiouaries 


(\\Xii.§io.  cause  tlio.v  liml  hoon  sworn  botore  a  solicitor  wlio  acted  as  clerk  to 
the  ]ilaintirt"s  solicitor;  but  nu  aHidavit  may  be  sworn  before  a 
commissioner  acting  as  a  clerk  to  the  ])laintiii"  in  the  cause,  where 
the  plaintiff',  thouoh  a  solicitor,  does  not  act  as  such  in  the  cause.^ 
It  is  not  irregular  to  swear  an  affidavit  before  a  solicitor,  to  Avhoni 
it  lias  been  sent  for  tlie  purpose  of  getting  it  sworn  by  the  solicitor 
of  the  applicant,  and  who  is  the  agent  of  the  latter  for  that  purpose 
only.'- 

The  Court  of  Chancery  is  also  in  the  habit  of  receiving  affida- 
vits made  by  parties  resident  out  of  the  jurisdiction,  though  not 
sworn  to  belbre  any  of  the  functionaries  before  referred  to,  pro- 
vided it  is  shown  that  the  j^ersons  before  whom  they  are  sworn 
are  pei-sons  who,  by  the  law  of  the  country  in  which  the  affidavit 
is  sworn,  are  authorized  to  administer  an  oath,  and  the  signature 
of  such  ])erson  is  projierly  verified.'^  Thus,  in  Chicot  v.  Lequesne,* 
the  Court  ordered  an  affidavit  to  be  sworn  before  a  notary  public 
in  Amsterdam,  with  the  intervention  of  a  proper  magistrate,  if  nec- 
essary, by  the  law  of  Holland,  to  the  administration  of  the  oath. 

Although  the  Court  Avill,  in  cases  of  this  description,  give  credit 
to  the  fact,  as  certified  under  the  seal  or  signature  of  a  notary 
public  or  other  person  authorized  to  administer  an  oath,°  it  will  re- 
quire some  evidence  that  the  person,  whose  seal  or  signature  is 
affixed,  actually  fills  the  character  he  assumes.  This  may  be  ef- 
fected, either  by  the  production  of  an  affidavit  by  some  person 
resident  in  this  country  who  can  depose  to  the  fact  of  his  filling 
that  character,  or  by  the  certificate  of  some  British  minister  or 
consular  agent,  or  of  some  public  officer  of  the  country  in  which 
the  transaction  took  place,  competent  to  give  such  certificate ;  and 
in  the  latter  case,  the  certificate  must  be  verified  by  the  qertificate 
of  some  British  minister,  or  consular  agent,  or  by  the  affidavit  of 
some  impartial  person,  cognizant  of  the  fact  that  such  public  officer 
is  what  he  assumes  to  be." 


Proof  of  their 

assumed 

character. 


1  Per  Turner  L.  J.  in  Foster  v.  Harvej', 
3  N.  K.  98;  iiftirming  S.  C.  11  W.  K.  899, 
V.  C.  W.;  diss.  Knight  Bruce  L.  J. 

2  Re  Gregg,  Re  Prance,  L.  K.  9  Eq.  137, 
M.  R. 

2  An  affidavit  taken  before  a  Master  of 
the  Court  of  Chancery  in  New  Jersey,  at  a 
place  out  of  tiie  State,  will  not  be  allowed 
to  be  read  in  that  Court;  the  Master  has 
no  authoritv  to  take  an  alli(hivit  wit  of  tlie 
State.  Lambert  v.  Mari.s,  Halst.  Dig.  173. 
But  an  nffiiiavit  sworn  to  befor.'  a  Master 
in  Chancery  in  another  State,  who  was  not 
a  commissioner  appointed  by  the  State 
where  tlie  affidavit  was  offered,  was  held 
reguhir,  in  Alien  v.  State  Bunk,  1  l)ev.  & 
Bat.  7;  in  Uamy  v.  Kirk,  9  Dana,  2G7,  an 
affidavit  made  out  of  the  State  was  held 
not  admissible. 

*  1  Dick.  1.50;  see  also  Warren  r.  Swin- 
burne, 9  .Jur.  .510,  Bail  Court;  Pinkerton  v. 
The  Barnsley  Canal  Cmnpan)',  3  Y.  &  J. 
277,  n;  Ilutcheon  v.  Mannington,  6  Ves. 
823;  Garvey  v.  Hibbert,  1  J.  &  W.  180. 


If  there  is  a  difficulty  in  taking  the  affidavit 
before  the  foreign  authority,  the  Court 
will,  it  seems,  appoint  a  special  Examiner, 
and  tlie  evidence  must  be  taken  as  a  depo- 
sition. Drevon  v.  Drevon,  12  \V.  K.  60,  V. 
C.  K.  As  to  the  mode  of  tsiking  evidence 
before  an  Examiner,  see  post,  pp.  904  et  seq. 

^  Ilutcheon  v.  Mannington,  6  Ves.  823; 
see  Kaney  v.  Kirk,  9  Dana,  267,  as  to  an 
affidavit  sworn  to  before  a  Justice  of  the 
Peace  of  another  State. 

G  Haggett  V.  huff,  5  De  «.,  M.  &  G. 
910;  1  Jur.  N.  S.  49;  Re  Earl's  Trust,  4 
K.  &  J.  300;  Seton,  20;  see  Re  Davis, 
L.  K.  8  Eq.  98;  Mavne  v.  Butler,  13 
W.  k.  12«.  Thus,  in  Purkis  v.  Date, 
M.  K.  in  Chambers,  6  Miiy,  1864,  an  affi- 
davit was  received  and  tiled,  which  had 
been  sworn  before  II.,  tiie  clerk  of  the  Cir- 
cuit Court  of  Burton  County,  in  tlie  State 
of  Indiana,  America;  who  had  subscribed 
his  name  to  the  Jurat,  and  adixed  thereto 
the  seal  of  that  Court;  to  which  was  ap- 
pended a  certificate  under  the  hand  of  A., 


AFFIDAVITS  AND  EX-PAETE  EXAMINATIONS  BEFORE  EXAMINER. 


893 


An  affidavit  must  be  correctly  intituled  in  the  cause  or  matter  in 
which  it  is  made ;  ^  it  will,  however,  be  sufficient,  if  it  was  correctly 
entitled  when  it  was  sworn,  although  the  title  of  the  cause  may 
have  been  subsequently  altered  by  amendment.^  Where  a  mis- 
take occurred  in  the  title  of  affidavits,  by  omitting  the  name  of 
one  of  the  defendants,  they  were  received  on  its  being  shown  by 
affidavit  that  there  was  no  other  suit  pending  to  which  they  could 
relate;^  and  where  the  names  of  the  plaintiffs  and  defendants  Avere 
reversed,  the  Court  allowed  the  affidavits  to  be  taken  off  the  file 
and  re-sworn,  and  then  filed  without  affixing  fresh  stamps.*  In 
another  case,"  the  affidavits  were  allowed  to  be  made  exhibits  to 
an  affidavit  properly  intituled. 

An  affidavit  made  in  one  cause  or  matter  cannot  be  used,  to 
obtain  an  order  in  another  cause  or  matter.  The  Court  will,  how- 
ever, in  some  cases,  specially  direct  this  to  be  done :  thus,  where 
affidavits  have  been  filed  in  a  cause  proving  a  pedigree,  they  were 
allowed  to  be  used  on  the  hearing  of  a  petition  under  the  Trustee 
Ac;,  1850.« 

After  an  affidavit  has  been  read  at  the  hearing  by  any  party,  it 
cannot  be  withdrawn  without  the  consent  of  the  other  parties.'' 

In  all  affidavits,  the  true  place  of  residence,  description,  and 
addition  of  every  person  swearing  the  same  must  be  inserted.^ 
This  rule,  however,  will  not  apply  to  affidavits  by  parties  in  the 


C.XXTI.§10. 

Form  of 
affidavit. 

Title. 


Affidavit 
made  in  one 
cause,  cannot 
ordinarily  be 
used  in 
anothier. 


"Withdrawal 
of  affidavit. 

Names  and 
description  of 
deponents. 


as  Secretary  of  that  State,  and  the  seal 
thereof,  that  II.  was  such  clerk,  and  was 
authorized  to  administer  oaths;  nnd  a  cer- 
tificate, under  the  hand  and  seal  of  office 
of  the  British  acting  Consul  at  Chicago, 
that  A.  was  such  Secretary,  and  that  his 
signiitureand  the  State  seal  were  genuine. 
In  Mayne  v.  Butter,  13  W.  K.  128,  V.  C. 
K.,  the  verification  of  the  signature  of  a 
foreign  notary  was  dispensed  witli;  the 
fund  being  small,  and  the  solicitor  person- 
ally undertiiking  to  apply  it;  see  also 
Smith  V.  Davies,  \V.  N.  (1868),  2G9;  17  W. 
R.  CO,  V.  C.  51. ;  where  the  verilication 
was  dispensed  with.  In  Levitt  v.  Lev- 
itt, 2  H.  &  M.  C2G,  a  certificate  under 
seal  of  the  Supreme  Court  of  the  United 
States  of  America,  was  received  as  sn(K- 
cienl  evidence  that  the  official  had  power 
to  administer  an  oath.  In  lie  .Scriven,  17 
L.  T.  N.  S.  641,  V.  C.  M.,  an  affidavit 
under  the  great  seal  of  one  of  the  United 
States  ot  America,  and  attested  by  the 
povemor  of  the  State,  was  received.  In 
Lees  V.  Lees,  W.  N.  (1868),  268,  M.  !{., 
it  appearing  that  the  offici  il  was  named 
in  the  list  of  judicial  officers  of  the 
United  States,  the  affidavit  was  received. 
Where  the  allidavit  is  sworn  within  the 
dominions  of  the  Crown,  no  verification 
of  the  seal  or  signature  of  the  official  is 
rcfjiiired.  llavward  r.  Ste[)hens,  1  W.  N. 
318,  V.  C.  S;  'lie  GoRs,  Li.ldall  v.  Nichol- 
son, W.  N.  (1866),  256;  12  .Jur.  N.  S.  59.5, 

V.  c.  w. 

1  May  V.  Prinsep,  11  Jur.  10.32,  V.  C  K. 
B. ;  Mnckenzic  v.  Mackenzie,  5  i)e  G.  & 


S.  338;  as  to  waiver  of  the  irregularity, 
see  Bhickmore  v.  Glamorganshire  Canal 
Company,  5  Piuss.  151.  Although  in  ordi- 
nary cases,  the  Court  will  disregard  the 
misentitling  of  a  paper,  which  could  not 
have  misled  the  opposite  party,  it  is  other- 
wise as  respects  affidavits;  because  the 
misentitling  of  an  affidavit  will  exempt 
the  defendant  from  the  punishment  of  per- 
jury, although  his  oath  is  false.  ILiwley 
V.  Donnelly,  8  Paige,  415;  see  Statibrd  v. 
Brown,  4  Paige,  360.  Where  there  are 
several  defendants  and  there  is  but  one 
suit  pending  between  the  plaiiitilf  and  the 
defendant  first  named  therein  with  others, 
it  is  suthcient  in  the  entitling  of  an  atli- 
davit,  to  entitle  it  in  fiie  mime  of  tiie  plain- 
tiff against  the  first  defendant  and  others, 
without  setting  fortii  the  names  of  all  the 
defendants  at  lengtli.  White  v.  Hess,  8 
Paige,  544.  Under  special  circumstances 
affidavits  may  be  ordered  to  be  filed  though 
not  intituled  in  anv  cause;  Salvidge  v. 
Fulton,  20  L.  T.  N.  S.  300;  V.  C.  M. 

-  llawes  V.  Banitbrd,  9  Sim.  653. 

3  Fisher  I'.  ColTev,  1  .Jur.  N.  S.  956,  V. 
C.  W.;  and  see  Jie  Harris,  8  ,Iur.  N.  S. 
166,  V.  C.  K. 

■*  Pearson  v.  "Wilcox,  10  Hare  Ap.  35. 

6  Jie  Varteg  Chapel,  10  Hare  A  p.  37. 

"  Jie  Pickance,  10  Hare  Ap.  35;  Jones 
V.  Turnljull,  /n  re  'riirnbull,  17  .hir.  851, 
V.  C.  W.  ;  which  is  a|iparenlly  the  same 
ca.sc,  under  a  different  name. 

7  Prole  V.  Soadv,  L.  K.  3  (Jli.  Ap.  220, 
L.  C. 

8  Ilinde,  451;  Wyntf.i  P.  R.  9. 


894 


EVIDKNCE. 


c.x\n.5io. 


Jftist  be  cx- 
jirvsscd  ill 
tirst  purson. 


Must  express 
that  (leiwiicnt 
makes  oath. 


Affidavits  to 
be  divided 
into  num- 
bered 

paragraphs ; 
and  eaih 
statement  to 
show  means 
ofknowledge. 

Scandalous 
and  irrelevant 
matter  may 
be  ordered  to 
be  expunged. 


Impertinent 
or  unneces- 
sary matter. 


t':iuso :  wlio  iiiiiy  dosi'vibr  tliomselvos,  in  tlu>  nffidavit,  :is  the  ahoA'C- 
iiMiiu'd  plaiiitilV,  or  (IcH'iulaiit,  williout  s[)CH'iiyin,!J,"  any  rosidcnci',  or 
addition,  or  otlirr  di'si'rii)tion ;  and  oven  wliero  a  jilaiutilV  so 
dosoribed  hiinsell"  in  an  atlidavit,  and  it  appeared,  n])on  ins]>ecting 
the  ottiee  copy  of  the  bill,  that  no  addition  had  been  niven  to  him 
in  the  bill,  the  allidavit  was  considered  suHieienl.^  In  that  ease, 
also,  there  were  several  plaintilts,  and  tlie  plaintilV  making  the  afli- 
davit  described  himself  as  "the  above-named  ])laintitf;"  whereas, 
it  was  o1)iected,  that  he  onght  to  liave  called  himself  "one  of  the 
above-named  ])laintiirs  ; "  but  the  objection  was  overruled. 

All  aihdavits  are  to  be  taken  and  expressed  in  the  first  person 
of  the  deponent:'-  otherwise  the  solicitor,  party,  or  person,  filing 
tlie  affidavit,  is  not  to  be  allowed  the  costs  of  preparing  and  filing 
the  same.^ 

The  affidavit  must  commence  by  stating,  that  the  party  "  makes 
oath  and  says:"  for  even  though  the  jurat  express  that  the  party 
"vvas  sworn,  it  will  not  be  sufficient,  unless  the  affidavit  also  state 
that  the  party  makes  oath.^ 

Every  affi(hivit  must  be  divided  into  paragraphs,  and  every 
paragraph  numbered  consecutively,  and,  as  nearly  as  may  be  con- 
fined to  a  distinct  portion  of  the  subject;®  and  each  statement 
in  an  affidavit  must  show  the  means  of  knowledge  of  the  person 
making  such  statement.*' 

An  affidavit  must  be  pertinent  and  material.'^  Scandalous  and 
irrelevant  matter  should  be  carefully  a^'oided,  and,  if  any  is  in- 
serted, the  affidavit  may  be  ordered  to  be  taken  off  the  file ;  ^  or  if 
the  affidavit  is  intended  to  be  used  before  the  Court,  tlic  scandalous 
matter  may  be  expunged,  by  the  same  process  as  scandal  in  a  bill 
or  other  ])leading ;  ^  or  if  it  is  intended  to  be  used  in  Chambers, 
a  summons  may  be  taken  out  to  have  the  matter  examined  and 
expunged.^" 

If  an  affidavit  contain  impertinent  matter,  or  be  of  inipro])er 
length,  the  Court  may,  when  it  is  used  in  Court,  at  once  disallow 


1  Crockett  v.  Bishton,  2  Mad.  446;  and 
see  Boddiiigton  v.  Woodley,  12  L.  J.  Ch. 
15,  M.  i{. 

2  Onl.  XVIII.  1;  see  New  Jersey  Rule 
in  CliMiicerv,  71. 

3  Urd.  XVIII.  2;  7k  »-e  Husband,  12  L. 
T.  N.  >..  303,  V.  C.  W  ,  alliduvits  swcrn 
in  America,  were  received,  though  ex- 
pros~ei|  in  the  third  person. 

■*  Philips  f.  Prentice,  2  Hare,  542;  Re 
Newton,  2  De  G-,  1".  &  J.  3;  Allen  v.  Tav- 
l.r,  L.  K.  10  Eq.  52,  V.  C.  J.  In  the  case 
of  an  :iffirmatii)ri,  the  words,  "  do  solemn- 
ly, s.ui  erely,  and  truly  affirm  anil  decare," 
are  usually  substituted  tor  "  make  o;ith 
and  sav." 

5  15' &  18  Vic.  c.  86,  §  37. 

«  Ord.  5  Feb.  Ifc61,  r.  23;  and  see 
Woodhatch  v.  Freelnnd,  11  W.  it.  398,  V. 
C.  K;  Meach  v.  Cliappell,  8  I'liige,  135; 
Sea  lus.  Co.  v.  Stebbius,  8  Paige,  503. 


"•  See  Jleach  v.  Chappell,  8  Paige,  135. 

8  Coddard  v.  P..rr,  24  L.  J.  Ch.  783;  3 
W.  It.  633,  V.  C.  K.;  Kernick  v.  Keriiick, 
12  W.  H.  335,  V.  C.  W. 

'•*  See  ante,  pp.  347,3.54.  It  i.s  cnmpetent 
for  (lie  Couit,  upon  the  mere  e.xaiiiina- 
tion  of  an  affidavit  or  other  paper  read  be- 
fore it,  on  a  mntiiiu,  to  order  scandalous  or 
impertinent  niaiter  contained  ii  it  to  be 
expunged  without  relerence  to  a  Master, 
and  to  charge  the  proper  party  with  the 
costs.  Powell  V.  KaiiH,  5  Paige,  265.  A 
party  who  makes  an  affidavit  to  oppose  a 
motion,  is  only  authorized  to  slate  the 
facts;  and  it  is  scandalous  and  impertinent 
to  diaw  infi-rence--  or  state  ar^'umenls  in 
the  affidavit,  reflecting  on  the  character 
or  impeaching  tne  motives  of  tlie  adverse 
party  or  his  solicitor.  Powell  v.  Kane,  5 
Paige,  265. 

10  Ord.  XXXV.  60 ;  ante,  p.  354. 


ArriDAYITS  AND  EX-PAETE   EXAMIXATIOXS  BEFORE  EXAMINEE. 


895 


the  costs  of  the  improper  part,  or  may  disallow  the  costs  of  the 
part  which  the  Taxing  Master  may  distinguish  as  being  im- 
proper;^ and  where  it  is  used  in  Chambers,  the  Judge  may  at 
once  disallow  all  unnecessary  matter;  and  the  part  disallowed  is  to 
be  distinguished  by  the  initials  of  the  Chief  Clerk  in  the  margin.- 

The  application  for  the  costs  of  impertinent  matter  in  an  affi- 
davit should  be  made  when  the  affidavit  is  used.^  The  Court  gen- 
erally leaves  it  to  the  Taxing  Master  to  determine  what  part  of  the 
affidavit  is  unnecessary :  merely  expressing  an  opinion  that  it  is  of 
improper  length.* 

Affidavits  ought  to  be  fairly  written  upon  foolscap  paper  book- 
wise  ;  but  the  Clerks  of  Records  and  Writs  may  receive  and  file 
affidavits  written  otherwise,  if  in  their  opinion  it  is,  under  the  cir- 
cumstances, desirable  or  necessary.^  The  Clerks  of  Records  and 
Writs  may  refuse  to  file  any  affidavit  in  which  there  is  any  knife 
erasure,  or  which  is  blotted  so  as  to  obliterate  any  word,  or  which 
is  improperly  written,  or  so  altered  as  to  cause  any  material  dis- 
figurement ;  or  in  Avliich  there  is  any  interlineation  :  unless  the 
person  before  whom  it  is  sworn  authenticate  such  interlineation 
with  his  initials,  so  as  to  show  that  it  Avas  made  before  the  affi- 
davit was  sworn,  and  to  mark  the  extent  of  the  interlineation.® 

An  affidavit  in  which  there  are  interlineations  or  alterations,  not 
so  marked,  may,  however,  be  filed  with  the  consent  of  the  solicitors 
of  all  parties  against  Avhoni  it  is  intended  to  be  used :  such  consent 
being  indorsed  on  the  affidavit  and  signed  by  the  solicitors.'^  And 
where  two  affidavits,  l)y  A.  and  B.,  wore  written  on  the  same  paper, 
and  there  were  unauthenticated  alterations  in  the  affidavit  of  A., 
the  document  was  allowed  to  be  filed  as  the  affidavit  of  B. :  that  of 
A.  being  rejected.^ 

Dates  and  sums  may  be  written,  either  in  words  or  in  figures;^ 
but  every  quotation  should  be  placed  between  inverted  commas. 

Schedules  referred  to  in  an  affidavit  as  "  hereunder  written," 

1  Oril.  XL.  9;  a'*  to  fliis  order,  see 
Moore  V  Smith,  14  Beav.  393,  390;  flavor 
of  Berwick  v  Miinav,  7  De  (i.,  M.  &  '(}., 
497,514,  Ol.j;  3  .Tur."  N.  S.  1.  o;  Hanslip 
r.  Kitt-n,  8  Jur.  N.  S.  830,  h-i\,  V.  C.  S.; 
ib  1113,  L.  C;  Jtf  Fnrrinj,'toii,  33  IJeav. 
340;  (iwst  V.  fSinyihe,  L.  1>.  6  Cli.  Ap.  551, 
658.  L.  .J  G.;  Jit  Skidinore,  1  .lur.  N.  S. 
6!)6;  3  W.  K.  584,  V.  C.  S;  Scotiish 
Union  Insurance  Ccrnpany  r.  .Steele,  9  L. 
T.  N.  S  077,  V.C.  W.;  ciitte,  p.  3..(i.  If  a 
8(»lieilor  is  compelled  to  pii}'  the  costs  of 
expiin;;in^  scanilalous  or  iniperlinent  mat- 
ter, he  has  no  le{,'al  or  ei|nituhle  cl  lim 
upon  liis  client  to  refund  tliu  amount. 
Powell  V.  Kane,  5  Paij^o,  205.  l""or  form 
of  order,  cee  Se'on,  89,  No.  17. 

a  Old.  XL.  10. 

8  See  (»rd.  XL.  9;  Horner  v.  Wlieel- 
wriph',  2  .Jur.  N.  S  367,  V.  C.  S. 

*  Moore  V.  Smith,  14  Heav.  393,  390;  Re 
Radciille,  Setou,  89,  No.  17 ;  Jit  Skidmoro, 


r.xxir.510. 


Costs  thereof: 
when  to  be 
applied  for. 


AfTidavits: 
how  to  be 
written. 

Erasures  and 
interline- 
ations. 


Consent  to 
tile  aflidavit, 
containing 
unauthenti- 
cated inter- 
lineations or 
alterations. 


Dates  and 
sums. 

Sehedules. 


1  Jur.  N.  S.  696,  V.  C  S.;  Hansli[)  r.  Kit- 
ton,  8  .lur.  N.  S.  835,841,  V.  C.  S  ;  on 
ap|ie.il,(i.  1113;  Scottisli  Union  Insurance 
Company  v.  .Steele,  uhi  sup.;  Guest  v. 
Siiivthe,  L.  It.  5  Ch.  Ap.  551,  558,  L.  J.  G. 

6"Ord.  0  March,  1800,  r.  16;  B.aith- 
waite's  Oaths  in  Chan.  42. 

0  Ord.  I.  36;  and  see  15  &  16  Vic.  c.  86, 
§  25. 

7  Braithwaite's  Pr.  340.  But  an  irregu- 
larity in  the  jurat  cannot  be  waived,  see 
jjo.tt,  ().  897. 

»  Uill  V.  Gilbard,  9  Hare  .\p.  10. 

'->  Thi'  i)n'sent  practice  in  the  Heconl  and 
Writ  Clerks'  Ofliceof  .dlowing  alii  lavit- to 
be  filed,  notwiihstamliiig  that  dates  and 
snms  :ire  written  therein  in  lii;ures,  instead 
of  in  words,  was  adopted  wlh  the  .sanction 
of  Lord  (Jiiancellor  Camj)hell.  A  previ'ius 
usage  ill  the  ollice  to  tiie  cnnir^iry  wa.s 
recognized  in  ('ri  ik  v.  Cro  ik,  1  lur.  N.  S. 
054,  V.  C.  S.;  Braithwaite's  Pr.  340. 


896 


EVIDENCE. 


(\XXII.§10. 
-— — Y ^ 


Alterations  in 
schcilulos,  or 
ia  exhibits. 


Distinction 

tietweon 

lioL'inuents 

annexed  and 

docnnients 

exhibited. 


Identifying 
documents 
referred  to. 


t'ertificate 
on  exhibit. 


Production  of 
exhibit  to  the 
deponent. 


Production  of 
exhibits  after 
proof. 


Jurat. 


should  1)0  plac'otl  .-iftor  tlio  jui-at;  :uu\  tlio  coiniiiissioiter,  or  other 
jKM-son  botoro  whom  the  allidavit  is  sworn,  must  siun  his  name  at 
tlie  end  of  each  schedule.  If  a  schedule  is  placed  before  the  jurat, 
it  should  not  be  referred  to  as  " heremuler  Avritten,"  but  as  "the 
schedule  (or,  first,  &c.,  schedule)  set  forth  in  this  my  affidavit." 
The  schediili'S  may  also  be  embodied  in  the  affidavit.^ 

Alterations  in  schedules,  or  in  accounts  made  exhibits  to  affi- 
davits, should  be  authenticated  in  the  same  manner  as  in  the  body 
of  the  affidavits.- 

A  docmnent  may  be  referred  to  in  an  affidavit,  either  as  an  ex- 
hibit, thus:  "produced  and  shown  to  me  at  the  time  of  swearing 
this  my  affidavit,  and  marked  with  the  letter  A,"  or  as  "hereunto 
annexed."  If  "  produced  and  shown,"  the  document  is  not  filed 
Avith  the  affidavit ;  if  "  hereunto  annexed,"  the  affidavit  caimot 
properly  be  filed  without  it ;  and  it  is  therefore  generally  more 
convenient  not  to  refer  to  it  as  "  hereunto  annexed  ; "  ^  and  if  in- 
tended to  be  used  in  Chambers,  it  must  not  be  so  referred  to.* 

Any  document  referred  to,  must  be  distinguished  by  some  mark 
placed  ui)on  it,  and  signed  by  the  person  before  whom  the  affidavit 
is  sworn.'' 

It  is  the  usual  practice,  in  all  cases,  to  write  the  short  title  of 
the  cause  or  matter  on  the  exhibit;  and  this  must  be  done  in  the 
case  of  documents  made  exhibits,  and  intended  to  be  used  in 
Chambers.'^ 

Where  a  document  is  referred  to  as  being  produced  and  shown 
to  tbe  deponent,  the  person  before  whom  the  affidavit  is  sworn 
must  inquire  wdiether  the  deponent  has  seen  the  document,  and  is 
aware  of  the  contents  thereof;  but  this  need  not  be  done  where 
the  document  is  referred  to  as  hereunto  annexed:  the  document 
being:  annexed  at  the  time  the  affidavit  is  sworn.'' 

Where  one  party  has  proved  written  documents  in  a  cause,  the 
other  side  has  no  right,  upon  that  ground,  and  in  the  absence  of 
special  circumstances,*  to  require  them  to  be  produced  before  the 
hearing;  unless,  perhaps,  where  the  affidavit  proving  them  sets 
them  out  verbatim:^  for  a  party  can  have  no  right  to  see  the 
strength  of  his  adversary's  case,  or  the  evidence  of  his  title  before 
the  hearing.^"  The  documents  may,  however,  be  ordered  to  be  pro- 
duced, in  order  that  the  other  side  may  cross-examine  upon  them." 

The  jurat  should  be  written  at  the  end  of  the  affidavit,  and  is 
usually  placed  at  the  right-hand  corner ;  it  may,  however,  be  writ- 


1  Braitliwaite's  Pr.  341. 

2  See  Kcgul.  8  Aug.  1857,  r.  10. 

3  Ikaithwaite's  Pr.  341. 

4  Kegul.   8  Aug.  18.57,  r.  11;   and  sec 
Ord.  XXIV.  3. 

5  Ilewetson  v.  Todhunter,  2  Sm.  &  Gift. 
Ap.  2. 

G  Regul.  8  Aug.  1857,  r.  12. 

'  Uraithwaite's  Pr.  341. 

8  Lord  V.  Colvin,  2  Drew.  205;  5  De  G., 


M.  &  G.  47;  18  Jur,  253;  see  also  For- 
rester V.  Helme,  M'Clel.  558. 

'■>  Hodson  V.  Earl  of  Warrington,  3  P. 
Wms.  34. 

1"  Davers  v.  Davers,  2  P.  Wms.  410; 
Hodson  V.  Earl  of  Warrington,  ubi  sup.; 
Wiley  V.  Pistor,  7  Ves.  411;  Fencott  v. 
Clarke,  6  Sim.  8;  Lord  v.  Colvin,  ubi  sup.; 
Greslev,  102;  ante,  p.  885. 

11  Bell  V.  Johnson,  1  J.  &  H.  682. 


AFFroAVITS  AND  EX-PARTE  EXAMINATIONS  BEFORE   EXAMINER. 


897 


ten  on  either  side  of  the  page,  or,  if  necessary,  in  the  margin  ;  but 
not  on  a  page  upon  wliich  no  part  of  the  statements  in  the  affidavit 
appears.-'  It  must  also  correctly  express  the  time  when,  and  the 
place  where,  the  affidavit  is  sworn,  including  the  name  of  the  city, 
borough,  or  county .- 

The  deponent  must  sign  his  name,  or  make  his  mark,  at  the  side 
of  the  jurat :  not  underneath  it.*  The  person  before  whom  the 
affidavit  is  sworn  must  sign  his  name  at  the  foot  of  the  jurat ;  to 
which  must  be  added  his  full  official  character  and  description,  not 
necessarily,  however,  in  his  own  handwriting.* 

If  the  deponent  be  a  marksman  or  blind,  the  affidavit  must  be 
first  truly,  distinctly,  and  audibly  read  over  to  him  :  either  by  the 
person  before  Avhom  the  affidavit  is  sworn,  or  by  some  other  per- 
son. In  the  first  case,  it  must  be  expressed  in  the  jurat  that  the 
affidavit  was  so  read  over,  and  that  the  mark  or  signature  was 
affixed  in  the  presence  of  the  jjerson  taking  the  affidavit :  in  the 
second  case,  such  other  person  must  attest  the  mark  or  signature, 
and  must  be  first  sworn  that  he  has  so  read  over  the  affidavit,  and 
that  the  mark  or  signature  was  made  in  his  presence,  and  this  must 
be  expressed  in  the  jurat.^ 

If  the  deponent  be  a  foreigner,  the  contents  of  the  affidax-it 
must  be  interpreted  to  him ;  and  the  interpreter  must  be  sworn 
that  he  has  truly,  distinctly,  and  audibly  done  so,  and  that  he  mil 
truly  interpret  the  oath  about  to  be  administered,  and  then  the 
deponent  may  be  sworn ;  and  that  these  formalities  have  been 
comi^lied  with,  must  be  expressed  in  the  jurat.® 

Formalities  of  a  similar  kind,  by  which  it  may  appear  that  the 
deponent  has  fully  understood  the  contents  of  his  affidavit,  before 
he  is  sworn,  must  be  adopted  in  the  case  of  a  deaf,  or  deaf  and 
dumb  person,  or  in  other  similar  cases.'' 


C.XXII.§10. 


Signature 
and  attesta- 
tion. 


Markfmen 
and  blind 
men: 

special  jurat. 


Foreigners. 


Deaf  and 
dumb  per- 
sons. 


1  Braithwaite's  Pr.  342. 

2  Jbid. ;  18  &  19  Vic.  c.  134,  §  15,  Ord. 
IV.;  but  see  Gates  v.  Buckland,  13  W.  K. 
67,  V.  C.  S. 

8  Anderson  v.  Stather,  9  Jur.  1085,  V. 
C.  K.  H. 

*  Braithwaite's  Pr.  342;  but  see  Gates 
V.  Buciiland,  13  \V.  R.  67,  V.  C  S.  The 
words  "  bel'ore  me  "  must  precede  the  com- 
missioner's signature.  See  Graham  v. 
Ingleby,  cited  Braitliwaite's  Oatiis  in 
Chan.  46.  For  forms  of  jurats,  see  Vol. 
III. 

6  If  the  deponent  is  blind,  the  oflicer 
should  certify  in  tiie  jurat,  that  the  affi- 
davit was  carefully  and  correctly  read  over 
to  him,  in  the  presence  of  such  olficer,  be- 
fore he  swore  to  the  same.  Matter  of 
Christie,  5  I'aige,  2A'i.  txi  where  the  affi- 
ant has  been  found  by  the  inquisition  of 
a  jury  to  be  a  lunatic,  the  oflicer  before 

VOL     I. 


whom  the  affidavit  is  sworn,  should  state 
in  the  jurat,  that  he  has  examined  the 
deponent  for  the  purpose  of  ascertaining 
the  state  of  his  mind,  and  that  he  was  ap- 
parently of  sound  mind,  and  capable  of 
understanding  the  nature  and  contents  of 
the  aflidavit.  Matter  of  Christie,  5  I'aige, 
U42.  The  attestation  should  be  written 
near  the  jurat.  Wilson  v.  Clifton,  2  Hare, 
535;  7  Jur.  215;  Braithwaite's  Pr.  380. 
Where  a  marksman  signed  an  athdavit 
with  his  name  at  length,  his  hand  having 
been  guided  on  the  occasion,  it  was  ordered 
to  be  taken  off  the  file.  i;  Christo- 
pher, 11  Sim.  409.  For  forms  of  special 
jurats,  see  Vol.  HI. 

o  Braithwaite's  Oaths  in  Chan.  35.  For 
form'',  see  Vol.  HI. 

"  lieynolds  V.  Jones,  Trin.  Term,  1818; 
Braitliwaite's  Pr.  883.  For  forms,  see 
Vol.  HI. 


57 


898 


EVIDENCE. 


(\XXII.§10. 


Oath:   how 
to  1)0  itdiiiin- 
istoivil. 
Artinnations 
bv  Quakers, 
&o.,  and  l.y 
other  persons 
ohjeetintc  to 
be  sworn. 


Irreijiilarity 
in  jurat 
eainii>t  be 
waived. 


Omission  in 
jurat  to 
affidavit 
sworn  abroad. 


Irregularity 
in  artidavit  of 


Affidavit  not 
to  be  u.sed  till 
filed. 


The  oath  must  bo  ntlnunistored  in  a  reverent  manner;^  and,  if 
not  administored  in  the  usual  I'orni,  the  authority  for  administering 
it  shouUl  ajij)ear  in  the  jurat.'- 

Quakers,  JMoravians,  and  Separatists  <;ive  their  evidenee  on 
tlieir  sok^nn  affirmation ; "  and  any  ))erson  who  objects,  fi'om  con- 
seientions  motives,  to  be  sworn,  may  now  give  liis  evidence  upon 
his  solemn  affirmation  ;^  but  the  person  qualifietl  to  take  the  aflirma- 
tion,  must  be  satisfied  of  the  sincerity  of  tlie  objection,  and  this 
must  a]>])ear  in  tlie  atfirmat.'' 

It  is  an  universal  prineii)le  in  all  Courts,  that  jurats  and  affi- 
davits, when  contrary  to  j)raetiee,  are  oi)en  to  objection  in  any  stage 
of  a  cause.  Tliis  does  not  depend  u])on  any  objection  which  the 
parties  in  a  particular  cause  may  waive,  but  upon  the  general  nde 
that  the  document  itself  shall  not  -be  brought  forward  at  all  if  in 
any  respect  objectionable  with  reference  to  the  rule  of  the  Court. 
Where,  therefore,  there  Avas  an  irregularity  in  the  jurat  of  an 
answer,  a  motion  by  the  plaintiff  to  take  it  off  the  file,  on  the 
ground  of  such  irregularity,  was  allowed,  notwithstanding  that  he 
had  taken  an  office  copy  of  the  answer.*  Where,  however,  in  the 
case  of  an  affidavit  sworn  abroad,  before  a  notary,  the  place  where 
it  was  sworn  was  omitted  in  the  jurat,  it  was  ordered  to  be  filed  : 
the  Vice-Chancellor  observing,  that  he  thought  the  Court  must 
assume  that  the  notary  was  acting  in  pursuance  of  his  duty,  and 
that  he  would  not  perform  a  notarial  act  out  of  the  jurisdiction  in 
wdiich  alone  he  had  authority .'' 

It  is  to  be  observed,  particularly,  that  eveiy  affidavit  of  service 
of  WTits,  or  of  orders,  upon  wdiich  j)rocess  of  contemjit  is  to  be 
founded,  must  truly  and  fully  j)rove  good  sei-vice  ;  and  that  if  the 
plaintiff's  name,  the  Court,  the  return  of  the  writ,  or  any  thing 
material,  be  omitted,  no  attachment  can  be  thereupon  regularly 
issued  :  for,  until  a  due  service  be  shown,  no  contempt  appears  to 
the  Court.* 

Before  any  affidavit  is  used  for  any  pui-pose,  it  must  have  been 
filed  in  the  Office  of  the  Clerks  of  Records  and  Writs,  and  an 
office  copy  be  produced.^     Sometimes  in  vacation,  however,  when 

by  law  to  make  affirmation,  the  affidavit 
can  be  of  no  avail.  Kiiiggold  v.  Jones,  1 
Bland,  90.     For  forms,  see  Vol.  111. 

6  Pilkingfon  v.  Himsworth,  1  Y.  &  C. 
Ex.  612,  616 ;  but  see  Braithwaite's  Pr.  48, 
and  ante,  pp.  743,  895. 

7  Meek  v.  Ward,  10  Hare  Ap.  1;  Gates 
V.  Buckland,  13  W.  K.  67,  V.  C.  S. 

8  Ilinde,  4013;  Urd.  XX  VIII.  8. 

9  Ord.  XVIII.  5;  Jackson  v.  Cassidy, 
10  Sim.  320;  Parley?;.  Nicholson,  1  Dr.  & 
War.  66,  70;  Elsey  v.  Adams,  4  Giff.  398; 
9  Jur.  N.  S.  788;  see  Bloudgood  v.  Clark, 
4  Paige,  574,  676. 


1  Ord.  XIX.  14;  ante,  p.  887,  note. 

2  1  &  2  Vic.  0.  105;  see  Braithwaite's 
Pr.  383,  384.     For  forms,  see  Vol  III. 

3  7  &  8  Will.  III.  c.  34,  §  1;  8  Geo.  I. 
c.  6,  §  1;  22  Geo.  II.  c.  30,§  1;  ib.  c.  46, 
§  36;  9  Geo.  IV.  c.  32,  §  1;  3  &  4  Will. 
IV.  c.  49;  ib.  c.  82;  1  &  2  Vic.  c.  77;  and 
see  ib.  105.  For  forms  of  affirmation  in 
these  ca'es,  see  Vol  III. 

^  Ante,  p.  687,  note. 

6  17  &  18  Vic.  c.  125,  §  20.  Where  the 
affidavit  is  on  affirmation,  and  the  person 
taking  it  does  not  certify  tliHt  the  affirm- 
ant is  a  Quaker  or  other  person  allowed 


AFFIDAVITS  AND  EX-PARTE  EXAMINATIONS  BEFORE    EXAMINER.  809 

the  matter  was  pressing,  the  Court  has  taken  affidavits  into  its   C.xxil  §10. 
own  hands,  and  then  considered  them  as  filed.^  ' r- -' 

No  affidavit,  filed  on  or  after  the  first  day  of  Easter  Term,  1861,   Memoran- 
is  to  be  used  as  evidence,  on  any  proceeding   in  any  cause  or  ^^""/jg^gj 
matter,  unless  there  be  written  at  the  fiDot  thereof,  at  the  time  of  foot  of  afli- 
filing  the  same,  a  memorandum  stating  by  whom  the  same  is  filed,     *^''' 
which  memorandum  is  to  be  in  the  fomi  following,  or  as  near 
thereto  as  circumstances  will  admit  (that  is  to  say)  :  "  This  affi- 
davit is  filed  on  the  part  and  behalf  of  the  plaintifis  "  (or,  "  of  the 
•  defendants  M.  and  N."). 2 

Sometimes,  when  expedition  is  required,  the  solicitor  filing  the  Expedition 
affidavit,  instead  of  waiting  until  an  office  copy  is  made  by  the  ^<^P'^^- 
Clerk  of  Records  and  Writs,  takes  a  copy  of  the  affidavit  to 
the  office,  at  the  same  time  that  he  takes  the  original  affidavit 
to  be  filed,  and  then  the  Clerk  of  Records  and  Writs  examines 
and  marks  the  copy  as  an  office  copy,  at  the  same  time  that  he 
files  the  original,^ 

Where  affidavits  are  filed  in  support  of  interlocutory  applica-   Time  within 
tions,  or  to  be  used  in  proceedings  under  decrees,  there  is   no  davits  to  be 
particular  time  fixed  for  filing  them ;  but  they  should  be  filed  in  fn^e^;,^  "utorv 
time  enough,  before  the  application  or  proceeding  on  which  they  applications. 
are  intended  to  be  used  is  brought  on,  to  enable  the  adverse  party 
to  obtain  copies:    otherwise,  the  application  or   proceeding  will 
generally  be  directed  to  stand  over;  and  where  it  is  intended  to 
make  use  of  affidavits  filed  before  the  particular  petition,  notice 
of  motion,  or  summons,  was  presented,  served,  or  issued,  express 
notice  of  such  intention  should  be  given  in  due  time  to  the  op- 
posite party,  as  he  is  not  bound  to  search  for  affidavits  filed  before 
those  respective  periods.* 

The  party  filing  an  affidavit  should,  in  all  cases,  take  an  office   Office  copies: 

•  DV  wlioin  to 

copy  of  it,  except  in  the  case  of  an  affidavit  filed  by  a  claimant  be  taken. 

coming  in  pursuant  to  advertisement,  under  a  decree  :  in  which 

case,  the  office  copy  is  to  be  taken  by  the  party  prosecuting  the 

cause,  unless  the  Judge  otherwise  directs.^     Upon  filing  an  affi-  Notice  of 

davit,  it  is  the  usual  practice  of  solicitors  in  all  cases  to  give  notice   Savil'^^*'' 

of  the  filing  to  the  adverse  party ;  and  such  notice  must  be  given 

by  a  claimant  in  the  exceptional  case  just  referred  to.® 

Formerly,  any  party  who  required  a  copy  of  an  affidavit,  had  to  Copies  of 
obtain  an  office  copy  at  tlie  Record  and  Writ  Clerks'  Office;  but  f ,;;,^,^'/„^ j,,^^' 
now,  where  any  party  recjuires  a  copy  of  an  affi<lavit  filed  by  the   furnislied. 
adverse  party,  he  is  to  make  written  application  to  the  party  by 

1  Per  Lord  I>iinj;dale,  in  Attorney-Gen-  XXiX.,  Proceeflinf/s  in  Cluimln-rs ;   Chap, 

eral  v.  Lewis,  8  I'.eav.  17'J.  XXXV.  §  2,  Modims;  §  ;j,  /'elilmus. 
■i  Ord.  6  Fel..,  IHil.  r.  18.  5  Ord.  XXXVL  1;  Ord.  XXXV.  39. 

«  Uraithwaites  I'r.  4'.*4.  ^  Ord.  XXXV.  38.     For  form  of  notice, 

*  See  Ord.  XXXV.  '27;  and  post,  Chap.  see  VoL  IIL 


900 


EVIDENCE. 


C. XXII. §10. 


How  copies 
furnished  by 
parties  are  to 
be  written, 
and  indorsed. 


Proceedings, 
in  case  of 
refusal  or 
neglect  to  de- 
liver copies. 


Effect  of 
omitting  to 
deliver  copies. 


"When  costs 
of  copies  will 
not  be 
allowed. 


M-lioin  the  copy  ought  to  bo  (Iclivorcrl,  or  his  solicitor,  with  an 
umlortaking  to  pay  tlic  proper  charges;^  ami  thereupon  such 
party,  or  his  solicitor,  is  to  make  such  copy,'^  and  deliver  the  same 
on  demand  "within  forty-eight  hours ;  *  and  is  to  j)roduce  the  office 
copy  in  Court,  or  in  Chambers,  when  required."*  In  cases  of  ex 
parte  applications  for  iiijunctions,  or  writs  of  ?<c  exeat  regno^  the 
copies  must  be  delivered  innnediately  upon  the  receipt  of  the 
request,  or  within  such  time  as  may  be  specified  therein,  or  may 
have  been  directed  by  the  Court.^ 

All  copies  to  be  delivered  by  parties  or  their  solicitors,  are  to 
be  written  on  paper  of  a  convenient  size,  Anth  a  sufficient  margin,® 
and  in  a  neat  and  legible  manner,  similar  to  that  which  is  usually 
adopted  by  law  stationers ;  and,  unless  so  written,  the  parties  or 
solicitors  delivering  them  will  not  be  entitled  to  be  paid  for  the 
same.'  The  folios  of  all  copies  are  to  be  numbered  consecutively 
in  the  margin,  and  the  name  and  address  of  the  party  or  solicitor, 
by  whom  the  same  are  made,  is  to  be  indorsed  thereon,  in  like 
manner  as  upon  the  proceedings  in  the  Court ;  *  and  such  party 
or  solicitor  is  to  be  answerable  for  the  same  being  true  copies  of 
the  originals,  or  of  the  office  copies,  of  which  they  purport  to  be 
copies.® 

Where  any  party  or  solicitor  who  is  required  to  deliver  any 
such  copy,  either  refuses  or  does  not  deliver  the  same  within  the 
period  allowed  for  that  purpose,  the  person  making  such  applica- 
tion may  procure  a  copy  from  the  office  in  which  the  original  has 
been  filed,  in  the  same  way  as  if  no  such  application  had  been 
made  to  the  party  or  solicitor;  and,  in  such  case,  no  costs  will  be 
due  or  payable  to  the  party  or  solicitor  so  making  default,  in 
respect  of  the  copy  so  applied  for.^° 

If  a  party  or  solicitor  by  whom  any  copy  ought  to  be  delivered, 
reftises,  or  does  not  deliver  the  same,  within  forty-eight  hours,  an 
addition  of  two  clear  days  is  to  be  made  to  the  period  within 
which  any  proceeding  which  may  have  to  be  taken  after  obtaining 
such  copy  ought  to  be  taken ;  so  that  the  person  requiring  such 
copy  may  be  as  little  prejudiced  as  possible  by  the  neglect  of  the 
party  or  solicitor  to  deUver  such  copy.^^ 

The  Taxing  Master  is  not  to  allow  any  costs  in  respect  of  any 
copy  so  taken,  unless  it  shall  appear  to  him  to  have  been  requisite, 


1  Ord.  XXXVI.  4.  The  ordinarj' 
charges  are  1J(/.  per  folio  to  a  pauper,  and 
4rf.  per  folio  to  other  persons.  Kegul.  to 
Ord.  Sched.  4.  For  forms  of  application 
and  undertaking,  see  Vol.  III. 

2  Ord.  XXXVI.  5. 
8  Ord.  XXXVI.  6. 
*   Ord.  XXXVI.  10. 
«  Ord.  XXXVI.  9. 


6  Foolscap  paper,  with  a  quarter  mar- 
gin, is  ordinarily  used. 
V  Ord.  XXXVI.  11. 

8  See  ante,  i)p.  453,  454;  Ord.  III.  2,  5. 

9  Ord.  XXXVI.  8.  Each  copy  delivered 
should  include  a  copy  of  the  jurat,  and 
should  state  the  day  on  which  the  original 
affidavit  was  filed. 

10  Ord.  XXXVI.  12. 

11  Ord.  XXXVII.  16. 


ATFIDAVITS  AND  EX-PAETE  EXAIIINATIONS  BEFORE   EXAMINER. 


901 


and  to  have  been  made  with  due  care,  both  as  regards  the  con- 
tents and  the  writing  thereof.^ 

Parties  requiring  copies  of  affidav-its  should  proceed  in  the 
manner  above  pointed  out;  but  office  copies  of  affidavits  will, 
nevertheless,  be  made  by  the  Clerks  of  Records  and  Writs,  at  any 
time,  for  any  person,  whether  party  to  the  cause  or  matter  or  not, 
who  may  prefer  that  course,  at  the  risk  of  such  copies  being  dis- 
allowed on  taxation.^ 

Expenses  incurred,  in  consequence  of  affidavits  being  prepared 
or  settled  by  counsel,  are  to  be  allowed  only  when  the  Taxing 
Master,  in  his  discretion,  and  on  consideration  of  the  special  cir- 
cumstances of  each  case,  thinks  such  expenses  properly  incurred ; 
and  in  such  case,  he  is  to  be  at  liberty  to  allow  the  same,  or  such 
parts  thereof  as  he  may  consider  just  and  reasonable,  whether  the 
taxation  be  between  solicitor  and  client  or  between  party  and 
party.* 

Where  a  witness,  of  whose  eiddence  a  party  desires  to  avail 
himself  on  the  hearing  of  a  cause  in  which  issue  has  been  joined,* 
refuses  to  make  an  affidavit,  the  party  may  examine  him  ex 
parted  before  an  Examiner.^  The  attendance  of  the  witness  is 
procured,  and  his  examination  conducted,  in  the  same  manner  as 
in  the  case  of  other  examinations  before  the  Examiner ; '  but  no 
party  has  a  right  to  be  present  at  such  examination,  except  the 
party  producing  the  witness,  his  counsel,  solicitor,  and  agents.^ 
When  the  examination  is  concluded,  the  Examiner  transmits  it  to 
the  Office  of  the  Clerks  of  the  Records  and  Writs  :  haWng  marked 
it  as  taken  ex  jyarte  ^  and  it  will  be  deemed  and  dealt  with  by 
them  as  an  affidavit.^  The  party  requiring  the  attendance  of  the 
witness,  whether  a  party  or  not,  must  give  to  the  opposite  party 
fortv-eitjht  hours'  notice  at  least  of  his  intention  to  examine  such 


1  Ord.  XXXVr.  13. 

2  See  Braithwaite's  Pr.  494. 

8  Ord.  XL.  17.  Costs  of  settling  an 
affidavit  (which  was  an  echo  of  the  bill) 
bv  counsel  were  allowed  in  Davies  v. 
Marshall  (No.  2),  1  Dr.  &  S.  564;  7  Jur. 
N.  S.  669. 

*  An  ex  puHe  examination  cannot,  in 
strictness,  be  had  where  a  notice  of  motion 
for  decree  has  been  f;iven.  Antt,  pp.  823, 
824.  In  Smith  i-.  Baker,  4  N.  K.  321,  V. 
C.  W..  2  H.  &  M.  498,  however,  it  was 
allowed  to  be  used,  on  terms  as  to  cross- 
exammation  thereon. 

6  (Jrd.  6  Feb.,  1861,  rr.  4,  6. 

8  See  (Jresley,  Kq.  Kv.  (.\m.  ed.)  50  el 
teq.  Under  ttie  practice  heretofore  oxist- 
inR  in  New  York,  each  party  had  a  rifiht 
to  select  his  own  Kxaminer,  an<l  the  Court 
would  not,  on  motion  of  the  opposite  party, 
interfere  with  that  ri^ht.  Hut  a  direct 
examiniition  niijcht  be  had  before  one 
Examiner,  and  a  cross-examination  before 


C.XXII.§10. 


Office  copies 
may  be  ob- 
tained, in  any 
case,  at  the 
Record  and 
Writ  Clerks' 
Office. 


Costs  of  prep- 
aration or 
settlinj;  of 
affidavits  by 
counsel. 


Ex  parte 
examination 
of  person 
refusing  to 
make  affi- 
davit. 


Notice  of 
examination. 


another.     Troup  v.  Haight,  6  John.  Ch. 
335. 

The  Circuit  Courts  of  the  United  States 
have  power  to  appoint  Examiners  in  suits 
in  Efjuity,  and  it  is  a  matter  of  discretion 
whether  thej'  be  standing  Examiners,  or 
be  designated  as  the  occasion  arises  for 
their  services  in  anv  cause.  Van  Ihtok  v. 
Pendleton,  2  Bhitch.  C.  C.  85;  78th  of  the 
United  States  Equity  Rules.  But  in  the 
Circuit  Courts  of  the  United  States,  an 
oral  examination  of  witnesses  before  an 
Examiner,  previous  to  the  amendment  of 
the  67lh  Kule  in  March,  1862,  was  irregu- 
lar, unless  there  was  an  iigreeinent  between 
the  piirties  to  w;iivc  written  interrogato- 
ries; and  such  agreement  ought  to  l)e  in 
writing.  Van  Hook  i;.  Pendleton,  2  lilatch. 
C.  C.  85. 

7  As  to  examinations  before  an  Exam- 
iner, see  post,  p.  903  et  $eq. 

8  Ord.  6  Feb.,  1861,  r.  6. 
»  Jbid. 


iK)2 


EVIDENCE. 


r.xxii.§io. 


AtlUljivits 
luui  deposi- 
tions:  wliou 
to  be  printeil. 


llow  printed. 


Copy  for  the 
printer. 


Where  issue 
joined. 


On  motion 
or  decree. 


Application 
to  have 
affidavits  and 
depositons 
printed : 
when  to  be 
made. 


witness;  and  such  notice  nnist  contain  the  name  and  doscription 
of  tlie  witness,  and  tlie  time  and  j)lace  of  the  examination:  unless 
the  Court  thinks  fit  to  dispense  with  such  notice.* 

All  atfidavits  and  depositions  to  be  used  on  the  hearing  of  any 
cause,  or  motion  for  a  decree,  must  be  printed:-^  except  such  as 
have  been,  tiled  for  the  purpose  of  any  interlocutory  application, 
and  (^f  which  otllce  copies  have  been  taken.* 

Such  attidavits  and  depositions  are  printed  under  the  direction 
and  su])erintendence  of  the  Clerks  of  Records  and  Writs,  upon 
paper  of  the  kind  and  dimensions,  and  with  the  type  prescribed 
for  the  ju-inting  of  Bills,  and  in  all  other  resjiects  in  such  form  and 
manner  as  the  Clerks  of  Recoi-ds  and  Writs  deem  most  conven- 
ient.* 

Solicitors  and  parties,  on  filing  aflSdavits  required  to  be  printed, 
must  leave  with  the  Clerks  of  Records  and  Writs  a  fair  co[)y  of 
each  affidavit  filed,  written  on  draft  paper,  on  one  side  only,  and 
certified  by  the  solicitor  or  party  to  be  a  correct  copy.^ 

In  a  cause  in  which  issue  is  joined,  the  Clerks  of  Records  and 
Writs  will,  upon  the  application  of  any  i)arty  to  the  suit,  cause 
such  aflidavits  and  depositions  (other  than  depositions  taken  on 
the  oral  cross-examination  of  witnesses  who  have  made  such  afli- 
davits) to  be  printed  after  the  expiration  of  the  time  fixed  for 
closing  the  evidence ;  and  such  last-mentioned  depositions,  after 
the  expiration  of  the  time  allowed  for  the  oral  cross-examination 
of  such  Avitnesses.® 

In  a  cause  in  which  a  notice  of  motion  for  a  decree  has  been 
given,  the  Clerks  of  Records  and  Writs  will,  upon  the  application 
of  any  i)arty  to  the  suit,  cause  the  aflidavits  filed  on  behalf  of  the 
plaintiffs,  the  affidavits  filed  on  behalf  of  the  defendants,  and  the 
aflidavits  of  the  plaintiffs  in  reply,  to  be  printed  after  the  times 
respectively  allowed  for  filing  each  set  of  such  aflidavits,  and  the 
depositions  taken  on  the  oral  cross-examination  of  the  witnesses 
who  have  made  such  aflidavits,  after  such  depositions  have  been 
filed." 

It  is  desirable  that  the  aflidavits  to  be  thus  printed  should  be 
all  presented  for  filing  together  at  one  time,  and,  if  possible,  on  the 
last  day  of  the  time  allowed  for  filing  the  same,  that  is  to  say, — 
where  issue  has  been  joined :  on  the  last  day  of  the  time  fixed  for 


1  Ord.  5  Feb  ,  1861,  r.  22;  and  see  Ford 
f.  Tennnnt,  11  \V.  R.  275,  M.  R.,  where  it 
was  held  that  this  rule  applies  to  ex  parte 
examinations. 

2  Ord.  16  May,  1862,  r.  1.  This  order 
applies  to  cases  where  i.ssue  has  bi'en 
joined,  or  notice  of  motion  for  decree 
served,  .since  the  18th  June,  1862. 

8  Ord.  16  .Mav,  1862,  r.  9. 
<  Ord.  16  May,  1862,  r.  2. 


5  Ord.  16  May,  1862,  r.  3.  The  copy 
should  have  the  usual  margin  on  tlie  Ictt- 
hand  side  of  each  page.  U.  &  W.  Clerks' 
Suggestions,  No.  7.  The  certificate  should 
be  written  on  the  left-hand  margin  of  the 
first  page  of  each  copy,  before  being  left  at 
the  office.  Jb.  No.  8.  For  form  of  certifi- 
cate, see  Vol.  III. 

6  Ord.  16  May,  1862,  r.  4. 

7  Ord.  16  May,  1862,  r.  6. 


VIVA   VOCE    EVIDENCE. 


903 


closing  the  evidence  ;  and  where  notice  of  motion  for  a  decree  has  C.XXII.§  ii. 

been  served :  on  the  last  day  of  each  of  the  respective  times  al-   ' y ■ 

lowed  to  the  plaintiff  and  defendant  for  filing  the  affidavits ;  and 
that  the  fair  copies  left  with  such  affidavits  should  be  numbered 
consecutively  (at  the  top  of  the  first  page)  in  the  order  in  which 
it  is  desired  that  they  should  be  printed.^  "Where  the  foregoing 
suggestion  is  complied  ^dth,  the  appHcation  to  have  the  evidence 
printed  may  be  made  at  the  time  the  evidence  is  filed.^  Tlie  ap- 
plication to  have  any  evidence  printed,  which  has  been  taken  orally, 
may  be  made  at  any  time  after  such  evidence  is  filed :  except  that, 
in  cases  where  a  time  for  taking  any  oral  examination  has  been 
specially  fixed,  and  also  in  cases  whei*e  issue  has  been  joined,  the 
application  is  not  to  be  made  until  the  time  fixed  for  taking  the 
examination,  or  for  closing  the  evidence,  has  expired.^  A  written 
or  printed  application  to  have  the  e^'idence  printed,  must  be  made ;  * 
and  it  is  desirable  that  the  number  of  printed  copies  of  the  evi- 
dence which  may  be  required  for  general  use  in  the  cause,  should 
be  stated  in  such  application.^ 

Every  party  who  files  an  affidavit,  or  causes  depositions  to  be  what  printed 
taken,  must  take  fi-om  the  Clerks  of  Records  and  Writs  a  printed  ?^P'<^^  """^^ 
copy  of  every  affidavit  filed  by  him,  and  of  all  such  depositions : 
for  which  he  is  to  pay,  in  stamps,  at  the  rate  of  twopence  per  folio ; 
and  unless  such  copy  is  taken,  he  is  not  to  be  allowed  any  thing  in 
the  taxation  of  costs,  in  respect  of  such  affidavit  or  depositions.® 
As  a  rule,  such  printed  copy  will  be  ready  for  delivery  mthin 
forty-eight  hours  after  the  application  to  have  the  evidence  printed 
is  made.'' 

All  parties  are  to  be  at  liberty  to  take  from  the  Clerks  of  Records  and  what 
and  Writs  as  many  other  printed  copies  of  their  own  and  of  their  i"ay  be  taken, 
opponents'  affidavits  and  depositions  as  they  may  require,  on  pay- 
ing for  the  same,  in  stamps,  at  the  rate  of  one  penny  per  folio.* 
These  copies  may  be  had  at  the  same  time  as  the  official  copy.® 


Section  XI.  —  Of  viva  voce  Evidence. 


The  viva  voce  examination  of  witnesses  may  take  place,  either    Viva  voce 
before  the  Court,  the  .Judge,  or  his  Chief  Clerk,  in  Chambers,  or  X'n'iTniuJ' 
an  Examiner  of  the  Court,  or  an  Examiner  specially  appointed.        take  place. 


1  H.  &  W.  Clerks'  Suggestions,  No.  2. 

2  Ih.  No.  3. 
8  Ih.  No.  4. 

*  Printed  conies  of  the  form  of  applica- 
tion may  l)e  lial,  on  application  at  the 
divisioiinl  scat  in  the  Record  and  Writ 
Clerks'  Odice.  lb.  No.  9.  Vur  such  form, 
see  Vol.  HI. 


5  R.  &  W.  Clerks'  Suggestions,  No.  6. 
0  Ord.  16  Mav,  186-2,  r.  6. 

7  K.  &   W.  Clerks'  Suggestions,  No.  6. 

8  Ord.    16  May,    18(52,  r.   7.     As  to  the 
allowances  tf)  solicifors,  see  r.  8. 

"  \\.  &  \V.  Clerks'  Suggestions,  No.  6. 


904 


EVIDENCE. 


»'.xxn.§ii. 


After  issue 
joiucd. 


Taking 
I'xaiiiiiiation 
.■U'conlinii  to 
15  &  It;  Vic. 
0.  8G,  by  cou- 
seut  or  W 
lUroction  of 
Court  or 
Judse. 


According  to 
15  &  ItJ  Vic. 
c.  8G,  wit- 
nesses ex- 
amined by 
ordinary 
or  special 
Examiner  of 
the  Court,  in 
the  presence 
of  the  parties. 
Conduct  of 
examination. 


Depositions 
to  be  taken  in 
writing,  and 
read  over  to 
the  witness: 
who  is  to  sign 
the  same. 


"NVhoro  issue  lias  been  joinoil,  there  can  be  no  viva  voce  examina- 
tion ot"  witnesses  in  cliief  for  the  purposes  of  the  hearing,  except 
the  t'.r  parte  examination  before  the  Examiner,  in  manner  before 
pointed  out,^  and  except  the  evidence  as  to  ])ai"ticiihir  facts  or 
issues,  if  so  directed  by  special  order  ;'^  and  all  cross-examinations 
of  Avitnesses  must  take  place  before  the  Court  itself  at  the  hearing.' 
The  parties  may,  however,  by  consent  in  writing,  which  must  be 
filed  in  the  Record  and  Writ  Clerks'  Ofiice,  agree  to  take  the  ex- 
amination or  crcSss-examination  of  any  Avitness,  in  manner  ])rovided 
by  tlie  15  &  10  Vic.  c.  86;''  and,  further,  the  Court,  or  Judge  in 
Chambers,  may  direct,  that  the  examination  or  cross-examination 
of  any  witness  shall  be  taken  in  this  manner,  Avhere  by  reason  of 
the  age,  infirmity,  or  absence  out  of  the  jurisdiction  of  the  witness, 
or  for  any  other  sufficient  cause,  it  is  expedient  that  such  direction 
should  be  given.  Such  direction  may  be  obtained  on  application 
to  the  Court,  or  the  Judge  in  Chambers,  on  notice." 

According  to  the  Act,  above  referred  to,  all  witnesses  to  be 
examined  orally  are  to  be  so  examined  by  or  before  one  of  the 
Examiners  of  the  Court,  or  by  or  before  an  Examiner  to  be  specially 
appointed  by  the  Court :  ®  the  Examiner  being  furnished  by  the 
plaintiff  with  a  copy  of  the  bill,  and  of  the  answer,  if  any,  in  the 
cause ;  and  such  examination  is  to  take  place  in  the  presence  of 
the  parties,  their  counsel,  solicitors,  or  agents ;  and  the  witnesses 
so  examined  orally  are  to  be  subject  to  cross-examination  and  re- 
examination; and  such  examination,  cross-examination,  and  re- 
examination, are  to  be  conducted,  as  nearly  as  may  be,  in  the 
mode  in  use  in  Courts  of  Common  Law,  with  respect  to  a  witness 
about  to  go  abroad,  and  not  expected  to  be  present  at  the  trial  of 
a  cause.'^ 

The  depositions  so  taken  are  to  be  taken  down  in  wiiting  by 
the  Examiner :  not  ordinarily  by  question  and  answer,  but  in  the 
form  of  a  nan-ative ;  *  and,  when  completed,  are  to  be  read  over  to 
the  witness,  and  signed  by  him  ^  in  the  presence  of  the  parties,  or 


1  Ante,  p.  901. 

2  Ord.  5  Feb.,  1861,  r.  3. 

3  Ord.  5  Feb.,  1861,  r.  7;  BodgeriJ.  Bod- 
ger,  11  W.  R.  80,  V.  C.  K.  Infirm  wit- 
nesses (r.  11),  and  suits  to  perpetuate  tes- 
timoiij-  (r.  16),  are  excepted  from  this  rule. 

*  Ord.  5  Feb.,  1861,  r.  10.  For  form  of 
consent,  see  Vol.  III. 

6  Ord.  6  Feb.,  1861,  r.  11.  For  forms 
of  notice  of  motion  and  summons,  see  Vol. 
III. 

6  The  rules  of  Chancery  in  New  .Jersey 
provide,  that  every  person  who  shall  be 
appointed  an  Exammer  of  the  Court  of 
Chancery  shall,  before  he  enters  upon  the 
execution  of  his  office,  take,  before  the 
Chancellor  or  Clerk,  an  oath  or  affirmation 


impartially  and  justly  to  perform  all  the 
duties  of  the  office,  according  to  the  best 
of  his  abilities  and  understanding.  Rule 
13 ;  see  State  «.  Levy,  3  Har.  &  McH.  591. 

7  15  &  16  Vic.  c.  86,  §  31.  For  the 
mode  in  use  at  Law,  see  Chitty's  Arch. 
329-336. 

8  See  New  Jersey  Rule  71  of  Chancery 
Practice. 

'•'  In  Pennsylvania,  a  deposition  taken 
under  a  commission  need  not  be  subscribed 
by  the  witnesses.  Moulson  v.  Hargrave,  1 
Serg.  &  R.  201.  In  Kentucky,  it  is  no 
objection  to  a  deposition  that  the  witness 
omitted  to  subscribe  his  name.  Mobley  v. 
Ilamit,  1  A.  K.  Marsh.  590.  So  in  North 
Carolina.     Rutherford  v.  Nelson,  1  Hayw. 


TIVA    VOCE    EVIDENCE.  905 

such  of  them  as  may  think  fit  to  attend;  but  if  the  witness  refiises  C.XXII.§11. 

to  sign,  then  the  Examiner  is  to  sign  the  depositions;  and  the  " r — -^ 

examiner  may,  upon  all  examinations,  state  any  special  matter  to  Examiner 

the  Court,  as  he  shall  think  fit.     It  is  in  the  discretion  of  the  any  special 

examiner  to  put  down  any  pai'ticular  question  or  answer,  if  there  '"'*""• 

in  -1  i-        i  ■  1  X-         Particular 

shoukl  appear  any  special  reason  tor  doing  so;  and  any  question  questions 
or  questions  which  may  be  objected  to  are  to  be  noticed  or  re-   °^?^  K 
ferred  to  by  the  Examiner  in  the  depositions,  and  he  is  to  state  his 
opinion  thereon  to  the  counsel,  solicitors,  or  parties,  and  to  refer 
to  such  statement  on  the  face  of  the  depositions  ;  but  he  is  not  to  Examiner 
have  power  to  decide  upon  the  materiality  or  relevancy  of  any  ""Vgievancy 
question  or  questions.     The  Court  deals  with  the  costs  of  imma-  of  questions. 
terial  or  irrelevant  depositions  as  may  be  just.^ 

'  There  are  two  Examiners  of  the  Court,^  before  whom  the  exam-  Special  Ex- 
ination  of  witnesses  is  usually  taken;  but  where,  on  account  of  the  a'"'°*^'^= 

' .  .  .  when  ap- 

distance  from  London  at  which  the  witnesses  reside,^  the  pressure  pointed, 
of  business,*  or  other  sufficient  reason,^  the  examination  cannot  be 
conveniently  taken  before  one  of  the  Examiners  of  the  Court,  a 
Special  Examiner  may  be  appointed ;  but  the  Court  is  unwilhng  to 
appoint  a  Special  Examiner,  except  in  cases  of  absolute  necessity.® 
Any  fit  person  may  be  a  Special  Examiner ;  but  a  barrister,  or  solic- 
itor, is  usually  appointed.'^  There  was  formerly  a  rule,  that  wit- 
nesses residing  more  than  twenty  miles  fi'om  London  could  not  be 
compelled  to  attend  before  an  Examiner  in  London ;  but  this  rule 
no  longer  exists.^ 

The  application  for  the  appointment  of  a-  Special  Examiner  may  jj^^ 


appointed. 


105 ;  Murphy  v.  Work,  1  Hayw.  105.     So  the  usual  way.  by  written  interrosatories 

in  Virginia.     Barrett  v.  Watson,  1  Wash.  and  cross-interrogatories,  on  moticm  to  the 

372.     So  in  Alabama.     Wiggins  v.  Pryor,  Court,  in  term  time,  or  to  a  Judgein  vaca- 

3  Porter,  430.     A  deposition  taiten  under  tion,  for  special  reasons  satisfactory  to  the 

a   commission    to   take   the  depusition  of  Court  or  Judge."     For  formal   parts   of 

John  Priestly,  may  be  read  in  evidence,  depositions,  see  Vol.  III. 

though  signeil  John  G.  Priestly.     Brooks  ^  Appointed  under  16  &  17  Vic.  c.  22; 

V.  M'Kean,  Cooke,  162;  see  Breyfogle  v.  see  ante,  p.  901,  note. 

Becklev,  16  Serg.  &  K.  264.  3  Be  Foster's  Trusts,  2  W.  R.  679,  V.  C. 

1  15"&    16    Vic.    c.    86,  §  32;    Surr  v.  K. ;  Ogilbv  v.  Gregory,  4  W.  R.  67,  V.  C. 

Walmslev,  L.  K.  2  Kq.  439,  V.  C.  W.   The  W. ;  and  s"ee  Rawlins  v.  Wickham,  4  Jur. 

Rules  of  Practice  for  the  Courts  of  Equity  N.  S.  990,  V.  C.  S. 

of  the  United  States  prescribe  that  either  ^  Brennan  r.  Preston,  10  Hare  Ap.  17. 

party  may  give  notice  to  tlie  other  that  he  ^  Pillan  v.  Thompson,  10  Hare  Ap.  76. 

desires  the  evidt.-nce  to  be  aiiducerl  in  the  <>  Brocas  i".  Lloyd,  21  Beav.  519;  2  Jur. 

cause  to  be  takt-n  orally,  and  tiiereupon  N.  S.  655;  Altree  v.  Sherwin,  2  De  G.  & 

sub-^tantially  the  same  course  of  proceed-  J.  92;  Townsend   v.    Williams,   6  W.  R. 

ing  is  to  be  pursued  as  that   directed  bv  734,  V.  C.  W. 

15  &  16  Vic.  c.  86,  §§  31.  32,  stated  in  the  7  Henderson  v.  Phillipson,  17  Jur.  615, 

te.xt.    Rule  95,  amending  Hule  67,  see  Vol.  3,  V.   C.  W. ;  Reed  v.  Frest,   Kay   Ap.   14; 

App'x.     By  the  same  rule  it  is  prescribed  and  see  16  &  17  Vic.  c.  22,  §  2.     His  fees 

that"Notice  shall  liegiven  by  the  respective  are  5  guineas  a  day,  and  55.  for  his  clerk, 

counsel  or  solicitors  to  the  nppusite  coun-  Regul.  to  OrJ.  Sclied.  1;  Payne  v.  Little, 

sel  or  solicitors  or  parties,  of  the  time  and  21  Beav.  65. 

place  of  the  cxumination,  for  such  reason-  ^  Altree  v.  Sherwin,  and  Brocas*.  Lloyd, 

able  time  as  the  Examiin-r  may  (i.x  by  oriler  ubi  sup.,  overruling  Reed  i'.  Prest,  nhi sup. ; 

in  each  cause."   Under  this  rule  also  "  tesli-  and  see  Townsend  v.  Williams,  xibi  sup. 
mony  may  be  taken  on   commission,  in 


906 


EVIDENCE. 


r.\\ii.§  11. 


noiHisiiioiis 
tti  lie  writtiMi 
l>y  KxamiiuT. 

UisiTi'tioii  ot" 
I'.xaininer. 


Attendiiiice 
ot"  witnessses: 
luiwprocured. 


Siihpcena  ml 
Ustificnndum. 


Siibjxena 
duces  tecum. 


he  m;nU'  in  Cliambors  by  siiiiuiioiKs,  or  in  Conrt  by  motion  on 
notice;^  :uul  should  be  suj)j)ortO(l  by  an  anidavit  of  his  litnt'ss,  and 
lliat  lie  has  no  adverse  interest.'^ 

The  whole  of  the  depositions  of  the  witnesses  must  be  written 
by  the  Examiner,  with  his  own  hand.* 

The  Kxauiiner  has  no  discretion  to  allow  a  witness  to  be  treated 
as  hostile  by  the  party  ealling  him;*  or  to  determine  the  relevancy 
of  the  evidence.^  Such  questions  must  be  determined  by  the 
Court;  and,  for  that  purpose,  the  Examiner  should  take  down  the 
questions  and  answers  in  writino:."  The  Examiner  has  power  to 
a(biiit  or  exclude  the  )>ublic,  as  he  thinks  fit.'' 

AVhere  it  is  intended  to  examine  Avitnesses  before  an  Examiner, 
an  ap])ointment  must  be  obtained  fi-om  him,*  and  notice  thereof 
given  to  the  witness;^  and  Avhere  there  is  reason  to  sui)pose  a 
witness  will  not  voluntarily  attend  to  be  examined,  recourse  must 
be  had  to  the  compulsory  process  of  a  writ  of  suh^yoena  ad  testi- 
ficandum :  Avhich  commands  the  witness  to  whom  it  is  directed  to 
appear  before  the  Examiner,  to  testify  on  behalf  of  the  party 
requiring  his  testimony.^"     In  case  tlie  witness  is  required  to  bring 


1  Reed  r.  Prest,  id)i  sup. ;  Williams  «. 
Williams,  10  Hare  Ap.  45;  17  Jur.  434; 
17  Reav.  156. 

2  Where  the  examination  was  to  be 
taken  ex  parte,  the  Judge  said  that  if  the 
parties  could  not  agree  upon  an  Examiner, 
he  would  name  one.  Davenport  v.  Gold- 
bery,  2  H.  &  M.  286.  For  forms. of  sum- 
mons, notice  of  motion,  and  aflSdavit,  see 
Vol.  III. 

3  Stobart  v.  Todd,  IS  Jur.  618,  V.  C.  K. 
A  witness  should  srn  before  the  Examiner, 
free  to  answer  :ill  interrogatories,  and  not 
with  a  deposition  already  prepared.  Un- 
derhill'v.  Van  Cortlandt",  2  John.  Ch.  339. 
A  deposition,  prepared  and  written  by  the 
party  for  whom  it  is  taken,  cannot  be  re- 
ceived as  evidence.  Aniorv  v.  Fellows,  5 
Mas*.  219;  see  Ray  r.  Walton,  2  A.  K. 
Marsh.  71.  Although  it  is  copied  by  a 
third  person.  Griswold  v.  Griswold,  1 
Root,  259.  The  deposition  is  equally  in- 
admissible, if  drawn  bv  the  agent  of  the 
party.  Smith  v.  Huntington,  1  Root,  226; 
Allen  V.  Rand,  5  Conn.  322;  Patterson  v. 
Patterson,  2  Peniisyl.  200;  Addleman  v. 
Ma.sterson,  1  ib.  454;  see  United  States  v. 
Smith,  4  Dav,  121;  Logan  v.  Steele,  3 
Bibb,  230.  The  practice  of  having  the 
questions  shown  to  the  witness,  and  his 
answers  prepared  beforehand,  and  reduced 
to  writing  and  examined  by  counsel  before 
coming  Ijefore  the  Master  to  testify,  was 
severely  reprehended  in  llickok  v.  Far- 
mers' and  Mechanics'  Bank,  35  Vt.  476, 
490. 

4  Wright  V.  Wilkin,  4  Jur.  N.  S.  804; 
6  W.  R.  643,  v.  C.  K. 

6  See  15  &  16  Vic.  c.  86,  §  32. 


6  Buckley  r.  Cooke,  1  K.  &  J.  29;  see 
form  in  Vol.  Ill 

7  Wright  V.  Wilkin,  ubi  sup. 

8  Ante,  pp.  904,  905,  note. 

8  When  the  examination  takes  place 
before  an  Examiner  of  the  Court,  3/.  must 
be  deposited  with  the  Examiner's  clerk,  by 
the  party  obtaining  the  appnintnient.  This 
is  returned  to  him  if  he  duly  attends;  but, 
if  he  does  not,  and  was  not  prevented  by 
death,  illness,  or  unavoidable  accident,  it 
is  paid  to  the  opposite  party ;  or  if  the  oppo- 
site party  also  fails  to  attend,  or  the  exami- 
nation was  to  have  been  ex  parte,  {ha  Si.  is 
paid  to  the  suitors'  fee  fund*.  Ord.  1  Jan., 
1862.  The  order  does  not  apply  to  a  plain- 
tiff suing  in  farma  pnupeiis.  Skeats  v. 
Hurst,  1  N.  R.  50,  V.  C.  W.  For  form  of 
notice  to  the  witness,  see  Vol.  III. 

in  Ilinde,  236.  See  78th  Equitv  Rule  of 
the  United  States  Courts,  bv  which  it  is 
provided  that  witnesses  wlio  live  within  the 
district,  may,  upon  due  notice  to  the  oppo- 
site p:irty,  be  summoned  to  appear  before 
the  commissioner  appointed  to  take  testi- 
mony, or  before  a  .Master  or  Examiner  ap- 
pointed in  any  cause,  by  subpoena  in  the 
usual  form,  which  may  be  issued  by  the 
Clerk  in  blank,  and  filled  up  by  the  party 
praying  the  same,  or  b}'  the  commissioner. 
Master,  or  Examiner,  requiring  the  attend- 
ance of  the  witnesses  at  the  time  and 
place  specified,  who  shall  be  allowed  for 
attendance  the  same  compensa'ion  as  for 
attendance  in  Court.  The  compulsory  at- 
tendance of  witnesses  before  the  Examiner 
is  provided  for  in  New  Jersey,  b}'  Chan- 
cery Rule  74.  For  form  of  writ,  see  Ord. 
Sched.  E.  No.  3;  and^ws^.  Vol.  III. 


VIVA    VOCE    EVIDENCE. 


907 


Subpcena  to 
contain  three 
names,  where 
necessary. 


with  him  any  MTitten  document  in  his  possession,  then  the  writ  C.XXII.  §  ii 
must  be  a  subpcena  duces  tecum} 

Every  subpoena,  other  than  a  subpcena  duces  tecum,  is  to  contain 
three  names,  where  necessary  or  required ;  '^  and  no  more  than  three 
persons  are  to  be  included  in  one  subpoena  duces  tecum,  but  the 
party  suing  out  the  same  is  at  liberty  to  sue  out  a  subpcena  for 
each  person,  if  it  is  deemed  necessary  or  desirable  to  do  so.^  In  a 
sitbpcetia  of  this  nature,  a  husband  and  his  wife  are  considered  as 
two  distinct  persons,  and  her  Christian  and  surname  must  be  in- 
serted accordingly.* 

The  subpoena  must  be  indorsed  with  the  name  or  finn,  and  place  Indorsement 
of  business  of  the  solicitor  issuing  the  same,  and  of  his  agent,  if 
any,  or  with  the  name  and  place  of  residence  of  the  party  issuing 
the  same,  when  he  acts  in  person ;  and,  in  either  case,  with  the 
address  for  service,  if  any.^ 

On  presenting  a  subpoena  to  be  sealed,  a  prcecijje,  in  the  usual  How  issued. 
form,  must  be  filed  at  the  Record  and  Writ  Clerks'  Office.® 

The  service  of  any  subpoena,  except  a  subpoena  for  costs,  is  to  be 
of  no  validity  if  not  made  within  twelve  weeks  after  the  teste  of 
the  writ ;  "^  and  in  the  interval  between  the  suing  out  and  service  of 
any  subpoena,  the  party  suing  out  the  same  may  correct  any  error 
in  the  names  of  parties  or  witnesses,  and  may  have  the  writ  re- 
sealed,  upon  leaving  a  corrected  praecipe  of  such  subpoena,  marked, 
"Altered  and  resealed,"  and  signed  with  the  name  and  address  of 
the  solicitor  or  solicitors  suing  out  the  same.® 

The  service  of  this  subpoena  must,  in  all  cases,  be  personal ;  ^  and 
is  effected  by  delivering  a  copy  of  the  writ  and  of  the  indorsement 
thereon  to  the  witness,  and  at  the  same  time  producing  the  original 
writ.^"  At  the  time  he  is  served  Avith  the  writ,  the  witness 
should  be  served  with  a  notice  in  writing,  specifying  the  time  Avhen 
he  is  to  attend  the  Examiner  in  pursuance  of  it.^^ 


Time  for 
serving. 


Correction  of 
mistake. 


Mode  of 
service. 


Notice  of  time 
to  attend. 


1  As  to  the  degree  of  particularity  with 
which  tlie  documents  must  be  described, 
Bee  Attornej'-Generiil  v.  Wilson,  9  Sim. 
526.  For  form  of  writ,  see  Ord.  Sched.  E. 
No.  3 ;  and/^'«<,  Vol.  III.  When  served  with 
a  siihpmna  duces  tecum,  the  witness  must 
attend  before  the  Examiner  and  produce 
tlie  instrument  required,  unless  he  has 
some  Icffal  or  rea.aonable  excuse  for  with- 
holdinf;  it.  Upon  trials  in  Courts  of  Law, 
the  Court  and  not  the  witness  is  the  ju'lfje 
of  the  vali'iitv  of  the  "bjection.  Amt-v  v. 
Lonir,  !»  Ka'-t.  47.'5;  Hull  v.  Lovehinil",  10 
Pick.  9.  In  Courts  of  Kcjuity,  the  validity 
of  the  objection  is  considered,  upon  the 
witness  bein^  broufjht  up,  on  an  attach- 
ment for  refusinf;  t')  produce  the  instru- 
m'-nl.  Bradshaw  v.  Hra<lshaw,  .3  Sim. 
28.0;  see  M'l'hcrsonr.  Rutlibone,  7  Wend. 
216;  .Iflckson  v.  Dcniscn,  4  Wend.  •'iOS; 
Newiand  v.   Starr,  11  Jur.  N.    S.  O'jC;  13 


W.  R.  1014,  V.  C.  K.;  Lee  v.  Angus,  L. 
R.  2  Eq.  59,  V.  C.  W.  A  party  cannot, 
by  a  subpcena  duces  tecum,  procure  the 
proiluction  of  documents;  the  proper 
course  is  to  apply  for  an  order  for  that  pur- 
pose.    New! md  v.  Starr,  itbi  supra. 

2  Ord.  XXVIII.  3.  In  New  Jersey,  the 
names  of  any  number  of  witnesses  may  be 
inserted  in  the  same  subpoena.     Rule  74. 

3  Ord   XXVIIL  4. 

*  lliiide.  327;  Braithwnite's  Pr.  264,  n. 

5  Oril.  III.  2,  5,  ante,  pp.  4r)3,  4r)4.  For 
form  of  indorsement,  see  Vol.  III. 

^  Ord.  XXVIIL  1.  For  form  of yw<cc(y;c, 
see  Vol.  III. 

7  Ord   -XXVIIL  9. 

8  Ord.  XXVIIL  5. 

0  Spicer  I'.  Dawson,  22  Bcnv.  282. 
1"  Ord.  XXVIIL  0. 

"  Where  the  e.xaiiiination  is  adjourned, 
the  witness  is  bound  to  attend  the  adjourn- 


90S 


EVIDENCE. 


r.xxii.§ii. 

""^ > ' 

Temlor  of 
expenses. 


Where  wit- 
ness a  mar- 
ried woman. 


Praetice.with 
respect  to  wit- 
nesses mak- 
ing default. 


Xo  witness  is  bound  to  attend,  unless  his  reasonable  expenses 
are  paid  or  tendi>rod  to  him;  nor,  if  he  appears,  is  he  bound  to 
pve  evidence  until  such  i-liaroes  are  actually  paid  hini;-^  and 
the  ndo  is  the  sanu%  wliere  the  witness  is  a  party  to  the  cause.^ 

It'  t]\e  witness  whose  attendance  is  required  is  a  married  woman, 
the  subpa'tta  should  be  served  upon  her  personally,  and  the  tender 
of  the  expenses  made  to  her,  and  not  to  her  husband.^ 

If  the  witness,  upon  being  duly  served  with  the  suI)poena  and 
notice,  no<>locts  or  refuses  to  attend  to  be  exaniiiuMl,  a  certificate  of 
his  non-attendance  must  be  procured  from  the  Examiner,  and  filed 
in  the  Record  and  Writ  Clerks'  Oitice ;  *  and  an  application  made 
to  the  Court,  that  the  witness  may  be  ordered  to  attend  and  be 
sworn  and  examined,  at  such  time  and  place  as  the  Examiner  may 
appoint.^  This  application  is  made  by  motion,  which  may  be  either 
ex  parte,  or  on  notice  to  the  witness."  The  application  must  be 
supported  by  an  affidavit  of  due  service  of  the  subpoena  and  notice,'' 
and  by  production  of  the  Examiner's  certificate  of  non-attendance, 
or  an  office  copy  thereof.^  When  the  order  is  made  ex  parte,  it 
contains  a  clause  that  in  default  of  attendance  the  witness  do  stand 
committed  to  Whitecross  Street  Prison ;  ®  and  should  not  direct 
him  to  pay  the  costs  of  the  application. ^°  A  further  appointment 
must  next  be  obtained  from  the  Examiner,  and  notice  thereof,  and 
a  copy  of  the  order,  duly  served  on  the  w^itness."  If  the  witness 
still  neglect  or  refuse  to  attend,  a  further  certificate  of  non-attend- 
ance must  be  obtained  from  the  Examiner,  and  filed,  as  before 
exjjlained.     An  attachment  may  then,  if  the  order  has  been  made 


ment,  without  being  served  with  a  new 
subpcena ;  but  he  should  be  served  with 
notice  of  the  adjourned  time;  and  see  Law- 
son  V.  Stoddart,  10  Jur.  N.  S.  33;  12  W. 
R.  286,  v.  C.  K.  For  forms  of  notice,  see 
Vol.  III. 

1  The  amount  payable  is  according  to 
the  scale  fixed  by  the  Common  Law  Judg- 
es; see  Directions  to  Masters,  Hilary 
Term,  1853;  17  Jur.  Ft.  2,  41;  Tavlor  on 
Evid.  §  1126,  n. ;  Chittv's  Arch.  1765;  see 
also  Clark  v.  Gill,  1  K."&  J.  19;  Nokes  v. 
Gibbon,  3  Jur.  N.  S.  282,  V.  C.  K.;  Bro- 
cas  V.  Llovd,  23  Beav.  129;  2  Jur.  N.  S. 
555;  Turner  v.  Turner,  5  Jur.  N.  S.  839; 
7  \V.  R.  573,  V.  C.  K. ;  Morgan  &  Davev, 
29 ;  Wiltshire  v.  Marshall,  1  W.  N.  80,  V.  'C. 
W.     For  scale  of  allowances,  see  Vol.  III. 

2  Davey  v.  Uurrant,  24  lioav.  493;  4 
Jur.  N.  S.  230,  a  case  of  cross-examination 
on  affidavit. 

3  2  Phil,  on  Evid.  428;  Taylor  on  Evid. 
§  1129. 

4  Seton,  1234;  but  see  Cast  v.  Peyser, 
3  Sm.  &  G.  369,  where  an  attachment  was 
held  regular,  though  the  certificate  had  not 
been  filed. 

6  Braithwaite'sPr.  144.  See  78th  Equity 


Rule  of  the  United  States  Courts,  by 
which  it  is  provided,  that  if  any  witness 
shall  refuse  to  appear,  or.to  give  evidence, 
it  shall  be  deemed  a  contempt  of  the  Court, 
which  being  certified  to  the  Clerk's  office 
by  the  commissioner,  Master,  or  Examiner, 
an  attachment  may  issue  thereupon  by 
order  of  the  Court  or  of  any  Judge  thereof, 
in  the  same  manner  as  if  the  contempt 
were  for  not  attending,  or  for  refusing  to 
give  testimony  in  the  Court.  For  forms  of 
orders  nisi  and  absolute,  see  Seton,  1233, 
1234. 

s  Wisden  v.  Wisden,  6  Hare,  549,  550. 
For  forms  of  motion  paper  and  notice  of 
motion,  see  Vol.  III. 

T  For  form  of  affidavit,  see  Vol.  III. 

8  Seton,  1234. 

9  Ibid. 

10  Nokes  V.  Gibbon,  3  Jur.  N.  S.  282,  V. 
C  K. ;  Brook  v.  Biddall,  2  Eq.  Rep.  637; 
2  W.  R.  443,  V.  C.  K. 

11  Tiie  copy  of  the  order  must  be  indorsed 
according  to  the  provisions  of  Ord.  XXIII. 
10,  and  served  in  the  same  manner  as  in 
other  cases;  see  post,  Chap.  XXVI.  §  7, 
Enforcing  Decrees  and  Orders.  For  form 
of  indorsement,  see  Vol.  III. 


VIVA   VOCE    EVIDENCE. 


909 


on  notice,  be  issued  against  him  on  production  to  the  Record  and 
Writ  Clerk  of  an  affidavit  ^  of  due  service  of  the  order  and  notice, 
and  the  examiner's  certificate  of  non-attendance,  or  an  office  copy 
thereof.^  If  the  order  has  been  obtained  ex  parte,  an  order  for 
the  committal  of  the  witness  to  Whitecross  Street  Prison  will  be 
made,  on  an  ex  parte  application  by  motion,  supported  by  the 
same  evidence.^  This  order,  when  drawn  up,  passed,  and  entered, 
must  be  delivered  to  the  tipstaff  attending  the  Court :  who  will 
procure  a  warrant  from  the  Lord  Chancellor,  and  will  then  appre- 
hend and  lodge  the  witness  in  Whitecross  Street  Prison,  where  he 
must  remain  in  custody,  not  only  till  he  has  been  examined,  but 
also  until  pajTnent  of  taxed  costs  to  the  party  requiring  his  testi- 
mony, and  UkcAvise  the  tipstaff's  and  keeper's  fees  for  taking  and 
detaining  him.* 

After  the  witness  has  been  examined,  he  will,  upon  his  motion 
or  petition,  and  production  of  the  Examiner's  cei'tificate  of  his 
examination  being  complete,  be  ordered  to  be  discharged  by  the 
Court,  on  papng  or  tendering  the  costs  of  his  contempt ;  or  he 
may  be  discharged  by  the  party  at  whose  instance  he  was 
committed,  if  the  jailer  can  be  prevailed  upon  to  take  such 
discharge.* 

The  method  is,  mutatis  mutandis^  the  same  where  a  witness, 
having  attended  in  obedience  to  the  subpoena^  refuses  to  be  sworn, 
or  to  wait  till  his  examination  can  be  taken.^ 

If  a  witness,  attending  upon  a  subpoena  duces  tecum,  refuse, 
without  sufficient  cause,  to  produce  the  document  mentioned  in 
the  writ,  when  required,  he  may  be  ordered,  upon  special  motion, 
to  attend  again  and  produce  it,  and  to  pay  the  jilaintiff  all  the 
costs  occasioned  by  his  refusal.' 

If  a  witness  is  in  prison,  under  a  common-law  process,  he  may 
be  brought  up  under  a  writ  of  habeas  corpus  ad  testificandum.^ 
Formerly,  tlie  practice  was,  for  the  Examiner  to  attend  the  prison, 
if  within  twenty  miles  of  London ;  ®  and  this  practice  may,  it  is 
jn-esumed,  still  be  followed  :  though  it  would  probably  be  the  more 
expensive  course.  The  writ  of  habeas  corpus  is  never  issued 
without  an  order :  the  order  may  be  obtained  upon  motion  of 
course,  or  on  petition  of   course  at   the  Rolls,  supported    by  an 


C.XXII.§11. 


1  For  form,  see  Vol.  III. 

^  Onl.  XXIX.  3;  Setoii,  1234.  Forfur- 
ther  inl'urniatioii  as  to  uttachmeiitH,  .sue 
ante,  p.  4G3  tl  scj.,  ixmi  pusl,  (jliap.  XXVI. 
§  7,  h.nforcin'j  Dtcrtes  and  Ordtis. 

3  Kor  tbrni  ol  order,  see  Seton,  12.34; 
and  for  form  of  motion  paper,  see  Vol.  111. 

*  Hindi;,  32'J. 

0   /b.  330;  Seton,  1237. 

*<  llennej^al  V.  Kvunce,  12  Ves.  201 ;  soe 
Hulc  96,  amending  Kule  67,  of  tlie  E({uity 


Kules  of  the  United  States  Courts  for  tlio 
mutlmd  of  proceeding  in  sucli  case. 

'  Bradhliaw  v.  Hradsliaw,  1  K.  &  M. 
358;  Hope  V.  Liddell,  2U  lieav.  438;  7  L)e 
G.,  M.  &  G.  331 ;  lie  Cameron's  Coldbrook 
Kailway  Company,  25  lieav.  1. 

»  liuckerid^je  i).  Whalley,  G  W.  R.  180, 
V.  ('.  K.,  where  the  ollicer  was  ordered  to 
attend  with  the  witness  dc  dit  tn  diem. 
l-or  lorni  of  writ,  see  Vol.  HI. 

«  llinde,  331. 


Discharge 
from  custody. 


Course,  where 
witness  re- 
ftises  to  be 
sworn; 

or  to  produce 
a  document. 


Course,  where 
witness  is  a 
prisoner. 


910 


EVIDENCE. 


c.xxii.§n. 


Attendance 
of  Examiner 
in  such  cases. 


Original 
depositions  to 
be  tiled  in 
Record  and 
Writ  Clerks' 
Office; 

whence  copies 
may  be 
obtained. 
Eflect  of 
death  of 
Examiner; 


affidavit   of  (lie  facts,  ami  imist  ho  ]>ro(luco(l  at  the  time  the  writ 
is  soalod.^ 

The  Court,  or  tlie  Judge  in  Chanibcrs,  may  direct  that  the  oral 
examination  and  cross-examination  of  any  witness  (whetlier  a  party 
or  not),  or  the  cross-examination  of  any  j)erson  who  has  been  ex- 
amined c.v  jHtrte  before  an  Examiner,  or  made  an  atlidavit,  sliall  be 
taken  before  an  Examiner  of  the  Court  or  a  Special  Examiner,  in 
the  manner  prescribed  by  the  15  &  16  Vic.  c.  80,'^  in  case  it  shall 
a]>pear  to  the  Judge  that  owing  to  the  age,  infirmity,  or  absence 
out  of  the  jurisiliction  of  such  witness  or  person,"  or  for  any  other 
cause  which  to  the  Judge  shall  appear  sufficient,  it  is  ex])edient 
that  such  direction  should  be  given.  Sucb  direction  may  be  ob- 
tained on  api)lication  to  the  Court  or  the  Judge  in  Chambers,  on 
notice.^  And  in  case  the  examination  or  cross-examination  of  any 
person  in  England  or  Wales  is  so  directed,  the  i)arty  requiring  such 
examination  or  ci'oss-examination  may  apply  to  the  Court  or  the 
Judge  in  Chambers  for  an  order  that  one  of  the  Examiners  of  the 
Coui't  may  attend,  for  the  purpose  of  such  examination  or  cross- 
examination,  at  any  place  or  places  in  England  or  Wales  to  be 
named  in  such  order.^ 

When  the  examination  of  witnesses  before  the  Examiner  has 
been  concluded,  the  original  depositions,  authenticated  by  his 
signature,  are  transmitted  by  him  to  the  Record  and  Writ  Clerks' 
Office,  to  be  there  filed  ;  and  any  party  to  the  suit  may  have  a  copy 
of  the  whole,  or  any  part.® 

If  the  Examiner  dies  before  signing  the  depositions,  they  must 
be  signed  by  his  successor.''     Where  the  Examiner  omits  to  sign 


1  Braithwaite's  Pr.  224.  Fur  form  of 
order,  see  Seton,  1275,  No.  3;  und  for 
forms  of  motion  paper,  petition,  and  afH- 
davit,  see  Vol.  III. 

2  Ante,  p.  904. 

3  For  mode  of  taking  evidence  when  the 
witnes-i  is  out  of  the  jurisdiction,  see  posl, 
p.  848. 

4  Ord.  5  Feb.,  1861,  r.  11;  ante,  p.  904. 
For  form  of  notice  of  motion  and  summons, 
see  Vol.  III. 

5  Ord.  5  Feb  ,  1861,  r.  12.  The  Exam- 
iner is  entitled,  on  production  to  him  of 
the  order,  to  one  guinea  a  d  ij'  for  his  ex- 
penses, and  Is.  6(2.  per  mile  for  travelling 
expenses.  These  sums  are  ti)  be  paid  hiin 
by  the  party  obtaining  the  order,  and, 
subject  to  any  direction  of  the  Court  or 
Judge  to  the  contrary,  will  be  costs  in  tlie 
cause.  Ord.  5  Feb.,  1861,  r.  13.  Former- 
ly the  PLxaminer  did  not  attend  at  any 
place  farther  than  twenty  miles  from  Lon- 
don; Hinde,  331;  and  the  :i|iplicaiion  was 
made  ex  parte ;  Anon.,  4  iSlail.  463;  I'illan 
V.  Thompson,  10  Hare  Ap.  76;  Watkinsr. 
Atchison,  ib.  46. 


6  15  &  16  Vic.  c.  86,  §  34.  All  inter- 
lineations or  alterations  in  the  depositions 
should  be  authenticated  by  tlie  initi:ils  of 
the  Examiner,  and  it  the  depositions  are 
not  ielt  bj'  him  personal!}'  at  the  Kecord 
and  Writ  Clerks'  Office,  they  should  be 
sent  there  under  a  sealed  cover.  Braith- 
waite's Fr.  126.  For  the  fees  payable,  see 
Kegul  to  Ord.,  Scheds.  1,  4.  By  the  Rules 
of  Practice  lor  the  Courts  of  Equity  of  the 
United  States,  when  the  examination  of 
witnesses  before  theExaminer  is  concluded, 
the  original  depositions,  iiuthenticated  by 
the  signature  of  tlie  Examiner,  shall  be 
transmitted  by  him  to  the  Clerk  of  the 
Court,  to  be  there  filed  of  record  in  the 
same  mode  as  prescribed  in  the  thirtieth 
sectiun  of  tiie  Act  of  Congress,  Sejjt.  24, 
1789,  Kule  95,  amending  Rule  67.  The 
dut}'  of  Examiners  to  transmit  depositions 
and  examinations  to  the  Clerk  of  the 
Court  is  tixed  by  Rule  73. 

'  Brysoii  v.  Warwick  and  Birmingham 
Canal  Compunv,  1  \V.  K.  124,  V.  C.  S. ; 
Felthuuse  v.  bailey,  14  W.  K.  827,  M.  K. 


VIVA    VOCE    EVIDEN^CE.  911 

the  depositions,  the  Court  has  power,  if  it  thinks  fit,  to  order  them  C.xxii.§  ii. 

to  he  filed. ^     An  Examiner,  befijre  whom  mtnesses  who  have  made   "" y ' 

aftidavits  are  beinfj  cross-examined,  fior  the  iiurpose  of  ohtaininsjf  ^^  omission 
•  1  •  p    1  to  sign. 

evidence  upon  an  mterlocutory  motion,  may  retui-n  part  or  these   j^  ,^.1,^^  g^^gg 
depositions  at  a  time ;  but  if  the  evidence  is  being  taken  for  tlie  part  of  depo- 
hearing  of  the  cause,  it  seems  that  he  cannot  return  any  until  the   be  filed. 
examination  is  closed.^ 

The  depositions  are  to  be  written  on  foolscap  paper,  bookwise  Depositions: 
or  briefwise,  as  the  Examiner  thinks  fit ;  but  the  Clerks  of  Records  ,^^itteu.  "^ 
and  Writs  may  receive  and  file  dej^ositions  otherv^ise  written,  if, 
in  their  opinion,  the  circumstances  of  the  case  render  such  reception 
and  filing  desirable  or  necessary.^ 

Where  issue  has  been  joined,  if  either  party  desires  the  evidence   order  to  take 
as  to  anv  facts  or  issues  to  be  taken  viva  voce  at  the  hearing,  he  evidence  ?•»•« 

•'  ...  voce  at  the 

may,  at  any  time  within  fourteen  days  after  issue  joined,  apply  to  hearing. 
the  Judge  in  Chambers,  by  summons,*  to  be  served  on  the  opposite 
party,  for  an  order  that  the  evidence  in  chief  as  to  any  facts  or 
issues  (such  focts  and  issues  to  be  distinctly  and  concisely  specified 
in  the  summons)  may  be  taken  vivcl  voce  at  the  hearing  of  the 
cause  ;  and  the  Judge  may  make  an  order  that  the  evidence  in 
chief  as  to  such  facts  and  issues,  or  any  of  them,  be  taken  viva  voce 
at  the  hearing  accordingly ;  and  the  facts  and  issues  as  to  which 
any  such  order  dii'ects  the  evidence  in  chief  to  be  taken  viva  voce 
at  the  hearing,  must  be  distinctly  and  concisely  specified  in  such 
order ;  but  in  case  the  Judge  is  satisfied  that  such  application  is 
unreasonable,  or  made  for  the  purpose  of  delay,  oppression,  or  vex- 
ation, he  may  refuse  to  make  any  such  order ;  and  where  any  such 
order  has  been  made,  the  examination  in  chief,  as  well  as  the  cross- 
examination  and  re-examination,  will  be  taken  before  the  Court  at 
the  hearing,  as  to  the  facts  and  issues  specified  in  such  order ;  and 
no  affidavit  or  evidence  taken  before  an  Examiner  will  be  admis- 
sible at  the  hearing  of  any  such  cause,  in  respect  of  any  fact  or  issue 
included  in  any  such  order,^ 

Where  an  order  for  the  taking  of  the  evidence  as  to  any  fact  or  setting  down 
issue  viva  voce  at  the  hearing  has  been  made,  the  Clerk  of  Records  '"^"'^  i>'':"iiiK. 


and  Writs  makes,  in  the  certificate  that  the  cause  is  ready  for  dence  is  to 

be  taken 
viva  wee. 


hearing,  an  entry  showing  that  such  an  ordei-  has  been  made  ;  and     ^ '"  '"" 


the  Registrar,  in  setting  down  the  cause  for  hearing  in  the  cause- 
Ijuok  of  the  Judge  to  whose  Court  the  same  is  attached,  marks  the 
same,  so  as  to  indicate  that  the  taking  of  evidence  in  cliief  viva 

1  Stephens  v.  Wanklin,    1!)  Beivv.  585.  «  Ord.  C  Mnrcli,  1^00,  r.  1(3. 

Ah  to  wliat  error  in  the  title  will  invalidate  ^  I'or  form  of  summons,  sec  Vol.  III. 

dt-pcisitions,  Bee  Hariord  v.  Ueeves,  l»  Hare  ''  Ord.  6    Feb.,  IbOl,  r.  3;  Kdniunds  v. 

Ap.  «H,  iin<l  the  casH  there  referred  to.  Uroughani,  12  Jur.    N.    S.  03*,  16  W.  K. 

^  Clark  V.  (Jill,  1  K.  &  J.  I'J.     For  for-  84,  V.  C.  tj. 
mal  parta  of  depositions,  see  Vol-  III. 


1>12 


EVIDENCE. 


Fixing  n  day 
fi>r  the  hoar- 
ing. 


(.x\ii.§ii.  voce  at  tlie  hearing  has  been  onlered  ;  and  the  cause  will  not  be 
allowed  to  come  on  to  be  heard  without  a  s])ecial  direction  of  the 
Court  :  which  may  be  obtained  upon  an  application  to  the  Court, 
by  cither  party  upon  notice,  or  to  the  Judge  in  Chambers,  by  sum- 
mons, upon  notice,*  to  fix  a  day  for  the  hearing.^  No  order  is 
drawn  up  on  this  application  ;  but  the  Registrar,  or  the  Chief 
Clerk,  as  the  case  may  be,  will  deliver  a  note  of  the  result  of  the 
application  to  the  a]))ilicant\s  solicitor ;  and  on  production  thereof 
to  the  Order  of  Course  Clerk  in  the  Registrars'  Office,  he  will  mark 
against  the  entry  of  the  cause,  in  the  cause-book,  the  day  fixed  for 
the  hearing. 

Where  any  such  order  has  been  made,  each  party  is  at  liberty 
to  sue  out,  at  the  Record  and  Writ  Clerks'  Office,  subpoenas  ad 
testijicandum  and  subpoenas  duces  tecum,  to  compel  the  attendance, 
at  the  hearing,  of  witnesses  whom  he  may  desire  to  produce,  on 
any  issue  or  matter  of  fact  included  in  such  order.* 

Upon  any  appeal,  rehearing,  or  further  proceedings,  the  Judges' 
notes  of  the  viva  voce  evidence  will,  ^jrma  facie,  be  deemed  to  be 
a  sufficient  note  thereof.* 

Upon  the  hearing  of  any  cause,  the  Court,  if  it  sees  fit,  may  re- 
quire the  production  and  oral  examination  before  itself  of  any 
witness  or  party  in  tlie  cause ;  and  may  direct  the  costs  of  and 
attending  the  production  and  examination  of  such  witness  or  party, 
to  be  paid  by  such  of  the  parties  to  the  suit,  or  in  such  manner,  as 
it  may  thmk  fit.^  This  power  will  only  be  exercised  by  the  Court 
at  the  hearing ;  ®  and  it  seems  doubtful  whether  the  mode  of  ex- 
ercising it  is  by  an  order  directing  the  attendance  of  the  witness,'' 


^lode  of 
compelling 
attendance  of 
witnesses. 


Judge's  notes 
to  be  evidence 
on  appeal. 

Court  may 
require  the 
production 
and  oral  ex- 
amination 
before  itself 
of  any  wit- 
ness, and  de- 
termine as  to 
payment  of 
the  costs. 
In  what 
cases. 


1  For  forms  of  notice  of  motion  and  sum- 
mons, see  Vol.  III. 

2  Ord.  5  Feb.,  1861,  r.  8. 

3  Ord.  5  Feb.,  1861,  r.  9;  see  also  post, 
Chap.  XXVII.  §  2,  Trials  of  Questions  of 
Fact.     For  forms  of  subpoena,  see  Vol.  III. 

*  Ord.  5  Feb.,  1861,  r.  14.  By  consent, 
a  short  hand  writer  is  often  employed  to 
take  down  the  evidence;  and  his  notes  are 
then  used,  instead  of  the  Judge's.  The 
costs  of  such  notes  will  be  allowed  on  taxa- 
tions as  between  party  and  party,  if  taken 
at  the  suggestion  of  the  Judge.  Clark  v. 
Malpus  (Nu.2),31  Beav.  654;  9  Jur.  N.  S. 
612;  and  see  Flockton  v.  Peake,  12  W.  R. 
1023,  V.  C.  \V.,  and  Morgan  &  Davy,  356. 
By  Kule  of  Chancery  in  Massachusetts, 
■when  a  case  is  heard  before  a  single  justice 
of  the  Court  upon  any  interlocutory  ques- 
tion, or  for  a  final  decree,  the  evidence 
shall  not  be  reported  to  the  full  Court,  un- 
less one  of  the  parties,  before  any  evidence 
is  offered,  shall  request  that  the  same  be 
so  reported;  or  the  justice  shall,  for  special 
reasons,  so  direct;  and  the  justice  will 
appoint   a    suitable    dismterested    person 


to  take  the  evidence.  The  expense  of  tak- 
ing the  evidence  shall  be  paid  by  the  party 
requesting  the  taking  of  the  same,  to 
be  allowed  in  the  taxation  of  costs,  if 
costs  are  decreed  to  him.  The  allowance 
to  the  person  appointed  to  take  the  evi- 
dence shall  be  fixed  by  the  Court,  and 
shall  not  exceed  ten  dollars  a  day.  Kule 
35.  See  Granger  v.  Bassett,  98  Mass.  462. 
6  15  &  16  Vic  c.  66,  §  39.  F'or  cases  on 
this  section,  besides  the  cases  mentioned 
below,  see  Oliver  v.  Wright,  1  Sm.  &  G. 
Ap.  16  ;  Wilkinson  v.  Stringer,  9  Hare, 
Ap.  23;  16  Jur.  1033;  Deaville  v.  Dea- 
ville,  9  Hare  Ap.  22;  Chichester  v.  Chi- 
chester, 24  Beav.  589;  Ferguson  v.  Wilson, 
1  W.  N.  324;  15  W.  K.  27,  L.  JJ. 

6  Ravmond  r.  Brown,  4  De  G.  &  J.  350; 
5  Jur.  "N.  S.  1046;  May  v.  Biggenden,  1 
Sm.  &  G.  133;  17  Jur.  252;  and  see  Hope 
V.  Liddell,  20  Beav.  438;  East  Anglian 
Railway  Company  v.  Goodwin,  6  W.  R. 
664,  V.  0   W. ;  but  see  ante,  p.  820. 

7  May  V.  Biggenden,  ubi  sup. ;  Nichols 
V.  Ibbetson,  7  W.  R.  430,  V.  C.  W. 


VIVA    VOCE    EVIDENCE. 


913 


or  by  directing  a  subpoena  to  issue.^  The  j^ower  is  analogous  to 
that  of  a  Judge  at  nisi  prius  to  recall  a  witness  ;^  and  is  confined 
to  witnesses  who  have  been  examined  in  the  cause.^  The  Court  of 
Appeal  may  examine  orally  before  it,  a  witness  who  has  not  been 
orally  examined  before  the  Court  below.* 

All  witnesses  who  have  made  an  aifidavit  or  been  examined  ex 
parte  before  the  Examiner  are,  as  has  been  before  stated,  liable  to 
cross-examination.^  If  the  afRda\it  is  to  be  used  at  the  hearing  of 
a  cause  in  which  issue  has  been  joined,  the  cross-examination  takes 
place  before  the  Court  at  the  hearing ;  ®  in  other  cases,  before  the 
Examiner  :  "^  except  that,  after  decree,  the  cross-examination  on  an 
affidavit  used'  in  Chambers  may  be  before  the  Chief  Clerk.^ 

An  ex  parte  examination  before  an  Examiner  can,  as  we  have 
eeen,^  only  take  place  in  causes  where  issue  has  been  joined ;  and 
the  cross-examination  upon  it  takes  place  at  the  hearing ;  ^°  but  in 
other  cases,  as  we  have  seen,  where  witnesses  are  examined  before 
the  Examiner,  the  cross-examination  follows  immediately  upon  the 
examination  in  chief^^ 

Where  in  any  cause  or  matter  a  party  has  filed  an  affidavit,  or 
where  in  any  cause  in  which  issiie  has  been  joined  a  j^arty  has  ex- 
amined a  witness  ea^  ^:)ar#e  before  the  Examiner,  any  opposite  party, 
desiring  to  cross-examine  the  deponent  or  witness,  is  not  obliged  to 
procure  the  attendance  of  such  deponent  or  witness  for  cross-ex- 
amination, either  before  the  Examiner  or  before  the  Court ;  but 
any  such  opposite  party  may  serve  upon  the  party  by  whom  such 
affidavit  has  been  filed,  or  witness  examined,  or  his  solicitor,  a 
notice  in  writing  ^-  requiring  the  production  of  such  deponent  or 
witness  for  cross-examination  before  the  Examiner,  or  before  the 
Court,  as  the  case  may  be  :  such  notice  to  be  served  within  the 
time  mentioned  below,  or  within  such  time  as,  in  any  case,  the 
Court  or  the  Judge  in  Chambers  may  specially  ap])oint  ^^  (that  is 
to  say)  :  where  such  cross-examination  is  to  be  taken  before  the 


c.xxn.§ii. 


Cross-exami- 
nation of 
affidavit  wit 
nesses,  and 
examinants. 


In  what  cases 
an  ex  parte 
examination 
may  be  had. 


Notice  to  pro- 
duce witness 
I'or  cross- 
examination. 


1  Braithwaite's  Pr.  254.  A  note  or 
memorandum,  sit^ned  by  the  Hegistrar,  is 
evidence  of  the  direction  of  the  Court  on 
wliich  the  Hecord  and  Writ  Clerk  will  act. 

■^  See  ('hitt3''s  Arch.  395;  Taylor  on 
¥a\<1.  §  1331. 

8  East  Anglian  Railway  Company  v. 
Goodwin,  (i  VV.  K.  .504,  V.  0.  VV. 

*  Hope  V.  Threlfall,  23  L.  .J.  Ch.  631 ;  2 
P>].  Hep.  307,  L.  .J.J. ;  I.angford  v.  Miiv,22 
L.  .J.  Ch.  'J7H;  1  \V.  I!.  4h4,  L.  .J.I.  ;'an.| 
see  Ilindson  v.  Wcatlierwill,  5  De  G.,  M. 
&  G.  301,  312;  1«  .Jur.  499;  Martin  v.  I'y- 
croft,  2  I)c  G.,  M.  &  G.  785,  7S*7  ;  16  .lur. 
1125. 

6  15  &  16  Vic.  c.  86,  §§  38,  40;  Ord.  5 
Feb.,  Iti61,  r.  6;  unle,  p.  888. 

6  Ord.  5  Feb.,  1861,  r.  7. 

7  (Jrd.  5  Feb.  1861,  rr.  7,  15. 


8  15  &  16  Vic.  c.  80,  §  30. 

9  Ante,  pp.  824,  901;  Smiih  v.  Baker,  4 
N.  R.  .S21,  V.  C.  W.;  -2  H.  &  M.  498. 

w  Ord.  5  Feb.,  1861,  r.  7. 

U  Ante,  p.  904. 

12  For  form  of  notice,  see  Vol.  III. 

!•'  Where  an  affidavit,  which  li;id  been 
used  ill  Court,  was  sub.sequciitly  used  in 
Cluimbers,  the  Court  speciiilly  aiipoiiiteda 
time  within  which  the  cross-examination 
was  to  take  place.  Spittle  r.  Hughes,  11 
.Jur.  N.  S.  151,  V.  C.  K.;  S.  C.  twin. 
Hughes  V.  Spittal,  13  W.  R.  251.  Where 
the  cross-examination  of  a  witness  was 
proccedeil  witli.  without  giving  notice  of  it 
to  the  (larty  who  had  i^iven  notici;  to  read 
the  affidavit,  it  was  held  void.  I'eiinell 
V.  Davison,  14  W.  II.  J 71,  V.  C.  W. 


58 


lU-l 


EVIDENCE. 


r.\xii.§n. 


Expenses  of 

producing 

witness. 

Old  ]M'aclice 
may  still  be 
resorted  to. 


Further  time 
to  give 
notice :  how 
obtained. 


!Mode  of  com- 
pelling at- 
tendance for 
cross-exam- 
ination. 


Court  at  the  hcarinjj;  of  a  causo  in  wliidi  issue  is  joiner!,  then  at 
any  time  before  the  exjuration  of  fourteen  days  next  after  the 
elosiuLi'  of  the  evidenee  ;  .uid  whore  sueli  cross-examination  is  to  be 
taken  before  tlie  Kxainiuer  in  a  eause  in  whicli  a  notice  of  motion 
for  a  decree  or  (hHTctal  older  lias  been  served,  and  to  be  used  at 
the  lieariuij  of  sut'h  motion,  then  at  any  time  before  the  expiration 
of  fourteen  days  next  after  the  end  of  tlie  time  allowed  for  the 
phuntilf  \o  tile  affidavits  in  reply;  and  in  every  other  case,  within 
fourteen  days  next  after  the  filing  of  the  affidavit  or  examination 
npon  which  such  deponent  or  Avitness  is  to  be  cross-examined  ;  ^ 
and  unless  such  deponent  or  witness  be  ])roduced  accordingly,  such 
affidavit  or  examination  cannot  be  used  as  evidence  :  unless  by  the 
special  leave  of  the  Court.'^  The  party  producing  such  dei)onent 
or  witness  is  entitled  to  demand  the  ex])enses  thereof  in  the  first 
instance  from  the  ]>arty  requiring  such  production  ;  but  such  ex- 
penses will  ultimately  be  borne  as  the  Court  shall  direct.^ 

It  has  been  held,  that  the  foregoing  rule  does  not  prohibit  the 
party  desiring  to  cross-examine  fi-om  taking  the  course  provided 
by  the  Act ;  *  and  that,  therefoi-e,  a  deponent  served  with  a  sub- 
pcena,  under  the  Act,  is  bound  to  submit  himself  for  cross-exami- 
nation on  his  affidaAat  in  opposition  to  a  motion  for  an  injunction, 
notwithstanding  the  lapse  of  fourteen  days  from  the  time  when  it 
was  filed.^ 

An  enlargement  of  the  fourteen  days,  in  any  of  the  above  cases, 
may,  on  sufficient  reason  being  shown,  be  obtained  on  an  applica- 
tion at  Chambers,  by  summons  :  the  summons  must  be  served  on 
the  opposite  parties.® 

Where  the  notice  to  produce  a  witness  is  given,  the  party  to 
whom  it  is  given  is  entitled  to  compel  the  attendance  of  the  de- 
ponent or  witness  for  cross-examination  before  the  Court  at  the 
hearing  of  the  cause,  or  before  the  Examiner,  as  the  case  may  be, 
in  the  same  way  as  he  might  compel  the  attendance  of  a  witness 
to  be  examined,  if  an  order  had  been  made  for  taking  evidence 

1  Where  a  petition  came  on  for  hearing 
before  the  expiration  of  the  fourteen  days, 
and  the  affidavit  was  withdrawn,  it  was 
held  that  the  opposite  party  could  not  re- 
quire the  liearing  to  be  postponed  because 
the  deponent  was  not  produced  for  en  ss- 
examination.  lie  Sykes  Trusts,  2  J.  &  H. 
415. 

2  Ord.  5  Feb.,  1861,  r.  19.  Wiiere  the 
witness  was  unable  from  illness  to  attend 
on  the  day  fixed  for  the  hearing  of  a  cause, 
it  wiis  held  that  the  defendant  might  insist 
on  the  affidavit  being  withdrawn,  or  the 
cause  standing  over.  Nason  v.  Clamp,  12 
W.  R.  97.3,  M.  K.;  but  see  Taiiswell  v. 
Scurrah,  11  L.  T.  N.  S.  761,  M.  K.  Affi- 
davit allowed  to  be  read,  though  no  cross- 


examination.  Simpson  V.  Malherbe,  13 
W.  K.  887,  V.  C.  S. ;  Braithwaite  v-  Kearns, 
34  Beav.  202.  Leave  given  to  use  affida- 
vits, but  order  made  saving  all  just  excep- 
tions.    Ridley  v.  Ridley,  34  Beav.  329. 

8  Ord.  5  Feb.,  1861,  r.  19.  As  to  whether 
the  costs  of  cross-examination  are  costs  in 
the  cause,  see  Hunt  v.  Fulleii,  34  Beav. 
301. 

4  1.5  &  16  Vic.  c.  86,  §  40. 

5  Singer  Sewing  Machine  Manufacturing 
Company  v.  Wilson,  IJ  .lur.  N.  S.  58,  V. 
C.  W.;  2  H.  &  M.  584;  and  see  Cox  v. 
Stephens,  9  Jur.  N.  S.  1144;  11  W.R.  929, 
V.  C.  K. 

6  See  Ord.  XXXVII.  17.  For  forms  of 
summons,  see  Vol.  III. 


VIVA    VOCE    EVIDENCE. 


915 


viva  voce  at  the   hearing;^   and   if  the   notice  is  given  for  the  C.XXII. §11. 

production  of  any  deponent  or  ^^'itness,  for  cross-examination  at   " y ' 

the  hearing  of  a  cause  in  Avhich  issue  is  joined,  either  party  may,   Hearing, 
upon  notice,  apply  to  the  Court,  or  to  the  Judge  in  Chambers,  to  ^^f  ^ross^x-^ 
fix  a  dav  for  the  hearing  of  the  cause.^  amination 

•'  °  •   ■  ^  -\  c  given. 

Any  party  in  any  cause  or  matter,  requirmg  the  attendance  ot  ^^^^^^  ^f  gx- 
anv  witness,  whether  a  party  or  not,  before  the  Court,  or  before  amination  or 
one  of  the  Examiners  of  the  Court,  or  a  Special  Examiner,  lor  the  nation." 
purpose  of  being  examined,  or  of  being  cross-examined,  must  give 
to  the  opposite  party  forty-eight  hours'  notice,  at  least,  of  his  in- 
tention to  examine  or  cross-examine  such  witness :  such  notice  to 
contain  the  name  and  description  of  tlie  witness,  and  the  tune  and 
place  of  the  examination  or  cross-examination,  unless  the  Court  in 
any  case  thinks  fit  to  dispense  with  such  notice.^     So  far,  how- 
ever, as  the  witness  himself  is  concerned,  the  notice  to  be  given 
must  be  according  to  circumstances ;  and  if  he  resides  in  London, 
or  has  his  oflice  there,  twenty-four  hours'  notice  is  ample.'' 

Where  a  witness  is  out  of  the  jurisdiction,  a  commission,  as  we  witnesses 
have  seen,  may  still  be  issued,^  under  an  order :  which  may  be 
obtained  on  special  motion  or  summons,  supported  by  aflidavit ;  ^ 
but  the  ordinary  and    more    convenient  course   is  to  aj^point  a 
Sj)ecial  Examiner." 

Where  a  cqmmission  is  directed  to  issue,  it  is  prepared  by  the  Commission 
applicant's  solicitor ;  and  will  be  sealed  at  the  Record  and  Writ  l°o^^^preparcd 


out  of 
jurisdiction. 


and  issued. 


1  Ord.  5  Feb.,  1861,  r.  20;  anle,  p.  911. 
A  -witness  will  not  be  compelled  to  attend, 
if,  from  ibe  matter  Ijeing  di.-posed  of,  or 
other  cause,  his  cross-examination  would 
be  useless.  Hooper  v.  Campbell,  13  W.  R. 
1003,  L.  C. 

2  Ord.  5  Feb.,  1861,  r.  21;  see  ante,  p. 
911. 

3  Ord.  5  Feb.,  1861,  r.  22;  Braithwaite's 
Manual,  178,  n.  (85).  For  Ibrm  of  notice, 
see  Vol   III. 

*  lit  North  Wheal  Exmouth  Mining 
Company,  31  Biav.  628;  8  Jur.  N.  S   llOb. 

6  15  &  16  Vic.  c  86,  §  28;  see  ante,  p. 
888.  In  reference  to  the  tiikmg  of  di  po-i- 
tions  either  at  home  or  abroad,  m:\ny  ca>e.s 
will  be  found  collected  in  note  (42)  to  2 
I'hil.  Kv.  (Cowen  &  Hills  note-)  pp.  32- 
41  ;  see  alM.  1  (Jreenl.  Kv.  §§  .320-325. 
To  entitle  depositions  to  be  read  in  evi- 
dence, the  rules  of  Court  and  statutes  re- 
spectinf:  them  must  be  strictly  comiilied 
with.  W;illaco  v.  Mea'-e,  4  Veatcs,  .020; 
Hell  r.  Morrison,  1  I'eter.s,  351;  Wino  ski 
Turnp.  Co.  r.  Itidley,  8  Vt.  404;  Hrad- 
streel  v.  Haldwin,  11  .Mass.  229;  The  Ar- 
po,  2  Wheat.  287;  Fvans  v.  Eaton,  7 
Wheat.  3.'..6;  S:iii<lersr.  Ibiwe,  1  Chip.  363; 
Collins  V.  Klhot,  1  llarr.  &  .1.  1  ;  Oen  r. 
Farley,  1  South.  124;  ll>  iidricks  /•.  Cniin, 
2  ib.  567;  Wcir-luim  v.  (;.>ve,  4  Porter,  441 ; 
Wiggins  IV  I'ryor,  3  I'orler,  430;  Shepherd 


V.  Thompson,  4  N.  H.  213;  Welles  J?.  Fish, 
3  Pick.  74;  Burroughs  v.  Booth,  1  Chip. 
106. 

6  Hinde,  304.  By  67th  Equity  Rule  of 
the  Supreme  Court  of  the  United  States, 
after  a  cause  is  at  issue,  commissions  to 
take  testimony  may  be  taken  out  in  vaca- 
tion as  well  as  in  term,  jointly  by  both 
p:irtips,  or  s(;verally  by  either  p:irty,  upon 
interrogatories  filed  by  the  party  taking 
out  the  same,  in  the  Clerk's  otHce,  tea 
days'  notice  thereof  being  given  to  the  ad- 
verse pjirty  to  lile  cro-s-interrogatories  be- 
fore the  issuing  of  the  commission;  and  if 
no  cross-interriigatories  aie  filed  at  the 
expiration  of  the  time,  the  commission 
ni:i\  is'-ue  ex  jxtrte  ;  aiid  since  the  amend- 
ment of  this  rule,  March  17, 1862,  testimony 
may  still  be  taken  on  commi>sion,  in  the 
u-ual  way,  by  written  interrogatories  and 
cross-interrogatories,  on  moii(m  to  the 
Court  in  term  time,  or  to  a  Judge  in  vaca- 
tion, for  si)ecial  reasons  satisfactory  to  the 
Court  or  Judge.  For  forms  <if  notice  of 
motion  and  sunnnons,  see  Vol.  III. 

7  (Jrofts  V.  Middleton,  9  Hare  Ap.  18; 
and  form  of  order  in  that  case,  see  ib.  75; 
Rawlins  v.  Wickham,  4  Jur.  X.  S.  9U0,  V. 
C.  S.;  Edwards  v.  Si)iii;;ht,  2  .1  &  II.  617; 
and  see  Drevon  r.  l>rev<>n,  12  W.  R.  00, 
V.  C.  K. 


<)in 


EVIDENCE. 


Form  of 
I'oinini^siou 


(".XXII.  §11.    dorks''  Office,  on  ]>V(nliu'(ion  of  the  onlor  uinlcr  wliicli  it  is  issued, 
ami  on  -a  j>r(rcij>i'  beiuLT  li'lt  tliere.^ 

The  eomniissioM  is  dirrcted  to  not  K'ss  th;ni  four  eoinniis- 
sioners,- :uul  eonunands  llu'in,  any  t\\ o  or  nioiv  of  tlieni,  to  suni- 
nu)n  tlie  witnesses  and  examine  ihem  upon  interrogatories,  on 
their  oaths,  uj)on  the  Holy  Kvangelists,  or  in  such  other  solemn 
manner  as  is  most  bimling  on  their  eonscienees :  and  to  take 
their  examinations  and  reduce  them  into  writing  in  the  English 
language;  and  to  send  the  same  to  the  Court  of  Chancery  without 
delay,  or  by  the  return  (hiy,  if  any,  named  in  the  order,  closed  up 
under  their  seals,  or  the  seals  of  any  three  or  two  of  them,  to- 
gether Avith  the  interrogatories  and  the  commission,  and  a  certifi- 
cate in  what  maimer  the  oath  is  administered  to  such  witnesses  as 
cannot  speak  or  understand  the  English  language.  The  com- 
missioners are  further  commanded  that,  before  any  one  of  them 
acts  in,  or  is  present  at,  the  swearing  or  examining  of  any  witness, 
they  severally  take  the  oath  first  specified  in  the  schedule  to  the 
commission  ;  ^  and  which  they,  any  three  or  two  of  them,  are 
empowered  to  administer  to  the  rest  or  any  other  of  them,  upon 
the  Holy  Evangelists ;  and  all  clerks  employed  in  taking, 
writing,  transcribing,  or  engrossing  the  depositions  of  the  witnesses 
are,  before  they  act,  required  to  take  the  oath  last  specified  in  the 
schedule :  ^     to    be    administered  by  the    commissioners    or  any 


1  Braithwaite's  Pr.  186.  The  commis- 
sion must  Ije  stamped  with  a  11.  Chancery 
fee  fund  stamp,  liegul.  to  Ord.  Sched.  4. 
For  t'orms  of  commission,  indorsement, 
prcBcipe,  and  oaths  of  tlie  commissioners 
and  their  clerk,  .<ee  Vol.  ill. 

^  By  the  67th  Equity  Kule  of  the  Courts 
of  the  United  States,  tlie  conimis.~ioncr  or 
commissioners  to  talvc  depositions,  shall  in 
all  cases  be  iiiimcd  by  tlie  Court,  or  by  a 
Judj;e  thereof.  But  this  rule  has  been  so 
amended  as  to  allow  the  presiding  Judge  of 
any  Court  exercising  jurisdiction,  either  in 
tenn  time  or  in  vacati'in,  to  vest  in  the  clerk 
of  said  Court,  general  power  to  name  com- 
missioner.- to  take  testimony  in  like  man- 
ner thai  the  Court  or  Judge'  thereof  could 
do  by  the  said  67th  Kule. 

For  cases  touching  the  competency  of 
persons  to  act  as  commissioners,  see  Hea- 
cocki;.  Stoddard,  1  Tyler,  344;  and  Chan- 
dlers. Brainaid,  14  I'ick.  285. 

Under  the  provision  that  no  person 
interested  siiall  draw  up  a  deposition  to  be 
used  in  a  cause,  &c.,  a  son-in-law  of  a 
party  was  held  not  disqualifii-d,  in  Heacock 
V.  Stod'iard,  1  Tyler,  344.  But  a  deposi- 
tion taken  before  the  uncle  oC  a  party  to  a 
suit  was  belli  inadmissible  in  New  Hamp- 
siiire.  Bean  v.  tiuimby,  5  N.  II.  94  ;  see 
Smith  V.  Smith,  2  Greenl.  408;  Coffin  v. 
Jones,  13  Pick.  441;  Wood  v.  Cole,  13 
Pick.  279. 

In  Pennsylvania,  a  commission  was  is- 


sued to  four  commissioners,  jointly,  to 
take  the  ilepositions  of  witnesses  in  Eng- 
land. It  was  executed  and  returned  by 
three  of  the  commissioners  only;  two  of 
whom,  however,  were  of  the  defendant's 
noininatioii,  and  it  was  held  inadmissible 
in  eviilence.  Uiippy  v.  Brown,  4  Dall.  410 ; 
see  JIarsliall  v.  Frisbie,  1  Munf  247.  Hut 
depositions  taken  under  a  joint  and  several 
commission  were  held  admissible,  though 
the  defendant's  commissioners  did  not  at- 
tend. Penncock  v.  Freeman,  1  Watts,  401. 
Where  a  commission  was  directed  to  live 
persons,  or  any  one  of  them,  and  the  ex- 
amination was  taken  in  conjunction  with 
another  person,  not  named  in  tlie  commis- 
sion, the  deposition  was  held  inadmissiLile. 
Willings  V.  Consequa,  1  Peters  C.  C.  301; 
sec  further  as  to  commissions.  Cage  •!>. 
Courts,  1  Harr.  &  M'H.  239.  A  commis- 
sion to  take  deijositiuns,  issued  in  blank  as 
to  the  persons  to  whom  directed,  is  in- 
admissible. VVorsham  v.  Go.ir,  4  Porter, 
441. 

3  For  form  of  oath,  see  Vol.  III. 

■*  It  is  not  necessary,  in  the  United 
States,  that  there  should  be  a  clerk  to  the 
commission.  Beard  v.  Heide,  2  llarr.  &  J. 
442.  The  commissioner  should  himself 
examine  the  witness,  and  not  leave  so 
weighty  an  affair  to  liis  clerk  or  others. 
Prac.  Peg.  124  ;  Ilinde,  348  ;  Cappeau  v. 
Baker,  1  Harr.  &  G.  154. 


VIVA    VOCE    EVIDENCE. 


917 


one  of  them.      The    commissioners    are    lastly    commanded,    if  C.xxii.§ii. 

necessary,  to   swear  an  inteii^reter   or   interpreters,   to  interpret    ' "> ^ 

the  oatlis  and  interrogatories  to  those  witnesses  who  do  not 
understand  English,  into  the  language  of  the  witnesses,  and 
also  to  interpret  the  depositions  out  of  the  language  of  the  wit- 
nesses into  the  English  language,  and  to  keep  such  depositions 
secret.^ 

As  a  commission  for  the  examination  of  witnesses  is  rarely,  if  Practice,  ou  a 
ever,  resorted  to  under  the  present  practice  of  the  Court,  it  has  '^"^°^™'^*"^"- 
not  been  thought  necessary  to  set  out  the  practice  relative  to  the 
execution  of  such  commission.     The  reader  will,  however,  find  such 
practice  fully  detailed  in  the  second  edition  of  this  treatise.- 


1  See  form  of  commissi<in  in  Braith- 
waite's  Pr.  183.  The  recent  alteration«  in 
the  mode  of  taking  evidence  may  render 
some  alteration  necessary  in  the  terms  of 
the  commission  ns  above  stated,  in  future 
cases. 

2  See  pp.  872-908  ;  3d  Am.  ed.  924- 
953.  Tlie  pmctiee  in  Chancer}'  in  flie 
several  States  in  relation  to  the  issuing, 
execution,  and  return  of  ctimmissions,  is 
in  general  regulated  by  statute  or  by  local 
rules,  which  could  not  usefully  be  set  out 
in  these  notes.  j\[any  of  the  cnses  and 
rules  will  be  found  referred  to  in  2  Phil. 
Ev.  (Coweu  &  Hill's  notes)  pp.  32-41,  in 
note  (42)  ;  see  also  1  Greenl.  Kv.  §§  320- 
325;  1  Hoff.  Ch.  Pr.  363.  474;  Iliinter  v. 
Fletcher,  5  Rand.  126;  Edgell  v.  Lowell,  4 
Vt.  412.  Depositions  in  a  foreign  country 
must  be  taken  by  commission.  Stein  v. 
liowman,  13  Peters,  209. 

In  Xew  .Jersey,  wlien  a  cause  is  at  issue, 
a  commission  for  the  examination  of  a 
witness  nut  of  the  State  may  be  apphed 
for,  either  in  vacatinn  or  in  term  time, 
upon  affidavit  stating  that  the  witness  is 
material,  and  that  tlie  partv  apjilying  can- 
not safely  proceed  to  u  hearing  of  the  cause 
witltout  his  testimony.  A  stipulated  notice 
is  to  be  given;  and  the  name  or  names  of 
the  witnesses,  their  residence,  and  the 
name  or  names  and  resiliences  of  such 
person  or  fersons  as  the  ptirty  applying 
intends  to  nominate  as  commissioner  or 
connuissioncrs.  Chancery  Rule  75.  lithe 
party  to  njiom  notice  is  given  of  the  in- 
tended apnlication  for  a  commission  intend 
to  Join  in  the  commission,  and  to  name 
any  other  commi>siouei'  or  commissioners, 
he  shill  '/ivi-  notice  to  the  adversi'  l>arty, 
two  davs  before  the  intended  application, 
of  the  name  or  names,  additions,  and  resi- 
dence of  the  |)erson  or  tier-ous  whom  he 
proposes  for  a  commissioner  or  commis- 
sioners; and  the  Chancellor  shall  ap[)oint 
the  commissioiii'.r  or  commissioners  to 
execute  the  <-ommission;  and  the  partv 
who  shall  first  give  notice  of  his  intention 
to  move  lor  a  coinmissi(m,  shall  sue  out 
and  (oruard  tiie  same;  but  if  he  sh  ill  un- 
reasonably delay  to  do  so,  the  other  parly 
may  forward,  and  cause  it  to  be  executed 


and  returned ;  and  every  order  for  a  com- 
mission shall  fix  a  time  for  its  return,  and 
it  shall  not  be  used  if  not  returned  within 
said  time,  unless  the  time  be  extended  by 
an  order  for  that  purpose.  Kule  76.  See 
Barrett  v.  Pardow,  1  Edw.  Ch.  11.  The 
name  of  every  witness  to  be  examined 
siiall  be  inserted  in  the  commission,  and 
the  interrogatories  to  be  put  to  the  wit- 
nesses annexed  to  the  commission;  and 
copies  of  the  interrogatories  shall  be  fur- 
nished to  the  opposite  party,  that  is  to  say, 
copies  of  all  djrect  interrogatories  shall  be 
furnished  six  daj-s,  and  copies  of  the  cross- 
interrogatories  two  days,  before  the  time 
of  submitting  the  same  to  the  Chancellor 
for  his  approval;  and  notice  of  the  time 
and  place  of  such  submission  shall  be 
served  with  the  interrogatories,  at  which 
time  and  place  the  cross-interrogatories 
shall  also  be  submitted.  Rule  77;  2  Mc- 
Carter,  528,  529. 

In  Massachusetts,  where  the  testimony 
of  witnesses,  residingout  of  the  jurisdiction 
of  the  Court,  is  to  be  taken,  the  plaintiff  is 
entitled  to  liave  a  commission  for  that 
purpose;  and  all  the  Rules  of  Law  as  to 
the  time  and  maimer  of  faking  and  filing 
dcjiOfiitions  at  Law,  will  apply  in  Equity. 
Pingree  v.  Coffin,  12  Cush  600. 

No  notice  of  the  time  and  place  of  exe- 
cuting a  commission  out  of  the  State  is 
necessary  to  be  given  to  the  op|)osite  part}' 
in  Maryland.  Owings  v.  Norwood,  2  Ilarr. 
(is:  .1.  96.  But  lime  shoidd  be  given,  to 
allow  the  ojiposite  P^irl}'  to  exhibit  iiitcp- 
rogatories.  //ji'/.  The  services  of  copies 
of  tile  interrogatories,  which  accompany  a 
commission,  on  the  adverse  jiarty,  a  suf- 
ficient time  before  the  issuing  of  the 
commission,  to  enable  him  to  lile  cross-in- 
terrogatories, is  sufficient  notice  of  the 
issuing  of  the  commission,  and  of  the  time 
and  )ilace  of  executing  it.  Law  r.  Scott, 
5  Harr.  &  .L  438. 

I'lnler  the  New  York  Act  of  17th  of 
.\jiril,  1823,  I'arties  and  their  coiinscd  have 
a  rii;ht  to  he  present  at  the  examination  of 
witnesses  and  to  cross-examine  in  all  cases; 
aii<l  this  as  well  upon  commissions  issued 
to  examine  witnesses  out  oftlu'  State  as  in 
other  ca.scs.     Steer  v.  Steer,   Ilopk.  303. 


918 


EVIDENCE. 


r.xxii.§ii. 

""^ Y ' 

Towor  to 
i-ompol  nt- 
tcndniu'e  of 
witnesses  in 
SiHitliuul  and 
IivImiuI. 
In  any  place 
in  luT 
Majesty's 
dominions. 


Where  wit- 
ness does 
not  spettli 
English. 


Tho  commissioners  have  power  in  Scotland  and  Ireland,  to  call 
in  till'  aid  of  tlie  Cinn-ts  of  those  cou'ntries  to  compel  the  attend- 
ance o\'  any  witni'ss  who  may  neL!;U'ct  to  obey  tlieir  notice  to 
attend  ;  ^  and  it  is  conceix  ed  that  Special  Kxaminers  have  the 
same  ])ower.- 

WiuM-e  the  witness  is  resident  at  any  place  in  her  Majesty's 
dominions,  the  commissioners,  or  Special  Examiner,  may  obtain  an 
order  from  the  Comt  havint;  jurisdiction  in  such  place,  that  the 
examination  may  proceed  in  accordance  with  the  order  of  the 
Court  of  diancery ;  and  may  obtain  from  such  first-mentioned 
Court  such  further  orders  as  may  be  necQSsary,  for  the  purpose  of 
comj^elling  the  attendance  of  the  witness.' 

It  may  be  noticed  in  this  place,  that,  where  the  Examiner  has  to 
examine  witnesses  who  cannot  s])eak  English,  the  usual  and  proper 
course  is  to  take  down  the  de])Ositions  from  an  interpreter  in 
English.*  This,  however,  does  not  appear  to  be  absolutely  neces- 
sary :  since,  in  some  cases,  examinations  taken  down  in  a  foreign 
language  have  been  recognized  by  the  Court.  If  the  depositions 
are  taken  down  in  the  language  of  the  witness,  they  must  after- 

upon  the  interrogatories  annexed,  and  that 
tiiey  caused  the  examination  to  be  reduced 
to  writing;  otherwise  the  depositions  ciin- 
not  be  read.  Bailis  v.  Cochran,  2  John. 
417;  see  Glover  v.  Millings,  nbi  supra; 
Pettibone  v.  Derringer,  4  Wash.  C.  C.  215. 
It  is  sufficient  that  the  commissioners  cer- 
tify, in  their  return,  that  the  oatli  has  been 
duly  taken  by  them.  Wilson  v.  Mitchell, 
3  Harr.  &  J.  91 ;  Glover  v.  Millings,  nbi 
supra. 

As  to  objections  to  the  deposition,  see 
Strike  V.  IM'Donald,  2  Harr.  &  .J.  29,  192. 

1  6  &  7  Vic.  c.  82,  §  5;  Tavlor  on  Evid. 
§§  1183,  1183  A.  For  the  practice  at  Law 
under  this  Act,  see  Chity's  Arch.  341-344. 

2  See  15  &16  Vic.  c."86,  §35. 
8  22  Vic.  c.  20,  §   1;  Taylor  on  Evid. 

§§  1183  B.  Commissioners  may  summon 
a  witness  to  attend  before  them;  and  the 
Court  will  compel  the  witness  to  do  fo;  but 
a  commission  should  be  issued  so  as  to 
have  tlie  examination  at  a  rrasonal)le  dis- 
tance from  the  residence  of  the  witness. 
Maccubl)in  v.  Matthews,  2  Bland,  250;  see 
78th  Equity  Kule  of  the  United  States 
Courts,  by  which  it  is  provided  that  wit- 
nesfies  nmy  be  summoned  to  appear  before 
the  commission  by  subpoena  in  the  usual 
form,  which  may  be  issued  in  blank  by 
the  clerk,  and  tilled  up  by  the  part}-  [ray- 
ing the  same,  or  by  the  ccmmissioner.  See 
Iiule  74  of  the  New  Jersey  Chancer}'  Rules. 
■*  Lord  Hehnore  v.  Anderson,  4  Bro.  C. 
B  90.  In  Gilpins  v.  Consequa,  1  Peters  C. 
C.  85,  it  was  held  no  objection,  that  the 
deposition  was  in  English,  thoiigli  taken 
before  Dutchmen,  who  did  not  appear  to 
have  been  assis'ed  by  a  sworn  interpreter. 
See  Amury  v.  Fellows,  5  Mass.  219. 


For  the  practice  in  New  Hampshire  on 
this  subject,  see  Marston  v.  Brackett,  9  N. 
H.  345,  34G. 

It  is  not  necessary  in  Alabama,  that, 
previous  to  the  issuing  of  a  commission  to 
take  the  tlep'sition  ol'  a  non-resident  wit- 
ness, the  interrogatories  should  be  filed  in 
the  clerk's  office.  The  party  may  exam- 
ine the  witness  before  the  commissioners. 
Wiggins  V.  Pryor,  3  Porter,  430. 

In  Pennsylvania,  a  deposition  taken 
under  a  commission  need  not  be  subscribed 
by  the  witness.  Moulson  v.  Hargnive,  1 
Seig.  &  R.  201.  In  Kentucky,  it  is  no 
objection  t"  a  deposition  that  the  witness 
omitted  to  subscribe  his  name.  Moblev  v. 
H;imit,  1  A.  K  Mnrsh.  590.  So  in  North 
Carolina.  Rutherford  v.  Nelson,  1  Havw. 
105;  Murphy  u..  Work,  1  Hayw.  105. 
So  in  Virifinia.  Barrett  v.  Watson,  1 
Wash.  372.  So  in  Alabama.  Wiggins 
V.  Pryor,  3  Porter,  430.  A  deposition 
taken  under  a  commission  to  take  the  dep- 
osit'on  of  .John  Priestly,  may  be  read  in 
evidence,  though  signed  John  G.  Priestly. 
Brooks  «.  M'Kean,  Cooke,  102;  see  Brey- 
fogle  V  Beckley,  16  Serg.  &  K.  264. 

A  deposition,  to  which  the  witness  is  not 
sworn  till  his  testimony  is  reduced  to 
writing,  is  irreirular.  Armstrong  v.  Bur- 
rows, 6  Wans,  266. 

Tlie  magistrate  who  takes  a  deposition 
is  to  judge  of  the  mental  cayjucit^v  of  the 
witness.     Hough  v.  Lawrence,  5  Vt.  209. 

It  will  be  presumed  that  commissioners 
have  done  their  duty  in  keeping  and  for- 
warding depositions,  unless  the  contrary 
appear.  Glover  t'.  Millings,  3  Stew.  &  P. 
28.  Commissioners  to  take  depositions 
should  certify,  in  their  return,  tliiit  they 
caused  the  witness  to  be  examined  on  oath 


VIVA    VOCE    EVIDENCE. 


919 


■vrards  be  translated  out  of  tliat  lanijuas^e  into  English,  by  a  pei-- 
son  appointed  by  an  order  of  the  Court :  who  must  be  sworn  to 
the  truth  of  his  translation ;  ^  and  must  either  make  such  trans- 
lation before  the  depositions  are  filed,  or  afterwards  attend  at  the 
Record  and.  Writ  Clerks'  Office  for  that  pui-pose :  for  the  Court 
will  not  make  an  order  for  the  record  of  the  deposition  to  be 
delivered  out,  in  order  that  they  may  be  translated.^ 

The  translation,  after  the  truth  thereof  has  been  sworn  to,  is 
annexed  to  the  depositions,  and  an  office  copy  made  of  it :  which 
will  be  peimitted  to  be  read  at  the  hearing,  saving  all  just  excep- 
tions, when,  as  is  usually  the  case,  the  order  so  directs.  The  order 
for  the  appointment  of  a  translator  of  the  depositions,  and  for  leave 
to  use  them  at  the  hearing,  is.  obtained  by  motion  of  course,  or  by 
petition  of  course  at  the  Rolls.^  Where  a  witness  disputed  the 
correctness  of  an  alleged  translation  of  letters  in  a  foreign  language, 
on  which  translation  he  was  being  cross-examined  before  an 
Examine!',  but  as  to  the  correctness  of  which  there  was  no  evidence, 
it  was  held  that  the  witness  should  be  cross-examined  at  the  hear- 
ing in  open  Court,  and  if  any  difficulties  then  arose,  the  Court 
would,  if  necessary,  consider  how  to  dispose  of  them.* 

It  seems  that  an  examination  of  witnesses  abroad  will  not  be 
affected  by  an  abatement  of  the  suit;  and  that  the  depositions 
(provided  neither  the  Examiner  nor  the  witnesses  have  received 
notice  of  the  abatement)  will  be  good  evidence.^  The  same  prin- 
ciple has  been  aitplied  to  an  abatement,  pending  an  examination 
of  witnesses  in  this  country.*^ 

In  all  cases  whatever,  the  re-examination  of  a  witness  is  to 
follow  immediately  upon  his  cross-examination.'^ 

The  evidence,  when  taken,  whether  by  affidavit  or  otherwise, 
and  whether  in  cliief  or  on  cross-examination,  is  open  to  all 
parties ;  *  and  a  defendant  has,  consequently,  a  right  to  cross- 
examine  his  co-defendant's  witnesses.^ 

The  costs  of  a  commission,  or  S^Decial  Examiner,  to  take  evi- 
dence abroad,  will  be  taxed  in  this  country :  but  on  the  scale 
allowed  in  the  country  wliere  the  evidence  was  taken.^"  The 
costs  of  the  solicitor  here,  of  attending  the  examination  abroad, 
will  not  be  allowed." 


C.XXII.§11. 


Translation  of 
depositions. 


Correctness  of 
translation: 
how  disputed. 


Abatement  of 
suit. 


1  1  Xewl.  439.  For  form  of  affidavit, 
see  Vol.  III. 

'^  Fauiiuier  v.  Tynte,  7  Ves.  292;  see 
Gilpins  /;.  Consequa,  1  Peters  C.  C.  85. 

8  For  fonns  of  motion  [)aper  and  petition, 
see  Vol.  HI. 

*  Foster  v.  Glad.stone,  12  W.  li.  525,  V. 
C.  W. 

''  Thompson's  rase,  3  I'.  Wms.  195; 
Winter  V.  bancie,  Totliill,  99. 

"  Curtis  f.  Fuibrook,  8  Hare,  29. 


7  Ord  XIX.  8. 

8  Lord  f.  Colvin,  3  Drew.  222;  Sturgis 
V.  .Morse  (No.  2),  26  Boav.  5G2. 

y  Lord  I'.  Colvin,  udi  sup. ;  Feilden  v. 
Slater,  L.  K.  7  Kcp  f.T.i,  529. 

1"  Wentwortli  r.  Lloyd,  13  \V.  K.  486,  M. 
K. ;  34  Ueav.  455 ;  see  as  to  costs  of  pe- 
rusing the  def)Ositions,  'S.  C.  L.  li.  2  Ia\. 
609;  12  Jur.  X.  S.  581,  M.  R. 

'1  Hammond  u.  Wordsworth,  1  Dick.  381. 


Re-examina- 
tion of  wit- 
nesses: when 
to  take  place. 
Evidence 
open  to  all 
parties:  and 
defendant 
may  cross- 
examine  co- 
defendant's 
witnesses. 

Scale  of  taxa- 
tion as  to 
evidence  tak- 
en abroad. 
Costs  of  so- 
licitor. 


\)20 


EVIDENCE. 


(•.xxn.§i2. 


Section  XII.  —  Of  Interrogatories. 


lioiioral  nilo 
to  cxnmine 
u|M>n  iiittT- 
ro^atorics. 


Nature  of  in- 
terrogatories. 


Original ; 


Cross. 


Must  be 
pertinent  and 
not  leading. 


The  ucMu'nil  niodo  of  i'\:imiiiing  witiu>ssi's  in  Ecuiity  formerly 
was  by  intcnooatories  in  writing-,  exhibited  by  tlio  ]):irty,  ])lain- 
tift'  or  (lotbndant,  or  diret-ted  by  the  Court  to  be  j)roi)Osed  to 
or  asked  of  the  witness  in  a  cause  touching-  tlic  merits  thereof  or 
some  incident  therein.  Tlie  j)ractice  is  noAv,  however,  almost  en- 
tirely abolished ;  but,  as  it  may  still  be  resorted  to  with  respect  to 
any  particular  witness  Avithin  the  jurisdiction  of  the  Court,  and 
with  respect  to  all  witnesses  in  the  cause  out  of  the  jurisdiction  of 
the  Court,^  and  as  it  continues  to  jj  re  vail  in  some  Courts  in  the 
United  States,^  it  is  proper  here  to  consider  and  state  the  rules  by 
which  it  is  governed.  Those  interrogatories  are  questions  in  writ- 
ing, adapted  to  sustain  the  case  made  by  the  party  exhibiting  them, 
and  are  administered  to  the  witnesses  either  by  the  regular  Ex- 
aminers of  the  Court,  or  through  the  medium  of  commissioners 
specially  a]>pointed  for  the  purpose.^  They  are  termed  original^ 
when  exhibited  on  the  part  of  the  person  who  produces  the  wit- 
ness ;  or  cross  interrogatories,  if  filed  on  behalf  of  the  adverse  party, 
to  examine  a  witness  produced  on  the  other  side.^ 

Interrogatories  should  be  short  and  pertinent,  and  necessarily 
they  must  not  be  leading.®  If  they  are  leading,  the  deposition 
taken  thereon  will  be  suppressed ;  and  so  it  will  be  where  the  in- 
terrogatories are  too  particular,  and  point  to  one  side  of  the  ques- 
tion more  than  the  other.® 


1  Ante,  pp.  887,  888. 

2  See  37  Maine,  585,  Chancery  Rule,  14. 
8  Ilinde,  317. 

4  Ihid. 

5  As  to  the  forms  of  interrogatories,  pee 
Gre.sley  Eq.  Ev.*(Am.  ed.)  44-48.  Lead- 
ing questions  are  those  wliich  suggest  to 
the  witness  the  answer  desired.  See  1 
Greeiil.  Ev.  §§  434,  435;  1  Stark.  Ev.  149; 
1  Phil.  Ev.  (Cowen  &  Hill's  ed.  1839) 
268-272,  and  notes  referred  to;  Parkin  v. 
Moore,  7  il.  &  P.  408.  In  some  cases  lead- 
ing questions  are  permitted,  even  in  a 
direct  examination ;  namely,  where  the 
witness  appears  to  be  hostile  to  the  p:(rty 
producing  him  or  in  the  interest  of  tlie 
other  l^arty,  orimwilling  to  give  evidence; 
or  where  an  omission  in  his  testimony  is 
evidently  caused  by  want  of  recollection, 
which  a  suggestion  nv.iy  assist.  Tims 
where  the  witness  .stated,  "that  he  could  not 
recollect  the  names  of  the  component  mem- 
bers of  a  firm,  so  as  to  repeat  them,  with- 
out  suggestion,    but  thought    he    might 

Eossibly   recollect   them    if   suggested   to 
im,  this   was  permitted  to  be  done.      So 
where  the  transaction  involves  numerous 


items  or  dates.  So  where,  from  the  nature 
of  the  case,  the  mind  of  the  witness  cannot 
be  directed  to  the  subject  of  inquiry,  with- 
out a  particular  specification  of  it.  So 
where  a  witness  is  called  to  contradict 
another,  who  has  testified  to  particular 
expressions,  the  contradicting  witness  may 
be  asked  whether  such  expressions  were 
used.  When  and  under  what  circumstan- 
ces a  leading  question  may  be  put,  is  a 
matter  resting  in  the  sound  discretion  of 
the  Court,  and  not  a  matter  which  can  be 
assigned  for  error.  1  Greenl.  Ev.  §  435; 
Clarke  v.  Safiery,  Ry.  &  M.  126,  per  Best 
C.  J. ;  Regina  v.  Chapman,  8  C.  &  P.  558; 
Acerro  v.  Petroni,  1  Stark.  100;  2  Phil. 
Ev.  404,  405;  Moody  v.  Rowell,  17  Pick. 
498 

6  1  Harr.  ed.  Newl.  259.  Objections  to 
interrogatories,  filed  before  the  issuing  of 
a  commission  to  take  a  deposition,  should 
specify  the  ground  of  the  objection,  in  or- 
der that  the  adverse  party  may  have  an 
opportunity  to  vary  the  interrogatories. 
Allen  V.  Habcock,  15  Pick.  56;  see  Crad- 
dock  V.  Craddock,  3  Lift.  77;  Jones  v. 
Lucas,  1  Rand.  268.    A  leading  interroga- 


INTERROGATORIES. 


921 


Leading  questions  are  such  as  instruct  a  witness  how  to  answer 
on  material  points,  such  as,  "  Did  you  not  see  or  do  such  a  thing  ?  "  ^ 
or  which,  embodying  a  material  fact,  admit  of  an  answer  by  a 
simple  negative  or  affirmative,  though  the  question  does  not  sug- 
gest which.^  "  Such  questions,  as  well  as  those  which  fall  more 
directlv  under  the  denomination  of  leading  questions,  ai-G  objec- 
tionable, because  the  evidence  elicited  by  them  is  presented  to  the 
Court,  which  is  to  judge  of  the  effect  of  it,  not  as  it  would  be  if 
it  were  the  unassisted  testimony  of  the  witness,  but  in  the  form, 
and  Avith  the  coloring,  that  are  prompted  by  professional  skill  and 
a  previous  knowledge  of  the  case  which  it  is  desired  to  prove.  If 
such  a  mode  of  proof  were  admitted,  there  would  not  be  the  same 
probability  that  a  witness  would  state  the  whole  transaction,  and 
part  only  might  be  elicited ;  the  chance  too,  of  detecting  discre- 
pancies in  perjured  or  mistaken  testimony  would  be  diminished ; 
nor  are  those  objections  removed  by  the  power  of  cross-examina- 
tion, which,  as  it  often  must  be  conducted  without  previous 
knowledge  of  the  answers  which  the  witnesses  will  give,  is  not  a 
counterbalance  to  the  focility  afforded  of  presenting  a  selected 
portion  of  the  evidence  in  chief."  ^ 

It  is  to  be  observed,  that,  in  order  to  render  an  interrogatory 
objectionable,  on  the  ground  of  its  being  leading,  it  must  relate  to 
some  material  point  in  the  cause.  "  Questions  which  are  intended 
merely  as  introductory,  and  which,  whether  answered  in  the  affirm- 
ative or  negative,  would  not  be  conclusive  on  any  of  the  points  in 
the  cause,  are  not  Hable  to  the  objection  of  leading.  If  it  were 
not  allowed  to  approach  the  points  in  issue  by  such  questions,  the 
examination  of  witnesses  would  run  to  an  immoderate  length. 
For  example,  if  two  defendants  are  charged  as  partners,  a  witness 
may  be  properly  asked  whether  the  one  defendant  has  interfered 
in  the  business  of  the  other."  * 

It  is  difficult,  however,  to  suggest  any  rules,  in  the  abstract,  with 
regard  to  what  will  or  will  not  be  considered  as  a  leading  ques- 
tion, as  much,  in  every  case,  must  depend  upon  the  peculiar 
circumstances  attending  it ;  nevertheless,  the  avoiding  such  ques- 
tions as  may  be  c(jnsidered  leading,  is  a  point  very  important  to  be 
attended  to  in  the  framing  of  interrogatories,  as  the  consequences 
of  them  may  be  a  motion  to  suii])ress  the  evidence  taken  upon 
them,  whereby  the  party  Avill,  in  all  probability,  be  deprived  of  an 
im})ortant  ]iart  of  the   evidence  u})()n  which  he   intends  to   rely. 


C.XXII.§12. 


Leading  in- 
terrogatories, 
whatV 


Must  relate 
to  some  mate- 
rial pomt. 


Rules  with 
regard  to 
leading. 


torv  in  a  deposition,  taken  when  liolh 
parties  are  present,  must  be  objecte'l  t(j  at 
the  time  it  is  put  to  the  witness,  if  at  all. 
Woodman  r.  Cor.lhn.th,  7  (Jre.nl.  I  HI; 
Slieeler  v.  Spear,  -i  Binn.  130;  see  Anon., 
2  Pick.  105. 


1  See  Craddork  r  f  Jraddock,  3  Litt.  77. 

2  1  Ilarr.  ed.  Newl.  2.'j!t:  sec  alsn  Pliil 
&  Amos,  880;  Lincoln  v.  Wrigiit,  4  Ikav. 
106. 

8  Phil.  &  Amos,  887. 
*  Ibid. 


ooo 


EVIDENCE. 


Objection 
tltu's  not 
ajiply  to 
iross-iiitor- 
roj^iitories. 
lint  cross- 
ill  terroijato- 
rics  must  not 
ajiply  to  new 
facts. 


(\XXII.§V2.  Tmlcrd,  it  seems  that,  wlieiv  iiitcrniu-.itoiies  are  ol)viously  leatliiiQf, 
the  Court  will,  without  any  motion  being  made  to  su]i])ress  the 
deposition,  think  it  a  gooil  o-rouiul  to  reject  the  evidenee  taken 
upon  it  at  the  hearino-.i  It  may  be  observed,  however,  that  where 
de[)ositions  are  otlered  in  evidence  in  a  trial  at  Law,  they  may  be 
I'cad  notwithstanding  the  interrogatories  on  which  tliey  were  taken 
are  leading;  —  the  other  side  ought  to  have  applii'd  to  the  Court  in 
which  they  were  taken  to  have  them  suppressed.- 

Cross-iuterrogatories  are  not  sulyect  to  the  same  objections,  on 
accoimt  of  their  leading  the  witness,  as  interrogatories  for  exam- 
ination in  chief;  care  must  be  taken,  however,  in  framing  them, 
not  to  adapt  them  to  tlie  ])roof  of  new  facts  which  it  is  not  likely 
the  party  examining  in  chief  Avill  attempt  to  substantiate  by  his 
evidence ;  for,  although  the  adverse  party  may  cross-examine  as  to 
the  points  upon  which  a  wdtness  has  been  examined  in  chief,  he 
cannot  make  use  of  the  same  process  to  prove  a  different  fact.^  If, 
therefore,  there  should  be  any  parts  of  a  case  which  can  only  be 
proved  by  a  witness  examined  on  behalf  of  the  adverse  party,  the 
proper  course  is,  not  to  endeavor  to  establish  them  by  cross- 
examining  that  witness,  but  to  exhibit  original  interrogatories  for 
the  examination  of  such  witness  in  chief;  otherwise  there  will  be 
a  risk  that  the  evidence  of  the  witness,  as  to  these  points,  wall  be  lost ; 
for,  if  the  reading  of  the  deposition  of  the  witness  to  the  cross- 
interrogatory  be  objected  to  at  the  hearing  as  involving  new  points, 
the  other  party  may  also  prevent  the  reading  of  the  cross-deposi- 
tion by  refusing  to  read  the  examination  in  chief* 

Interrogatories,  like  all  other  proceedings  in  the  Court,  may  be 
the  subject  of  a  reference  for  scandal.^  It  seems,  however,  that 
they  cannot  be  refeired  for  impertinence  alone.^  If  the  witness 
himself  objects  to  the  interrogatory  upon  this  ground,  he  should 
do  so,  by  demurrer,  before  he  answers  it.'' 

Title.  Interrogatories  for  the  examination  of  witnesses  in  a  cause  are 

entitled,  "  Interrogatories  to  be  exhibited  to  witnesses  to  be  pro- 
duced, sworn,  and  examined  in  a  certain  cause  now  depending  and 
at  issue  in  the  High  Court  of  Chancery,  Avherein  A.  B.  is  plaintiff, 
and  C.  D.  is  defendant,  on  the  part  and  behalf  of  the  above- 
named  plaintiff"  (or  defendant,  as  the  case  may  be).  Care  must 
be  taken,  in  framing  the  interrogatories,  that  the  title  of  the  cause  * 


Interrogato- 
ries may  be 
referreii  for 
scandal ; 
but  not  for 
impertinence 
alone. 


1  Delves  v.  Lord  Bagot,  2  Fowl.  Ex. 
Pr.  129. 

2  4  M.  &  S.  497.  For  the  method  of 
suppressing  depositions,  see  post. 

3  Dean  and  Chapter  of  Kly  v.  Stewart, 
2  Atk.  44. 

•4  Smith  V.  Biggs,  5  Sim.  392;  see  1 
Greenl.  Ev.  §  440  et  seq. ;  1  IMiil.  Ev. 
(Cowen  &  Hill's  ed.  1S39)  272  et  seq.  and 


rotes  referred  to;  Gresley  Eq.  Ev.  (Am. 
ed.)  49. 

5  Cox  V.  Worthington,  2  Atk.  236. 

6  White  V.  Fusseli,  19  Ves.  113;  see 
Pvnceiit  V.  Pvnceiit,  3  Atk.  557. 

'7  Jeffris  V.'  Whittuck,  2  Pri.  486;  but 
see  Ashton  v.  Ashton,  1  Vern.  165;  1  Eq. 
Ca.  Ab.  41,  S.  C. 

8  Jones  V.  Smith,  2  Y.  &  C.  42;  Lincoln 


INTEEROGATORIES.  S23 

is  properly  set  out;  as  any  mistake  in  this  particular  may  be  fotal  C.XXII. §12. 

to  the  depositions.     Thus,  where  the  jjlaintifF's  Christian  name  was   ' v ' 

mistaken  in  the  title  of  the  interrogatories,  the  depositions  could 
not  be  read,  nor  would  the  Court  permit  the  title  to  be  amended, 
though  most  of  the  witnesses  had,  since  their  examhiation,  gone 
to  sea.^  The  reason  of  requiring  this  particularity,  in  the  -title,  is 
the  imj^ossibility  there  would  be  of  maintaining  an  indictment  for 
perjury,  if  such  variance  between  the  title  of  the  cause  and  that  of 
the  interrogatories  should  appear. 

It  is  usual  to  prefix  to  all  inteiTogatories,  a  general  inquiry  "  as  j-jr^t  inter- 
to  the  witness's  knowledge  of  the  parties,  and  the  time  when  the  rogatory  as  to 
witness  first  became  acquainted  with  each,"  &c.     Orders  appear  to  the  parties. 
have  formerly  been  promulgated  by  the  Court,  to  restrict  this 
practice,  by  which   it   is  directed    "that  the  articles  which  are 
usually  thrust  into  the  beginning  of  every  schedule  of  interroga- 
tories, as  it  were  of  form  or  course,  touching  the  witness's  knowl- 
edge of  the  parties,  plaintiffs  or  defendants,  of  the  lands,  towns, 
and  places  in  the  pleadings,  and  the  like,  be  not  so  needlessly  used 
as  they  are ; "  -  but,  notwithstanding  this  order,  the  practice  of 
introducing  a  general  inquiry  of  this  nature  is  almost  invariably 
resorted  to.^ 

The  interrogatories  are  broken  into  distinct  inteiTOgatories,  ac-  Di\ision  of 
cording  to  the  subiect-matter  or  the  witnesses  to  be  examined,  but  i^t'^'^og^to- 

.  ''  '  ries. 

each  interrogatory  concludes  Avith  the  following  Avords  :  "  Declare 

the  truth  of  the  several  matters  in  this  interrogatory  inquired  Conclusion. 
after,  according  to  the  best  of  your  knowledge,  remembrance,  and 
belief"     These  words,  however,  are  mere  matter  of  form,  and  are 
not  generally  inserted  in  the  draft,  but  are  supjjlied  in  the  engross- 
ment. 

It  has  frequently  happened,  that,  in  framing  the  interrogatories,  Last interrog- 
some  point  to  which  it  is  important  that  a  witness  should  depose,  '^^o^y^ 
has  been  omitted ;  or  else  it  has  been  found  that  a  w^itness  is  capa- 
ble of  deposing  as  to  some  matter  as  to  which  it  Avas  not,  at  the 
time,  knoAvn   that   any  Avitness   could  speak,   in  consequence  of 
Avhich,  evidence  Avhich  would  be  important  to  the  party  Avould  be 
omitted,  from  the  circumstance  of  no  question  being  addressed  to 
the  Avitness  calculated  to  elicit  it ;  it  therefore  became  the  jiractice   under  the  old 
to  add  to  each  set  of  interrogatories  a  general  interrogatory  calling  praiitae. 
upon  the  Avitness  to  state  Avhether  he  knew  or  could  set  forth  any 
matter  or  tiling  Avhich  might  in  any  Avise  tend  to  tlie  benefit  or 
advantage  of  the  party  for  Avhom  he  a])))eared,  other  than  Avliat  lie 
had  hccii  inten'ogated  to?     And  the  witness,  being  evaniincil  upon 

r.    VVriRlit.    4    Henv.    166;     I'ritcliard    v.  2  HeameH's  Ord.  71. 

loulk.H,  2  r.env.  133.  «  Uresluy  Kq.  Ev.  (Am.  ed.)  48,  49. 

1   White  I'.  1  aylor,  2  Vern.  435. 


924 


EVIDENCE. 


r.xxii.§i2. 


Need  not  be 
used 


unless  a  gen- 
eral interrog- 
ator}' is 
required. 


Filing  of  with 
Examiner. 
Where  there 
is  also  a  corn- 


Selection  of 
interrogato- 


Allowed  be- 
fore Exam- 
iner. 


tills  iiiteiTooratorv,  tluMi  slad'd  -wlmtcN  it  matter  lie  had  to  prove,  to 
Mhic'li  no  special  iiitiMTOiialory  had  been  addressed.  This  form 
has,  however,  ht'i'ii  altered ;  and  now,  by  the  '.Vld  Order,  of  ])e- 
eend)er,  iSa)),  it  has  been  directed,  "that  the  last  interrogatory 
now  connnonly  in  use  be  in  I'utnre  altered,  and  shall  stand  and  be  in 
the  words  or  to  the  eifect  I'ollowiiiLi':  vl)o  you  know  or  can  you  set 
forth  any  other  matter  or  lliinu'  which  may  be  of  beneiit  or  advan- 
tage to  the  parties  at  issue  in  this  cause,  or  either  of  them,  or  that 
may  be  material  to  the  subject  of  this  your  examination,  or  to  the 
matters  in  (piestion  in  this  cause?'  If  yea,  set  forth  the  same 
fully  and  at  large  in  your  answer."^ 

l)ut  although  the  order  directs  where  a  general  interrogatory  of 
the  nature  of  that  formerly  used  as  the  last,  is  made  use  of,  the 
form  shall  be  that  prescribed,  it  does  not  compel  a  party  to  use  it.^ 
So  that  it  is  optional  with  the  draftsman  to  insert  a  general  inter- 
rogatory or  not.  Where,  howevei-,  he  does  insert  one,  it  must  be 
in  the  form  prescribed  by  the  32d  Order,  otherwise  the  deposition 
taken  upon  it  may  be  suj)i)ressed  upon  motion.'^ 

The  interrogatories  being  drawn  and  signed  by  counsel,  must  be 
copied  upon  paj-chment,  and,  if  intended  for  the  examination  of 
witnesses  in  London,  or  within  twenty  miles  of  it,  they  must  be 
left  with  one  of  the  Examiners  of  the  Court,  which  is  termed  filing 
interrogatories ;  *  but  if  any  of  the  witnesses  are  to  be  examined 
by  commission,  the  pLaintiff  should  file,  with  the  Examiner,  such 
interrogatories  only  as  apply  to  witnesses  resident  within  the 
jurisdiction  of  the  Examiner's  office." 

The  })ractice  is,  to  draw  all  the  original  interrogatories  exhibited 
on  behalf  of  one  party  in  one  set  or  schedule,  leaving  the  selection 
of  such  as  are  j^roper  for  the  particular  Avitnesses  to  the  solicitor,^ 
and  where  some  of  the  witnesses  of  a  party  reside  in  London,  and 
some  in  the  country,  it  is  necessary  to  have  one  set  of  interroga- 
tories only  drawn  by  counsel ;  and  the  solicitor,  in  j^i'ocuring  the 
same  to  be  engTossed,  distinguishes  and  copies  those  intended  for 
the  examination  of  town  witnesses,  separate  from  those  intended 
for  country  witnesses. 

If  the  interrogatories  are  to  be  exhibited  in  the  Examiner's 
office,  and  witnesses  are  examined  thereon,  either  party  may,  with- 
out application  to  the  Court  or  order  for  that  purpose,  exhibit  one 
or  more  interrogatories,  or  a  new  set  of  interrogatories  for  the  fur- 


1  This  last  interrogatory  is  the  same  as 
that  adopted  by  the  Supreme  Court  of  the 
United  States  in  Rule  71  of  tlie  Equity 
Rules  of  tiiat  Court.  See  Gresjev  Eq.  Ev. 
(Am.  ed.)  ,49.  It  is  a  fatal  defect  if  this 
general  interrogatory  does  not  appear  to 
be  answered.     Kichardson  v.  Golden,  3 


Wash.  C.  C.  109;  Dodge  v.  Israel,  4  Wash. 
C.  C.  323. 

2  Cover  V.  Lucas,  8  Sim.  200. 

a  Jbid. 

4  ]   r.  &  V.  191. 

6  Ibid. ;  Iliude,  320,  n. 

*>  See  Beames's  Ord.  71. 


INTERROGATORIES . 


925 


tber  examination  of  the  same  or  other  witnesses.^  But  when  a 
commission  is  taken  out,  the  practice  has  been  diflerent.  In  Camp- 
hell  V.  Scougcil^-  it  appears  to  have  been  represented  at  the  bar, 
that  the  practice  in  country  causes  is  to  feed  tlie  commissioners 
from  time  to  time  with  interrogatories  for  the  examination,  as 
they  can  be  presented  either  for  original  or  cross-examination, 
until  the  commissioners  find  that  the  supply  of  witnesses  is  ex- 
hausted; and  although  Lord  Eldon  observes  that  there  was  no 
doubt,  that  of  late,  interrogatories  had  been  sent  down  into  the 
country,  fi'om  time  to  time,  as  often  as  prudence  required,  and 
were  returned,  and  that  the  Court  had  acted  upon  examination  so 
taken  and  returned,  yet  his  Lordship  said  .the  practice  was  not  so 
formerly;  and  that  he  had  frequently,  when  at  the  bar,  drawn  in- 
terrogatories guessing  at  what  any  witness  to  be  examined  to  any 
fact  in  issue,  could  possibly  represent,  and  that  the  interrogatories, 
both  for  the  cross-examination  and  for  the  original  examination  of 
the  defendants'  witnesses,  were  prepared  before  the  commission 
was  ojiened  :  and,  notwithstanding  the  representation  made  at  the 
bar,  the  practice  of  the  Court  appears  to  have  been  in  conformity 
Avith  his  Lordship's  recollection.  Indeed  it  obviously  must  have 
been  so,  fi-om  the  nature  of  the  oath  which  was  administered  to 
the  commissioners,  which  was  limited  to  the  examination  of  wit- 
nesses upon  the  interrogatories  — "  Now  {%.  e.,  at  the  time  of  ad- 
admiuistering  the  oath),  "  produced  and  left  with  you."  ^  This 
word  "  Now "  has  been  left  out  of  the  oath  hereafter  to  be  ad- 
ministered to  the  commissioners,  iinder  the  104th  Order  of  May, 
1845;  whether,  therefore,  hei*eafter  new  interrogatories  may  be 
exhibited  before  a  commission,  remains  to  be  seen. 

LTnder  the  former  practice,  where  additional  interrogatories  were 
required  to  be  exhibited  after  the  commission  had  been  o^jened, 
an  order  for  that  purpose  must  have  been  obtained.* 

It  is  to  be  observed,  however,  that  notwithstanding  a  commission 
has  been  issued,  and  the  j^arties  have  joined  in  it,  and  witnesses 
lia\e  been  examined,  new  interrogatories  may  be  exhibited  into 
Court  (/.  e.  before  the  Examiner),  for  the  examination  of  new  wit- 
nesses at  any  time  before  ])ublication;''  but  if  a  witness  has  been 
examined  by  commissioners  in  the  country,  he  cannot  be  examined 
again  before  the  Examiner,  without  a  special  order.** 

Interi'ogatories  for  tlie  cross-examination  of  witnesses  differ 
very  lillle  in  Ibrm  from  original  interrogatories;  they  may  be  filed 


C.XXII.§12. 


"Whether  new 
interrogato- 
ries may  be 
exhibited  be- 
fore a  com- 
missioner. 


Whether  an 
order  must 
be  obtained. 

New  inter- 
rogatories 
may  be  ex- 
hibited before 
Examiner 
notwith- 
standing 
commission. 


Cross-inter- 
rogatories. 


1  Smifli  Cb    I'r.  od.  1838,  354. 

2  1«  Ves.  662. 

*  Carter  v.  Diaper,  2  Sim.  53;  King  of 
Hiinover  v.  VVIieiitley,  4  lieav.  78. 


'■  Lewis  V.  Owen,  1  Dick.  G;  iicaiiies's 
Onl.  ;••;,  S.  C;  Ilinde,  333. 
«  Ilinde,  333. 


920 


EVIDENCE. 


(\XXlI.§i;i.    with  (lio  Examiner  who  oxaininos  in  chicf.^     Formerly  this  could 
not  be  done  without  a  S2)eei:il  order. - 


Section  XTTI.  —  Of  the  Examimxtion  of  Witnesses  by  the  Ex- 
aminer on  Interro(jatories.^ 


Examination 
bv  I'.xaiuiiier, 


Of  fixing 
tinie. 


Ihe 


Where  -wit- 
ness is  in 
prison, 


or  sick. 


Witnesses  in  Chancery  are  examined  eithei-  l»y  an  Examiner  or 
by  commissioners  specially  ap})ointed  for  that  })ur])ose  by  com- 
mission under  the  Great  Seal.* 

The  lirst  thing  to  be  done  by  the  party  intending  to  examine 
witnesses  before  the  Examiner,  is  to  file  his  interrogatories,  or 
such  of  them  as  ai)ply  to  the  witnesses  to  be  examined,  in  the 
manner  before  pointed  out.^  lie  must  then  procure  the  attend- 
ance of  his  witnesses  at  the  Examinei"'s  office ;  for  which  purpose 
he  ought  to  fix  a  day  with  the  Examiner,  when  he  will  be  able  to 
examine  them,  and  to  give  notice  of  such  day  to  the  witnesses.® 

If  the  witness  be  in  prison,  his  situation  must  be  represented  to 
the  ExaiTiiner,  who  will  fix  a  day  for  attending  at  the  prison  to 
swear  and  examine  the  witness.  The  Examiner  (with  whom  the 
interrogatories  for  the  examination  of  such  witness  should  have 
been  j^reviously  left)  will  then  proceed  to  the  prison,  taking  the 
interrogatories  with  him,  and,  the  witness  being  sworn  thereto  in 
the  common  form,  the  examination  is  taken  in  the  usual  manner, 
and  the  dejiositions  and  interrogatories  are  returned  by  the  Ex- 
aminer to  the  oflice,  to  be  kept,  as  in  ordinary  cases,  until  publica- 
tion i^ass  in  the  cause.'' 

In  like  manner,  if  a  witness  be  inca])able,  by  reason  of  sickness, 
of  attending  at  the  Examiner's  ofiice  to  be  examined,  and  it  is  not 
thought  necessary  to  sue  out  a  commission  to  take  his  examina- 
tion, the  Examiner  may  go  to  the  place  of  the  witness's  residence 


1  Ord.  26,  1833. 

2  Turner  v.  Burleigh,  17  Ves.  354. 

8  By  rule  of  Chancery  in  New  Jersey, 
when  any  cause  shall  be  at  issue,  &c.,  it 
shall  be  the  duty  of  the  parties  to  proceed 
and  examine  their  witnesses  within  a 
reasonable  time  thereafter;  and  on  a  no- 
tice lor  the  examination  of  witnesses  given 
by  eitlier  party,  both  parties  may  produce 
and  examine  iheir  witnesses;  but  tlie 
P^xaminer,  if  required  so  to  do,  shall  first 
examine  the  witne-ses  of  the  party  who 
first  gave  notice.     liule  60. 

*  In  the  United  States  Courts  the  com- 
missioner or  comn)i--sioiiers  sliall  be  named 
by  the  Court  or  a  .Judge  thereof  in  all 
cases.    Equity  Kule  b7. 

6  Supra,  p.  914. 


6  Notice  that  witnesses  will  be  examined 
at  A  particular  tavern  in  a  city  named  in 
the  notice,  without  naming  the  Cliristinn 
name  ot  the  tavern-keeper,  is  gond,  unless 
it  is  slioAn  that  there  were  in  the  same 
city  two  tavern-keepers  of  the  same  sur- 
name. Overslreet  v.  Thompson,  1  Litt. 
120.  An  irregularity  in  the  service  of 
notice  of  examination  will  be  considered 
as  waived  by  a  neglect  to  complain  of  it 
in  due  seastin.  Skinner  d.  Dayton,  5  .John. 
Ch.  191. 

7  Before  the  Stat.  3  &  4  Will.  IV.  c.  94, 
it  was  necessary  tlnit  the  Master  sboiild  go 
to  the  ])ris(in,  as  well  as  the  Examiner,  for 
the  purpose  of  administering  the  oath, 
llinde,  330. 


EXAMINATION   BY    EXAMINER    ON    INTERROGATORIES.  927 

and  administer  the  oath  and  take  the  deposition  of  the  witness.^   C.XXII.  §13. 

In  either  of  the  above  cases  notice  must  be  given  in  the  usual   ■■ y ^ 

manner  to  the  other  party  of  the  time  and  place  of  examination. 

The  form  of  the  oath  administered  to  witnesses  in  Chancery  is  as 
follows :  — 

"  You  shall  true  answer  make  to  all  such  questions  as  shall  be  Yorm  of  the 
asked  of  you  on  these  interrogatories,  without  favor  or  affection  to  o**l^- 
either  party,  and  therein  you  shall  speak  the  truth,  the  whole 
truth,  and  nothing  but  the  truth :  So  help  you  God." 

After  the  witness  has  been  sworn  to  the  interrogatories,  a  jwat  proceedinfj 
stating  the  producing  and  swearing  of  the  witness  to  the  interrog-  after  witness 
atories,  with  his  name,  and  the  day  and  year  when  sworn,  is  in-  sworn, 
scribed  upon  the  interrogatories,  and  signed  by  the  Examiner.^ 
If,  after  the  witness  has  been  sworn,  any  alteration  is  made  in  the 
title,  or  any  part  of  the  interrogatories,  they  must  be  re-SAVorn, 
but  not  re-produced.^ 

.  When  new  interrogatories  are  added,  the  witness  must  be  sworn 
to  them  in  the  same  form. 

Before  the  witnesses  are  examined,  the  Examiner  ought  to  be,  instructions 
and  generally  is,  furnished  with  instructions  as  to  which  of  the  for  Examiner, 
interrogatories  each  witness  is  to  be  examined  ujaon.     The  solici- 
tor also  supplies  a  minute  of  the  evidence  he  expects  his  witness 
to  give ;  but  of  such  minute  no  use  can  be  made  in  the  examina- 
tion.* 

After  the  examination  is  begun,  the  Examiner  ought  not  to  con- 
fer with  either  party  toucliing  the  examination,  or  take  new 
instructions  respecting  the  same.^ 

With  respect  to  the  method  of  examining  a  witness,*'  Lord  Clar- 
endon's orders,  which  have  been  before  referred  to,  direct,  that 
"  the  Examiner  is  to  examine  the  deponent  to  the  interrogatories  Method  of  ex- 
directed  seriatim,  and  not  to  permit  him  to  read  over,  or  hear  read,  amination. 
any  otlier  interrogatories,  until  that  in  hand  be  fully  tiuished; 
much  less  is  he  to  suffer  the  deponent  to  have  the  interrogatories, 
and  pen  his  own  depositions,  or  depart,  after  he  hath  heard  an  in- 
terrogatory read  over,  until  he  hath  perfected  his  examination 
thereto.  And  if  any  witness  shall  refuse  so  to  conform  himseltj 
tlie  Examiner  is  thereof  to  give  notice  to  the  clerk  of  the  other 

^  An  order  for  this  purpose  seems  to  be  examinations    may    now    be    conducted 

necessHry.     See  Anon.,  4  Mad.  403.     Hi'd  orally,  and  llie  testimony  taken  down  in 

(jtUBie,  if  the  Examiner  is  willing  to  go  writing  by  tlie  Exiimiiier,  the  examina- 

wiihout  an  order.  tion  and  cross-examination  to  be  conducted 

2  Hindi'.  3'22.  in  the  mode  pnr.Hued    in    Common    l>aw 

3  See  .Mr.  I'lumer's  rftiirn  of  the  du'ies  Courts.  Anie,  p.  'Mb,  nnte;  United  States 
of  Kxnniiners  to  the  Chancery  Commit-  Courts  E<|uity  Mule,  07,  and  the  amend- 
sion,  Chiin.  Kep.  Appx.  15.  No.' 22,  p  f,42.  ment  tin  re"i;"M:irtli  17,  lSG-2,  24  l.aw  llep. 

*  Mr.  I'lumer's  statc-nient,  «/>i  xiipra.  380,  3bJ.     In  .Massachusetts,  see  I'ingree 

6  Hinde,  32-0;  4  In-t.  •27H.  v.  Coffin,  12  Cusli.  000. 

^  lu   the    United  Slates   Courts,   these 


!)28 


EVIDENCE. 


r.XXll.§i:j. 


Examiner 
may  explain 
interroga- 
tory. 


Depositions, 
how  to  be 
taken  down. 


Use  of  notes 
bv  witness. 


Kule  the  same 
as  at  Law. 


sulo,  and  to  proceed  no  fiirtlu'i"  in  his  oxnniination  withont  the 
consent  ot"  the  said  ck>rk  or  order  made  in  C\iiirt  tt)  warrant  his  so 
doing-."  1  The  same  Orders  afterwarils  direct,  that  "  the  Examin- 
ers, in  "whom  tlie  Conrt  reposeth  great  conlidcnce,  are  themselves 
in  pei'son  to  he  diligent  in  the  exaniin.atiou  ol"  witnesses,  and  not 
to  intrust  tlie  same  to  mean  and  inferior  cKtIcs,  and  are  to  take 
care  and  hold  the  witness  to  the  point  interrogated,  and  not  to  run 
into  extravagances  and  not  pertinent  to  the  question."  '^  "  More- 
over, they  are  not  to  use  any  idle  repetitions  or  needless  circum- 
stances, nor  to  set  down  any  answer  to  a  question  to  which  the 
examinant  cannot  depose  other  than  thus,  'to  sucli  an  interrogatory 
this  examinant  cannot  de])ose;'  and  in  case  such  imi»ertinences  be 
observed  by  the  Court,  tlie  Examiner  is  to  recompense  the  charge 
thereof  to  the  i^arty  grieved,  as  the  Court  shall  direct,^ 

The  Examiner  is  not  strictly  bound  to  the  letter  of  the  interrog- 
atories, but  ought  to  explain  every  matter  or  thing  which  ariseth 
necessarily  thereupon ;  ■*  and  forasmuch  as  the  witness,  by  his  oath, 
which  is  so  sacred,  calleth  Almighty  God  (who  is  truth  itself,  and 
cannot  be  deceived,  and  hath  knowledge  of  the  secrets  of  the 
heart)  to  witness  that  which  he  shall  depose,  it  is  the  duty  of  the 
Examiner  gravely,  temperately,  and  leisurely  to  take  the  deposi- 
tions of  witnesses,  without  any  menace,  disturbance,  or  interrup- 
tion of  them  in  hinderance  of  the  truth.^ 

The  Examiner,  having  read  an  interrogatory  to  the  witness, 
takes  down  the  answer  in  writing  upon  paper,  concluding  the  an- 
swer to  each  interrogatory  before  the  following  one  is  put. 

A  witness  may  be  permitted  to  use  such  short  notes  as  he  brings 
with  him  to  refresh  his  memory,  but  not  the  substance  of  his  depo- 
sitions ;  nor  may  he  transcribe  such  notes  verbatim.^  The  rule  at 
Law  is,  in  this  resjjcct,  the  same ;  and  in  an  anonymous  case  in  Mr. 
Ambler's  reports,'^  Lord  Hardwicke  said,  "  that,  at  Law,  a  witness 
is  allowed  to  refresh  his  memory  by  notes  as  to  dates  and  names, 
because  there  is  nothing  to  guide  the  memory  as  to  them ;  but  he 
never  knew  a  Court  of  Law  admit  the  whole  evidence  to  be  given 
li-om  writing.  There  is  no  certain  rule  how  far  evidence  may 
be  given  from  notes ;  some  Judges  had  thought,  and  he'  was  (he 
said)  inclined  the  same  way,  that  the  witness  might  speak  from 
notes  wliich  Avere  taken  at  the  time  of  the  transaction  in  question, 
but  not  if  they  were  written  afterwards."  * 


1  Beames's  Ord.  187;  see  Hickok  v. 
Farmers'  and  Mechanics'  Bank,  35  Vt. 
47(5. 

2  lb.  188. 
8  Jh.  190. 

"*  Hiiide,  32-5;  4  Inst.  278;  see  also  Pea- 
cock's Case,  9  Uep.  70. 


5  Hinde,  325 ;  4  Inst.  278. 

6  (Jurs.  Cane.  260;  an<e,  p.  906,  note. 
■^  Anon.  Anib.  252. 

8  See  I'liil.  &  Amos,  891;  see  Hickok  v. 
Farmers'  and  Mechanics'  Bank,  35  Vt. 
476;  p.  ante,  906,  note. 


EXAMINATION    BY    EXAMINER    ON    INTERROGATORIES. 


929 


In  that  case,  a  motion  was  madt  to  suj^press  a  deposition  taken 
before  commissioners,  because  the  attorney  for  the  phiintilf  had 
written  down  the  whole  in  the  exact  form  of  the  deposition  before 
it  was  taken  ;.  and,  though  it  appeared  that  the  witness  had  told 
him  the  facts  and  circumstances  mentioned  in  it,  yet  his  Lordship 
said  it  would  be  of  dangerous  tendency  to  permit  it  to  be  read ; 
for  in  depositions,  it  is  natural  to  state  the  evidence  as  given  by 
the  witnesses,  but  that,  in  the  case  in  question,  the  attorney  had 
methodized  and  worded  it ;  and  that  it  was,  therefore,  no  more 
than  an  affidavit.^ 

In  order  to  secure  the  statement  of  the  evidence  upon  the  dep- 
ositions in  the  very  words  of  the  witness,  the  stat.  3  &  4  Will.  IV. 
c.  94,  §  27,  has  enacted,  that  all  depositions  of  witnesses  examined 
in  the  High  Court  of  Chancery  are  to  be  taken  in  the  first  person ; 
formerly  the  practice  was  to  take  them  in  the  third  person.- 

If  a  witness  to  be  examined  does  not  understand  Englisli,  an 
order  should  be  obtained  to  appoint  an  interpreter  to  interpret  the 
interrogatories  and  depositions.^  The  person  so  appointed  must 
be  sworn  to  inteqiret  truly,  and  the  depositions  of  the  witnesses 
are  to  be  taken  down  by  the  Examiner,  from  the  interpretation,  in 
English.*  It  was  Lord  Nottini>;ham  who  established  the  rule  that 
"  no  alien  should  be  examined  as  a  witness  without  a  motion  first 
made  in  Court  to  swear  an  interpreter,  that  the  other  side  might 
know  him,  and  take  exceptions  to  the  interpreter,"  ^ 

WJjen  all  the  interrogatoiies,  upon  Avhich  the  Examiner  lias 
been  instructed  to  examine  the  witness,  have  been  gone  through, 
the  Examiner  carefully  reads  over  the  whole  deposition  to  the  wit- 
ness, who,  if  he  be  satisfied  with  it,  signs  each  sheet  of  it  in  the 
presence  of  the  Examiner. 

If  the  witness  Avishes  to  vary  his  testimony,  or  to  make  any  al- 
teration in  or  addition  to  it,  he  must  do  so  before  signing  the 
deposition ;  for,  by  an  order  of  the  Court,  when  witnesses  are 
examined  in  Court,  they  are  to  j^erfect  and  subscribe  their  deposi- 
tions to  such  interrogatories  as  they  have  answered,  before  they 
depart  Hyovn.  the  Examiner  or  his  deputy ;  and  they  are  not  to  be 
pennitted  to  make  any  alteration  thereof  at  any  time  thereafter 


c.xxn.§i3. 


Depositions 
to  be  taken  in 
tlie  first  per- 
son. 


Where  the 
witness  does 
not  undei> 
stand 
English. 


1  Phil.  &  Amos,  891;  see  also  Shaw  v. 
Lindsev,  15  Ves  380;  I'erry  v.  Fisslier, 
cited  ih.  382;  Phil.  &  Amos,  8i>t);  St. 
Catlierine  Dock  Co.  v.  Mant/.i^u,  1  Col.  "J4; 
see  hickok  v.  Karniers'  and  Mecliaiiici' 
Bank,  3.5    Vt.  470;   milt,  p.  006,  note. 

■^  Uv  Chancery  iJiiie  hO,  in  New  Jersey, 
the  Kxaniiiier  shall  niiinljer  eaeli  page  ol' 
the  exaininalion  taken  by  him,  and  also 
every  tenth  line  of  the  >-anie,  leaving  sulli- 
cient  margin  lor  the  purpose;  and  where 
more  than  one  witness  is  exainirietl,  he 
shall  annex  a  .separate  leal  to  the  e.\ainiiia- 

VOL.  I. 


tion,  containing  a  list  of  the  names  of  the 
witiiesse-i,  and  a  ret'erence  to  the  pages  on 
which  their  examination  respectively  com- 
mences; and  no  custs  are  to  be  taxed  for 
any  examination  where  this  rule  is  not 
strictly  com|)lied  with. 

«  hee  Gilpins  v.  (Jonscqun,  1  Peters  C. 
C.  8.j;  Ainory  r.  IVIlows,  5  Mass.  219. 

*  Smith  V.  Kirkjiatnck,  1  Dick,  lo.'j;  see 
also  Lord  IJelmore  v.  Anderson,  2  Cox, 
2(58,  and  4  Bro.  C  C.  90,  S.  C 

6  2  Swanst.  261,  n. 


Depositions 
to  be  read 
over  to  wit^ 
ness. 


when  witness 
may  alter  or 
add  to  depo- 
sition ; 


not  after 
signature ; 


59 


i)30 


EVIDEXCE. 


O.XXll.§13. 


unless  some 
i-in-imistaiioe 
ol  tiino,  iS;c. 

Siijnatiirv 
of  wi;tu>ss 
noi'cssarv. 

Death  of 
witiie.*-! 
bolore  cross- 
oxMiiiiiialion 
will  not  aflect 
depositions. 


On>ss-exanii- 
nation. 


Object  of 
notice  of 
name  and 
description 
of  witness. 


without  loavo  of  the  Court,  nnl(^ss  it  be  in  some  circumstance  of 
tiini'  or  till'  like,  or  for  niMkiiit;  perfect  ol"  a  sum  upon  view  of  any 
ileed,  l)ook,  or  w  ritiuu',  wiruli  tlie  witness  shall  show  to  the  Exam- 
iner before  he  permits  such  alteration.^ 

It  is  to  be  noticed,  that  the  signature  of  a  witness  to  his  exami- 
nation is  absolutely  necessary,  and  that  if  a  witness  should  die  after 
his  examination  is  completed,  but  before  it  is  signed,  the  dep- 
osition cannot  be  made  use  of-  Tt  seems,  however,  that  if  a- 
witness,  having  signed  his  examination  in  chief,  dies  before  he  is 
cross-examined,  his  depositions  may  be  read  as  evidence;  the 
Court,  however,  bearing  in  mind  the  fact  that  the  cross-examina- 
tion has- not  taken  ett'ect,  especially  if  it  should  appear  that  the 
party  had  lost  any  material  fact  which  was  Avithin  the  knowledge 
of  the  witness,  and  coitld  not  have  been  proved  by  other  means.^ 

If  a  witness  refuses  to  be  cross-examined,  his  deposition  cannot 
be  read.* 

By  the  •iOth  of  the  Orders  of  1828,^  the  Examiner  who  takes  the 
examination  in  chief  is  at  liberty  to  take  his  cross-examination 
also;  before  that  time,  the  cross-examination  of  a  witness  was 
taken  before  a  ilifFerent  Examiner  from  the  one  who  examined  him 
in  chief;  ^  a  jju-actice  which  appears  to  have  been  sanctioned  by 
the  stat.  50  Geo.  III.  c.  8,  by  which  it  was  directed,  that  the  wit- 
nesses on  diiiereut  sides  of  the  same  cause,  should  (if  the  same 
was  practicable)  be  examined  by  different  Examiners.'' 

We  have  seen  before,  that,  previously  to  the  examination  of  a 
witness,  a  notice  in  writing  of  the  name  antl  description  of  the 


1  Beames's  Ord.  74.  A  witness  may 
explain  or  correct  a  mistake  made  by  iiim 
at  any  time  before  his  examination  is 
finally  closed;  but  no  part  of  his  tesli- 
moi.y,  previously  reduced  to  writing,  can 
be  erased  or  iiltered.  1  Iloff.  Ch.  Pr.  463. 
Under  the  foni.er  practice  in  Chancery  in 
I^ew  York,  amendments  of  testimony  were 
allowed  in  open  Court,  after  publication 
and  at  the  hearing,  on  an  sillegiition  of 
mistake  in  taking  down  the  testimony. 
Denton  v.  Jackson,  1  John.  Ch.  626.  So 
a  re-examination  lins  been  allowed  on  the 
affidavit  of  the  witness  that  his  testimony 
in  material  parts  was  nut  truly  taken 
down.  Kingston  v.  Tappen,  1  John  Ch. 
308.  The  existence  of  the  mistake  ought 
to  be  made  out  to  the  perfect  satisfaction 
of  the  Chancellor.  •  Gray  v.  Murray,  4  John. 
Ch.413;  .see  Halloch  v." Smith,  4. John.  Ch. 
U4a;  Newman  v.  Kendall, '2  A.  K.  Marsh. 
236.  A  witness  examined  while  incom- 
petent, bj'  reason  of  interest,  may  be  re- 
examined Mtter  his  competency  is  restored. 
Haddix  v.  Haddix,  5  Litt.  202;  see  Dun- 
ham V.  Winans,  2  I'aige,  24. 

-  Copeland  v.  Stanton,  1  T.  VVms.  414. 
The  signature  of  the  witness  seems  not  to 
be  held  necessary  to  a  deposition  in  man}- 


of  the  States;  see  Moulson  v-  Hargrave,  1 
Serg.  &  R.  201;  Mob  ley  v  Hamit,  1  A. 
K.  Marsh.  590;  Rutherford  v.  Nelson,  1 
Hayw.  105;  B;irnett  v.  Watson,  1  Wash. 
37"i;  Wiggins  v.  Rrver,  3  Porter,  430. 

3  O'Callaghan  v'  Murphy,  2  S.  &  L. 
158.  A  witness  became  interesteil  by  a 
death  while  under  examination.  The 
death  occurred  during  his  cross,  Imt  before 
further  direct,  examination.  1  he  Court 
allowed  the  deposition  to  stand  so  as  to 
embrace  the  direct  and  cmss-examination, 
but  struck  out  the  I urtlier  direct.  Fream 
V.  Dickinson,  3  Kdw.  Ch.  300. 

4  Prac.  Reg.  The  testimony  o'  the 
witness  is  complete,  so  far  as  tiie  party 
calling  him  is  concerned,  when  the  direct 
exam  nation  is  linished  and  signed  by  the 
witness;  but  the  parij-  calling  him  is 
bound  to  keep  the  witness  before  the 
Kxauiiner  a  sulKcieut  length  of  time  after- 
wards, to  enalle  the  adverse  party  to  ci'm- 
plete  the  examination,  or  the  deposition 
may  be  suppressed.  Watertown  v.  Cowen, 
5  Paige,  510. 

5  Crd.  1828. 

*>  See  iioup  V.  Ilaight,  6  John.  Ch.  335. 
^  Turner  v.  liurleigh,  17  Ves.  354. 


EXAMINATION    BY    EXAMINER    ON    INTERROGATORIES. 


931 


witness  is  to  be  serrerl  upon  the  adverse  solicitor.  The  object  of 
this  notice  is,  that  in  case  the  adverse  party  shall  have  occasion  to 
cross-examine  the  witness,  he  may  haA^e  an  opportunity  of  doing 
so.  The  cross-inteiTogatories  ought  to  be  filed  before  the  exami- 
nation in  chief  is  com2:)leted ;  and  if  they  are  so  filed  the  party 
producing  the  witness  is  obliged  to  procure  him  to  stay  or  return 
to  be  examined.^ 

Where  the  inteiTogatories  for  cross-examining  a  witness  are  not 
filed,  or  the  witness  is  not  required  to  be  cross-examined  whilst  he 
is  under  original  examination,  but  is  allowed  to  depart  about  his 
business,  the  party  who  intends  to  cross-examine  that  witness  must 
procvire  his  examination  in  the  best  manner  he  can :  the  adverse 
party  is  not  bound  to  produce  him  again ;  but  as  it  is  usual  after 
the  witness  is  sworn,  if  he  be  resident  in'  London,  for  the  Exam- 
iner to  appoint  some  other  day  for  him  to  attend  to  be  examined,^ 
the  party  intending  to  cross-examine  has  generally  sufficient  oppor- 
tunity to  prepare  and  file  his  interrogatories.  In  the  mean  time, 
however,  to  prevent  the  examination  being  taken  without  the 
cross-examination,  a  note  in  Avriting  may  be  stuck  up  in  the  Exam- 
iner's office,  that  if  such  a  person  comes  to  be  examined  in  suah  a 
cause,  let  him  be  cross-examined.^ 

In  the  case  of  Keymer  v.  Pering^  it  is  stated,  that  "  the  pr;.ctice 
of  the  P]xaminer's  office  is,  that  where  a  party  produces  a  witness 
to  be  examined  by  one  of  the  Examiners,  the  opjjosite  party  hav- 
ing notice,  and  intending  to  cross-examine  the  witness,  makes  an 
appointment  with  the  other  Examiner  for  that  puri>ose,  and  then 
gives  notice  of  the  time  ap})ointed  to  the  witness,  and  also  to  the 
solicitor  of  the  l»arty  producing  the  witness."  It  appears  from  the 
case,  that  if  the  party  intending  to  cross-examine  neglects  to  make 
the  a])pointment,  he  loses  the  right  to  cross-examine. 

If  a  witness  refuses  to  attend  to  be  cross-examined,  an  applica- 
tion may  be  made  to  the  Court  (it  is  presumed  in  the  same  manner 
already  pointed  out  in  the  case  of  a  witness  refusing  to  be  exam- 
ined in  chief),^  which  will  compel  the  witness  to  do  what  the 
])arly  has  a  right  to  require  of  him." 

Some  doubt  aj»]»ears  to  exist  whether  a  subpoena  will  lie  to  com- 
pel a  witness  to  attend  for  the  purpose  of  being  cross-examined. 

If  a  party  examining  a  witness  does  not  allow  a  sutHcient  time 
for  cross-examination  before  the  time  fur  passing  publication  ex- 
j)ireH,  and  cross-interrogatories  are  left,  such  party  must  cither 
enlarge  jniblicatioii  or  the  deposition  will  be  suj)])ressed.' 


c.xxn.U3. 


1  Hit,(le,  323. 

2  Iliii<l<:,  323.  I  he  fleposiiion-*,  liow- 
cver,  ulwayn  bear  diitc.  tue  day  of  the 
hweariiif^. 

3  Hind.;,  323. 
*  10  biiii.  Ibl. 


Where  cross- 
interrogato- 
ries not  tiled 
before  exani- 
iuatiou  ter- 
minated. 


6  Ante.,  p.  92C. 

"  Coiirteiiay  v.  Ilo.sl^iiis,  2  Kiis".  203. 

7  1  Smith's  (y'ii  .I'r.  3d  ed.  47t>;  mid  8co 
Keymer  «.  renii;,',  10  yiin.  179;  «H/(',p.  930, 
note. 


Where  wit- 
ness rot'iises 
to  be  cross- 
examiued. 


1132 


EVIDENCE. 


('\\ii.§u.        A  witness  who  is  cross-examined  must  be  sworn  to  the  cross- 

^^ > — -^    iiitt'rroi;:itories  as  well  as  to  the  original  interrogatories. 

Examination  Tniler  the  praetiee,  before  the  Orilers  of  JMay,  1845,  came  into 
uniil  publiai-  operation,  wlicrc  the  Examiner  was  served  with  a  copy  of  a  rule 
'^'■'"-  to  i>ass  ])id)lication,  he  could  not,  after  the  day  fixed  by  such  rule 

for  passing  publication,  examine  any  more  witnesses,  even  though 
the  witnesses  had  been  already  sworn, ^  unless  he  was  served  with 
an  order  to  enlarge  publication;  in  which  case  either  ])arty  might 
examine  his  witnesses  as  long  as  the  publication  continued  en- 
larged.- AVhere,  however,  a  witness  was  examined,  by  mistake, 
two  days  after  publication  had  passed,  and  was  cross-examined  by 
the  defendant,  the  Court  would  not  suppress  the  deposition.^ 
Now,  as  we  have  seen,  publication  passes  without  rule  at  the  expi- 
ration of  two  months"  after  the  filing  of  the  reiilication,  unless 
such  time  expires  in  the  long  vacation,  or  is  enlarged  by  order.  It 
is  presumed,  that,  under  the  present  practice,  any  examination  of 
witnesses  after  the  time  for  publication  has  arrived,  will  be  irregu- 
lar, whether  notice  be  served  upon  the  Examiner  or  not,* 


How  long 
continued 
under  present 
practice. 


Section  XIV.  —  Examination  of  Witnesses  de  bene  esse. 


Origin  of  the 
practice. 


The  Court  of  Chancery,  in  its  original  institution,  participated 
much  in  the  practice  adopted  by  the  Courts  of  Civil  Law.  The 
civilians  had  a  manner  of  examining  witnesses,  in  perpetuam  rei 
memoriam,  which  was  twofold :  either  the  connnon  examination, 
or  in  meliori  forma.  The  common  examination  was  where  the 
witnesses  were  very  old  and  infirm,  sick,  in  danger  of  death,  or 
were  going  into  distant  countries.  In  this  case,  it  was  usual  to 
file  a  libel,  and,  without  staying  for  the  litis  contestatio,  the  plain- 
tiff' examined  his  witnesses :  immediately  giving  notice,  if  it  were 
possible,  to  the  other  side,  of  the  time  and  place  of  the  examina- 
tion, that  he  might  come  and  cross-examine  such  witnesses,  if  he 
thought  fit ;  and  these  depositions  stood  good  in  case  the  witnesses 
died,  or  went  abroad;  but  the  plaintiff" Avas  obliged  edei'e  actionetn 
within  a  year :  otherwise,  the  depositions  went  for  nothing.  If 
the  witnesses  lived,  or  did  not  go  abroad  into  distant  countries,  then 
they  were  to  be  examined ^05^  litem,  contestatam.^  The  examination 
in  perpetuam,  rei  memoriam  in  meliori  forma  was  ad  transumenda 

1  Beames's  Ord.  73,  186.  before  tlie  time  for  taking  testimony  ex- 

2  Anon.,  1  Vern.  253.  pires,  it  may  be  continued  by  the  Kxam- 

3  Hammond  v. ,  4  Dick.  50.  iner,  if  necessary,  after  tlie  expiration  of 

■*  In  the  case  of  Green  v.  Wheeler,  de-  such  time;  and  until  an  order  to  close  the 

cided  New  York  Chancery,  Aug.  16,  1842,       proofs  is  actually  entered. 

Mr.  Chancellor  VVidworth  held,  that  where  ^  Gilb.  I'or.  Kom.  118, 119;  Hinde,  365. 

an  examination  of  witnesses  is  commenced 


EXAMINATION    OF   WITNESSES    DE    BENE    ESSE. 


933 


instrumenta ;  and  in  that  case,  there  must  have  been  a  litis  C07i-  C.XXII.  §  14. 

testatio  hQ^ove  the  examination:  because   there  was  no   need   of 

so  much  celerity  in  proving  the  instruments  as  there  was  where 

the  witnesses  were  hkely  to  die,  or  were  going  into  remote  parts. 

In  these  cases,  the  plaintiff  was  not  bound  to  proceed  in  any  action 

upon  those  instruments  within  the  year.     But  in  both  cases,  it 

seems  that  'puhUcatio  testium  took  place,  when  the  judgment  was 

begun  before  the  ordinary  Judge,  or,  which  is  the  same  thing,  when 

there  was  a  litis  contestatio}     The  Q'S-nxaxnaiion  in  jyerpetuam  rei 

memoriam  in  meliori  formd^  has  been  adopted  by  the  Conrt  of 

Chancery ;  and  the  practice  with  regard  to  it  will  be  considered 

when  we  treat  of  suits  instituted  for  the  purpose  of  perpetuating 

the  testimony  of  witnesses."^      The  common  examination  in  perpet- 

uam  rei  memoriam  has  likewise  been  adopted  by  Courts  of  Equity, 

in  their  practice  of  examining  witnesses  de  bene  esse :  ®  which  forms 

the  subject  of  the  present  section. 

The  examination  of  a  witness  de  bene  esse  ordinarily  takes  place  : 
where  there  is  danger  of  losing  the  testimony  of  an  important  wit- 
ness fi'om  death,  by  reason  of  age  (as  where  the  ■witness  is  seventy 
years  old  and  njiwards ;  *  or  dangerous  illness)  ;  ^  or  where  he  is 
about  to  go  abroad;®  or  where  he  is  the  only  witness  to  an  im- 
portant fact.'^  In  such  cases,  the  Court,  to  prevent  the  party  from 
being  depi'ived  of  the  .benefit  of  his  evidence,  will  permit  his  depo- 
sitions to  be  taken  before  the  cause  is  at  issue,  in  order  that,  if 
the  witness  die,  or  be  not  forthcoming  to  be  examined  after  issue 
joined,  the  depositions  so  taken  may  be  used  at  the  hearing.* 

The  examination  of  a  witness  de  bene  esse  may  be  incidental  to  incidental  to 


In  what  cases 
usually 
resorted  to. 


1  Gilb.  For.  Rom.  118;  Hinde,  365. 

2  See  post.  Ch:ip  XXXIV.  §  4,  Bills  to 
Perpetuate  Testimony. 

8  Hinde,  368. 

*  Kowp  I'.  ,  13  Yes.  201;  Forbes  v. 

Forlies,  9  Hure,  461,  whei'e  the  witness 
■was  a  psirtv  to  the  cause.  Lingan  v.  Hen- 
derson, 1  "Bland,  238;  Ails  v.  Sublit,  3 
Bibb.  204 

6  Bell.imv  tv  .Tone«,  8  Ves.  31;  see  Clark 
V.  Dibl.le.  16  Wend.  601. 

6  IJown  V.  Chilli,  3  Sim.  4.57;  Grove  «. 
Younf,',  3  De  G.  &  S.  31t7:  13  .lur.  847; 
M'Fnff'sh  V  Great  Western  Railway  (Com- 
pany, 1  Hare,  328.  Where  a  witness  is 
about  to  depart  from  the  State,  to  reside 
abroad,  tlif  Court,  on  fietition,  verified  by 
affidavit  and  motion  for  that  purpose,  will 
(T'ler  him  to  be  exiimine'i  ilc  bene  esue, 
without  previous  notice  of  the  motion. 
Kockwell  V.  Folsom,  4  .lohn.  Ch.  16.5.  In 
South  Carolimi,  an  iittorney,  prevented 
from  beiiif;  a  witness  by  duties  in  another 
Court.  uiMv  be  examined  'le  bene  in^te,  liy 
comniiHsi"n.  IlulViiinn  r.  IJnrkley,  1  Bai 
ley,  34.  So  if  the  witness  is  Koi'ij;  from 
oric  Stile  to  another.      Story  Kq.  I'l.  §  .'JOS. 

^  Shirley  v.  Karl   Ferrers,  3   I'.    \V'mx. 


77;  Pearsons.  Ward,  2  Dick.  648;  Hiin- 
kin  V.  Middleditch,  2  Bro  C.  C.  641; 
Brydges  ?\  Hatch,  1  Cox,  423.  In  Karl 
of  (Jholinondeiy  v.  Karl  of  Orford,  4  Bro. 
C.  C.  157,  two  witnesses  wen^  ordered  to 
be  examined  de  bene  esse:  being  the  only 
persons  who  knew  the  material  fMcts. 

s  Hinde,  368;  Gilb.  For.  Horn.  140;  2 
Phil  Kv.  (Cowen  &  Hill's  notes)  note  (42) 
pp.  38  and  39,  and  cases  cited;  2  S'ory 
Kq.  .lur.  §§  1513-1516;  Storv  Kq.  PI.  §"§ 
S07-310.  i?y  the  70th  Kquity  Rule  of  tlie 
United  States  Courts,  it  is  provided  that 
"  After  any  bill  is  tiled,  and  before  the 
defendant  hath  answered  the  same,  upon 
nflidnvit  made,  that  any  of  the  plaintiff's 
witnesses  are  aged,  "r  infirm,  or  going  out 
of  the  country,  or  that,  any  of  tluMii  is  a 
single  witness  to  a  material  fact,  the  clerk  of 
the  (,'ourt  shall, as  of  cour.~e,uj)on  the  appli- 
CMtion  of  the  plaintiff,  issue  a  comniission 
to  such  commissioner  or  commissioners, 
as  a  .Judge  of  tint  (.'ourt  may  direct,  to 
take  the  examination  of  such  witness  or 
witnesses  ile  bene  esse,  upon  giving  duo 
notice  to  the  adverse  party  of  the  time  and 
phice  of  taking  the  testimony." 


every  suit : 


034 


EVIDENCE. 


(WXIl.^ll. 


wlicn  to  bills 
to  porpotuate 
tcstimoiiv. 


C'jimiot  be, 
after  evi- 
dence closed; 


unless  after 
Iriiil  of  issue. 


"Where  evi- 
dence of 
witness  is 
required 
at  Law. 


every  suit;  wlioroas  tlie  oxiiin'mation  for  (lio  purpose  of  perpetuat- 
ing the  testiiiu)iiy,  is  the  fruit  of  a  suit  iustituted  for  that.  i)artic- 
iilar  i)urpose.  It  in;|y  even  hv  ineidental  to  a  suit  to  perpetuate 
testinu)ny,  where  there  is  danner  of  tlie  evidenee  of  the  witnesses, 
whose  testimony  is  intended  to  he  jjerpetuated,  heiu<jj  lost  befoi'e 
the  suit  for  ]>erpetuntin<>-  is  rijje  for  a  reguhu-  examination.^ 

In  general,  the  Court  will  not  allow  the  examination  of  a  wit- 
ness de  bene  esse  after  the  i-losing  of  the  evidence;  and,  therefore, 
Avhere,  upon  a  hearing,  an  issue  had  been  directed,  and  an  order 
made  that  the  dejiositious  of  the  plaintiff's  witnesses  might  be 
read  at  the  trial,  in  ease  such  witnesses,  or  either  of  them,  should 
be  dead,  and  an  application  Avas  afterwards  made  that' the  trial 
should  be  postponed,  and  that  the  plaintiff  should  be  at  liberty  to 
examine  another  witness  de  bene  esse:  Lord  Eldon,  after  consult- 
ing with  Sir  William  Grant  M.  R.,  said,  that  the  motion  was  one 
which  could  not  be  made  with  effect,  without  hiying  before  the 
Court  very  strong  circumstances  to  induce  it  to  permit  the  exam- 
ination ;  and  although  he  would  not  say  that  it  could  not  be  granted 
in  any  case,  he  refused  it  in  the  one  before  hira.^  It  seems,  how- 
ever, that  where  a  witness,  who  has  not  been  before  examined  in 
this  Court,  has  been  produced  at  a  trial  at  Law,  and  another  trial 
of  the  same  matter  is  to  be  had,  the  Court  wnll  entertain  a  motion 
for  the  examination  of  such  witness  de  be7ie.  esse,  yvhh  a  view  to 
such  second  trial.^  And  so,  after  the  trial  of  an  issue  in  the  cause, 
an  application  on  the  part  of  the  plaintiff,  for  liberty  to  examine  a 
witness,  who  was  above  seventy  years  old,  de  bene  esse,  for  the 
purpose  of  securing  his  testimony  in  case  of  his  death,  upon  the 
ground  that  it  was  intended  to  move  for  a  new  trial,  was  granted.^ 

Sometimes  it  is  required  to  examine  a  witness  de  bene  esse, 
either  in  support  of,  or  in  defence  to,  an  action  at  Law ;  in  such 
case,  it  was  formerly  necessary  that  a  bill  shoidd  be  filed  in  this 
Court,  with  the  proper  affidavit  annexed  to  it,  praying  specifically 
that  the  witness  might  be  examined  de  bene  esse ;  ^  and  this  may 
still  be  done,  although  the  Courts  of  Law  have  now  power  them- 
selves to  take  such  evidence.®  It  is  to  be  observed  that  an  order 
of  this  nature  in  aid  of  a  proceeding  at  Law  cannot  be  obtained 
upon  a  bill  filed  for  any  other  i)urpose ;  and  that  where  a  bill  was 
filed  for  a  commission  to  examine  witnesses  abroad  in  aid  of  a  trial 
at  Law,  and  a  commission  had  been  sent  out  accordingly,  but,  be- 


J  Frere  v.  Green,  19  Ves.  319;  Camp- 
bell V.  Attorney-General,  11  Jur.  N.  S. 
922;  14  W.  K.  45.  V.  C.  S. 

2  Palmer  v.  Lord  Avlesburv,  15  Ves. 
299. 

*  Anon.,  cited  by  Lord  Eldon,  15  Ves. 
300. 

*  Anon.,  6  Ves.  573. 


6  Ld.  Red.  150;  Pbilips  ?;.  CHrew,  1  P. 
Wms.  116;  Andrews  v.  Palmer,  1  V.  &  B. 
21,  23;  1  Newl.  450;  ante,  p.  394;  post, 
Cliap.  XXXIV.  §  4,  Bills  to  Perpetuate 
Ttsliin<niy. 

6  1  W'ill.  IV.  c.  22,  §  4;  see  Taylor, 
4;  72  ei  seq.;  Chitty's  Arch.  329  et  seq. 


EXAMINATION    OF    WITNESSES    DE    BENE    ESSE. 


935 


fore  it  reached  its  destination,  one  of  the  witnesses  returned  to  Eno-- 
land,  whereupon  an  application  was  made  for  leave  to  examine  him, 
de  bene  esse,  npon  the  ground  that  he  Avas  abont  to  leave  the  country 
again  before  the  trial  could  be  had,  Sir  John  Leach  V.  C.  refused 
the  motion :  observing  that  this  was  a  different  relief,  and  that  the 
bill  must  be  amended.^ 

The  cases  in  which  the  Court  will  make  an  order  for  the  exami- 
nation of  witnesses  de  bene  esse  are  not  confined  to  those  of  age  or 
sickness,  or  in  which  the  witness  is  the  only  jjerson  who  can  speak 
to  the  fact  intended  to  be  proved.  The  Court  will  give  permission 
for  such  an  examination  of  witnesses  in  other  cases  which  come 
within  the  same  principle ;  indeed  it  will  do  so,  wherever  the  justice 
of  the  case  apjiears  to  require  it.  Thus,  where  an  application  was 
made  to  examine  the  surviving  witness  to  a  will,  de  bene  esse,  on 
the  ground  that  the  parties  concerned  all  lived  in  America, 
and  that  the  surviving  witness  was  greatly  afflicted  with  the 
gravel,  the  order  was  made,  although  the  witness  was  only  stated 
to  be  "  upwards  of  sixty  years  old,"  ^  So,  also,  where  the  age  of 
the  witness  was  not  stated,  but  the  affidavit,  i;pon  which  the  ap- 
plication Avas  made,  alleged  only  that  the  witness  was  subject 
to  violent  attacks  of  the  gout,  and  from  these  attacks  was  un- 
der the  ajtprehension  of  dying,  and  that  he  was  a  material  wit- 
ness, his  testimony  being  required  to  prove  the  draft  of  a  bond 
which  he  had  2)re])ared,  but  which  was  lost,  the  Court  of  Exche- 
quer made  an  order  for  his  examination  de  bene  esse?  In  like 
manner,  where  a  witness  is  about  to  go  abroad,  an  order  may  be 
obtained  for  his  examination  de  bene  esse.'^  The  Court  however, 
will  not  permit  the  examination  of  witnesses  de  bene  esse,  on  the 
ground  of  their  being  about  to  go  abroad,  where  it  is  in  the  power 
of  the  party  ajtplying  to  detain  them  till  they  have  been  examined 
in  the  ordinary  course.  Upon  this  ground,  the  Court  of  Exchequer 
refused  to  make  an  order,  on  the  application  of  the  East  India 
Comj)any,  for  the  examination  of  witnesses  de  bene  esse,  who  were 
going  to  the  East  Indies :  because  they  were  the  Company's  ser- 
vants, and  they  might  have  kept  them  at  home.^ 

It  seems  also,  that,  in  a  question  of  pedigree,  Avhere  the  case  de- 
pends u])()n  a  chain  of  distinct  circumstances  in  the  knowledge  of 
different  indivithials,  the  death  of  one  of  whom  would  destroy  the 
whole  chain,  the  Court  will  permit  the  examination  of  sucli  individ- 
uals de   bene  esse,    although  none  of  them  come  witliin  the    de- 


C.XXII.§14. 


Not  confined 
to  cases 
where  the 
•witness  is  old 
or  sick,  or 
the  only- 
witness  ; 


but  allowed, 
where  no  age 
is  stati'ii,  nor 
immediate 
death  appre- 
hended. 


and  where 
witness  is 
about  to  qp 
abroad ; 
Secus,  wlicre 
the  party 
may  detain 
him. 


Allowed, 
where  death 
of  one  wit- 
ness would 
destroy  a 
whole  chain 
of  evidence. 


1  Atkins  V.  Paimfer,  5  Mad.  10. 

2  Fitzhugh  V.  [jce,  Amb.  CO;  but,  in 
Buch  cases,  an  ex  ptirte  onbT  is  irregular; 
Bce  M'Kenrui  v.  Kveritt,  2  Ueav.  188; 
Hope  f.  Hope,  3  Ueav.  317,  323;  ih   n. 

8  .Ip()son  i;.  Greenawav,  12  Fowl.  Ex. 
Pr.  103. 


*  Down  V.  Child,  3  Sim.  457;  M'Intosh 
V.  Greiit  Western  Kailwiiy  Company,  1 
Ifari",  328;  M  Kenna  i'.  Kveritt,  2  Ueav. 
188;  Grove  v.  Young,  3  De  G.  &  S.  3U7; 
13.1ur.  847. 

'■'  Kast  India  Company  v.  Naisli,  Runb. 
820. 


93G  EVIDENCE. 

i\X\ll.§i4.  scription  of  M'itncssos  vlioso  (ostituony  is  in  (l:ni<;or  of  hoiug  lost, 

' >^ '  oitluT  tVom  Moe  or  sorious  illiii'ss.^ 

Koiiisoil.  'i'lu'  i-iiU",  liowovor,  tliat  tlio  oxniniiiatioii  of  a  Avitnoss  (le  bene  esse 

is'lu^t  liio"'^*  will  l>o  i>onnittiHl  wIumv  the  individual  proposed  to  be  examined 

only  witiuss  is  iho  oidv  witiiess,  Mill  not  be  extended  to   eases  where  there  is 

to  till'  saiiio  ,      '  .  ,  (•  1  1  1 

fjut.  jnore  than  one  witness  to  the  same  lact,  unless  upon  the  ground 

of  the  age  or  infirmity  of  the  witness :  therefore  where  an  appli- 
cation was  maile  tor  leave  to  examine  de  bene  esse  one  of  two 
sju'viving  witnesses  to  a  will,  who  was  neither  of  the  age  of  sev- 
enty nor  in  a  state  of  dangerous  illness,  on  the  ground  that  he  was 
a  prisoner  in  the  Castle  of  York,  charged  with  a  capital  felony, 
no  order  was  made.'^ 

imniediatoly        From  an  observation  Avhich  appears  to  have  been  made  by  Lord 

atUM-bill  Eldon,  in  Frere  v.  Green?  it  may  be  inferred  that  an  order  of  this 

tiled.  .  , 

nature  cannot  be  obtained  belbre  appearance,  unless  the  defendant 
is  in  contempt ;  but  the  practice  is  not  so,  and  an  order  to  examine 
a  witness  de  bene  esse,  upon  either  of  the  grounds  above  stated  will 
be  granted,  upon  an  affidavit  of  the  facts,  immediately  after  the 
filing  of  the  bill,  without  waiting  either  for  the  defendant's  appear- 
Where  de-  ance,  or  for  his  being  in  contempt  for  non-appearance.^  Tliere 
fendant  is  in     seems  liow^ever,  to  l)e  no  doubt  that  the  contempt  of  a  defendant, 

contempt.  .  .  .  „  . 

in  not  a])peanng,  w^ould  at  any  time  be  a  reason  for  giving  per- 
mission to  a  plaintiff  to  examine  his  witnesses  de  bene  esse,  where 
a  proper  ground  is  laid  for  it,  even  where  the  case  does  not  come 
within  any  of  the  three  instances  above  mentioned.^ 
O    d  f  nd-  ^^  JBown  V.    Child^  an  order  to  examine,  de  bene  esse,  a  witness 

ant's  appiica-   about  to  go  abroad,  was  made  on  a  special  application  by  the  de- 
answer!""^^       fendants,  before  answer. 

Order  for  ex-       '^'^  order  for  leave  to  examine  a  witness  de  bene  esse,  upon  the 

amination :       ground  of  the  witness  being  seventy  years  of  age,  or  dangerously 

granted  with-  i^^s  o^'  about  to  go  abroad,  may  be  obtained  either  by  motion  in 

out  notice.       Court,  wathout  notice,  or  upon  petition  of  course  at  the  Rolls ; '' 

„   .  but  where  the  application  is  not  made  on  the  ground  of  the  age  or 

required  in      dangerous  illness  of  the  witness,  or  that  he  is  about  to  go  abroad, 

spec     cases;  ^^^  Court  will  not  make  an  order  for  his  examination  de  bene  esse, 

as  of  course :  so  that,  if  a  party  wishes  to  examine  a  witness  de 

bene  esse,  upon  a  ground  Avhich  cannot  be  arranged  under  either  of 

those  classes,  he  must  apply  by  motion  in  Court,  of  which  notice 

1  Shelley  v. ,  13  Ves.  56,  58;  Shir-  5  Coveny  v.  Athill,  1  Dick.  355;  Prich- 

lev  V.  Earl  Ferrer?,  3  P.  Wms.  77 ;  Hope       ard  v.  Gee,  5  Mad.  364. 

r.'Hope,  3  Heav.  317,  323.  c  3  gim.  457. 

2  Anon.,  19  Ves.  321.  t  Belhimy  v.  Jones,  8  Ves.  31 ;  Tom- 
8  19  Ves.  320.  kins  i;  Hai  fison,  6  Mad.  315;  M'Kenna  «. 
*  Dew  V.  Clarke,  1   S.  &  S.  108,  115;  Kveritt,  2  IJeav.  188;  M'Intosli  v.  Great 

Fort  r.  Rajjusin,    2   John.    Ch.    146;    soc  Western  Railway  Compiiny,  1  Han^  328, 

Wilson  V.  Wilson,  cited  1  Newl.  Ch    Pr.  330;  Grove  ».  Young,  3  De  G.  &  S.  397; 

287;   Allen  V.  Annesley,   2   Jones   Exch.  13  Jur.  847.     For  forms  of  motion  paper 

260.  and  petition,  see  Vol.  III. 


EXAMINATION    OF    WITNESSES    DE    BENE    ESSE.  937 

raiist  be  given  to  the  other  side.^     In  the  case  of  Ilope  v.  Hope"-  C.XXII.§14. 

Lord  Langdale  M.  R.  liad  to  consitler,  whether  an  order  for  the    ■ y — -^ 

examination  de  bene  esse  of  a  person  alleged  to  be  the  sole  wit-  as  where  sole 
ness  to  a  material  fact,  could  be  regularly  obtained  ex  parte,  and  niaterial  feet. 
he  came  to  the  conclusion,  that,  in  such  a  case,  the  application 
should  be  made  on  notice;  and  it  seems  that  the  affidavit,. in  sup- 
port of  such  an  application,  ought  to  show  the  facts  as  to  which  it 
is  proposed  to  examine  the  witness.  If  the  order  has  been  ob- 
tained as  of.  course,  in  a  case  where  a  special  appli(iation  for  it 
should  have  been  made,  the  adverse  party  may  move,  on  notice,  to 
discharge  it.^ 

It  seems,  however,  that,  where  a  defendant  is  in  contempt  for  JJuu^/rno- 
non-appearance,  such  an  order  may  be  obtained  without  notice,  ticc,  when 
and  this  even  where  the  defendants  are  infants.  Thus,  in  Frere  coJltempt-  "^ 
V.  Green*  where  the  defendants  were  infants  and  in  contempt,  and 
it  appeared  by  the  messenger's  return  that  they  had  absconded 
and  were  not  to  be  found.  Lord  Eldon,  upon  the  usual  affidavit  of 
the  matei-iality  of  the  e^ddence  of  the  witnesses,  and  the  plaintiffs' 
undertaking  to  proceed  with  all  due  diligence,  and  with  as  much 
expedition  as  the  course  and  practice  of  the  Court  and  the  con- 
tempt of  the  defendants  Avould  admit,  to  bring  the  cause  to  an 
issue,  and  examine  their  witnesses  in  chief,  made  an  order  that  the 
plaintiffs  should  be  at  liberty  to  examine  them  de  bene  esse  ;  but 
he  provided,  by  the  order,  that,  })efore  jniblication  of  the  deposi- 
tions of  such  witnesses  should  be  allowed  to  pass,  proper  evidence 
should  be  produced  to  satisfy  the  Court  that  the  plaintiffs  had 
complie«l  with  the  above  undertaking. 

Althou'di,  in  the  instances  above  mentioned,  an  order  to  exam-   Notice  of 

•"^  ,         •  1         1       •       T  i.-  +■+•  examination 

ine  a  witness  de  bene  esse  may  be  obtamed  ujion  motion  or  petition  of  witness. 
without  notice,  notice  of  the  examination  of  the  witness  must,  in 
all  cases,  be  given,  in  order  that  the  other  side  may  have  the 
power  of  cross-examination.^ 

The  ajtplication  for  leave  to  examine  a  witness  de  bene  esse  must,  Aflidavit  in 
in  every  instance,  whether  made  by  a  petition  at  the  Rolls  or  by  ^'j'Jgtion; 
motion  to  the  Court,  with  notice  or  without,  be  supported  by  an 
affi<lavit  of  the  facts  which  fonn  the  ground  of  the  application  : 
such  as,  the  age  of  the  witness,  and  that  he  is  a  material  witness 
for  the  party  making  the  ai)plication  ;*'  and  also  by  the  Record 

1  Bellamv  v.  .Tones,  8  Ves.  31.  For  Ord.  6  Feb  ,  1861,  r.  22;  ante,  pp.  901, 
form  of  iiofice  of  motion,  see  Vol.  III.  915;  for  form  of  notice,  see  Vol.  III. 

2  .3  Hoav.  317,  32.3,  n.,  and  see  Pearson  w.  ^  Grove  v.  Young,  3  De  G.  \'  S.  897; 
Ward,  1  Cox,  177.  13  Jur.  847;    see    Kockwell   v.  Folsom,  4 

8  Sec    M'kcnna   v.    Kveritt,   ubi  sup.;  .John.  (;h.  1C.5;  Story  Iv|.  I'l.  §  3nit.     I'W 

Hoper.  Hope,  3  \^>;n\'.  317;  for  form   of  form  of  anidavit,  see  Vol.  III.     The  afli- 

notice  of  motion,  see  Vol.  III.  davit  .shonl.l  give  the  place  ol  residenro 

*  19  Vp«.  319,  320;  see  also  Shelley  v.  and  description  of  the  witne^^scs  whom  it 
13  Ves.  6(i.                                       '  is  sou(rht  to  have  examined  dv  bene  esse. 

6  Loveden  v.  Milford,  4  Bro.  C  C.  540;  O'Farrel  v.  O'Farrel,  1  Moll.  304. 


938 


EVIDENCE. 


r.\\ii.§  It. 


Form  of 
order 


St-rvico  of 
orvler. 


Method  of 
examiuation. 


Notice  of 
examination. 


After  exami- 
nation de  bene 
esse,  due  dili- 
gence must 
be  used  to 
examine  in 
chief. 


and  Writ  Clork's  cortlficate  that  tlu'  bill  has  boon  fiUnl,  whore  the 
tK'li'udaiit  has  in)t  ajt]H':irr(l,  or  i»i"  siu'h  appearaiioe,  where  an  ap- 
}toaran(.-(.'  has  boon  I'ntorod  liy  him.  Whore  an  application  is  made 
tor  an  order  to  o.vaniino  a  witness  on  tlie  <;roiind  that  he  is  the 
only  person  who  knows  the  iliot,  the  alHdavit  should  state  the  ])ar- 
tionlar  ])oints  to  whii-h  his  evidence  is  meant  to  ap])ly  :^  and  shoidd 
show  the  gM\)und  which  the  ])erson  who  makes  it  has  for  believing 
that  the  witness  is  the  only  person.- 

Tlie  ortler  to  examine  witnesses  de  bene  esue  names  the  witnes-ses 
to  be  examined,  and  oidy  authorizes  the  examination  of  the  per- 
sons named  therein.  Where  the  order  is  obtained  withoiit  notice, 
after  appearance,  it  must  be  served  upon  the  solicitor  on  the  other 
side ;  but  where  it  has  been  obtained  before  appearance,  so  that 
there  is  no  adverse  solicitor  upon  wliom  it  can  be  served,  the  order 
usually  directs,  that  notice  of  the  order  be  given  to  the  defendant, 
or  a  copy  thereof  be  left  at  his  dwelling-house,  or  usual  place  of 
abode,  with  his  servant,  agent,  or  other  j^erson  residing  there,  a 
6]iecified  number  of  days  before  the  examination  of  the  witnesses.^ 
This  is  done,  in  order  to  afford  the  adverse  party  an  opportunity 
for  cross-examination  of  the  witnesses. 

The  examination  of  witnesses  de  bene  esse  is  taken  before  an 
Examiner  of  the  Court,  or  Special  Examiner,  in  the  manner  pre- 
scribed by  the  15  &  16  Vic.  c,  86 ;  *  and  the  depositions  are  trans- 
mitted by  him  to  the  Record  and  Writ  Clerks'  Office  to  be  there 
filed.5 

Formerly,  it  was  necessary  to  give  three  days'  notice  of  the  time 
and  place  of  the  examination  to  the  other  side.®  Now,  it  is  pre- 
sumed, foity-eight  hours  will  be  sufficient ;  but  the  notice  must 
also  state  the  name  and  description  of  the  witness  to  be  examined, 
and  the  time  and  place  of  examination.'' 

As  the  examination  of  witnesses  de  bene  esse  is  only  a  provi- 
sional measure,  to  guard  against  the  loss  of  important  evidence 
before  the  cause  is  in  a  state  in  which  a  regular  examination  can 
take  place,  it  is  the  duty  of  the  party  examining  to  take  the 
earliest  opportunity  to  examine  in  the  ordinary  course,  and  if  he 
is  guilty  of  any  laches  in  so  doing,  the  benefit;  of  the  examination 


1  Pearson  v.  Ward,  1  Cox,  177;  2  Dick. 
648;  Hope  v.  Hope,  3  Ueav.  317,  322. 

2  Rowe  V. ,  13  Ves.  261. 

3  See  order  in  Hope  v.  Hope,  3  Beav. 
317;  but  see  form  of  order  in  Seton,  1236, 
No.  2,  which  differs  as  to  the  notice.  Ttie 
statute  of  Illinois  authorizes  a  person 
filinf^  a  bill,  before  i-sue  joined,  to  take 
depositions  substantiatinfj  its  averments; 
and  without  an  oriler  to  that  effect,  he 
may  proceed  to  t&kc  his  dopositiuns  de 
bene  esse.     Doyle  v.  Wiley,  15  111.  576. 


4  Sects.  31,  32;  see  anle,  pp.  903,  904; 
and  see  Ord.  5  Feb.,  1861,  r.  11;  Cook  v. 
Hall,  9  Hare  Ap.  20. 

^  Oflice  copies  of  the  depositions  may 
be  obtained  at  that  officf>,  as  soon  as  they 
are  filed.     Hraith  waitc's  Pr.  122. 

6  Tomkins  ?;.  ILirrison,  6  Mad.  315; 
M'Intosh  V.  Great  Western  Railwav  Com- 
panv,  1  Hare,  328. 

7  "Ord.  5  Feb,  18C1,  r.  22;  for  form  of 
notice  see  Vol.  HI. 


EXAMINATION    OF    WITNESSES    DE    BENE    ESSE.  939 

de  bene  esse  Avill  be  forfeited.^  In  the  Duke  of  Hamilton  v.  Mey-  C.XXII.  §14. 
nal,-  however,  Lord  Hardwicke  made  an  order  for  the  pubhcation 
of  depositions  taken  de  bene  esse,  although  the  original  bill  was 
filed,  and  the  examination  taken,  above  thirty  years  before  the 
cause  was  brought  to  an  issue ;  but  it  seems  that  this  was  done 
under  particular  circumstances,  and  that  the  delay  was  accounted 
for.  TTe  have  seen  before,^  that  in  the  instance  of  an  application 
to  examine  witnesses  de  bene  esse,  to  prove  a  case  against  infant 
defendants  who  were  in  contempt  for  non-appearance.  Lord  Eldon 
made  the  order,  upon  the  plaintiffs'  expressly  undertaking  to  pro- 
ceed with  all  due  diligence  to  bring  the  cause  to  issue,  and  to 
examine  the  witnesses  in  chief. 

Depositions,  taken  de  bene  esse,  cannot  be  made  use  of  without  Order  neces- 

an  order.     The  ordinary  course  of  the  Court  is  not  to  allow  of  ^^''^  *?."*® 
.  ,     ''         .--.  ...  depositions. 

their  use  unless  the  witness  dies  before  issue  is  joined  in  the  cause, 

so  that  there  has  been  no  opportunity  to  examine  him  in  the  ordi- 
nary course ;  or  unless  he  is  at  a  great  distance,  so  that  it  is  impos- 
sible to  have  him  examined  again.     These,  however,  although  the 
usual,  are  not  the  only  cases  in  which  the  Court  will  order  deposi- 
tions taken  de  bene  esse  to  be  used.     It  is  in  the  discretion  of  the  "Uliere  there 
Court  to  determine  whether  the  order  shall  be  made  or  not ;  and  IJ^u'V^sihiiitv 
whenever  it  can  be  established,  to  the  satisfection  of  the  Court,  tii^'!  exami-" 
that  there  is  a  moral  impossibility  in  the  examination  of  witnesses  can  take^ 
in  chief  taking  place,  it  will  make  the  order.     Therefore,  in  Gason  P'^'^^- 
v.  Wbrdsicort/i,*  where  a  commission  was  sent  to  Sweden,  to  exam- 
ine witnesses  there,  which  the  Government  of  Sweden  refused  to 
permit,  the  Court  allowed  the  depositions  of  those  witnesses  who 
had  been  examined  de  bene  esse  to  be  read  at  the  hearing :  because 
it  was  morally  impossible  to  have  tlieui  examined  in  chief.     So   ^ 
also  the  Court  has  permitted  depositions  taken  de  bene  esse  to  be 
read,  although  there  has  been  no  strict  proof  of  the  death  of  the 
witnesses :  because  the  length  of  time  which  has  elapsed  since  the 
depositions  were  taken,  has  afforded  a  just  ground  for  presuming 
them  to  be  clead.^ 

Sometimes  the  Court  will  allow  dejjositions  taken  de  bene  esse  to  wniero  wit- 
be  made  use  of  upon'a  trial  at  Law,  on  the  ground  that  the  witness,  "^ss  cannot 

,,  ii-  -111  ii/>  •!  ,         •    ^  attend  trial 

though  anve,  will  be  unable,  irom  age  or  sickness,  or  other  infirin-  at  Law. 
ity,  to  attend  at  the  trial.®     In  such  cases,  however,  the  more  usual 
course  is  (especially  where  there  is  any  doubt  whether  tlie  groimds 
upon  which  the  ajiplicaticjn  is  to  be  made  are  such  as  will  be  suffi- 

1  See  Forsvfh  v.  Ellice,  2  M'N.  &  G.  6  Anon.,  2  Ves.  497;  S.  C.  nnm.  Duke 

209.  21.3;  overruling  S.  C.  7  Hare,  290.  of    IlMmilton   v.   Moymil,   2    Dick.    7fi8; 

'■^  2  Oick.  788:  S.  C.  nom.  Anon.,  2  Ves.  MiirMl«ti  r.  \',imw\,  1  Vcrn.  .I.Tl ;  .see  also 

S.  407.  M'Intosli  ?'.  (Jicat  Western  Railway  Com- 

8  Ante,  p.  937;  Frere  v.  Green,  19  Ves.  punv,  7  De  G.  M.  &  G.  737. 

319.  0  Bradley  v.  Crackenthorp,  1  Dick.  182. 

*  2  Ves.  S.  326,  330;  Amb.  108. 


040 


EVIDENCE. 


C.XXIl.§14. 


Depositions 
can  only  be 
used  to  sup- 
ply place  of 
examination 
in  chief. 


Order  for 
leave  to  use : 
how  ob- 
tained, where 
witness  dead; 

on  other 
grounds. 


When  to  be 
obtained. 


oiont,  in  a  Court  of  Law,  to  authorize  the  admission  of  the  evi- 
donco),  to  make  an  order  that  the  oHicer,  in  whose  jiossession  the 
original  deposition  is.  sIimII  attend  witli  it.  at  tlie  trial,  in  order 
that,  if  it  should  he  proved  to  the  satisfaction  of  the  (\)urt  of  Law 
that  the  witness  is  miable  to  attend,  the  de])()sitions  should  be  ten- 
dered to  be  reail:  ^  it  being  the  province  of  the  Judge  who  tries 
the  eause  at  Law,  ami  not  of  this  Court,  to  decide  on  the  admissi- 
bility of  the  evidence,  u]>on  the  facts  as  they  a]>pear  before  him.'' 
U]H>n  this  ground  the  Court  has  frequently  refused  to  make  an 
order  that  the  depositions,  taken  de  bene  esse,  of  a  witness  who 
was  alive,  though  sworn  by  affidavit  to  be  unable  to  attend  at  the 
trial  of  an  issue  at  Law,  should  be  read  at  the  trial.^ 

Depositions  of  a  witness,  examined  de  bene  esse,  can  only  be  used 
for  the  pur])ose  of  su])])lying  the  want  of  an  examination  in  chief. 
Applications  for  leave  to  use  them,  for  other  purposes,  have  been 
refiised.^  In  Pegge  v.  Burnell,^  an  application  was  made  to  the 
Court  to  allow  a  dejiosition  de  bene  esse  to  be  read  at  Law,  in  order 
to  confront  the.  witness  and  invalidate  his  testimony  viva  voce, 
ujion  a  new  trial,  on  the  ground  that  on  his  examination,  at  the 
first  trial,  his  evidence  differed  materially  from  what  he  had  before 
uniformly  declared  the  fact  to  be  ;  and  as  the  case  made  in  support 
of  the  motion  was  a  very  strong  one,  and  abundantly  sufficient  to 
justify  a  departure  from  the  strict  practice,  if  it  were  possible  in 
any  case  to  dispense  with  it.  Lord  Thurlow  at  first  made  the  order, 
but  upon  further  consideration,  and  before  the  order  was  delivered 
out,  he  altered  his  opinion,  and  refused  it. 

An  order  for  leave  to  use  a  deposition,  taken  de  bene  esse,  of  a 
witness  dying  before  he  could  be  examined  in  chief,  may  be  ob- 
tained on  special  motion  with  notice,  supported  by  evidence  prov- 
ing his  death,  in  the  ordinary  way.® 

Where  the  application  is  made  upon  the  ground  that  a  witness 
is  gone  to  ])arts  beyond  sea,  or  upon  any  other  grounds,  it  must  be 
supported  by  an  affidavit  of  the  facts  reli^id  upon  as  the  foundation 
of  the  application. 

The  proper  stage  of  the  suit  wherein  this  application  should  be 
made,  seems  to  be  after  the  closing  of  the  evidence,'^,  unless  it  is  in 
a  suit,  the  sole  object  of  which  is  the  examination  of  a  witness  de 
bene  esse,  for  the  purpose  of  using  his  depositions  on  a  trial  at  Law : 
in  which  case,  the  application  should  be  made  before  the  trial  of 
the  action.     The  party  moving  should  be  prepared  with  an  affi- 


1  Andrews  v.  Palmer,  1  V.  &  15.  21; 
see  al?o  Corbett  v.  Corbett,  ih.  335;  Palm- 
er V.  Lord  Aylesbnry,  15  Ves.  170;  At- 
torney-General V.  Kay,  2  Hare,  518,  and 
form  of  order,  ib.  519,  n.;  Gompertz  v. 
Ansdell,  1  Smith's  Pr.  876. 

2  Jones  V.  Jones,  1  Cox,  184. 


3.  Ilinile,  390. 

4  Cann  v.  Gann,  1  P.  Wms.  567. 

5  Cited,  Ilinde,  391;  Pasch.  1781. 

6  llinde,  388;    for  forms   of   notice  of 
motion  and  affidavit,  see  Vol.  III. 

7.  Hinde,  388. 


EXAMINATION    OF    WITNESSES    DE    BENE    ESSE.  941 

davit  of  service  of  the  notice  of  motion,  in  order  that,  if  the  other  C.xxii.  §14. 

side  does  not  attend,  the  order  may,  notwithstanding,  be  obtained.^   "- — y ' 

If  any  irregularity  be  discovered,  or  the  adverse  party  be  ad%-ised  Irregularity 

of  any  ground  of  objection  to  the  reading  of  the  depositions,  he  "'"''"^^ 

".  ....  .  ^  tjiueii  advan- 

snomd  give  notice  in  writing  to  the  adverse  solicitor,  and  move  to  t"K^"  o'"  'jui'ore 

discharge  the  order  immediately  upon  the  service  of  it,  or  on  the     '^^'■'"^s- 

earliest  opportunity  :  for  it  seems  that,  although  depositions  taken 

de  bene  esse  are  irregular,  yet  it  is  too  late  to  object  to  them,  on 

the  ground  of  irregularity,  at  the  hearing  of  the  cause  ;  ^  and  on 

this  account,  when  the  time- between  the  closing  of  the  evidence 

and  the  hearing  of  the  cause  is  short,  the  Court  will  extend  it,  for 

the  purjiose  of  allowing  the  party,  an  opportunity  of  examining 

whether  the  depositions  are  regularly  taken  or  not.^     And   so, 

where  depositions  taken  de  bene  esse  are  read  at  the  hearing  of  the 

cause,  it  is  a  matter  of  course,  if  an  issue  is  directed,  to  order  them 

to  be  read  at  the  trial  of  the  issue,  notwithstanding  an  irregularity 

in  the  examination.* 

With  respect  to  the  costs  of  examinations  de  betie  esse,  no  spe-  QQg^g 
cific  rule  appears  to  have  been  laid  down,  which  makes  any  dis- 
tinction between  them  and  the  costs  of  examinations  under  ordinary 
circumstances :  except,  indeed,  in  the  case  of  bills  filed  for  the 
purpose  of  having  witnesses  examined  de  bene  esse,  in  order  to 
render  their  evidence  available  on  a  trial  at  Law.  In  such  cases, 
it  is  presumed,  the  costs  must  be  regulated  by  the  rule  of  the  Court 
with  regard  to  bills  of  a  similar  description,  namely,  bills  to  examine 
witnesses  in  jyerpetuain  rei  menioriam  :  in  which  case,  a  defendant 
is  entitled  to  apply  for  his  costs  immediately  after  the  examination 
of  the  witnesses  has  been  perfected,  upon  the  sunple  allegation  that 
he  did  not  examine  any  witnesses  himself.^  It  may  be  mentioned, 
that  in  Deic  v.  Clarke,^  where  the  plaintiff  had  filed  a  bill  for  the 
purpose  of  obtaining  the  examination  of  witnesses  de  bene  esse  in 
aid  of  a  proceeduig  at  Law,  and  obtained  an  order,  ex  parte,  for  the 
examination  of  such  watn^ses,  but  afterwards  the  bill  was  demurred 
to,  and  the  demurrer  allowed,  the  Court,  besides  the  usual  costs  of 
the  demurrer,  allowed  the  defendant  his  costs  of  the  examination, 
but  not  those  occasioned  by  his  cross-examination  of  the  witnesses. 

1  For  form  of  affidavit,  Bee  Vol.  III.  6  Foulds  v.  Midgley,  1  V.  &  15.  138;  jmi, 

2  Dean  and /'Impterof  Ely  v.  Warren,       Chiip.    XXXIV.  §  4,  hills   to  Peipttuate 
2  Alk.  11-0;  Hindi;,  2Hi).  Teslimomj ;  Morgan  &  Oavey,  63,  14t>. 

8  Gordon  V.  Gordon,  1  Swanst.  171.  ^  1  6.  6i  6.  lub,  115. 

*  Jb.  166. 


EVIDEKCE. 


Section  XV.  —  Demtcnrrs  hy  Witnesses. 


How  n  wit- 
ness can  pro- 
tect himself. 


(Irounils  on 
which  ho 
may  protect 
himself. 


1.  Tliat  the 
answer  may 
subject  wit- 
ness to  pun- 
ishment, or  to 
forfeiture. 


2.  That  the 
answer  may 
lead  to  a 
breach  of 
professional 
confidence. 


A  ^v^tlloss  exmniiu'd  boluro  nn  Exniniiur  iii.iy  ])n)t(H'l  liiinselfj  by 
domiuTor,  from  answoriiig  nny  question  to  Avliicli  he  lias  a  legal 
objection.^  Tlic  word  "deinurrer,"  however,  is  not,  in  this  in- 
stance, used  in  a  very  ai»])ro])riate  sense  :  since  it  here  signifies 
merely  the  witness's  tender  of  reasons  Avhy  he  shouhl  not  answer 
the  question  ;  -  and  is  not,  like  a  demurrer  in  pleading,  confined  to 
the  facts  appearing  tijx)!!  the  record,  but  states  the  I'aets  uj)on 
which  the  witness  relies  as  the  ground  of  his  objection. 

The  grounds  upon  which  a  witness  may  protect  himself  from 
answering  are,  i)rinci]ially :  1.  That  the  answer  may  subject  him 
to  pains  and  penalties,  or  to  a  forfeiture,  or  something  in  the  nature 
of  a  forfeiture  ;  2.  That  he  cannot  answer  the  question  without  a 
breach  of  professional  confidence. 

1.  With  respect  to  the  first  ground  of  objection,  namely,  that 
the  ansAver  may  expose  the  witness  to  pains  and  penalties,  or  to  a 
forfeiture,  or  something  in  the  nature  of  a  forfeiture,  the  reader  is 
refen-ed  to  a  former  part  of  this  Treatise,^  where  the  privilege  of  a 
defendant,' to  be  protected  from  making  the  discovery  required  by 
the  bill  on  thij;  ground,  has  been  discussed.  It  will  be  there  found, 
that  the  privilege  in  such  cases  arises  from  an  acknowledged 
principle  of  Law,  that  no  man  is  bound  to  answer,  so  as  to  subject 
himself  to  punishment ;  and  as  this  principle  is  applicable  as  well 
to  witnesses  as  to  defendants,  the  rules  Avhich  are  there  Ibund  laid 
down  with  regard  to  its  application  to  the  latter  case  are  equally 
applicable  to  the  former.*  • 

2.  The  rules  of  exemption  from  discovery,  on  the  ground  of  pro- 
fessional confidence,  proceed  upon  the  same  principles  as  are  ap- 
plicable to  the  case  of  defendants ;  and  the  reader  is,  therefore, 


1  15  &  16  Vic.  c.  86,  §  33.  A  witness 
maj',  on  assigning  cause,  demur  to  the 
questions  pro|K)uncled  ro  hini;  upon  which 
the  examinsttioij  must  lie  susjiended  until 
the  Court  decides.  Winder  v.  Difien- 
derffer,  2  Bland,  166.  Counsel  have  no 
right  to  advise  a  witness  that  he  is  not 
bound  to  answer;!  p;'.rii:ular  interrogatory. 
It  is  the  duty  of  the  Kxauiiiier  to  inform 
a  witness  ot  his  legal  rights.  Tnylor  v. 
Wood,  2  Edw  Ch.  94;  1  Iloff.  Ch.  Pr. 
466.  A  witness  who  liernurs  to  a  question, 
i>  not  the  proper  person  t^  br;ng  it  Leibre 
the  Court.  If  the  party  ])utting  the  ques- 
tion does  not  ask  for  an  attachment,  nor 
ill  any  way  bring  the  point  before  tlie 
Court,  no  one  else  can.  'i'lie  question 
will  be  considered  as  Wiiived,  or  the  de- 
murrer well  taken,  unless  he  who  puts  the 


question  persists  in  it,  iind  takes  measures 
til  have  tlie  demurrer  dJspo!-ed  of.  Movv- 
att  V.  Gndiiini,  1  Edw.  Ch.  13. 

2  Puikhuist  V.  Lowten,  2  Swanst.  194, 
203. 

3  Ante,  p.  562. 

4  See  2  I'hil.  on  Evid.  487  et  seq. ;  Tay- 
lor on  Evid  §  13Q8  tl  seq.  ;  Best  on  Evid. 
§  126  et  seq. ;  Greslej'  on  Evid.  80  et  seq.; 
Osborne  /;.  The  London  Dock  Company, 
10  Exch.  698,  701;  1  .Jur.  N.  S.  93;  Side- 
bottom  V.  Adkins,  3  Jur.  M.  S.  631;  5  W. 
i;.  743,  V.  C.  S.;  Keg.  v.  Boyes,  1  B.  & 
S.  311;  7  Jur.  JS'.  S.  1158;  lie  Aston,  27 
Beav.  474;  5  Jur.  X.  S.  615;  4  De  G.  & 
J.  320;  5  Jur.  N.  S  779;  Hx  jjarte  Fer- 
nandez, 10  C.  B.  M.  S.  3,  39,  40;  7  Jur. 
N.  S.  571. 


DEMURRERS    BY    WITNESSES. 


943 


referred  for  information  upon  this  head  to  a  former  portion  of  this 
Treatise,  where  these  rules  have  been  discussed  witli  reference  to 
the  protection  of  a  defendant  from  answering  the  bill.^  It  may, 
however,  be  noticed  here,  that  the  refusal  of  a  client  to  allow  his 
solicitor  to  disclose  professional  communications  is  not  a  reason 
for  treating  him  as  if  he  had  kept  a  material  witness  out  of  the 
way,  or  refused  or  prevented  the  production  of  a  document  in  his 
possession.- 

Where  the  witness  is  served  ^"ith  a  subpoena  duces  tecum  to  pro- 
duce a  deed  or  other  document,  and,  upon  being  asked  to  produce 
it,  objects  to  do  so,  either  \x\)o\\  the  ground  of  his  having  an  interest 
in  the  deed,  or  upon  any  other  ground,^  he  may  refuse,  without  a 
formal  demurrer.  The  course  to  be  adopted  by  the  party  seeking 
production,  in  such  case,  is  to  move,  on  notice  to  the  witness,  that 
he  do  attend  and  produce  the  deed,  and  pay  the  costs  occasioned 
by  his  previous  refusal :  upon  the  hearing  of  which  motion,  the 
Court  will  decide  whether  the  reasons  alleged  by  the  witness,  for 
his  refusal,  are  satisfactory  or  not.^ 

The  question  or  questions  put,  and  the  demurrer  or  oljjcction  of 
the  witness  thereto,  must  be  taken  down  by  the  Examiner,^  on 
paper,  separate  and  distinct  from  the  evidence ;  but  there  does  not 
seem  ever  to  have  been  any  particular  form  for  a  demurrer  by  a 
witness.®  The  witness  should  state  clearly  the  grounds  of  his  re- 
fusal to  answer ;  thus,  a  witness,  demurring  on  the  ground  that  his 
answer  would  violate  the  conlideuce  reposed  in  him  as  a  solicitor, 
must  name  the  party  to  whom  he  was  solicitor.^  He  must  also 
swear  that  the  facts,  from  the  discovery  of  which  he  desires  to  be 
protected,  came  to  him  in  his  capacity  of  solicitor  to  a  particular 
j>erson  :  for  a  solicitor,  like  any  other  witness,  is  bound  to  discover 
all  secrets  of  his  client  which  he  did  not  come  to  the  knowledge  of 
in  his  relation  of  solicitor  to  his  client.*  It  must  also  appear,  that 
the  knowledge  came  to  him  in  the  character  of  a  professional  ad- 
viser, and  in  such  character  only ;  and,  therefore,  where  a  demurrei- 
stated  that  the  \\  itness  was  the  attorney  or  agent  tor  a  person,  it 


C.XXII.  §  1.5. 


Demurrer 
not  neces- 
sary, where 
witness 
declines  to 
produce  a 
document 
under  a 
subpcena  duces 
tecum. 


Form  of 
demurrer. 


1  Ante,  pp.  .571  et.  scq.  71S,  716;  see  also 
(ireenougli  v.  Ga  kill,  1  M.  iL-  K.  '.»^,  101; 
C.  1'.  <J''Op.  t.  Hrougli.  'Jij;  Lord  \Val>iiig- 
liiini  V.  Goouricke,  '.i  Hare,  \'i2,  IbU;  Gore 
V.  linwser,  o  Ue  G.  &  S.  30;  S.  O.  nnm.  Goie 
V.  Harris,  lo.Jur.  IMfc;  Carpmael  r.  I'owis, 
1  I'liil.  *')b' \  'J  IJeav.  10;  i  lioina.s  v.  li'aw- 
ling-,  2'  iJeuv.  140;  .')  .lur.  N.  S.  007; 
Marsh  v.  Keith,  1  Dr.  &,  S.  :J4:i;  G  Jur.  N. 
S-  llhi;  I'ord  v.  'I'eiinant,  'il  JJeav.  Wi\ 
S>  Jur.  N  8.  2\i'l\  (jharltou  v  (joomljes,  4 
Girt'.  372;  'J  Jur.  N    S.  634,  V.  C.  &. 

■2  Wentworh  r.  Llovd,  10  H.  L.  (Ja. 
6fc'J;  10  .lur.  N.  S.  w\\  and  see  I'Mylor 
on  Kvid.  §  101;  iJoltoji  v.  Coifjor.ition  of 
Liverpool,  1  M.  iSc  K.  h»,  "j4,  'jo. 


3  Such  as,  that  the  production  of  it  may 
prove  him  to  be  giiiUy  ol  a  crnne:  suo 
Tarkhur.-t  v.  Lowten,  2  Swanst.  214. 

■*  Jiradshaw  v.  llradsliaw,  1  K.  &  Al. 
35(5;  Hope  v.  Liddell,  20  Heav.  43S,  439; 
1  Jur.  i\.  S.  G(j5;  7  De  G.,  M.  &,  G.  331. 
lor  form  of  notice  see  Vol    111. 

^  lo  &,  10  Vic.  c.  bb,  §  33.  Fi^r  the 
former  practice,  tee  Tippius  v.  Crates,  6 
Hare,  10;  11  .iur.  luio;  and  tor  l>>rinal 
parts  of  toe  demurrer,  see  Vi/|    111. 

0  .Morns  y,  William-,  2  Moll.  342. 

7  I'arkhur-t  v.  Lowien,  2  Swansr.  201. 

"  iM' r;;an  v.  .^haw,  4  i\lad.  64,  6.H; 
Tlioina.s  v.  liawlings,  27  Ueav.  140;  6  Jur. 
N.  b.  007. 


i)4-4 


EVIDENCE. 


r.xxii.§i5. 


Must  1>0  UJlOll 

oiilb. 


JIust  be  filed. 


How  set 
down  tor 
hearing. 

Service  of 
order  to  set 
down. 


Overruling 
demurrer; 


without 
prejudice  to 
another ; 


or  partially. 


wns  consitlerod  not  to  bo  suHiru'iitly  pivciso  :  for  :m  iiLjcnt  may  be 
ou\\  a  steward  or  servant.^ 

Ill  taking  ilown  a  (K-iiiiiircr,  the  IvvainiiuM-  (>iiji;lit  to  take  tlio 
witness's  statement  upon  oath  ;  and  it  was  hehl,  untk'r  tlie  tbnner 
praetiee,  tliat  w  liere  this  was  not  tU)ne,  the  (k'uuirrer  must  be  snj)- 
ported  by  artidavit  :  as  it  is  necessary  the  Court  sliould,  in  some 
way  or  other,  have  the  sanction  of  an  oath  to  the  facts  on  which 
the  objection  is  lounded.'- 

The  demurrer  is  transmitted  by  the  Kxanuner  to  the  Record  and 
Writs  CK'rks'  Otlice,  anil  tliere  tiled;"  and  an  otKce  copy  should  be 
taken  by  the  party  to  the  cause  who  put  the  question  objected  to.* 
The  demurrer  may  then  be  set  down  for  hearing,  under  an  order 
of  course,  to  be  obtained  on  petition,  in  like  manner  as  demurrers 
to  bills  ;^  and  the  validity  of  the  demurrer  will  be  decided  by  the 
Court."  The  order  to  set  down  the  demurrer  need  only  be  served 
on  the  witness  demurring,''  except  where  the  witness,  being  the 
solicitor  of  the  party  in  the  cause,  claims  j)rivilege  on  behalf  of  his 
client :  in  which  case,  it  would  seem,  the  client  should  also  be 
served  with  the  order.^ 

If  the  Court,  upon  argument,  considers  the  demurrer  to  be  bad, 
it  will  overrule  it:  in  which  case,  an  order  will  be  made  that 
the  witness  attend  the  Examiner,  and  be  examined,  or  stand 
committed.''^ 

Sometimes,  however,  where  the  ground  for  overruling  the  de- 
murrer has  been  its  informahty,  and  the  Court  has  considered  that 
the  witness  may  have  a  good  reason  to  be  excused  from  answering, 
it  has  oi'dered  the  demurrer  to  be  overruled,  without  prejutlice 
to  the  witness,  upon  his  re-examination,  objecting  or  demurring  to 
the  question,  as  he  may  be  advised,  upon  such  grounds  as  he  shall 
state  in  such  objection  or  demuiTcr.^" 

Sometimes  the  Court  will  allow  a  demurrer  j^artially ;  thus,  in 
JDavis  V.  lieid^^  where  a  demurrer  was  jjut  in  to  two  interroga- 
tories. Sir  Lancelot  Shadwell  V.  C.  allowed  the  demurrer  as 
to  one,  and  part  of  the  other;  and  directed  that  half  the  costs 
should  be  paid  by  the  witness :  in  analogy  to  the  practice  when 


1  Vaillant  v.  Dodeinesid,  2  Atk.  524; 
and  see  Keid  v.  Laiiglois,  1  M'N.  &  G. 
027,  eaV;   14  Jur.  4b7. 

-  Parkhurst  v.  Lowten,  2  Swanst.  201 ; 
Morgan  f.  fcjhaw,  4  Mud.  54;  Bowman  ». 
Ko'lvvell,  1  Mud.  2t>ti;  Duvis  v.  Keid,  5 
fcjiiii.  443;  ijoodaie  o.  Ciawthom,  4  Ue  G. 
&  S.  l»7.  As  to  the  course,  wliere  a  wit- 
iies»  summoned  belore  a  (Jliiel  Clerk  re- 
fuses to  be  sworn,  see  The  Electric  Tele- 
graph Company  of  Ireland,  Kx  parte 
Uunu,  24  lieav.  137;  3  Jur.  N.  S.  1013. 

a  15  &  Itt  Vic.  c.  bO,  §  33. 

■*  Braitiiwaite's  I'r.  53y. 

6  itraithwaite's  I'r.  63'J;    ante,  p.  594. 


For  form  of  order  to  set  down,  see  Seton, 
1257,  No.  10;  and  for  tbnn  of  petition,  see 
Vol.  HI. 
ti  15  &  16  Vic.  c.  86,  §  33. 

7  liraithwaite's  I'r.  5a>J;  6  Hare,  22,24. 

8  Marriott  «.  Anchor  Reversionary 
Company  (Limited),  3  Gift'.  304;  8  Jur. 
iM.  S.  51;  and  see  Tip{)ins  v.  Coates,  6 
liare,  16,  23;  11  Jur.  1U75. 

'•'  I'arKhurst  v.  Lowten,  2  Swanst.  205, 
206. 

1"  Morgan  v.  Shaw,  and  I'arkhurst  v. 
Lowten,  abi  sup. 

11  5  iSim.  443,  448. 


PUBLICATION. 


945 


two  exceptions  are  taken,  one  of  which  succeeds  and  the  other  C.XXII.§16. 

Instead  of  setting  down  the  demurrer  for  hearing,  the  party  who   Motion,  that 
asked  the  question  objected  to  may  move  that  the  witness  may  ^^(^^^'^flu 
attend  the  Examiner  at  his  own  expense,  and  be  further  examined.  Examiner 
Notice  of  this  motion  must  be  served  upon  the  witness.-^     Upon  ^'^^'^• 
hearing  this  motion,  the  Court  either  allows  the  objection;-  or 
directs  the  witness   to  attend  before   the  Examiner  at  his  oAvn 
expense.* 

The  costs  of  and  occasioned  by  the  demurrer,  or  objection,  are   Q^g^g 
in  the  discretion  of  the  Court ;  *  and  will  be  disposed  of  at  the 
hearing  of  the  demurrer  or  motion  :  the  general  rule  being,  that 
they  follow  the  result.^ 


Section  XVI. — Publication. 


Publication,  in  a  legal  sense,  is  the  open  showing  of  depositions,  ^^at, 
and  giving  copies  of  them  to  the  parties,  by  the  clerks  or  Exam- 
iners in  whose  custody  they  are.® 

By  the  Orders  of  the  Court  the  depositions  of  Avitnesses  are  not 
to  be  disclosed  by  any  of  the  persons  before  whom  they  were  taken 
or  by  their  clerks,  but  are  to  be  closely  kept,  if  taken  in  town,  by 
the  Examiners  at  their  office;  if  by  commissioners  in  the  country, 
by  the  sworn  clerk  to  whom  the  commission,  after  its  execution, 
was  delivered,  until  publication  passes. 

We  have  seen  that  now,  under  the  Orders  of  May,  1845,  jjubli-  At  what  time 
cation  is  to  pass  without  rule  or  order  on  the  ex2)iration  of  two  ""^"'  ^^^der 
months  after  the  filing  of  the  rei^Ucation,  unless  such  time  exj^ires 
in  "the  long  vacation  or  is  enlarged  by  order.''     And  that  if  the 


1  /ie  Aston,  27  Beav.  474;  5  Jur.  N.  S. 
615;  4  I)e  G.  &  J.  320;  5  Jur.  N.  S.  779; 
ilarriott  v.  Anchor  lievcrsionary  Compa- 
ny (Limited),  3  Gifl'.  304;  b  Jiir.  N.  S. 
51.  .\s  to  service,  where  the  witness  is 
a  .solicitor  claiming  privilege  lor  his  client, 
see  ibid. ;  ante,  p.  i)44.  For  form  of  notice, 
see  Vol.  111. 

2  Marriott  v.  Anchor  Reversionary  Com- 
pany (Limited),  uit  sup. 

'•i  Jit  A.ston,  ul/i  sup. 

<  10  &  16  Vic.  c.  86,  §  33;  and  see 
Sawyer  v.  BirchmDre,  3  .M.  &  Iv.  572; 
Laiigh-y  v.  Fi.sher,  5  Beav.  443;  7  Jur. 
164;   14  L.  J.  N.  S.  Ch.  302,  L.  C. 

6  Wright  i;.  Wilkin,  4  Jur.  N.  S.  627, 
V  C.  K.;  Lee  v.  llaniiucrton,  1'2  \V.  li. 
975,  V.  <J.  K. 

0  I'rac.  licg.  3.0:i. 

"  11th  (»nl.  May,  1H45.  In  Massachu- 
sett-t,  tlie  0|jciiin;4  and  tiling,  in  the  (Jieik's 
ollice,  a  dt'posilion  taken  in  a  uuit  in  Chan- 

VOU  I. 


cerj',  is  equivalent  to  a  publication  in.  the 
English  practice.  A  particular  rule  for 
publication  is  not  necessar}'.  Charles 
liiver  Bridge  v.  Warren  Bridge,  7  I'ick. 
344.  In  Maryland,  there  is  no  publication 
of  depositions,  but  all  objections  are  open, 
and  may  be  taken  at  the  hearing.  .Strike's 
Ca--e,  1  Bland,  96.  By  Kule  69  of  tlio 
Equity  Kules  of  the  Supreme  Court  of  the 
United  States,  it  is  provided  that  "  imme- 
diately ujion  the  return  of  the  commissions 
aiid  de[)usitions  ci/iitniniiii?  the  testimony, 
into  the  Clerk's  ollice,  ]mblication  thereof 
may  be  ordered  in  the  Clerk's  ollice  by 
any  Ju<lge  of  tlie  Court,  upon  due  notice 
to  the  parties,  or  it  may  be  enlarged,  as  lie 
may  deem  reasonable  under  nil  the  cir- 
cumstances. But  by  consent  of  the  (larties, 
publication  of  the  testimony  ma^v  at  iiny 
time  pass  in  the  (31eik's  ollice,  such  cou- 
fenl  being  in  writing,  and  a  cojiy  thereof 
entered  in    the   order   book,   or   indorsed 


00 


946 


EVIDENCE. 


C.XXII.§16. 


Fomier 
practice. 


Kulc  to  pass 
publication. 


Rule  to  pro- 
duce wit- 


When  publi- 
cation passed. 


Applications 
to  enlarge: 
when  made. 


two  montlis  .after  tlie  filing  of  tlio  replication  ex]>ire  in  tlie  long 
vacation,  piiblication  is  to  pa.ss  on  the  second  day  ol'  the  ensuing 
Michaelmas  Term,  unless  the  time  is  enlarged  by  oi-der.^  And 
that,  "  if  the  time  is  enlarged  by  order,  publication  is  to  pass  with- 
out rule  or  order,  on  the  e\']>iration  of  the  enlarged  time,  unless 
the  enlarged  time  ex])ires  in  the  long  vacation,  in  Avhich  case  pub- 
lication is  to  pass  without  rule  or  order  on  the  second  day  of  the 
ensuing  Michaelmas  Term,  unless  the  time  is  further  enlarged  by 
order."''-^ 

As  these  Orders  fix  })recisely  the  time  at  which  publication  is  in 
all  cases  hereafter  to  pass,  it  will  not  be  necessary  to  enter  at 
length  into  the  details  of  the  practice  by  which  the  time  of  publi- 
cation has  hitherto  been  determined. 

It  is  desirable,  however,  to  state  that  before  these  Orders  came 
into  oi)eration  publication  passed  either  by  consent  or  rule. 

A  rule  to  pass  publication  was  in  the  nature  of  an  order  of  the 
Court,  directing  that  publication  should  pass  unless  cause  was 
shown  by  the  other  side.  Before  a  rule  to  pass  publication  could 
be  entered,  it  was  necessary,  in  most  cases,  that  there  should  have 
been  a  previous  order  or  rule,  called  a  rule  to  produce  witnesses. 
This  rule,  which  was  in  fact,  a  notice  given  by  one  side  to  the  other 
to  proceed  with  the  examination  of  his  witnesses,  was  sometimes 
called  the  ordinary  rule. 

When  the  prescribed  period  fi-om  the  date  of  the  rule  to  pass 
publication  expired,  publication  passed  as  of  course,  unless  the 
Examiner  or  the  clerk  in  whose  custody  the  depositions  were,  had 
been  served  with  an  order  to  enlarge  publication;  or  unless  a 
commission  had  been  issued  at  the  instance  of  a  defendant, 
under  the  provisions  of  the  17th  Order,  for  the  examination  of 
witnesses  in  the  country,  the  time  allowed  for  the  return  of  which 
had  not  expired,  in  which  case  publication  was  directed  by 'the 
17th  Order,  to  stand  enlarged  until  the  commission  was  re- 
turnable. 

The  recent  Orders  of  May,  1845,  do  not  appear  to  have  made 
any  alteration  in  the  practice  according  to  which  applications  of 
this  kind  are  hereafter  to  be  made;  but  care  must  be  taken  in 
ftiture  in  every  case,  that  the  application  to  enlarge  publication 
be  made  before  the  expiration  of  two  months  from  the  filing  of  the 


upon  the  deposition  or  testimony."  A 
commission  may  be  opened  liy  a  Judge  in 
vacation  in  New  Jersey.  Den  v.  Wood,  6 
Halst.  02.  It  is  a  fatal  objection  to  a  dep- 
osition taken  under  the  Judiciary  Act  of 
1798,  c.  20,  §  30,  that  it  was  opened  out 
of  Court.  Beale  v.  Thompson,  8  Cranch, 
70.  A  deposition  opened  by  mistake  out 
of  Court,  may  be  received  and  filed  in 
Slaine  on  atlidavit  of  the  fact.     Law  v. 


Law,  4  Greenl.  167.  In  Massachusetts,  a 
deposition  taken  under  a  commission,  so 
opened,  may  be  used  in  the  discretion  of 
the  Court,  notwithstanding  the  rule,  that 
"  ail  depositions  shall  be  opened  iind  filed 
with  the  Clerk."  liurrell  v.  Andrews,  16 
Pick.  561;  Goffi'.  Golf,  1  Pick.  475. 

1  112th  Ord.  May.  1845. 

2  113th    Ord.   May,    1845;    Moody   v. 
Payne,  3  John.  Ch.  294. 


PUBLICATION. 


947 


replication.^     If  this  period  has  ex]3irecl,  it  would  appear,  fi-om  the  C.XXII.  §  16. 

old  practice,  that  the  Master  has  no  longer  jurisdiction  to  allow   '~- — y ^ 

any  further  examination  of  witnesses,  as  any  subsequent  applica- 
tion, although,  in  form,  one  to  enlarge  publication,  is  in  eifect  one 
for  leave  to  examine  witnesses  notwithstanding  publication  has 
passed.^ 

It  has  before  been  stated,  that  the  Master  has  no  jurisdiction   -vrhenappli- 
to  allow  of  the  further  examination  of  witnesses  after  the  i)eriod   f"*,'*'"  '"•'^^^ 

1  /  X    1  l)ct(>re  pull- 

has  arrived  at  which  publication,  accordmg  to  the  general  Order,  licatiou  has 

o  passed. 

passes.  ^ 

The  Orders  of  May,  1845,  have  now,  as  we  have  seen,  changed  Under  Orders 
the  manner  in  which  publication  passes,  and  it  remains  to  be  seen  °^  ^^^J''  i^"^^- 
whether  hereafter  any  tenus  or  conditions  will  be  annexed  to  the 
order  to  enlarge  publication. 

Hitherto  in  most  cases  pubUcation  would  have  been  enlarged, 
and  a  party  have  had  an  opportunity  given  him  of  examining  wit- 
nesses, even  though  publication  had  been  enlarged  by  a  precedent  ^fter  one 
order,  if  any  gi-ound  for  doing  it  was  shown  and  verified  by  affi-  ["jl'^^^Jj^^g^t^' 
davit ;  *  as  where  i;\dtnesses  resided  in  parts  of  the  kingdom  at  any 
distance  from  each  other,  or  where  the  party  applying  had  not  been 
able  to  examine  all  his  witnesses  under  a  joint  commission,  exe- 
cuted in  the  cause,  by  reason  of  some  of  the  witnesses  residing  at 
a  great  distance  from  the  party,  and  others  at  a  great  distance  from 
the  place  of  executing  the  commission;  or  where  witnesses  have 
refused  or  neglected  to  attend  before  the  commissioners;  or  by 
any  accident  have  not  been  examined  at  the  execution  of  the  com- 
mission.^ In  Barnes  v.  Ahram^  publication,  though  often  enlarged 
before,  was  enlarged  again  in  order  to  enable  the  defendant  in  a 
tithe  cause  to  search  for  records  in  the  Vatican  upon  affidavit  as  to 
the  probability  of  success  there. 

Under  the  practice  before  the  Orders  of  1845  came  into  oper- 
ation, -sv  hen  any  of  tlie  parties  were  desirous  of  obtaining  a  com- 
mission returnable  at  a  period  subsequent  to  that  at  which 
pubUcation  would  have  passed,  the  proper  course  seems  to  have  '^|.'J'j,f' ^"^ 


When  com- 
mission 
sought  to  be 
made  retum- 


arj'  time 


been  first  to  ai)ply  to  the  IMaster  to  enlarge  publication,  and  then   of  publica- 
tion 


1  To  enlarge  publication  is  to  stay  or 
postpone  the  rule  for  passing  publication, 
and  a  motion  for  that  purpose  may  be 
frrantcd,  on  reasonable  cause  shown ;  but 
this  is  vcr}-  liilferent  from  a  motion  to 
examine  witnesses  after  publication  lias 
actuiillv  passed  llamersley  e.  Lambert, 
2  .Johm.c'h.  432;  /ws<,  p.  948,  note.  It  is  not 
of  course  to  eiiliir^^e  the  rule  to  pass  publi- 
cation, and  it  will  be  refused  where  there 
lias  been  greiit  delay.  Underbill  v.  Vun 
Cortlaiidt,  1  .John.  fh.  000. 

2  Carr  r.  Appleynrd,  2  M.  &  C.  470; 
Anon  ,  0  15eav.  92;  Str'ckland  v.  Strick- 
land, 4  Beav.  146. 


8  In  New  Jersey,  if  either  party  canm-t 
complete  his  testimony  within  the  pre- 
scriljed  period,  his  time  may  be  enlarged 
upon  motion,  on  notice  served  before  the 
expiration  of  said  time,  for  reasons  veiified 
by  proof  satisfactory  to  the  Chancellor. 
The  time  limited  for  takiiis  testimony 
shall  not  be  extendeil,  except  by  written 
consent,  or  by  order  ot  the  Court,  made 
upon  notice.     Rules  G6,  G7. 

■♦  llinde,  383 ;  Moody  i'.  l>eaming,  1  Mad. 
85. 

'>  Ilindc,  883. 

c  3  Mad.  103. 


048 


EVIDENCE. 


(■.XXII.§lt). 


Whoro  !i 
cross-bill 
lilod. 


In  a  cross 
cause 


After  publica- 
tion has 
passed. 


:u\  onlor  ini<;lit  have  been  obtninod  from  flic  Court  for  the  com- 
mission.^ The  same  practice  ajtpears  to  continue,  except  that  now 
the  blaster  has  jurisdiction  to  ln'ar  applications  for  additional 
commissions,  and  to  determine  (.juestions  rehiting  thereto. 

AN' lure  a  cross-bill  has  been  tiled  before  the  original  suit  has 
been  jiroceedeil  in,  and  the  defendant  to  the  cross-suit  (who  is  the 
}»laintirt'iu  the  original  suit)  has  not  ])ut  in  an  answer  to  the  cross- 
bill, the  plaintitt'  in  the  cross-suit  may  have  publication  enlarged 
in  the  original  suit  till  a  fortnight  after  the  answer  to  the  cross-bill 
shall  have  come  in,  as  the  discovery  afforded  by  such  answer  may 
be  of  service  to  him  in  framing  his  interrogatories.-  But  we  have 
before  seen,  that  if  publication  has  been  allowed  to  pass  in  the 
original  suit,  witnesses  can  no  longer  be  examined  in  the  cross- 
cause  concerning  matters  in  issue  in  the  original  one." 

It  seems,  however,  that  after  proceedings  have  been  taken  in  the 
original  cause,  publication  can  only  be  enlarged  where  the  defend- 
ant in  the  cross-cause  is  in  contem])t,  unless  a  special  ease  is  made. 
In  Cook  V.  JBroojnhead,*  where  the  cross-bill  was  not  filed  till 
after  a  rule  to  pass  publication  had  been  entered  in  the  original 
suit,  and  the  defendant  in  the  cross-suit  was  not  in  contempt, 
a  motion  by  the  plaintiff  in  the  cross-suit  to  enlarge  publication, 
which  was  not  founded  upon  any  special  grounds,  Avas  refused  with 
costs.^ 

It  may  be  mentioned  here,  that  the  Court  of  Exchequer  has  de- 
termined^ that  an  order  to  enlarge  publication  till  the  coming-in 
of  the  answer  in  a  cross-cause,  shall  not  be  granted,  unless  upon 
affidavit  of  the  truth  of  the  facts  stated  in  the  cross-bill,  and  that 
the  answer  may  furnish  a  good  defence  to  the  original  bill.'"'  It 
is  not  necessary,  however,  that  such  affidavit  should  be  made 
by  the  party  himself,  but  if  made  by  his  solicitor,  it  will  be 
sufficient." 

Sometimes,  when,  by  accident  or  surprise,  publication  jiasses 
before  a  party  has  examined  his  witnesses,  and  there  has  been  no 
blamable  negligence,  publication  will  be  enlarged  *  even  after  the 


i  Maund  v.  Allies,  4  M.  &  C.  503. 

2  Creswick  v.  Cresvvick,  1  Atk.  291;  see 
also  Karnkissenseat  v.  Barker,  1  Atk.  19. 

3  Tascall  V.  Scott,  1  Ph.  110. 

4  16  Ves.  1.33. 

6  See  Uiiderhill  v.  Van  Cortlandt,  1  .John. 
Ch.  500;  Goveriieur  v.  Elmendorf,  4.John. 
Oil.  357;  Field  r.  Schiellelin,  7  John.  Ch. 
250. 

8  Edwards  v.  Morgan,  11  Pri.  939. 

7  Lowe  V.  Firkins,  M'Lel.  10;  13  Pri. 
21,  S.C. 

»  The  time  for  publication  will  be  en- 
larged, or  more  projierly,  the  time  for 
taking  tdstimony  will  be  enlarged,  after 
publication  passed,  though  not  in  fact  rnxde 


according  to  the  rules  of  the  Court,  pro- 
vided some  good  cause  is  sliown  therefor 
upon  affi<iavit,  as  surprise,  accident,  or 
other  circumstances,  which  rept'l  the  pre- 
sumption ol'  Inches.  Tlie  affidavit  is  indis- 
pensable except  in  cases  of  fraud  practised 
by  the  other  party.  Wood  v.  Miinn,  2 
JSuniner,  310.  In  Hamersley  v.  Lambert, 
2  Ji.hn.  Ch.  432,  it  was  held,  that  after 
publication  witnesses  cannot  be  examined 
unless  under  verj'  special  circumstances, 
.^ee  also  Hamersley  v.  Brown,  2  John.  Ch. 
42b.  The  deposition  of  a  witness,  whose 
examination  was  not  closed  until  after 
publication  had  passed,  was  allowed  to  be 
read ;  he  having  been  cross-examined  by 


PUBLICATION. 


949 


depositions  have  been  delivered  out,  upon  affidavit  that  they  have 
not  been  read.  Such  an  order,  however,  cannot  be  made  ^  except 
upon  application  to  the  Court  itself,^  nor  unless  some  cause  is 
shown  why  the  witness  was  not  examined  before.  And  it  is  a  rule 
of  the  Court,  that  the  party,  as  well  as  his  solicitor,  must  make 
oath  that  they  have  never  seen,  read,  nor  been  informed  of  the 
contents  of  the  depositions  taken  in  the  cause,  nor  will  they,  &c., 
till  publication  is  duly  passed.^ 

An  instance  is  mentioned  in  the  books,  having  occurred  in  Lord 
Somers's  time,  in  which  the  Court  granted  an  order  to  enlarge 
publication  after  it  had  actually  passed,  although  the  rule  of  the 
Court  above  stated  could  not  be  complied  with  ;  but  in  that  case 
the  solicitor  on  the  other  side,  being  an  artfiil  man,  having  pro- 
ciired  copies  of  his  client's  dei:)ositions,  immediately  went  Avith 
them  to  the  adverse  solicitor,  and  showed  him  the  depositions,  and 
read  them  over  to  him ;  the  solicitor,  being  ignorant  of  the  rule, 
told  him  he  must,  notwithstanding,  have  an  opportunity  of  exam- 
ininof  his  witnesses,  and  soon  after  took  his  witnesses  to  the  Ex- 
aminer's  office,  where  he  was  told  they  could  not  be  examined, 
because  publication  was  passed  and  the  depositions  delivered  out. 
The  solicitor,  surprised  at  this,  went  to  his  clerk  in  Court  to  know 
what  he  was  to  do,  and  told  him  the  whole  story,  which  being  laid 
before  the  Court,  it  enlarged  publication,  and  gave  the  party  an 
opportunity  to  examine  his  witnesses,  and  the  adverse  party  nar- 
rowly escaped  commitment  for  his  misconduct.* 

Where  a  defendant  obtained  an  order  to  enlarge  publication 
upon  an  allegation  that  it  had  not  passed,  which  was  untrue,  the 
order  was  held  to  be  informal,  and  an  api)lication,  upon  the  usual 
affidavit,  that  publication  might  be  again  enlarged,  or  the  evidence 
taken  under  the  informal  order,  read  at  the  hearing  of  the  cause, 
was  dismissed  with  costs.^ 

It  seems  that  the  Court  will  not  only  enlarge  publication,  upon 
the  proper  affidavits,  after  publication  has  actually  passed,  but  it 
■will,  if  a  proper  case  is  made,  even  grant  a  second  commission  to 
examine  Avitnesscs,  upon   being  satisfied,  by    affidavit,   that  the 

thp  opposite  p'irty,  and  no  actual  abuse 
appe:iriiiK;  bur  sucli  practice  is  irrcf^ular. 
Underlnll  v.  Van  Cortlaiult,  2  Joim.  Ch. 
339.  The  Court,  by  extreme  ri^or,  en- 
deavors to  guard  afjainst  the  iit)use  of  in- 
tro'lucin;?  lestininnv  to  meet  that  which 
ha.s  been  produfi'd;  and  iiccorilinf,^y  it  has 
been  held,  that  if,  after  publication  lias 
pas'Cfl,  the  snlistance  of  the  testimony 
taken  on  a  material  ])o;nt,  ujion  which  fur- 
ther testimony  is  soiii;lit.  has  ijcen  ili«- 
closed  lo  the  party  iipp'yinir,  it  i.s  too  lale 
to  mov(!  to  open  nr  en  ar::o  the  rule  on 
affidavit.     Moody  v.   I'ayne,  3  John.  Cli. 


C.XXII.§16. 


Upon  affi- 
davit that 
party,  &c., 
has  not  seen 
the  deposi- 
tions. 


Granted  in 
one  case  with- 
out the  usual 
affidavit. 


Publication 
enlarf!,cd  upon 
an  untrue 
allegation, 
informal. 


Commission 
g-ranted  al'ler 
publication. 


294.     See  this  subject  discussed  in  Wood 
V.  Mann,  2  Sumner,  316. 

1  1  Ilarr.  (ed.  Newl.)  289. 

2  Anon..  T)  Beav.  92;  Maund  v.  Allies,  4 
M.  &  C.  503. 

8  Jl}i(l. ;  but  see  I.awrcU  7K  Titchborne, 
2('ox,2fi9;  llamcrslev  I'.  Lmubcrt,  2  .lohn. 
Ch.  432.  In  this  la-'t  case  the  CliaTiccllor 
remarks,  that  ''  ^ucli  !in  oath  mi^dit  not  to 
be  much  encouraj^cd.  It  is  partly  ])ri>m- 
issory,  it  may  lie  difficult  to  l)e  strictly 
kept,  and  is  of  dangerous  and  suspicious 
teniiencv,"  p.  433. 

*  1  Ilarr.  (ed.  Newl.)  2H9. 

6  Conethard  v.  Hasted,  3  Mad.  429. 


950 


EVIDENCE. 


C.XXII.§17. 


Sorvico  of  tho 
order. 


After  publica- 
tion enlart;ed, 
the  other  side 
may  examine 
at  larixe. 


Adjournment 
ofeause, 
where 
necessarj' ; 


how  procured. 


Copy  of  inter- 
rogatories 
annexed  to 
deposition. 


]>arty  n]iplylng,  ruul  his  solicitor,  aro  ioiiorant  of  the  contents  of 
the  depositions.^ 

The  onler  for  eidarginij;  ])ultIieatiou'-  is  signed  and  entered  by 
the  blaster,  and  a  oojiv  of  it  must  then  be  served,  not  only  upon 
the  other  side,  but  upon  the  K.vaniiner  who  took  the  depositions, 
and  the  Clerk  of  Records  and  Writs  in  whose  custody  the  deposi- 
tions, if  taken  by  commission,  are,  on  or  before  the  day  on  which 
publication  actually  passes." 

This  is  necessary,  as  well  to  authorize  the  giving  out  copies  of 
the  depositions,  and  to  preclude  further  examination  after  the 
period  to  which  publication  has  been  enlarged,  as  to  authorize  the 
examination  of  further  witnesses.'' 

It  is  a  fixed  rule  of  the  Court,  that  if  one  of  the  parties,  after 
jiublication  has  passed,  obtains  an  order  to  enlarge  publication, 
upon  the  usual  affidavit,  the  other  party  may  not  oidy  cross-exam- 
ine, but  may  examine  at  large,  even  though  he  has  seen  and  read 
the  former  depositions.^ 

Where  a  cause  has  been  set  down  for  hearing,  and  publication 
is  enlarged  beyond  the  day  on  which  the  same  is  set  down  to  be 
heard,  the  proper  course,  if  the  cause  is  likely  to  come  on  before 
the  dejjositions  are  ready,  is  to  apply  to  the  Court  for  an  order  to 
adjourn  the  hearing  for  a  certain  time.  An  application  for  this 
jiurpose  must  be  made  to  the  Court  °  upon  motion,  of  which  notice 
has  been  duly  served,  and  the  order  made  thereon  should  be 
served,  in  the  usual  manner,  upon  the  adverse  solicitor,  before  the 
day  on  which  the  cause  is  to  be  heard,  otherwise  the  cause,  when 
called  on,  Avill  be  struck  out  of  the  paper.'' 

Publication  being  passed,  the  Examiner  or  Clerk  of  Records 
and  Writs,  in  whose  custody  the  depositions  are,  is  at  liberty  to 
pennit  them  to  be  examined,  and  to  deliver  copies  of  them  to  the 
parties. 

When  an  office  copy  of  the  depositions  taken  on  behalf  of  an 
adverse  jiarty  is  delivered  out,  a  copy  of  the  interrogatories 
whereon  such  depositions  were  taken  is  always  annexed.® 


Section  XVII.  —  Suppression  of  Depositions. 


Upon  what 
grounds 
depositions 
will  be  sup- 
pressed. 


The  ground  upon  which  the  Court  suppressed  depositions  has 
been  either  that  the  interrogatories  upon  which  they  were  taken 
were  leading ;  or  that  the  interrogatories  and  the  dej^ositions  taken 


1  Turbot  V.  ,  8  Ves.  315;  see  also 

Dingle  v.  Rowe,  Wightw.  99;  Cutler  v. 
Cremer,  6  Mad.  254;  but  see  Mineve  v. 
Rowe,  1  Dick.  18, 

2  24th  Ord.  1833. 
8  llinde,  381. 


*  Ibid. 

6  Anon..  1  Vern.  253. 

6  1  Smith's  Ch.  Pr.  388. 

7  Hinde,  385, 38G. 

8  Hinde,  395. 


SUPPRESSION    OF    DEPOSITIONS. 


951 


Leading  in- 
terroj'atories. 


Reference 
before  Mas- 
ter. 


upoB  them,  or  the  depositions  alone,  were  scandalous ;  or  else   C.XXll.  §i 
that   some   irregularity  has    occurred    in    relation    to    them.^     A 
deposition  may  also  be  suppressed,  because  a  witness  has  disclosed 
some  matter  which  has  come  to  his  knoAvledge  as  sohcitor  or 
attorney  for  the  party  applying.^ 

The  objection  that  the  inteiTogatories  are  leading  can  scarcely 
now  be  taken,  as  the  Examiner  himself  either  puts  the  questions, 
or  controls  those  by  whom  the  witnesses  are  examined. 

Formerly,  when  any  valid  objection  could  be  taken  to  the  depo- 
sitions, it  was  the  practice  to  move  for  a  reference  to  the  Master, 
and  upon  his  rejjort  to  move  to  suppress  the  depositions.  Xow 
that  the  Master's  office  is  abolished,  the  proper  course  would  be  to 
move  the  Court  at  once,  if  any  objection  could  be  taken,  for  an 
order  to  suppress  the  depositions. 

1  In  such  cases  the  depositions  are  sup- 
pressed prior  to  the  hearing,  and  the  wit- 
ness will  be  permitted  to  be  re-examined. 
Brown  v.  Bulklev,  1  McCarter(N.  J.),  294, 
307,  3015;  Van  Nauiee  r.  Groot,  40  Vt.  74, 
80;  see  1  Iloff.  Ch.  Pr.  495;  Underbill  r. 
Van  Cortlandt,  2  John.  Ch.  345;  Stubbs 
V.  Burwell.  2  Hen.  &  M.  536 ;  Pillow  v. 
Shannon,  3  Yersrer,  508 ;  Gresley  Eq.  Ev. 
(Am.  ed.)  147-154;  Ringgold  v.  Jones.  1 
Bland,  90;  Perine  c  Swaine,  2  John.  Ch. 
475;  Hemphill  e.  Miller,  IC  Ark.  271.  It 
is  a  fatal  defect,  if  the  general  interrogatory, 
"  Do  you  know  any  thing  further,"  &c., 
does  not  appear  to  be  answered.  Richard- 
son c.  Golden,  3  Wash.  C  C  109;  ante, 
p.  924,  note.  So  if  the  deposition  is  taken 
before  persons  not  named  in  the  commis- 
sion. Banertr.  Day,  .3  Wa.sh.  C.  C.  243.  So 
if  all  proper  interrogatories  do  not  appear 
to  have  been  answered,  on  each  side,  sub- 
stantiall}-.  Bell  v.  Davidson,  ib.  328; 
Nelson  v.  United  States,  1  Peters  C.  C. 
235.  A  deposition  was  rejected  because  a 
witness  refused  to  answer  a  proper  ques- 
tion; also  because  it  was  in  the  hand- 
writing of  the  plaintifTs  attorney.  Mosely 
V.  Mosely,  Cam.  &  Nor.  522.  Depositions 
taken  without  notice  will  be  rejected. 
Honore  v.  Colmesnil,  1  J.  J.  Marsh.  525. 
So  a  deposition  taken  after  argument  of 
the  cause,  without  special  order,  will  be 
suppressed.  Dangertield  v.  Claiborne,  4 
Hen.  &  M.  397.  Evidence  of  a  fact  not  in 
issue,  may,  upon  motion,  before  the  hear- 
ing, be  suppressed,  or  it  may  be  rejected 
at  the  iiearing.  Trumbull  v.  Gibbons, 
Hal.it.  Dig.  174:  see  Butman  r.  Ritchie,  6 
Piiige.  390.  According  to  the  practice 
pursued  in  New  York  by  Chancellor  Kent, 
motions  to  sujjpn-.ss  depositions,  nltliougli 
permitted  to  be  made  before  the  hearing, 
usually  resulted  unless  the  point  wa.-^  very 
clear,  in  pertnitting  the  evidence  to  stand 
de,  hene  cgge,  and  nMorvni;;  tiie  question. 
1  Hoflf.  Ch.  I'r.  4!".").  It  is  not  in  accord- 
ance with  the  practice  of  the  Court  to 
suppress  testimony  as  incompetent,  before 
the  hearing.    Williamson  v.  More,  1  Barb. 


S.  C.  229;  Brown  v.  Bulkley,  1  McCarter 
(N.  J.),  307.  "  The  question,  whether  the 
deposition  shall  be  suppressed,"  it  was  re- 
marked by  the  Chancellor,  in  Underbill  v. 
Van  Cortlandt,  2  John.  Ch.  345,  "  is  a 
matter  of  discretion;  and  in  Hammond's 
Case,  Dickens,  50,  and  in  Debrox's  Case, 
cited  in  1  P.  Wms.  414,  the  deposition  of 
a  witness  examined  after  publication  was 
admitted  in  the  one  case,  because  the 
opposite  party  had  cross-examined;  and  in 
the  other,  because  the  testimony  would 
otherwi.se  have  been  lost  for  ever."  A 
deposition  having  been  taken  after  a  cause 
was  set  down  for  hearing  in  the  Superior 
Court  of  Chancery,  and  no  objection  hav- 
ing been  made  in  that  Court,  the  Court  of 
Appeals  will  presume  that  good  cause  was 
shown  for  admitting  it.  Stubbs  r.  Bur- 
well,  2  Hen.  &  !M.  53t5 ;  Pillow  v.  Shannon, 
3  Yerger.  508.  Exceptions  to  the  reading 
of  depositions  taken  by  virtue  of  commis- 
sions, issued  after  the  cause  in  which  they 
may  be  required  is  set  down  for  hearing, 
may  be  made  at  any  time  before  the  cause 
is  gone  into,  when  called;  after  which 
such  exceptions  would  come  too  late. 
Foster  v.  Sutton,  4  Hen.  &  M.  401 ;  see 
further  as  to  irregularities  in  taking,  &c., 
depositions,  and  when  they  will  or  wll 
not  cau=e  their  rejection,  Gresley  Eq.  Ev. 
(Am.  ed.)  147-154;  Cravens  i".  Harrison, 
3  Litt.  92;  Clarke  v.  Tinsley,  4  Rand.  250; 
Stubbs  V.  Bunvell,  2  Hen.  &  M.  536; 
Hiiiggold  I'.  Jones,  1  Bland,  90:  Perine  v. 
Swaine,  2  John.  Ch.  475;  Underbill  v. 
Van  Cortlandt,  2  John.  Ch.  345.  A  party 
is  too  late  to  move  to  sui)press  a  deposi- 
tion for  irregularity  at^er  having  c.xhihited 
articles  to  discredit  the  witness.  Malone 
V.  .Morris,  2  Moll.  324.  The  suppression  of 
depositions  is  a  matterof  discretion.  Brown 
V.  Bulklev,  1  McCarter  (N.  J.),  294,  308; 
Underbill  v.  Van  Cortlandt,  2  John.  Ch. 
345. 

■^  Sandford  v  Remington,  2  Ves.  J.  189; 
Bernard  v.  I'apinean,  3  De  G.  &  Sm.  498; 
Attorney-General  v.  Dew,  3  De  G.  &  Sm. 
493. 


1)52 


EVIDENCE. 


I'.XXIl.  MS. 


Section  XVIII.  —  He-examination  of  Witnesses. 


In  what  cases 
pi'rmitloil. 


■\\'here  depo- 
sitions have 
hi'on  sup- 
iiresseil  tor 
irregularity. 


l>i-c;uise  in- 
terrogatories 
leading  ; 


or  where 

some  impor- 
tant fact  has 
been  omitted 
in  the  orig- 
inal deposi- 
tions. 


The  Court  is  always  dosiroiis  that  the  ex.iiniiiation  of  witnesses 
shoiihl  be  eonipleted,  as  imicli  as  possible,  una  actn,  and  that, 
whenever  it  ean  be  aeeoniplished,  no  o))])ortunity  should  be  af- 
forded, at\er  a  witness  has  once  signed  Ids  deposition,'  and  "  turned 
liis  baek  upon  the  Examiner,"  '^  of  tampering  with  him,  and  in- 
ducing him  to  retract  or  contradict  or  explain  away  what  he  has 
stated  in  his  first  examination  upon  a  second ;  but,  notwitlistand- 
ing  this  unwillingness  to  allow  a  second  examination  of  the  same 
witness,  there  are  cases  in  which,  if  justice  requires  that  a  second 
examination  of  the  same  witnesses  should  take  place,  an  order 
will  be  made  to  permit  it.* 

Thus,  where  the  whole  depositions  of  the  witnesses  in  a  cause 
are  su})2)ressed,  on  account  of  some  irregularity  in  tlie  conduct  of 
the  cause,  or  in  the  examination  of  the  witnesses,  the  Court  will, 
when  it  is  satisfied  that  the  irregularity  has  been  accidental  and 
unintentional,  direct  the  witnesses  to  be  re-examined  and  cross- 
examined  upon  the  original  interrogatories.* 

The  cases,  however,  in  Avhich  the  Court  will  permit  the  re-ex- 
amination of  the  same  witnesses  after  publication,  are  not  confined 
to  those  in  which  the  original  depositions  have  been  suppressed 
for  irregularity ;  it  has,  as  we  have  seen,  permitted  it  to  be  done 
in  a  special  case,  where  the  depositions  had  been  sup])ressed, 
because  the  interrogatories  upon  which  they  were  taken  were 
leading.^ 

But,  even  where  the  original  depositions  have  not  been  sup- 
pressed, the  Court  has  frequently  made  an  order,  after  publication, 
for  the  re-examination  of  witnesses,  for  the  pui-pose  of  proving 


1  Beames's  Ord.  74. 

2  Lord  Abergavenny  v.  Powell,  1  Mer. 
130. 

8  The  re-examination  of  a  witness  in 
Chancety  rests  in  discretion,  and  though 
granted  under  peculiar  circumstances,  is 
against  the  nrdinaiy  practice  of  that  Court. 
Bench  V.  Fulton  Bank,  3  Wend.  573; 
Phillips  V.  Thompson,  1  John.  Cli.  140.  A 
witness,  examined  while  incompetent  by 
reason  of  interest,  may  be  re-ex!imined 
after  his  competeiicv  is  restored,  lladdix 
V.  Haddix,  5  Litt.  202.  But  a  party  will 
not  be  allowed  to  re-examine  a  witness 
whose  memory  has  been  refreshed  since 
his  examination  closed,  except  as  to  docu- 
mentary evi'lence.  Noel  «.  Fitzgerald.  1 
Hogan,  ]36;  see  Byrne  v.  Frese,  1  Moll. 
396.  Nor  can  a  witness,  after  a  hearing 
and  final  decree  in  a  cause,  be  re-examined 
to  explain  or  correct  his  testimony  taken 


on  his  examination  in  chief,  and  read  at 
the  hearing,  unless  under  very  special  cir- 
cumstances. Gray  v.  Murray,  4  John.  Ch. 
412;  Hallock  v.  Smith,  4  John.  Ch.  G49; 
Sterry  v.  Arden,  1  ib.  02 ;  Newman  v.  Ken- 
dall, 2  A.  K.  Marsh.  236. 

■*  Fresh  interrogatories  and  re-examina- 
tion have  been  permitted  after  publication, 
where  depositions  have  been  suppressed 
from  the  interrogatories  being  leading,  or 
for  iiregularit}-,  or  where  it  has  been  dis- 
covered that  a  proper  release  has  not  been 
given,  to  make  a  witness  competent.  Wood 
V.  Mann,  2  Sumner.  316;  see  Healey  v. 
Jagger,  3  Sim.  494;  Chameau,  6  Beav.  419; 
Stiaw  V.  Lindsey,  15  Ves.  380  ;  Attornej'- 
Gencral  v.  Nethercote,  9  Sim.  311. 

5  See  Spence  v.  Allen.  Prec.  in  Chan. 
493 ;  1  Eq.  Ca.  Ab.  232 ;  Lord  Arundel  v. 
Pitt,  Amb.  585;  Hinde,  398. 


RE-EXAMINATION    OF    WITNESSES. 


953 


some  fact  which  has  been  omitted  to  be  proved  upon  the  original 
deposition.  This  is  frequently  done  upon  inquires  in  the  Master's 
office,  under  decrees  ;^  and  even  before  the  cause  has  been  heard, 
the  Court  will  entertain  applications  for  the  purpose  of  allowing 
fresh  interrogatories  to  be  administered  to  ^-itnesses  who  have  been 
already  examined  in  the  cause.^ 

In  a  case  before  Lord  Erskine,^  an  order  was  made,  on  the  appli- 
cation of  the  witness  himself,  after  publication,  for  his  re-examina- 
tion as  to  a  point,  upon  which  it  appeared,  by  his  affidavit,  he  had 
made  a  mistake.  The  order,  however,  was  confined  to  permit  his 
re-examination  as  to  that  particular  point  only,  and  it  directed 
that  the  other  side  should  have  an  opportunity  of  cross-examining 
him. 

It  is  to  be  remarked,  that  the  Court  will  not  only  entertain  an 
application  for  this  purpose,  after  publication  has  taken  place  in 
the  cause,  but  will  even  at  the  hearing,  where  the  defect  in  the 
evidence  of  a  particular  witness  has  not  been  discovered  before, 
permit  the  cause  to  stand  over,  to  enable  the  party  to  make  an 
application  to  the  Court  for  permission  to  re-examine  the  witness.* 

Sometimes,  in  cases  of  this  nature,  the  Court,  instead  of  having 
the  witness  re-examined,  will,  if  the  mistake  involves  only  a  verbal 
alteration,  permit  the  original  deposition  to  be  amended.^ 

But  before  the  Court  makes  an  order,  either  for  the  re-examina- 
tion of  a  witness,  or  for  amending  a  deposition  after  publication,  it 
will  examine  very  strictly  into  the  circumstances  of  the  case ;  and 
if,  upon  such  examination,  it  is  not  satisfied  that  the  error  has  been 
wholly  accidental,  or  the  effect  of  mistake  or  omission  either  on 
the  part  of  the  witness  or  of  the  Examiner,  it  will  refuse  the  ap- 
plication.' And,  in  general,  before  making  an  order  for  the  amend- 
ing of  the  deposition,  it  will,  unless  the- case  is  veiy  clear,  examine 
both  tlie  witness  anA  the  Examiner.'^ 

In  all  the  cases  where  a  correction  has  been  permitted  in  the 
deposition  itself,  a  direction  that  the  witness  should  reswear  his 
depositions  after  the  alteration,  has  formed  part  of  the  order. 

It  was  stated  l)y  Lord  ITardAvicke,  in  Bishop  v.  Church,^  that 
the  Court  had  sometimes  directed  a  witness  to  attend  personally 
when  it  had  a  doubt ;  but  in  that  case  tlie  witness,  having  spoken 


C.XXII.§18. 


On  the  appli- 
cation of  wit- 
ness himself. 


On  applica- 
tions at  the 
hearing. 


Amendment 
of  deposi- 
tions, in  what 
cases  per- 
mitted. 
Ill  what  cases 
the  Court  will 
order  the  at- 
tendance of 
the  witness 
and  Exam- 
iner. 


Depositions 
must  be 
resworn. 

Re-examina- 
tion by  the 
Court  itself. 


1  See  post,  "  Proceedings  in  Master's 
office." 

2  Cox  V.  Allinghiim,  .Jac.  337;  Turner 
V.  Trelawnev.  9  Sim.  453;  Bvrne  v.  Frese, 
1  Moll.  30fi;  I'ottR  V.  Turts,  Younge,  343; 
Bridge  v.  Hridge,  6  Sim  352. 

8  Kirk  r.  K'rk,  13  Ves.  286. 

*  fox  »•  AlliiiLdmin,  .lac.  33T. 

6  Howlev  I'.  Hidjev,  1  Cox.  281:  2  Dick. 
687,  S.  C;  Griells  i".  Can^ell,  2  \\  Wms. 
646.  After  publication  pa'^scd  sind  tlio 
cause  set  down  for  licaring,  the  deposition 


of  a  witness  was  allowed  to  be  amended  on 
examination  of  the  witness  by  the  ('nurt, 
lie  being  nged  and  very  deaf,  and  a  mi-t:ike 
miule  in  taking  dowiihis  testiumny  bv  tiie 
F.xam'ner.  Denton  v.  .Jackson,  1  .bihn. 
Ch.  526. 

6  Ingram  v.  Mitchell,  5  Ves.  209. 

7  Ihhl. ;  Criclls  c.C.iinsoll.  2  P-Wms.  646; 
Darling  (•.  Slanllord,  1  Dick.  308;  Tcnder- 
el  V.  I'enderel.  Kel.  25. 

8  2  Vcs.  S.  100. 


954 


EVIDENCE. 


C'.XXII.§1S. 


Oni>T  not  ill 
conoral  luaile 
lu'iViro  impli- 
cation. 


In't'oro  piiMi- 
i-ation.  por- 
niitti'il  in 
Kxamiiior's 
otHce. 


l^iit  not  after 
witness  lias 
CDiicluileil 
his  examina- 
tion 


unless  by 
order ; 


upon  affidavit 
that  he  has 
not  commu- 
nicated the 
effect  of  his 
cross-exam- 
ination ; 


but  he  may 
be  examined 
by  the  oppo- 
site party, 

either  before 
the  Exam- 
iner; 


or  before  a 

commis- 

Eioner; 


so  tvonorally  in  his  deposit  ions  :is  to  loavo  n  donbt  in  his  niiml  upon 
a  particular  point,  ho  ivtusod  to  proceed  in  tlie  cause  till  the  wit- 
ness had  l)cen  exaniiiuMl  upon  interrogatories  before  tlu'  Master. 

An  order  tc^  re-t>xamiiie  a  witness,  for  tlie  purpose  of  siij)plying 
a  defect  in  his  t'onm  r  examination,  will  not,  in  general,  bo  made 
bet'ore  ])ublication  has  passed  in  the  cause;  the  reason  of  which  is 
the  dittieulty  the  Court,  without  seeing  the  depositions,  would  have 
in  coming  to  a  correct  conclusion  as  to  the  propriety  of  granting 
or  refusing  the  a]>j)lication.^ 

The  reader  is  reminded  here,  that  where  the  examination  of  a 
Avitness  is  before  an  Examiner,  either  i)arty  may,  up  to  the  ])eriod 
of  publication,  exhibit  new  interrogatories  for  the  further  exami- 
nation of  the  same  or  of  other  witnesses  there,  without  an  order  to 
warrant  it ;  but  that  Avhen  a  commission  is  taken  out,  the  practice 
has  hitherto  been  different.^  -It  is,  however,  to  be  here  observed, 
that  the  poAver  of  exhibiting  additional  interrogatories  for  the 
further  examination  of  a  witness  already  examined  before  the  Ex- 
aminer is  confined  to  the  period  of  a  witness  being  under  examina^ 
tion.  If  the  examination  of  the  Avitness  has  been  closed,  and  he 
has  perfected  and  signed  his  deposition  (although  he  may  be  per- 
mitted to  perfect  his  deposition  in  some  circumstances  of  time  or 
the  like,  or  by  correcting  a  sura  upon  view  of  any  deed,  book,  or 
Avriting,  to  be  shoAvn  to  the  Examiner),^  he  cannot  be  again  exam- 
ined on  behalf  of  the  party  producing  him  Avithout  an  order  of  the 
Court ;  and  it  seems  that  such  order  cannot  be  obtained,  unless 
upon  affidavit  that  the  witness,  if  he  has  been  cross-examined,  has 
not  communicated  the  eiFect  of  his  cross-examination  to  the  pa^ty 
examining  in  chief,*  Nor  will  such  an  order  be  made,  at  least  be- 
fore publication,  for  the  purpose  of  permitting  a  witness  to  alter 
or  explain  what  he  has  stated  upon  his  first  examination,  although 
he  may  be  re-examined  as  to  different  matter.' 

But  although  a  witness,  after  he  has  closed  his  examination,  can- 
not be  re-examined,  on  behalf  of  the  party  producing  him,  Avithout 
an  order,  he  may,  if  he  has  been  examined  before  the  Examiner, 
be  examined  again  by  the  adverse  party  without  an  order.^  He  is, 
in  fact,  in  such  case,  a  new  witness  for  the  other  party  proposing 
to  re-examine  him,  and  may  not  only  be  examined  by  such  party, 
but  may  be  cross-examined  by  the  party  originally  producing  him. 
The  same  rule  will  also  apply  to  examinations  under  a  commission, 
where  a  Avitness  who  has  been  examined  by  one  party  may  after- 


1  Lord  Abergavenny  v.  Powell,  1  Mer. 
131;  15att  v.  IJirch,  5  Madr.  66  ;  Asbee  v. 
Shiple}-,  ib.  467;  Randall  ii.  Kichford,  1 
Cha.  Ca.  25;  but  see  K'rli  v.  Kirk,  13  Ves. 
280;  Stanney  v.  Wahnsley,  1  M.&C  361. 


2  Anfe,  pp.  924,  925;  see  also  Andrews 
V.  Brown,  1  Eq.  Ca.  Ab.  929. 
8  Ante,  p  929. 

4  Cockerell  v.  Cholmcley,  3  Sim.  313. 
6"  'i'urner  v.    I'relawncy,  9  Sim.  453. 
6  Vaughan  v.  Worrall,  2_Mad.  322. 


EXAMINATION    OF    AVITNESSES    AFTER    PUBLICATION. 


955 


wards  be  examined  by  the  other  party,  in  chief,  as  his  witness,  with- 
out an  order,  provided  such  examination  be  upon  interrogatories 
which  have  been  produced  before  the  commissioners  were  sworn. 
When  it  is  necessary  to  examine  him  upon  fresh  interrogatories, 
an  order  to  that  effect  must,  as  we  have  seen,  be  first  obtained.^ 
Thus,  where  a  motion  was  made  on  the  part  of  the  defendant,  that 
he  might  be  at  liberty  to  exhibit  fresh  interrogatories  for  the  ex- 
amination of  the  phiiutiff's  witnesses  in  the  suit,  on  the  ground 
that,  after  the  A\'itnesses  had  been  examined,  it  was  discovered  that 
they  were  interested,  Sir  Thomas  Phimer  V.  C.  made  the  order,^ 
which  was  afterwards  confirmed  on  ap2)eaL^ 

It  is  to  be  observed,  also,  that  in  the  above  case,  a  new  commis- 
sion was  necessary  for  the  pui-pose  of  taking  the  examination  of 
the  witnesses  to  the  interrogatory.  But  even  if  no  new  commis- 
sion had  been  required,  it  would  have  been  necessary  to  have  ob- 
tained an  order  for  the  exhibition  of  the  interrogatory  before  the 
Examiner;  for,  as  we  have  seen  before,  the  rule  of  the  Court  is, 
that  if  a  witness  has  been  examined  by  commissioners  in  the 
country,  he  cannot  be  examined  again  before  the  Examiner,  with- 
out a  special  order.* 

It  is  to  be  mentioned  here,  that  where  the  Court  makes  an  order 
for  permitting  the  re-examination  of  witnesses,  it  is  always  coupled 
with  a  direction  that  the  other  side  shall  have  liberty  to  cross-ex- 
amine them,^  and  that  the  proceedings  upon  such  re-examination 
are  suliject  to  the  same  rules  as  those  upon  ordinary  examination. 
In  Bridge  v.  Bridge^  however,  the  V.  C.  of  England,  upon  making 
an  order  for  re-examination  of  a  witness  to  part  of  an  interroga- 
tory (his  deposition  as  to  which  the  Examiner  had  omitted  to  take 
down),  made  it  part  of  the  order,  "that  publication  should  pass 
immediately  after  t^e  examination  or  cross-examination  (if  any) 
should  be  concluded,  and  that  the  cause  should  be  adjourned,  with 
liberty  to  the  plaintiff  to  apply  to  have  it  restored  to  the  paper 
when  publication  should  have  j^assed." 


C.XXII.§19. 


unless  new 
interroga- 
tories are 
necessary. 


Witness 
examined 
before  com- 
missioner 
cannot  be 
examined 
before  Exam- 
iner without 
order. 


Order  for 
re-examina- 
tion. 


Section  XIX,  —  Examination  of  Witnesses  after  Publication. 


After  the  depositions  of  witnesses  have  been  published  and  read  i^iustbcby 
by  the  parties,  a  new  witness  cannot  be  examined  without  an  n^^^''^'^  order j 
order  of  the  Court,  which  will  not  bo  granted  uidess  warranted  by 


1  Ante,  pp.  924,  025. 

2  Vauzhan  r.  Worrall,  ubi  supra. 

8  2  Swaiist.  ao.'j;  and  see  Selway  v. 
Chappell,  12  Sim.  1052. 

*  Seo  I'earson  v.  liowland,  3  Swanst. 
260,  n 


6  See  order  in  Cox  v.  Allingbam,  .lac. 
345;  Stanncy  v.  Walmsley,  1  M.  &  C. 
301. 

0  6  Sim.  352. 


956 


EVIDENCE. 


C.XXIl.§in.  special  circunistancos,^  oxocj^t  for  the  ]nTvj)Ose  of  providing  an  ex- 
"""^  Y  ■'  hibit  viva  voce  at  tlio  hearing,  in  M'liieh  ease,  as  avc  have  seen,  an 
uiiioss  It  IS       order  for  the  examination  of  the  witness  niav  he  obtained  on  motion 

ItllTl'lv  to  .     .  ,  *' 

I'ri.ve" exhibit   or  ])etition  ot  conrse.'- 

rifii  rocc.  ^.^j^  order  for  the  examinalion  of  a  fresh  witness  atler  pnblica- 

AKt  irrantotl       ^.  •     ^        n         t  n    f  i-   •  •  it 

without  diiK-  tion,  excejit  it  be  lor  tlie  purpose  of  aiscreditmg  a  witness  ah'cady 
culty;  examined,  is  not  obtained  without  great  difficnlty.'     Cases,  how- 

ever, do  treqnently  occur,  in  which  the  Courts  -will  allow  the  exam- 
ination of  witnesses  after  the  de))ositions  have  been  seen  ;  and  even 
at  the  hearing  of  the  cause,  leave  has  been  given  to  the  parties  to 
examine  witnesses  to  facts  which  have  been  omitted  to  be  proved 
in  the  ordinary  course.  This,  as  we  have  seen,  has  been  frequent- 
ly done  in  the  case  of  wills  disjiosing  of  real  estates,^  but  the  prac- 
tice is  not  confined  to  those  cases,  and  other  cases  have  already 
been  mentioned  in  which  the  Court  has  pennitted  such  examina- 
tions as  to  different  points,  either  by  order  made  at  the  hearing, 
or  u]X)n  petition  or  motion,  supported  l)y  proper  affidavits.*^  In 
addition  to  Avhich  it  may  be  stated,  that  an  order  for  this  pur^^ose 
may  be  obtained,  even  where  the  same  point  has  been  examined,* 
to  before.® 

In  Newland  v.  Uorsman^  an  order  was  made  for  the  examina- 
tion of  witnesses  abroad,  u])on  new  matter  stated  at  the  hearing, 
and  not  in  issue  before,  upon  terms  of  not  delaying  an  action  di- 
rected to  be  tried  at  Law ;  and  in  Gage  v.  Hunter,^  leave  was 
given,  after  publication,  to  examine  a  witness  as  to  a  particular 
fact  viva  voce,  the  defendant  being  at  liberty  to  cross-examii|^.® 

It  is  to  be  observed,  that,  in  general,  if  leave  is  given  to  examine 
a  "witness  after  publication,  and  before  hearing,  a  Master  is  some- 
times ordered  to  settle  the  interrogatories,  that  they  may  be  con- 
fined to  such  points  only  as  were  omitted  before,  and  as  are  now 
ordered  to  be  examined  unto.-'^  This,  however,  is  not  always  done  ; 
and  when  the  object  is  merely  to  prove  an  exhibit,  and  the  inter- 
rogatory w^a§  before  filed,  it  is  unnecessary, 
upon  refer-  Though,  by  the  orders  of  the  Court,  the  parties  are  to  make 

Master. *^^       their  proof  before  publication  and  hearing  of  the  cause,  yet  after 

1  Willan   V.  Willan,  19    Ves.   590-592;  2  Ante,  p.  881;  see  "Wood  v.  Mann,  2 

Hamersley  v.  Lambert,  2  .John.  Ch.  432.  Sumner,  316. 

It  seems  that  new  testimony  may  be  taken  ^  Willan  v.  Willan,  vbi  supra. 

after  publiciition,  to  facts  and  conversa-  *  Ante,  p.  858. 

tions,  occurring  after  the  original  cause  is  ^  Ante,  p.  858;   Clarke  v-  Jennings,  1 

at  issue,  and  publication  has  passed.    The  Anst.  173;  Gage  v.  Hunter,  1  Dick.  49. 

Court  may,  in  the  exercise  of  a  sound  di«-  "  Coley  v.  Coley,  2  Y.  &  J.  44;  Greeh- 

cretion,  allow  the  introduction  of  newly-  wood  v.  Parsons,  2  Sim.  229. 

discovered  evidence  of  witnesses  to  facts  '  2  Cha.  Ca.  74. 

in  issue  in  the  cause,  after  publication  and  ^  \  Dick.  49. 

knowledge  of  the   former  testimony  and  ^  See    Holies   v.   Carr,  3   Swnnst.  638, 

even  after  the  hearing.     But  ir  will   not  whore  a  similar  order  appears  to  have  been 

exercise  this  discretion  to  let  Wi  merely  made  tipon  consent. 

corroborative  testimony.     Wood  v.  Mann,  '^^  1  Harr.  (ed.  Newl.)  274. 
2  Sumner,  316. 


ness 


EXAMINATION    OF    WITNESSES    AFTER    PUBLICATION.  957 

hearing,  if  there  be  a  reference  to  the  Master  for  stating  an  ac-  C.XXII.§19. 

count  or  such  like  matter,  and  he  shall  find  any  particular  point  or    ~- y ^ 

circumstance  needful  to  ground  his  report  upon,  which  were  not 
fully  proved,  nor  could  be  properly  examined  to  before  the  Master, 
he  may  direct  the  parties  to  draw  interrogatories  to  such  points  or 
cux'umstances  only,  and  the  witnesses  are  usually  examined  before 
the  Master  upon  such  interrogatories,  if  the  witness  be  or  reside 
within  twenty  miles  of  London,  but,  if  further  ofi",  and  the  parties 
desire  it,  he  may  by  certificate,  direct  a  commission  into  the 
country.^ 

The  most  usual  cases  in  which  witnesses  are  required  to  be  To  discredit 
examined  after  j^ublication,  are  those  in  which  their  testimony  is  another  wit- 
required  for  the  purpose  of  showing  that  a  witness  already  exam- 
ined is  unworthy  of  credit."^     An  examination  for  this  purpose  is 
not,  however,  a  matter  of  course ;  it  must  have  the  sanction  of  an 
order,  the  leading  step  towards  obtaining  which,  is  the  preparing  not  granted, 
or  filins:  of  objections,  or  "articles"  in  the  Examiners  ofiice  (if  unless  upon 

o  J  '  _  •         1       -n  T    sr^'cles  pre- 

the  depositions  impeached  be  taken  m  town),  or  \n  the  Kecord  viously  filed, 
and  Writ  Clerks'  ofiice  (where  the  dej^ositions  have   been  taken 
by  commission).^ 

These  articles  may  be  in  the  following  form,  viz:  — 

Articles  exhibited  by  A.  B.,  complainant  in  a  certain  cause,  now  depending   Yorm  of 
and  at  issue  in  the  High  Court  of  Chancery,  icherein  the  said  A.  B.  is   articles. 
plaintiff,  and  C.  D.  defendant ;  to  discredit  the  testimony  of  E.  F.,  O.  H., 
and  J.  K.,  three  witnesses  examined  [before  Thomas  Halt  I'lumer,  Esquire, 
one  of  the  Examiners  of  the  Couii'},*  on  the  part  and  behalf  of  the  said 
defendant. 

1st.  The  said  A.  B.  doth  charge  and  allege,  that  the  said  E.  F. 
hath,  since  his  examination  in  the  said  cause,  owned  and  acknowl- 
edged that  he  is  to  x-eceive  or  be  paid,  and  also,  that  he  doth  ex- 
pect, a  considerable  reward,  gratuity,  recompense,  or  allowance, 
trorn  the  said  defendant,  in  case  the  said  defendant  i-ecovers  in  the 
said  cause,  or  the  said  cause  be  determined  in  his  favor,  and  that 
tlie  said  E.  F.  is  to  gain  or  lose  by  the  event  of  the  said  cause. 
2d.  The  said  A.  B.  doth  charge  and  allege,  that  the  said  G.  II. 

1  1  liarr.  (ed.  Newl.)  274.  Story,  312,  313;   Troup   v.    Siierwood,  3 

2  Altliougli  tlie  usuiil  time  for  examining       .lolin.  Cli.  558. 
as  to  the  credit  of  it  witness,  is  iil'ter  publi-  ^  Himle,  374. 

cation,  it  seems  iliat  it  may  be  done  before,  *  W  the  witnesses  have  been  examined 

provided  an  urder  lor  tiiiit  purpose  be  ob-  by  cf:mmis,-.i()n,  the  following  words  are  to 

tained.     Alill  i'.  .Mill,  12  Ves.  4Uti.     A  wit-  be  substituted  fnr  tliose  within  brackets: 

ness  may  be  examined  to  tiie  mere  credit  '■  by  virtue  of  a  cotinni>si()n,  issued  out  of 

of  the  other  witnesses,  wiio'^e  ilenositions  the  said  Court,  to  X.  V.  and  otiiers,  direct- 

huve  been  aiieady  iiiken  and  puldi-iied  in  cd  for  tiie  examination  of  witnesses  in  tlie 

the  cause,  but  he  will  not  be  allowed  to  be  Siiid  cause  upon  certain  interrogutnriesex- 

exiimin<'d,  to  prove  or  disjirove  any  fact,  hibited  liefore  them,  lor  that  purpose,  and 

material  to  the  merits  of  the  case.     \Voo(l  which  said  witnesses  were  examined  in  tho 

r.  Mann,  2  .Sumner,  :51tJ;  (jircsley  Kq    \:v.  said  cause."     Hiude,  375. 
(Am.  ed.)  13i>-144;  Jenkins  v.  Lldredge,  3 


058 


EVIDENCE. 


C.XXii.§io.  ami  J.  K.  are  persons  of  bad  morals,  and  of  evil  fame  and  character, 
and  that  they  are  yvrn'rally  re])iited  and  esteonied  so  to  be  ;  and 
tliat  tlie  said  G.  11.  and  J.  K.  are  persons  who  have  no  regard  for 
the  nature  and  eonseijuenees  of  an  oath;  and  that  they  are  persons 
whose  testimony  is  not  to  be  credited  or  believed.^ 


Use  of 
articles. 


To  give  notice 
to  the  other 
party,  of  the 
ground  of 
objection. 


All  examina- 
tions as  to 
credit  with- 
out articles, 
impertinent. 


Course  of 
proceedings 
upon  articles 


Order  for 
leave  to 
examine 

witnesses, 
motion  for 
must  be 
Epecial. 


The  exhibition  of  these  articles  is  rendered  necessary  by  one  of 
Lord  Clarendon's  Orders,-  which  directs,  that  the  Examiner  shall 
not  examine  any  witnesses  to  invalidate  the  credit  of  other  wit- 
nesses, but  by  special  order  of  the  Court,  Avhich  is  sparingly  to  be 
granted,  and  upo?i  exce2)tions  first  put  into  writing^  and  filed  with 
the  Examiner^  xoithoutfee^  and  notice  thereof  given  to  the  adverse 
party  or  his  clerk,  together  with  a  true  copy  of  the  said  exceptions, 
at  the  charge  of  the  party  so  examining. 

The  object  for  which  these  articles  are  required,  is  to  give  notice 
to  the  party  whose  witnesses  are  to  be  objected  to,  of  the  ground  of 
the  objection,  in  order  that  he  may  be  prepared  to  meet  it.  With- 
out some  notice  of  this  description,  it  would  be  impossible  for  the 
other  party  to  cross-examine  the  witnesses  to  be  adduced,  for  the 
purpose  of  discrediting  the  character  of  his  witness ;  for  as  the 
rule  of  the  Court  is,  that  you  cannot  examine  to  any  points  not 
put  in  issue  by  the  pleadings,  and  as  the  character  of  a  witness 
could  not  by  that  means  be  put  in  issue,  it  would  be  impossible 
that  the  party  should  know,  that  the  witnesses  examined  by  his 
adversary  were  for  the  purpose  of  discrediting  his  own.  For  this 
reason,  the  Court  «0t  only  requires  notice  to  be  given  of  an  inten- 
tion to  discredit  a  witness,  in  the  form  of  articles  as  above  stated, 
but  it  considers  all  examinations,  as  to  the  character  of  witnesses, 
without  the  previous  exhibition  of  such  articles,  as  impertinent, 
and  will  order  them,  and  the  interrogatories  upon  which  they  are 
taken,  to  be  suppressed.^ 

The  articles  having  been  filed,  a  certificate  thereof  must  be  pro- 
cured from  the  Examiner,  or  fi-om  the  Record  and  Writ  Clerk  with 
whom  they  are  filed,  and  an  apphcation  must  be  made  to  the 
Court,  grounded  upon  the  certificate,  for  leave  to  the  party  apply- 
ing to  examine  witnesses  thereon,  and  if  necessary  for  a  commis- 
sion, to  take  their  depositions  in  the  country.^ 

Although  by  Lord  Clarendon's  Order,  .above  referred  to,^  an 
order  for  leave  to  examine  witnesses  to  credit,  is  termed  a  special 
order,  it  is  usually  granted  as  a  matter  of  course ;  ^  and  may  be 
obtained  either  by  motion,  or  by  petition  at  the  Rolls,  without 


1  Hinde,  376. 

2  lieames's  Ord.  187. 

3  Mill  y.  Mill,  12  Ves.  406. 


4  Hinde,  377. 

6  Beames's  Ord.  187. 

6  Kussell  V.  Atkinson,  2  Dick.  532. 


EXA3IIXATI0N    OF    -WITNESSES    AFTER    PUBLICATIOX.  959 

affidavit,  upon  the  certificate  of  articles  being  filed.^  It  seems,  C.XXII.  §19. 
however,  that  if  made  by  motion,  it  should  be  upon  notice ;  -  and 
that  if  the  application  is  made  after  considerable  delay,  and  the 
hearing  of  the  cause  will  thereby  be  deferred,  the  Court  will  refuse 
the  order,  or  qualify  it,  by  du-ecting  that  it  shall  not  delay  the 
hearing  of  the  cause.^  There  is,  however,  no  precise  time  Avithin 
which  the  application  must  be  made.^ 

Where  a  commission  is  required,  it  has  generally  been  directed  Where  com- ' 
to  the  same  commissioners  as  w^ere  named  in  the  fonner  commis-  ^q^eVf 
sion,*  but  a  commission  will  not  be  dii-ected  for  the  pui-jDose  of  not  granted 
examining  witnesses  abroad,  for  which  purpose,  Ireland  is  con-  ^'^road. 
sidered  as  a  foreign  part,  unless  in  case  of  great  emergency ;  and 
where  it  is  sworn,  that  no  person  in  England  can  prove  any  thing 
as  to  the  witness's  credit.*    If  a  party,  who  has  obtained  a  com-  Must  be  exe- 
mission  to  examine  a  witness  to  credit,  delays  the  execution  of  it  hearing!*""^^ 
till  after  the  decree,  he  Avill  be  made  to  pay  the  costs.''     The 
method  of  proceeding  under  an  order  of  this  nature,  whether  be- 
fore the  Examiner  or  under  a  commission,  is  precisely  similar  to 
that  pointed  out  in  ordinary  cases. 

The  order  usually  directs,  that  the  party  applying  be  at  liberty  Xature  of 
to  examine  witnesses,  "  as  to  credit,  and  as  to  such  particular  facts  pgi^iJ^tted."'^ 
only  as  are  not  material  to  what  is  in  issue  in  the  cause ; "  ^  and 
under  it  the  party  is  at  liberty  to  examine  witnesses,  not  only  to 
the  general  character  of  the  witness  whose  credit  is  impeached, 
but  also  for  the  puipose  of  contradicting  particular  facts  sworn  to 
by  the  witness,  provided  such  facts  are  not  material  to  the  issue 
in  the  cause,°  as  in  Furcell  v.  M''Namara^^  where  the  matter  to  be 
examined  to  was,  whether  the  witness  had  not  been  a  woollen- 
di-aper  and  insolvent,  Avhich,  upon  his  cross-examination,  he  had 
denied ;  or  in  Chioers  v.  Bax,^^  where  the  articles  charged,  that 
though  the  witness,  in  her  deposition  for  the  plaintiff,  had  deposed 
that  she  lived  with  him  as  his  milkmaid  in  1775,  she  did  not  live 
with  him  in  that  or  any  other  capacity  till  1786,  and  that  she  had 
confessed  to  that  effect,  and  that  she  had  been  prevailed  ujion  so 
to  depose  at  the  instigation  of  the  plaintiff's  tithuig-man,  mIio  was 
another  witness  for  the  jtlaintiff,  and  for  a  reward.     In  Ambrodo 

1  Hinde,  377 ;  Watmore  v.  Dickson,  2  V.       taken  after  publication  and  before  lienring, 
&  li.  "207.  but  the  interrogatories  mu>t  be  so  shaped, 

2  Ihid.  as  to  prevent  tlic  party,  umlcr  color  of  an 
8  White  V.  Fusscll,  19  V'es.  127.  feXMniination  as  to  credil,  from  procuring 
*  Piggott  V.  ( 'riixlialj,  1  S.  &  8.  467.  tesliinotiy  to  overcome  that  ah-eady  taken 
6  Wood  V.  llaiiimertoii,  'J  Ves.  145.  and  publisiied  in  tlie  cause.  Gass  v.  Slm- 
6  Calhighan  f.  iJochfort,  3  Atk.  043.  son,  2  Sumner,  GOO;  Wood  v.  ,Maini,  2 
1  White  V.  l'uss(:ll,  1  V.  &  li.  151.  Sumner,  310;  1  roup  v.  Sherwood,  3  John. 
8  i'urcell    V.    M'Namara,    8   Ves.    324  ;        Cli.  55«. 

Wood  V.  Ilammerloii,  K  Ves.  14.j;  i'iggott  1"    U hi  supra. 

V.  Cro.xhiill,  1  S.  &  S.  407.  "  Scacc;  cited  8  Ves.  324. 

"  This    proceeding  may,   ordinarily,  bo 


900 


EVIDENCE. 


When?  to  ]iar- 
ticular  tact,  it 
imist  be  cim- 
tined  to  facts 
not  in  iss'ue. 


O.xxii. §10.  V.  Fraiicia,^  the  nrtlclos  cluiriicd  tltnt  one  of  the  witnesses  who 
h;ul  been  exaniiueil  lor  :i  deleiulaut,  to  nine  out  of  seventeen  inter- 
rogatories, by  the  description  of  Mary  AVhite,  widow,  was  the  wife 
of  the  tU'fendant,  and  known  to  be  siieli  at  the  time  of  the  exam- 
ination, sugiiestotl  that  if  slie  was  not  his  wife,  she  lived  with  him, 
and  an  imjiroper  intimacy  subsisted  between  them,  and  the  order 
was  that  the  jjhiintilf  should  be  at  liberty  to  examine  to  that  fact, 
and  also  to  the  competence  and  credit  of  the  witness. 

It  seems,  also,  that  witnesses  may  be  examined  to  discredit  other 
witnesses,  by  jtroving  that  })reviously  to  their  examination,  they 
had  made  declarations  contrary  to  their  depositions.'^ 

But,  although  the  order  permits  the  examination  of  witnesses  to 
particular  facts  as  well  as  to  general  credit,  for.  the  purj^ose  of  con- 
tradicting a  witness  previously  examined,  such  facts  must  be 
strictly  confined  to  those  not  in  issue  in  the  cause/  ^  and  you  can 
only,  in  examining  as  to  the  credit  of  the  witness,  put  general  ques- 
tions, as  "  wliether  you  would  believe  the  witness  upon  his  oath."  * 
It  is  not  competent,  even  at  Law,  to  ask  the  ground  of  that  opinion, 
but  only  the  general  question  is  permitted.^  The  regular  mode  of 
examining  into  general  character,  is  to  inquire  of  the  witnesses 
whether  they  have  the  means  of  knowing  the  former  witness's 
general  character,  and  whether  upon  such  knowledge  they  would 
believe  him  upon  his  oath.^ 

It  is  to  be  noticed,  that  although  articles  may  be  exhibited  as  to 
the  credit  of  witnesses  after  publication,  they  are  never  allowed 
as  to  their  cotnpetency^  because  it  is  said  this  might  have  been 
examined  to  and  inquired  into  upon  the  examination  ;  "^  and  it  is 
for  this  purpose  that  a  notice  of  the  witness's  name  and  place  of 
abode  is  lelt  with  the  solicitor  of  the  opposite  party  before  exam- 

1  oth  of  August,  IT-IS;  cited  ibid. 

2  Piggott  V.  Croxhall,  4  S.  &  S.  477. 

3  Aiiou.,  3  Y.  &  13.  i*4;  see  Troup  -o. 
Sherwood,  3  Juhii.  Ch.  55h,  and  next  note 
above;  Jenkins  v.  Kldredge,  3  Story  C.  C. 
312,  313;  Wood  v.  Mann,  '2.  Sumner,  31(5. 

4  Anon  ,  3  V.  &  B.  94.  Upon  such  ex- 
amination, the  rule  of  evidence,  as  to  ini- 
peaciiiug  the  credit  of  witnesses,  is  the 
same  iu  Equity  as  at  Law.  Ihe  inquiry 
must  Oe  geneial  as  to  the  general  character 
of  the  witness  lor  veraeitj-.  Troup  v.  bher- 
wood,  3  Jolin.  Ch.  558.  The  practice  in 
reference  to  the  extent  of  inquiry  that  may 
be  niude  respecting  the  character  of  the 
witness  to  impeach  his  creuit,  and  the 
questions  that  may  be  put,  is  not  unitorm 
ill  tlie  American  States.  See  1  Greeiil. 
Ev.  §  401;  Anon.,  1  Uili  (S.  C),  251,  25S, 
25y;  Hume  c  Scott,  3  A.  K.  Aiarsh.  201, 
202;  State  V.  lioswell,  2  Dev.  Law,  200, 
210;  I'eople  I'.  Mather,  4  Wend.  257,  258; 
Fhiilips  c.  Kinglield,  19  Maine,  375;  Gass 
V.  Stiusou,  2  sumuer,  010;  Wike  e.  Light- 


Articles  never 
allowed  as  to 
competency. 


ner,  11  Serg.  &  R.  196;  1  Phil.  Ev.  (Cow- 
en  &  Hill's  ed.  1839)  291-293,  notes  (530) 
(531);  2  id.(Cowen  &  Hill's  notes)  p.  763- 
770. 

5  Carlos  v.  Brook,  10  Ves.  49,  60. 

6  Phil.  &  Amos,  925.  The  regular  mode 
of  exiimining  into  the  general  reputation 
is  to  inquire  of  the  witness,  whether  he 
knows  the  general  reputation  of  tlie  person 
ill  question,  among  iiis  neighbors ;  and  what 
that  reputation  is,  whether  it  is  good  or 
whether  it  is  bad.  In  tlie  English  C^ourts 
the  course  is  further  to  inquire,  whether 
(romsucli  knowledge,  the  witness  would  be- 
lieve that  person  upon  his  oath.  In  the 
American  Courts  the  same  course  has  been 
pursued;  but  its  propriety  has  been  ques- 
tioned, and  perhaps  the  weight  of  authority 
is  now  against  peimittiug  tiie  wiiness  to 
testily  to  his  own  opinion.  1  Greenl.  Ev. 
§  401;  Gass  v.  Stinson,  2  Sumner,  010; 
Kinimel  y.  Kimmel,  3  Serg.  &  K.  337,  338; 
Philli|)s  V.  Kingheld,  19  .Maine,  375. 

7  CuUaghan  v.  liochfort,  3  Atk.  043. 


EXAMINATIOX    OF    AYITNESSES    AFTER   PUBLICATION. 


961 


Fomiof  inter- 
rofi^atories. 


ination  ;  and  that,  under  the  old  practice,  the  witness  himself  was  C.xxii.  §19 
produced.^ 

Interrogatories  adapted  to  the  inquiry  intended,  must  be  drawn 
and  filed  in  the  same  manner  as  upon  examination  in  chief,  and 
the  witnesses  examined  thereon,  either  by  commission  or  at  the 
Examiner's  office.  The  other  party  may  cross-examine  those  wit- 
nesses, as  to  their  means  of  knowledge  and  the  grounds  of  their 
opinion,  or  may  attack  their  general  character,  and,  by  fresh  evi- 
dence, supjiort  the  character  of  his  own  witness.- 

The  rules  as  to  passing  publication,  &c.,  are  the  same,  mutatis  Publication, 
mutandis,  as  those  to  be  observed  in  ordinary  cases. 

Where  an  objection  is  established  to  the  competency  of  a  wit- 
ness, his  dejiosition  cannot  be  read  ;  ^  but,  where  the  objection  is 
only  to  his  credit,  it  must  be  read  and  left  to  the  consideration  of 
the  Court  on  the  whole  evidence  of  the  case.^ 


&c. 


1  Hinde,  375. 

2  Hinde,  375,  377.  If  the  witness  be  im- 
peached, evidence  of  his  general  good 
character  has  been  held  admissible.  Rich- 
mond r.  Kichmond,  18  Yerger,  343;  1 
Greenl.  Ev.  §  461 ;  see  People  v.  Davis,  21 
Weud.  309. 


3  The  deposition  of  a  disinterested  per- 
son who  afterwards  becomes  interested, 
may  be  read.  Hitchcock  v.  Skinner,  1 
Hotf.  Ch.  21. 

4  Dixon  V.  Parker,  2  Yes.  219,  220. 


END   OF   VOL.   I. 


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